City of Santa Monica (PERB 2246M)

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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD

PATRICIA W. GORDON,
Charging Party, Case No. LA-CE-426-M
v. PERB Decision No. 2246-M
CITY OF SANTA MONICA, | April 6, 2012
Respondent.

Appearance: Patricia W. Gordon, on her own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
~ DECISION

MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Patricia W. Gordon (Gordon) of a PERB Office of the General
Counsel’s partial dismissai (attached) of her unfair practice charge. The charge, as amended,
alleged that the City of Santa Monica (City) violated the Meyers-Milias-Brown Act (MMBA)'
when it engaged in a variety of unlawful conduct including denial of raises and promotions,
interference with union representation by rejecting information requests, retaliation, and
intimidation. Having concluded that certain allegations were untimely and other allegations
failed to state a prima facie case, the Board agent issued a partial dismissal.”

We have reviewed the entire record in this matter. The only issue raised on appeal is

whether Gordon has standing to pursue the allegation that the City failed to comply with

' The MMBA is codified at Government Code section 3500 set seq.

* On July 1, 2011, PERB issued a complaint against the City. The complaint alleged
that the City interfered with employee rights in violation of MMBA section 3506 and therefore
committed an unfair practice under MMBA section 3509, subdivision (b) and PERB
Regulation 32603, subdivision (a) when it changed the notice Gordon would be required to
provide in order to take off time for union business. (PERB regulations are codified at Cal.
Code Regs., tit. 8, sec. 31001 et seq.)

information requests. As the Board agent explained, an individual employee does not have
standing to pursue an allegation that an employer engaged in bad faith bargaining by failing to
comply with an information request. (State o f California (Department o f Corrections) (2003)
PERB Decision No. 1559-S.) Gordon advances no argument on appeal that was not
considered and addressed by the Board agent in processing the charge. The Board finds the
Board agent’s first and second partial warning and partial dismissal letters to be well-reasoned,
adequately supported by the record and in accordance with the applicable law. Accordingly,
the Board adopts the first and second partial warning and partial dismissal letters as the
decision of the Board itself.
ORDER
The partial dismissal of the unfair practice charge in Case No. LA-CE-426-M is hereby
AFFIRMED.
Members Dowdin Calvillo and Huguenin joined in this Decision.

STATE OF CALIFORNIA EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2805
Fax: (818) 551-2820
July 1, 2011
Patricia W. Gordon
Re: Patricia W. Gordon v. City o f Santa Monica
Unfair Practice Charge No. LA-CE-426-M
PARTIAL DISMISSAL
Dear Ms. Gordon:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) by the Santa Monica Municipal Employees Association (SMMEA or
Union) against the City of Santa Monica (City or Respondent) on December 31, 2007 (original
charge), and amended on March 12, 2008 (first amended charge), March 26, 2008 (second
amended charge), May 2, 2008 (third amended charge), and December 3, 2008 (fourth
amended charge). A motion seeking to add Patricia Gordon (Gordon or Charging Party) as a
charging party was filed on October 31, 2008 and subsequently granted by PERB. By letter
dated November 3, 2010, SMMEA notified PERB of its request to withdraw as a charging
party to the charge, and PERB subsequently issued a Notice of such withdrawal on November
8, 2010. Accordingly, SMMEA is no longer a party to and has been removed from the caption
in this case.
Charging Party was informed in the attached Partial Warning Letters dated October 26, 2010
and November 8, 2010, that certain allegations contained in the charge did not state a prima
facie case. You were advised that, if there were any factual inaccuracies or additional facts
that would correct the deficiencies explained in those letters, you should amend the charge.
You were further advised that, unless you amended these allegations to state a prima facie case
or withdrew them prior to November 15, 2010, the allegations would be dismissed. On
November 15, 2010, we spoke on the telephone and discussed your desire to place the charge
in abeyance. On that same date you sent a letter to PERB and the Respondent requesting that
the charge be placed in abeyance until January 30, 2011, and PERB subsequently issued a
letter to the parties acknowledging that the charge was in abeyance.1 On January 3 1 , 2011, you
removed the charge from abeyance and filed a fifth amended charge.2*
1 Because January 30, 2011 fell on Sunday, the charge was placed in abeyance until
January 31, 2011.
2 On February 17, 2011, the City filed a motion to dismiss the charge on the grounds
that the conduct alleged in the fifth amended charge does not fall within the six-month period
prior to January 31, 2011, and therefore is untimely under Coachella Valley Mosquito and
Vector Control District v. Public Employment Relations Bd. (2003) 114 Cal.App.4th 46.

LA-CE-426-M
July 1, 2011
Page 2
The fifth amended charge contains new factual allegations regarding retaliation against
Gordon. The first and second Partial Warning Letters fully set forth the pertinent facts
underlying the allegations contained in the charge as originally filed and previously amended
(amendments one through four), and also provided PERB’s rationale regarding the reasons that
some of those allegations are found to be deficient. Only facts regarding new allegations in the
fifth amended charge are summarized in this Partial Dismissal Letter. In sum, the fifth
amended charge alleges that the City retaliated against Gordon for her protected activities in
violation of the Meyers-Milias-Brown Act (MMBA)3 by: (1) failing to provide her an equity
salary adjustment per the results of a compensation study; (2) denying her the opportunity to
promote by manipulating the testing process for promotional positions; (3) providing negative
performance evaluations; (4) requiring a doctor’s note for a five-day absence; (5) circulating an
e-mail message that stated employees were afraid of Gordon; and (6) involuntarily transferring
her to a less-desirable work location when she returned to work after an injury.
Facts as Alleged in the Fifth Amended Charge
Background
Gordon has been employed as a Groundskeeper for the City for approximately 20 years and is
also a “Certified Arborist.”
1. Failure to Give Equity Salary Adjustment
Gordon alleges that “Donna Peters, Director of Human Resources, is retaliating against me by
not giving my classification, Groundskeeper, a deserved ‘equity salary adjustment’....”
In “2008,” Gordon states that “we”4 submitted a request for a Compensation study and
requested also that the Union take up the compensation issue for Groundskeepers in
negotiations. Gordon found errors in the study and “appealed” to the City Human Resources
department to remove the City of Long Beach as a comparison city because the City of Long
Beach no longer employed Groundskeepers and therefore was inappropriate for comparison.
Ms. Peters informed the Union’s attorney via e-mail message that Compensation Studies are
not grievable. Gordon then sent an e-mail message to Ms. Peters protesting that in 2000 the
City made corrections to a Compensation Study that resulted in an equity salary adjustment
being awarded. Ms. Peters never responded to Gordon’s e-mail message. Gordon alleges that
all other classifications within the department received a 5% salary increase as an equity
adjustment, and that the City withheld this wage increase from Groundskeepers because she
was successful in having CalPERS grant additional years of service credit to now permanent
employees who previously had been hired “as needed” and for “other grievances I submitted
when I was an SMMEA Union Director.”
3 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board’s Regulations may be found at www.perb.ca.gov.
4 It is not clear to whom “we” refers.

LA-CE-426-M
July 1 , 2011
Page 3
2. Testing for Promotional Positions
Gordon alleges that City management has “retaliated against me because I filed numerous
complaints/grievances for myself and on behalf of others while I was an [SM]MEA Director,
[SM]MEA Steward and employee.”
Gordon states generally that the City has:
[P]urposefully hindered and/or stopped me from advancing to
higher level positions. They did this by ensuring I would not pass
tests or I would get a low score so I would not be eligible for an
interview.
Gordon provides two specific examples of promotional tests for which she has applied but not
passed: Equipment Operator I, “given in 2010”; and Airport Maintenance Worker “in 2009”.
Regarding the Equipment Operator I exam process, Gordon states that previously the testing
process for this position consisted of a performance test and an oral interview panel conducted
by an outside panel on the same day, then the top three scoring candidates would be called for
an interview by City management at a later time. Instead, Gordon alleges that when she tested
for the position in 2010, the process was changed such that the performance test became the
final interview. As to the Airport Maintenance Worker exam, the process only consisted of a
performance test and did not include an oral component. It appears that all the candidates who
tested for these two positions participated in the same process.
3. Negative Evaluations
Gordon alleges that the City “retaliated against me for complaints I filed by giving me negative
evaluations.” Gordon states that in 2008, Parks Superintendent Darrell Baker stopped her
performing specific duties that would make her parks “shine,” such as hand mowing the
baseball field, thereby making it more difficult for her to receive an “excellent” performance
rating. Gordon also states that “last year” Mr. Baker and Parks Supervisor Judy Dragon
informed her she could no longer prune trees at Reed Park. Gordon has been pruning trees in
City parks for the last 20 years. When Gordon told a Park Ranger that she had been told to
stop, the Park Ranger said words to the effect that it was because Gordon made the park “look
better.” Gordon received an allegedly negative performance evaluation for the period from
March 2008 to March 2009.5 Gordon states, “Management purposefully used one negative
instance so they could define my work performance in a negative way.”
5 The only descriptions of the evaluation in the statement of the charge are comments
that Gordon is “close minded” and “argumentative” and that the evaluation “lied about
[Gordon’s] performance.” The copy of the evaluation provided as an exhibit to the fifth
amended charge is mostly illegible because of poor copy quality, and the various comments
sections could not be deciphered. It is noted that the overall rating on the evaluation was
“Meets Standards.”

LA-CE-426-M
July 1, 2011
Page 4
4. Requiring a Doctor’s Note
Gordon alleges that Mr. Baker retaliated against her by requiring her to supply a doctor’s note
when she was absent for five unspecified days in 2010 because she had the flu. Gordon states
that in her 20-year employment, and even when absent for more than five days, she had never
before been required to submit a doctor’s note.
5. E-mail Rumor
Gordon alleges that an e-mail message sent to employees stating “employees are afraid of you”
was “attributed to Human Resources by then SMMEA President Jeri Wingo.” Gordon
requested a meeting over the e-mail and met with Human Resources Director Donna Peters
who stated words to the effect that “HR does not act in this manner.” Gordon believes that the
City spreads rumors about her because she generally has good relations with supervisors, but
after they “visit HR these same supervisors do not respond to me or are negative.”
6. Transfer to Douglas Park
Gordon alleges that the City “transferred me to Douglas Park in December 2009 because I had
filed and won grievances against the City and defended employees on discipline.” Gordon
broke two ribs in October 2009 while working at Reed Park, which had been her assigned work
location for the previous 10 months. As a result of that injury, she was off work for
approximately seven weeks. She returned to work on “light duty” per her doctor’s instructions
at Reed Park. Gordon states that prior to her injury she had done a great deal of work at Reed
Park—e.g., pruning, weeding, and planting—and a result of that prior work the Park was “up
to par,” and therefore suitable for her light duty assignment. On her second day back to work,
the City transferred her to Douglas Park. Gordon states that Douglas Park is:
a much more labor intensive park that has not been maintained
properly for many years and required a lot of weed and brush
removal entailing much bending, lifting, etc.
Additionally, Gordon states that the children’s play area at Douglas Park is twice the size of
that at Reed Park and requires an additional hour of raking and sweeping sand, which is a task
difficult for someone with a rib injury. Gordon notes that in the past Douglas Park has always
had two employees assigned, whereas Reed Park has only had one assigned employee, and that
Douglas Park requires much more foot travel to dispose of yard debris than Reed Park.
Gordon states that these differences in workload between the two parks is well-known to
management and alleges that the reason for her transfer, while she was still recovering from
her injury, was therefore retaliatory.
For the reasons to follow, the above-discussed allegations do not demonstrate a prima facie
violation of the MMBA and must therefore be dismissed from the charge.

LA-CE-426-M
July 1 , 2011
Page 5
Discussion
The October 26, 2010 Partial Warning Letter (first Partial Warning Letter) advised Charging
Party that PERB Regulation 32615(a)(5)6 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.” A charging party’s burden includes alleging the “who, what, when, where and how”
of an unfair practice. (State o f California (Department o f Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.)7 Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.) A charging party must also
demonstrate timeliness of the charge, i.e., that the conduct alleged to violate the MMBA
occurred no 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 standard that must be met to demonstrate retaliation for protected conduct under the
MMBA was also set forth in the first Partial Warning Letter. To reiterate, a 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).)
The first Partial Warning Letter further advised that in order to demonstrate the necessary
connection or “nexus” between protected conduct and adverse action, in addition to close
temporal proximity between the action and the protected conduct, facts establishing one of the
following additional factors must be shown: (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 o f California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer’s
cursory investigation of the employee’s misconduct (City o f 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,
6 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
7 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 o f Vallejo (1974) 12 Cal.3d 608.)

LA-CE-426-M
July 1 , 2011
Page 6
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.)
The original charge filed on December 31, 2007 alleged that the City retaliated against Gordon
for her protected conduct of filing grievances on her own behalf and on the behalf of other
employees, but did not provide any examples of alleged adverse action against Gordon. The
amended charges (one through four) did not allege retaliation against Gordon. The first Partial
Warning Letter concluded that because no instances of adverse action had been shown in the
original charge, this allegation did not state a prima facie case. The first Partial Warning Letter
specifically advised Charging Party, at footnote 18:
In the absence of facts sufficient to establish the requisite
“adverse action” element, the “nexus” element is not further
analyzed herein. Any amended charge seeking to correct the
“adverse action” deficiency should also address the “nexus”
element per the factors described above.
The fifth amended charge provides specific examples of alleged adverse actions taken against
Gordon, but these new factual allegations fail to state a prima facie case because they are not
timely. PERB has found that an amendment “relates back” to the original charge only when it
clarifies facts alleged in the original charge or adds a new legal theory based on facts alleged in
the original charge. (Sacramento City Teachers Association (Franz) (2008) PERB Decision
No. 1959; see also, Sacramento City Teachers Association (Marsh) (2001) PERB Decision
No. 1458 [statute of limitations for a new allegation contained in an amended charge begins to
run based on filing date of amended charge, not original charge]; The Regents o f the University
o f California (Lawrence Livermore National Laboratory) (1997) PERB Decision No. 1221-H
[new legal theories relate back to filing of original charge; new factual allegations do not].)
The fifth amended charge provides new factual allegations regarding alleged adverse actions
occurring in 2009 and 2010. These new allegations cannot clarify facts related to allegations
of retaliation in the original charge, because they occurred long after the statutory period for
the original charge (i.e., June 30, 2007 through December 31, 2007). Accordingly, the
allegations discussed herein do not relate back to the original charge. (Sacramento City
Teachers Association (Franz), supra, PERB Decision No. 1959.) Furthermore, these
allegations are untimely because they all occurred more than six months prior to the filing of
the fifth amended charge on January 3 1 , 2011.8 (Sacramento City Teachers Association
(Marsh), supra, PERB Decision No. 1458.) Therefore, these allegations must be dismissed. 9
8 It is noted that none of the allegations recounting events in 2010 provided any specif
dates, so it cannot be determined whether those allegations occurred within six months of the
filing of the fifth amended charge on January 31, 2011. A lack of specific dates of conduct
ic

LA-CE-426-M
July 1, 2011
Page 7
Conclusion
For the reasons discussed herein, and for the facts and reasons stated in the October 26, 2010
and November 8, 2010 Partial Warning Letters, the following allegations fail to state a prima
facie case and are dismissed from the charge: (1) all allegations regarding conduct occurring
prior to June 30, 2007; (2) “Me Too” clause; (3) denial of promotional opportunities for unit
employees; (4) retaliation against Gordon regarding: failure to provide equity salary
adjustment, testing for promotional positions, negative evaluations, requiring a doctor’s note,
e-mail rumor, and transfer to Douglas Park; (5) City “tacitly instilling fear in employees”; (6)
unit employees’ CalPERS accounts grievance; (7) Workers’ Compensation/Code 40 grievance
(including retaliation against unit employees); (8) unit employees’ compensation study
grievance; (9) unit employees’ out-of-class pay grievance; (10) letter to City Council
(interference); (11) number of Union representatives allowed to attend employee discipline
meetings; (12) general pattern of interference; and (13) all allegations related to requests for
information.
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. (PERB Regulation 32635(a).) Any document filed with the Board must contain
the case name and number, and the original and five (5) copies of all documents must be
provided to the Board.
A document is considered “filed” when actually received during a regular PERB business day.
(PERB Regulations 32135(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. (PERB Regulation 32135(b),
(c) and (d); see also PERB Regulations 32090 and 32130.)
does' not meet Charging Party’s burden to state a prima facie case. (United Teachers o f
Los Angeles (Seliga) (1998) PERB Decision No. 1289.)
9 Even if timeliness of the retaliation allegations was established, they would still fail to
state a prima facie case. Charging Party does not provide specific facts (e.g., dates and
descriptions) regarding her protected conduct other than to state generally that she filed
grievances and made complaints. This does not satisfy the Charging Party’s burden of
pleading the charge with requisite specificity. (United Teachers-Los Angeles (Ragsdale),
supra, PERB Decision No. 944.) Additionally the lack of specific dates of protected conduct
make it impossible to establish the temporal proximity element required to show a nexus
between protected conduct and adverse action. (North Sacramento School District, supra,
PERB Decision No. 264.)

LA-CE-426-M
July 1, 2011
Page 8
The Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If Charging Party files a timely appeal of the refusal to issue a complaint, any other party may
file with the Board an original and five (5) copies of a statement in opposition within twenty
(20) calendar days following the date of service of the appeal. (PERB Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be “served” upon all parties to the
proceeding, and a “proof of service” must accompany each copy of a document served upon a
party or filed with the Board itself. (See PERB Regulation 32140 for the required 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. (PERB
Regulation 32135(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. (PERB Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.

LA-CE-426-M
July 1, 2011
Page 9
Sincerely,
M. SUZANNE MURPHY
General Counsel
B y
Valerie Pike Racho
Regional Attorney
____________________________
Attachment
cc: Barbara Greenstein, Deputy City Attorney

STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2805
Fax: (818) 551-2820
November 8, 2010
Patricia W. Gordon
Re: Patricia W. Gordon v. City o f Santa Monica
Unfair Practice Charge No. LA-CE-426-M
SECOND PARTIAL WARNING LETTER
Dear Ms. Gordon:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) by the Santa Monica Municipal Employees Association (SMMEA,
Union, or Charging Party) against the City of Santa Monica (City or Respondent) on December
31, 2007 (original charge), and amended on March 12, 2008 (first amended charge), March 26,
2008 (second amended charge), May 2, 2008 (third amended charge), and December 3, 2008
(fourth amended charge). A motion seeking to add Patricia Gordon (Gordon or Charging
Party) as a charging party was filed on October 31, 2008 and subsequently granted by PERB.
PERB informed Charging Parties in a Partial Warning Letter dated October 26, 2010 that
allegations of unfair practices under the Meyers-Milias-Brown Act (MMBA)1 occurring prior
to June 30, 2007, as well as allegations that the City failed to follow the memorandum of
understanding (MOU) between SMMEA and the City, and certain allegations of interference
with protected activity, did not state a prima facie case.2 Charging Parties were advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, they should amend the charge. Charging Parties were also advised
that, unless they further amended the charge to state a prima facie case or withdrew it prior to
November 9, 2010, the charge would be dismissed.
On October 28, 2010, Gordon advised the undersigned in a telephone conversation that she had
received the October 26 Partial Warning Letter, did not intend to file an amended charge in
1The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board’s Regulations may be found on the Internet at www.perb.ca.gov.
2 The letter also advised that allegations that the City failed to provide information
requested after June 30, 2007, and interfered with protected activity, specifically, by changing
required notice of requests for release time, were to be addressed in a separate PERB
document.

LA-CE-426-M
November 8, 2010
Page 2
response to the Partial Warning Letter, and understood that all of the allegations identified as
deficient in that letter would therefore be dismissed from the charge.
In a telephone conversation with the undersigned on or about November 1, 2010, SMMEA
President Martha Santana confirmed receipt of the October 26 Partial Warning Letter issued by
PERB in this matter. By letter dated November 3, 2010, SMMEA notified PERB of its desire
to withdraw as a charging party to the charge.3
Because the Union is no longer a party to the charge, the allegation that the City failed to
respond to an information request (which was not addressed in the Partial Warning Letter; see
footnote 2 above) will be addressed herein and subsequently dismissed per the discussion
below.4
Discussion: Standing
An employer’s duty to provide, upon request, necessary and relevant information to an
exclusive bargaining representative derives from the duty to bargain in good faith. (Trustees of
the California State University (1987) PERB Decision No. 613-H.)56 As discussed in the
previous Partial Warning Letter, the duty to bargain in good faith is only owed between an
employee organization and the employer, and does not apply to the relationship between an
individual employee and the employer. (Bay Area Air Quality Management District (2006)
PERB Decision No. 1807-M.) By this rationale, PERB has found that an individual employee
does not have standing to pursue an allegation that an employer failed to comply with a request
for information, because the duty to provide information only extends to an employee
organization. (State of California (Department o f Corrections) (2003) PERB Decision
No. 1559-S.) Accordingly, Gordon, as an individual, lacks standing to allege that the City
----------- -------------------------- :------------ ^
3 PERB subsequently issued a Notice of such withdrawal on November 8, 2010.
Accordingly, SMMEA is no longer a party to and has been removed from the caption in this
case.
4 As more fully set forth in the October 26 Partial Warning Letter, Gordon, on or
around June 30 and August 7, 2007, at a time when she held a leadership position in the Union
(i.e., the position of “director”), requested that the City provide her with certain information
pertaining to the City’s conduct of compensation and classification studies. The City,
allegedly, did not provide the information requested.
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 o f Vallejo (1974) 12 Cal.3d 608.)

failed to respond to information requested in June and August 2007, and this allegation must,
based on the current record, be dismissed.
For these reasons the allegation that the City did not provide requested informationdoes not
state a prima facie case.7 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 Fifth 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 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 November 15, 2010,8 PERB will dismiss the above-described allegation from your
charge. If you have any questions, please call me at the telephone number listed above.
Sincerely,
Valerie Pike Radio
Regional Attorney
YR
6 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.)
1A document is “filed” on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)

STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2805
Fax: (818) 551-2820
October 26, 2010
Patricia W. Gordon
Re: Santa Monica Municipal Employees Association & Patricia W, Gordon v. City o f Santa
Monica
Unfair Practice Charge No. LA-CE-426-M
PARTIAL WARNING LETTER
Dear Ms. Gordon:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 31, 2007 (original charge), and amended on March 12,
2008 (first amended charge), March 26, 2008 (second amended charge), May 2, 2008 (third
amended charge), and December 3, 2008 (fourth amended charge). A motion seeking to add
Patricia Gordon as a charging party was filed on October 31, 2008 and subsequently granted by
PERB. The Santa Monica Municipal Employees Association (SMMEA, Union, or Charging
Party) and Patricia W. Gordon (Gordon or Charging Party) allege that the City of Santa
Monica (City or Respondent) violated the Meyers-Milias-Brown Act (MMBA or Act),1 by
interfering with protected activity, failing to provide requested information, and failing to
follow the parties’ memorandum of understanding (MOU). Investigation of the charge
revealed the following information.2
The charge, as amended, is approximately 500 pages including exhibits. This letter provides a
summary of pertinent information.3 Gordon filed the unfair practice charge on behalf of the
1The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board’s Regulations may be found on the Internet at www.perb.ca.gov.
2 This letter does not address allegations of failure to provide information requested
after June 30, 2007, or certain allegations of interference with protected activity (i.e., required
notice of requests for release time) occurring after June 30, 2007. Information regarding such
is provided herein for background purposes only. Those allegations will be addressed by
PERB in a separate document.
3 As will be discussed in more detail below, much of the information provided in the
charge and amendments involves allegations of unfair practices occurring prior to the six-
month period preceding the filing of the charge, and are therefore untimely and will not be
discussed substantively in this letter. In brief, these incidents include, but are not limited to:
(1) all documents related to a civil lawsuit by Gordon against the City in 2000 (including the

Union on the last day that she held the Union leadership position of “Director.”4 In its position
statement filed January 22, 2008, the City alleges that Gordon lacks standing to file the unfair
practice charge on behalf of the Union because the address supplied for the Charging Party is
Gordon’s home address, and as of January 9, 2008, the Union president was unaware that a
charge had been filed. However, on April 23, 2008, PERB sent a facsimile copy of the original
charge to the Union’s attorney.5 In addition, voice-mail messages were left by PERB for the
Union president and Union attorney over a period of several months, and the Union did not
respond to PERB’s inquiries. Therefore, as it is clear that the Union is aware that a charge was
filed with PERB and it took no action regarding such, it appears that the Union intends to
pursue the charge.
Facts as Alleged by the Charging Parties
Original Charge
The Union and the City were, at all times relevant to this matter, parties to a memorandum of
understanding (MOU) containing a “me too” clause. Beginning in July 2007, the City
bargaining unit exclusively represented by the United Transportation Union (UTU) received a
4.5% salary increase. The bargaining unit represented by SMMEA did not receive the same
salary increase.
Gordon states that City employees are deprived of the ability to promote by the City’s Human
Resources Department (HR). Supervisory positions require “supervisory experience.” To
qualify for supervisory positions, Gordon contends that an employee would have to leave City
employment, gain the necessary experience, and then re-apply for a supervisor position within
the City. The City offers a program called the “In House Academy” to substitute for
supervisory experience in some instances, but Gordon asserts that the City is not offering
enough classes in the In-House Academy.
decision issued in that case, the appeal thereto, and excerpts from a related deposition); (2) all
documents referring to grievances and/or information requests made before June 30, 2007; (3)
allegations that Gordon was denied a City e-mail address and purposefully left off certain
important City e-mails; (4) a “chronology of errors” in classification studies performed
between 1999 and 2005; and (5) allegations regarding denial of promotional opportunity
because of inconsistent definitions of “recent” supervisory experience from 2000-2006 and
unspecified dates in 2007.
4 After that time, and until July 2008, Gordon held the position of Union steward.
5 The first and second amended charges had been filed as of that date, but they were not
included in PERB’s facsimile transmission because they consist of several hundred pages.
Union attorney Peter Horton was advised that if he wished to receive a copy of the
amendments by U.S. mail he should notify PERB. He never did so.

Gordon argues that the City is retaliating against employees by refusing to assign a neutral
code to time taken off of work due to workers’ compensation claims. Currently, the City
assigns a “Code 40” to this time off, and Gordon alleges that a Code 40 carries a negative
connotation for employee evaluations, and may impair an employee’s ability to promote.
Further, Gordon alleges that the parties’ MOU provides that an employee assigned Code 40 is
ineligible for “sick pay buyback.”
Gordon believes that the City is retaliating against her for representing employees, and “tacitly
instilling fear in its employees and Union Directors by taking extreme action against
employees.” As an example, Gordon states that “several years ago” a “mild mannered” Union
director was fired because the City stated that she might “be a danger.” This director later filed
a successful lawsuit against the City, but employees were left with the impression that “even
Union Directors were not protected from false accusations and being fire[d].” In addition, in
2005, 30 employees were Y-rated into lower-paying positions, despite assurances from the
City that such downgrades would not happen. Gordon believes that currently the City
manipulates job specifications and entry into the In-House Academy “to such a degree that
employees fear making any complaint will end in there [sic] being excluded from promotional
opportunities....”
First Amended Charge
1. “Me Too” Clause
On October 19, 2007, acting Union President Sonia Gardner (Gardner) sent a letter to City
Manager P. Lamont Ewell (Ewell) stating that the Union had reviewed the City’s response to a
grievance filed over the above-referenced “me too” provision in the MOU. Gardner informed
Ewell that the Union “would not be taking this grievance to the next step in the grievance
procedure...” and that the grievance had been resolved with the understanding that cost-of-
living adjustments are a mandatory subject of bargaining. Gordon sent an e-mail message to
the Union board, requesting that the Union board vote to go to binding arbitration. Gordon
reports that this motion was not seconded, and notes that the Union board never voted over the
issue. Gordon contends that, due to her position as director, she had a duty as the “exclusive
representative” to enforce bargaining unit rights accrued under the contract. Gordon further
contends that since the Union board did not vote over whether to proceed to arbitration, that
Gardner’s decision not to proceed is not binding.
2. Denial of Promotion Opportunity
Gordon alleges that the City is inconsistent in its definition of “recent” supervisory experience.
The definition varies from one job posting to another, some requiring that such experience be
within the last five years, others requiring it be within the last three years, and others failing
altogether to define the time period. The City has consistently determined that experience

gained more than ten years prior to an application for promotion is not considered “recent.”6
Additionally, Gordon alleges that the City includes “supplementals” on promotion applications
that ask “redundant and irrelevant questions” purportedly to “eliminate those they don’t wish
to promote.” The City also routinely cancels tests, and requires employees to submit a new
application and “supplemental.” Gordon believes that the City does this until employees “get
tired and no longer apply” for promotions.
Second Amended Charge
The second amended charge consists of several hundred pages of exhibits interspersed with
some one-page descriptions of the documents submitted under each exhibit tab (tabs numbered
14-30). It is noted that this voluminous amendment to the charge sometimes contains
duplicative documents without any clear narrative to guide the reader. Only allegations
involving conduct occurring after June 30, 2007 are discussed substantively in this letter. (See
footnote 3, above.)
1. Employees’ CalPERS Accounts Grievance
Gordon alleges that memoranda (memos) and requests for public records from Gordon to
various City HR employees show that the City “refused to meet and confer,” or “respond in
writing” to Gordon’s requests to discuss employees’ CalPERS7 (retirement) accounts. The
second amended charge includes 27 memos and/or records requests from Gordon ranging from
2005 to December 31, 2007 related to retirement accounts.
Memos from Gordon to HR Analyst Martha Zamora (Zamora) dated October 18, 19, and 22,
2007 discuss Gordon’s attempts to arrange, and alleged unresponsiveness to such attempts,
meetings to discuss the retirement accounts of employees Nigel Edwards and Don Faison.
Gordon also noted the City’s alleged failure to respond in writing to Gordon’s inquiries
regarding these employees’ retirement accounts. The October 18 memo concluded by stating
that, unless meetings were timely arranged, “this can be considered the start of a grievance
concerning this matter.”
The next series of memos have various dates in December 2007. These memos reiterate the
difficulty in setting up meetings and alleged failure of the City to respond in writing and/or to
properly credit the retirement accounts of employees for a time period in the early 1990’s, but
do not reference an ongoing grievance procedure. A memo from Gordon to Zamora dated
December 3 1 , 2007 memorializes a meeting on the same date between Gordon, Zamora, and
6 Gordon provides many specific examples of the City’s inconsistent definition of
“recent supervisory experience” from 2000, 2002, 2003, 2004, 2006, and unspecified dates in
2007. The litigation between Gordon and the City in 2000, referenced above at footnote 3,
also involved this issue.
7 The acronym stands for: California Public Employees’ Retirement System.

Mr. Edwards. It was discussed during the meeting that the City should respond in writing to
verify the City’s payment to Mr. Edwards’ retirement account from 1991 to 1994.
On July 23, 2007, Gordon filed a grievance with the City over the retirement account issue.
On August 6, 2007, the City responded to this grievance (and others, as discussed below). HR
Director Karen Bancroft (Bancroft) states that, in accordance with the City’s policy for records
retention, the City maintains payroll records for seven years, and notes that an employee must
work at least 1,000 hours in a fiscal year to be eligible for enrollment in PERS. Bancroft states
in part:
We will therefore conduct an audit of the City’s payroll records
(which will only cover the past 7 years) to determine if we
inadvertently failed to enroll an employee in PERS who worked
1,000 or more hours in a fiscal year....The City’s audit will only
consider actual payroll records unless the employee can produce
paycheck stubs that reflect the number of hours he/she worked in
each pay period. If we identify any employees who should have
been enrolled in PERS, we will take whatever actions are
required by PERS to enroll the employees in PERS as of the date
required by PERS.
The audit will only go back 7 years, which is the number of years
for which the City is required to retain payroll records. If there is
an employee who would not be covered by this -audit and the
employee believes he/she should have been enrolled in PERS, the
employee will need to produce documentation showing his/her
rate of pay and the number of actual hours worked during a fiscal
year. If that documentation shows that the employee did work
more than 1,000, or more hours during a fiscal year and was not
enrolled in PERS, the City will take whatever actions are required
by PERS to enroll the employee in PERS as of the date required
by PERS.
Also by letter dated August 6, 2007, Gordon requested that the City advance the grievance to
the final level of review (i.e., review by the City Manager (Ewell)). Gordon objects to the
seven-year time period for the City’s audit of payroll records and asks that prior records not be
destroyed by the City (citing to a particular provision of the Government Code). Gordon also
states that employees should not bear the brunt of the City’s error and suggested that W2s and
affidavits should also be taken into account for determining PERS eligibility. Gordon points
out that Bancroft did not address the City’s responsibility (again citing to the Government
Code) to individually respond to employees’ inquiries in writing regarding their retirement
accounts.

2. Workers’ Compensation/Code 40 Grievance
A memo dated December 13, 2007 from Gordon to Bancroft, HR Assistant Director Jill Jones
(Jones), and HR staff person Pandy Chamberlin (Chamberlin), states that Gordon recently
discovered that employees’ insurance coverage is either terminated, or employees must pay the
premium, if employees are out of work more than 60 days on workers’ compensation leave.
Gordon claims that Chamberlin told her that was “not always” the policy, and that it had been
changed approximately one year prior due to a “court decision.” Gordon requests in the memo
that the City furnish her the name of the court decision being relied upon. Gordon reports that
the City never provided the name of the court decision, and argues that the issue of insurance
coverage during workers’ compensation leave is clearly a “negotiation issue.”
On July 20, 2007, Gordon filed a grievance with the City over the use of “Code 40” for
employees out on workers’ compensation leave. According to Gordon, under the terms of the
MOU between the Union and the City, designating an absence as “Code 40” precludes an
employee from being able to “buy back” sick leave credits. Gordon asserted in the grievance
that a neutral code should be assigned to such time off for employees absent for work for more
than 60 days due to a work injury.
The City (via Bancroft) responded to this grievance by letter dated August 6, 2007. Bancroft
states in this letter:
We have corrected the sick leave buy back for any employee who
used Code 40 as a result of being out on workers’ compensation
leave but met the other criteria to be eligible to receive a cash-out
of sick leave at the end of FY [Fiscal Year] 2006-2007.
3. Compensation Study Grievance
Gordon initiated a grievance on November 7, 2007 regarding four job classifications and the
City’s alleged failure to properly conduct a compensation study. In sum, Gordon alleges that
the City failed to follow the guidelines in the MOU—i.e., requiring comparison between City
salaries and that of surrounding cities—when it performed various compensation studies. The
City responded by letter dated December 12, 2007 that the grievance was untimely as any
changes to classifications based on study results were implemented in June 2007, and as such
the grievance was filed well beyond the 30-day timeframe for grievance filing under the MOU.
By letter dated December 18, 2007, Gordon protested the City’s determination of untimeliness
and asserted that the reason the grievance was filed more than 30 days from the alleged
violation is because the City refused to supply requested information, specifically, an
agreement separate from the MOU between the Union and the City that governed classification
and/or compensation studies. Gordon noted that since June 2007 she had made many
information requests for this particular document that had not been answered by the City.
Gordon stated that she would submit the grievance to the City Manager’s office.

On December 20, 2007, Gordon submitted clarification of the November 7 grievance,
specifically regarding the job classification of Sanitation Equipment Operator Humberto Nario.
Gordon argued that Mr. Nario’s portion of the grievance should be considered timely because
he could not have known until he received a City memo dated October 4, 2007 that there was
an issue with regard to his compensation study.8 On January 17, 2008, Ewell responded to the
grievance, without raising the issue of untimeliness. Ewell’s response was that at all times the
City followed the terms of the parties’ MOU in conducting classification and compensation
studies, including regarding Mr. Nario’s study, and it was determined that Mr. Nario was not
entitled to a pay adjustment.
4. Information Requests9
On June 30, 2007, Gordon first requested that the City provide her with the above-discussed
agreement between the Union and the City governing compensation and classification studies.
This agreement was referenced by Bancroft in a May 3 1 , 2007 response to an apparently
earlier-filed classification grievance initiated by Gordon sometime prior to the date of
Bancroft’s May 31 response. After failing to receive the requested information from the City,
Gordon reasserted the request through a Public Records Act1011request on August 7, 2007. In
addition to requesting the agreement relied upon by the City, Gordon requested that the City
furnish the survey cities relied upon for the Union’s compensation studies, as well as the
survey cities relied upon in other City bargaining units. The City again did not respond, as
memorialized by letters from Gordon to the City dated September 2, October 1, and October 4,
2007.
5. Out-of-Class Pay Grievance
A series of letters dated February 12, 2007, March 14, 2007, July 17, 2007, August 12 and 22,
2007, and September 11 and 26, 2007, discuss the City’s alleged promises to pay out-of-class
pay to three employees, namely, Sergio Lopez, Ricardo Pickwood, and Troy Todd. Some of
these letters memorialize various meetings held regarding this subject between Gordon and
City representatives. The issue is first characterized as a grievance regarding out-of-class pay
for Mr. Lopez and Mr. Todd by letter dated November 18, 2007 from Gordon to Solid Waste
Manager Celeste Peele (Peele).11 Gordon memorialized a grievance meeting held on
November 29, 2007 between Gordon and Peele by letter to Peele dated December 3, 2007. In
this letter Gordon reiterates the City’s position that Mr. Todd is not eligible for out-of-class
8 It is not entirely clear from the current record, but it appears that Gordon believ
City failed to perform a proper compensation study with regard to Mr. Nario’s classification.
es the
9 As previously discussed above at footnote 2, facts regarding requests for information
after June 30, 2007 are provided for background only.
10 California’s Public Records Act is codified at Government Code section 6250 et seq.
11 Mr. Pickwood is not referenced in the grievance.

pay because the duties he was performing were consistent with his job description. On
December 14, 2007, attorney Ken Yuwiler on behalf of the Union sent two separate letters
regarding Mr. Lopez and Mr. Todd to Craig Perkins (Perkins), Director of the City’s
Environmental and Public Works Management Department. These letters noted a lack of
response to the grievance at the prior level and requested advancement to the next level of the
grievance procedure. On January 30, 2008, attorney Yuwiler sent two letters to Bancroft,
noting his earlier letters to Perkins and lack of response thereto, and requesting to advance the
grievance to Bancroft’s level and set up a meeting.
On February 9, 2008, Gordon amended the grievance by letter to Bancroft, adding additional
factual support for the reasons that out-of-class pay is owed to the two employees. Gordon
noted the earlier letters from attorney Yuwiler and the City’s failure to set up a grievance
meeting over the issue.
The second amended charge does not provide any other information regarding the processing
of this grievance.
6. Letter to the City Council
On October 22, 2007, Gordon sent a letter to the City Council advocating for the City not to
contract out solid waste services. The next day, Bancroft attached Gordon’s letter to an e-mail
message to Vickie Reese, acting Union vice president, to inform Ms. Reese that Gordon
“makes it appear that she is representing [the Union] on this matter.” Ms. Reese responded to
Bancroft’s e-mail message stating in part: “Please let it be known that Patricia Gordon does
not represent the [Union] Board. Any official correspondence or verbal communication should
come from Mona Gandara, myself as Acting Vice President, or Sonja Gardner as Acting
President.”
7. Required Notice of Requests for Release Time12
On August 12, 2007, Gordon sent a letter to the City’s Superintendent of Parks and Recreation
Joe McGrath (McGrath) regarding differing accounts from various City management
employees of the allowed amount of release time for Union business and required notice that
must be given beforehand. Gordon stated that originally McGrath had said that only four hours
per month could be taken off for Union business, to which Gordon had replied that the Union
could not be unreasonably denied time off for representing its members. In this letter, Gordon
states that on August 9, 2007, she was informed by supervisor John Roth (Roth), acting under
McGrath’s direction, that Gordon would be required to give five-day notice before she could
take time off for Union business. Gordon responded that the need for particular meetings is
not always known that far in advance, and then stated:
12 Information regarding this allegation is provided for background only. (See footnote
2, above.)

I am concerned that this effort to curb my taking time off for
[Union] business follows closely to my elevating two grievances
to the City Manager (PERS & Comp study), challenging a
disciplinary action to the Personnel Board, grieving a written
reprimand for an employee in our department and delivering a
memo describing my displeasure over the Union’s handling of
issues to Mona Gandera who is the [Union] President and also a
person who I believe has a personal relationship with you.
Gordon’s letter to McGrath then notes that the same day [August 9] at approximately 2:00
p.m., Roth informed her that McGrath had reconsidered his position on notice and that one-day
notice was reasonable and acceptable. Gordon noted that she appreciated the reconsideration,
but that in certain instances she may have to take time off without a day’s notice, and that any
denial of such under MOU terms is required to be in writing and with a reason supplied.
8. Number of Union Representatives Allowed to Attend Employee Discipline Meetings
On November 7, 2007, Gordon wrote a letter to HR employee Grace Quitzon (Quitzon) to
memorialize their telephone conversation the day before. Gordon verified that the date of a
meeting between Bancroft, Assistant HR Director Donna Peters (Peters), and the Union was
scheduled for November 15, 2007 to discuss the written reprimand of employee Greg Macias.
Gordon restated her understanding that the City’s position was that only one Union
representative could attend the meeting. Gordon noted that she had been present at a grievance
meeting where two Union representatives had been allowed to attend, and asked that Quitzon
check with Peters regarding this request as she wanted Union past president Jeri Wingo to
accompany her to the November 15 meeting. Quitzon checked with Peters who said that per
the MOU, two Union representatives could attend, but only one would be eligible for release
time.
On November 13, 2007, Gordon sent another letter to Quitzon confirming that per Peters’
instructions, Gordon and Ms. Wingo would attend the scheduled November 15 meeting on the
Union’s behalf, but that Gordon would be attending on her own time.
Third Amended Charge
The third amended charge consists of 14 pages of narrative that references the exhibits
regarding the grievances and other allegations that were included in the second amended
charge. Only to the extent that the third amended charge adds factual detail and/or argument
regarding the issues discussed above, or raises new allegations of unfair practices, are such
subjects summarized in this letter.
1. Employees’ CalPERS Accounts Grievance
Regarding this allegation, Gordon notes that Bancroft responded to the grievance in writing,
but states that she refused to arrange a meeting over the issue as Gordon requested.

2. Workers’ Compensation/Code 40 Grievance
Regarding this allegation, Gordon adds that employee Mike Macanov was “recently” off work
on workers’ compensation leave for more than 60 days and received a letter from HR stating
that he would need to pay $600.00 to continue his medical coverage. Gordon states that the
medical premium for a single person is $360.00 and the dental premium is $7.00. Gordon
alleges that the City’s higher quote in this instance “may be seen as a coercive tactic to
‘financially force’ employees to come back to work prematurely, prior to being well. This is a
bargaining issue.”
Gordon also adds that employees Tony Haas and Dave Morales, upon interviewing with the
City for crew leader positions, were informed that the Code 40 entries in their employment
histories negatively impacted their ability for promotion. Gordon notes that the City’s
response to this grievance does not promise that a neutral code —i.e., not Code 40—would be
assigned to employees on workers’ compensation leave for more than 60 days, and states that
the City is still using this code.
3. Compensation Study Grievance
Gordon notes that sometime in 2006-2007 the City introduced a single form for employees to
request classification or compensation studies. Gordon believes that the City did this with the
intent of being able to “mistakenly” perform incorrect studies (i.e., a classification study in
circumstances where the employee actually sought a compensation study) to avoid having to
pay equity adjustments. Gordon also alleges that the City simply invented an imaginary
agreement between the Union and the City pertaining to compensation studies to avoid having
to provide information regarding which comparison or survey cities were used to support the
results of the City’s compensation studies. Gordon also alleges that the City routinely relies on
higher paying cities—i.e., Newport Beach, Irvine, and Beverly Hills—to use as comparison
cities for management positions, but ceased using those cities, purportedly at Bancroft’s
request, as comparison cities for rank-and-file positions.
4. Out-of-Class Pay Grievance
Regarding this allegation, Gordon notes that the City repeatedly promised to pay certain
employees for out-of-class assignments, and then failed to do so. Gordon states in relevant
part:
I feel the employees[,] rights have been interfered with by
supervisors[,] constant assurances that the employees would be
paid....It seems the issue was resolved until Human Resources
became involved. Supervision in Solid Waste know who does
what. They promised to pay these individuals and went back on
their decision at the direction of Human Resources and/or felt the
union would not expend the money to pursue this issue to binding
arbitration.

5. Letter to the City Council
Gordon alleges that Bancroft forwarded to the Union her letter to the City Council arguing
against contracting out Solid Waste services to elicit a “prearranged” response from the Union
that Gordon does not represent the Union board of directors. Gordon states in part:
The reply from the union makes no sense. Of course the unions
[sic] position would be against outsourcing jobs, so why would
they reply “Patricia Gordon does not represent MEA.” I believe
Ms. Bancroft has intimidated (carrot/stick) the union,
psychologically or otherwise, into making this statement.
Gordon also alleges that this statement from the Union can be taken out of context to imply
that she does not represent the Union on any matter.
6. Required Notice of Requests for Release Time13
Regarding this allegation, Gordon notes that the changes initiated by McGrath [on August 9,
2007] regarding the amount of notice required for Gordon to take time off for Union business
were imposed after Gordon had held a Union leadership position for one year and eight
months. Before this time, Gordon’s supervisor, Roth, had allowed her release time with as
little as a one-hour notice.
7. General Pattern of Interference
Gordon alleges that the City’s general pattern of refusing to meet with her regarding
grievances and failing to follow through on promises establishes a pattern of interference,
stating in part:
The employees look to their union for justice and protection.
They find their union, MEA, is unable to defend them against the
most illogical charges and not able to enforce their
Contract....This proves to the employees involved, as well as
other employees, [that] the union can not [sic] help them and they
become fearful of retaliation by management, so [they] stop
confronting them over contract issues...The City knows the union
has no lawyer on staff and will not pursue these issues. This is
financial union “busting”.
13As previously stated, information regarding this allegation is provided for
background only.

Fourth Amended Charge14
The fourth amended charge adds several additional exhibits consisting of memos to
management personnel and e-mail messages, as well some additional factual information
regarding the allegations discussed in the second and third amended charges.
1. Out-of-Class Pay Grievance
On May 7, 2008, Gordon sent a letter to Bancroft again requesting to meet over the out-of-
class pay grievance regarding Mr. Lopez and Mr. Todd.
On June 4, 2008, Peters sent a letter to Gordon responding to Gordon’s May 7 letter and noting
the February 9 amendment to the grievance. Peters states that Mr. Lopez’s higher class pay
request was audited by the City and that he was paid in February 2008 for hours performing
higher class duties between May 2005 and September 2007. Peters states that no further pay is
owed to Mr. Lopez. Regarding Mr. Todd, Peters states that the City determined that he is not
owed any higher class pay because he was not found to be working out-of-class. Peters states
that, notwithstanding any potential miscommunication from department supervisors to the
employees, particularly to Mr. Todd, the final decision of City management prevails.
On June 16, 2008 and July 19, 2008,15 Gordon sent letters to Bancroft disputing the amount of
out-of-class pay issued to Mr. Lopez, arguing that he was entitled to more than he received,
and disputing the conclusion reached as to Mr. Todd. Gordon also states that it is unfair for the
City to issue written responses to grievances without scheduling in-person meetings as the
employees are deprived of their right to present evidence to dispute the City’s findings.
On September 9, 2008, Union attorney Peter Horton met with Bancroft regarding the out-of-
class pay grievance. Gordon reports that there was a telephone message about the meeting left
at her home by attorney Horton’s office that morning, but she did not discover this until she
returned home from work that evening. Gordon states that no one from the City or the Union
attempted to contact her at her work location that day to inform her of the meeting. Gordon
14 A motion to add Gordon as a separate charging party to the charge was filed with
PERB on October 31, 2008. Gordon states in part: “I am concerned that the...union will
withdraw these charges without resolution.” PERB’s case-caption was amended at that time to
name Gordon as a separate charging party. Prior to the issuance of a complaint by PERB, the
addition of a charging party amounts to an amendment of the charge. (See PERB Regulation
32621; California Union o f Safety Employees (Trevisanut, ei al.) (1993) PERB Decision
No. 1029-S.) Gordon’s October 31, 2008 motion could, therefore, be considered the “fourth”
amended charge, and therefore the filing on December 3, 2008 the “fifth” amended charge.
However, for ease of discussion and because Gordon labeled the filing on December 3 the
fourth amended charge, that designation will apply to the December 3 filing.
15 Gordon notes that the Union removed her from a steward position in July 2008.

states that attorney Horton later told her that Bancroft tried to contact her at the time of the
meeting but was unable to reach her. Gordon states that she was never personally contacted,
and that her supervisor, Roth, never informed her that HR tried to reach her that day.
Additionally, Gordon argues that although attorney Horton stated he would set up another
meeting with HR and request certain computer records from the City to support the grievance,
he never did. Gordon also alleges that attorney Horton maintains that he contacted both
grievants on September 23, 2008 while they were working, but that Mr. Lopez denies that he
was ever contacted.
On September 11, 2008, Gordon wrote a letter to Bancroft protesting her exclusion from the
grievance meeting. Gordon states in part:
It is my personal opinion that you were purposely trying to
exclude me from this meeting, and I am saddened to say that [the
Union] was obviously cooperating, otherwise you would have
simply contacted my supervisor John Roth and asked me to
attend. I am stationed at Hotkiss Park on 4th Street, 2 minutes
away.
For the reasons to follow, the above allegations fail to state a prima facie violation of the
MMBA.
Discussion
I. Burden of the Charging Party
PERB Regulation 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.
A charging party’s burden includes alleging the “who, what, when, where and how of an
unfair practice. (State o f California (Department o f Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944 (UTLA).)16 Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.)
A charging party’s burden also 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 o f Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited from16
16 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 Fiehters Union v. City o f Vallejo (1974) 12 Cal.3d 608.)

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.)
It must be noted that the voluminous charge and exhibits in this case are neither clear nor
concise, as required under the regulation cited above. Nevertheless, the entire charge, as
amended, has been reviewed. As previously discussed, all allegations of unfair practices
occurring prior to June 30, 2007 fall outside the six-month period within which a charging
party must file an unfair practice charge with PERB and therefore must be dismissed. (City of
Santa Barbara, supra, PERB Decision No. 1628-M.) (See footnote 3, above.) Additionally,
any allegations that do not provide specific dates of conduct alleged to violate the Act cannot
be evaluated for timeliness and must be dismissed. Allegations involving conduct on or after
June 30, 2007 will be discussed below.
•
II. Allegations in Original and First Amended Charge 17
1. “Me Too” Clause
Gordon alleges that the City failed to follow the terms of the MOU when a salary increase that
was granted to another City bargaining unit was not awarded to the Union; however, evidence
in the charge demonstrates that on October 19, 2007, the Union settled a grievance regarding
this issue with the City. Although Gordon, at the time a Union officer, urged the Union board
to vote to proceed to arbitration, the Union board declined to take a vote. Gordon states that
the lack of a vote on the issue renders the decision not to pursue the grievance invalid, and that
her status as a Union director also makes her the “exclusive representative,” and requires that
she pursue employees’ rights under the MOU.
The Union, as Co-Charging Party in this matter, cannot be found to be alleging a violation by
the City’s conduct in this regard because acting Union president Gardner clearly informed the
City that the Union declined to proceed to the next step of the grievance procedure
(arbitration), and that the matter was settled with the understanding that cost-of-living
adjustments are a mandatory bargaining subject. Such statements form a “clear and
unmistakable” waiver of the Union’s right to bargain over the subject and/or pursue the
grievance any further. (State o f California (Department o f Personnel Administration) (2010)
PERB Decision No. 2130-S.) Internal union matters, such as whether a vote was conducted by
the Union board as requested by Gordon, generally do not fall within PERB’s power of review.
17 The allegation regarding the City’s use of “Code 40” for employees on leave due to
work injuries is first raised in the original charge; however, because that allegation is more
fully addressed in the second and third amended charges, it will be discussed in a later section
of this letter.

(See e.g., Coalition o f University Employees (Higgins) (2006) PERB Decision No. 1855-H;
Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)
Additionally, such an argument has no bearing on this unfair practice charge, because the City,
as Respondent in this case, cannot be found liable for the acts of an employee organization.
(See Union of American Physicians & Dentists (Menaster) (2007) PERB Decision No. 1918-
S.) This leaves only Gordon, as an individual, pursuing this allegation.
The Board has held that individuals do not have standing to pursue violations of the rights of
an employee organization, which, in this case, includes the right to determine the extent to
which grievances will be pursued, if at all. (State of California (Department o f Corrections)
(1993) PERB Decision No. 972-S.) Moreover, the Board has found that a union, by virtue of
its status as an exclusive representative, can settle a grievance and bind employees to the
outcome, even if employees are unhappy with the result. (County o f Riverside (2009) PERB
Decision No, 2065-M, citing Oakland Unified School District (2004) PERB Decision
No. 1645.) Gordon’s argument that her position as a Union officer confers upon her an equal
status as the exclusive representative is unsupported in the law. In order for a union officer to
act in his or her “official” capacity, the officer must have actual or apparent authority to bind
the employee organization. (Los Angeles Community College District (1982) PERB Decision
No. 252.) That is not the case here, as the Union clearly disagreed with Gordon’s position.
Again, internal union matters, including internal disagreement among union officials, is
generally not within PERB ’s power of review (SEIU Local 1000, CSEA (Burnett) (2007)
PERB Decision No. 1914-S) and is inapplicable to a charge against the City ( Union of
American Physicians & Dentists (Menaster), supra, PERB Decision No. 1918-S).
Accordingly, this allegation is without merit and must be dismissed.
2. Denial of Promotional Opportunities
This allegation involves the City’s application of the term “recent supervisory experience” and
has been an ongoing issue between Gordon and the City since at least 2000. This issue was
also the subject of a civil lawsuit between Gordon and the City, as discussed at footnote 3. As
previously stated, the bulk of this allegation is clearly untimely, as it involves conduct from
2000-2006. Gordon also provides some examples of inconsistent application of the above-
stated term as well as allegedly unfair testing procedures for promotional positions from
unspecified dates in 2007. Without specific dates of alleged unlawful conduct regarding this
issue in 2007, it cannot be determined whether the allegations are timely, and therefore they
must be dismissed on this basis. (City o f Santa Barbara, supra, PERB Decision No. 1628-M.)
However, even if timely allegations were provided, Gordon, as an individual, has no standing
to pursue either the bargaining rights of the Union regarding this matter (Alum Rock Union
Elementary School District (2005) PERB Decision No. 1748), or assert a violation of the rights
of other employees (California Nurses Association (O ’Malley) (2004) PERB Decision
No. 1607-H).
Regarding any potential violation of the Union’s rights regarding this issue, there is no
information that the Union made any demand to bargain over any alleged change in policy,

that a grievance was filed, or any allegation that would suggest a violation of the Union’s
rights under the MMBA. Absent an independent violation of the MMBA, PERB is without
authority to enforce collective bargaining agreements between the parties. (Los Angeles
Unified School District (1984) PERB Decision No. 448.) Accordingly, this allegation does not
state a prima facie case and must be dismissed.
3. . Retaliation Against Gordon for Her Representation of Employees
Gordon alleges in the original charge that the City is retaliating against her for representing
employees and filing grievances on their behalf. To demonstrate that an employer
discriminated or retaliated against an employee in violation of Government Code section 3506
and PERB Regulation 32603(a), a 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 o f 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 o f California (Department o f Transportation) (1984) PERB Decision No. 459-S;
Campbell, supra, 131 Cal.App.3d 416); (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 o f California
(Department o f 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 o f 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.)
There is no question that Gordon engaged in protected activity by filing numerous grievances
with the City over various issues and that the City was aware of this protected conduct.
However, the charge, as amended, is devoid of facts to show that the City took any action
against Gordon that would negatively impact her employment.18 Thus, there are no grounds to
support a charge that the City retaliated against Gordon and this allegation, as written, must
therefore be dismissed.
4. Allegation that the City is “Tacitly Instilling Fear In Employees”
This allegation can best be described as stating that the City’s conduct has interfered with
employees’ rights arising under the MMBA. The test for whether a respondent has interfered
with the rights of employees under the MMBA does not require that unlawful motive be
established, only that at least slight harm to employee rights results from the conduct. The
courts have described the standard as follows:
All [a charging party] must prove to establish an interference
violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities; and (3) that employer’s conduct was
not justified by legitimate business reasons.
(Public Employees Association o f Tulare County, Inc. v. Board o f Supervisors o f Tulare
County (1985) 167 Cal.App.3d 797, 807.)
As previously discussed, Gordon, as an individual, lacks standing to assert violations of the
rights of other employees. (California Nurses Association (O ’Malley), supra, PERB Decision
No. 1607-H.) The Union, however, may assert such a charge. ( See, e.g., Coachella Valley
Mosquito & Vector Control District (2009) PERB Decision No. 2031-M.) The facts presented
to support this allegation do not demonstrate a prima facie interference violation. The charge
provides anecdotal evidence regarding a former Union director having been fired several years
18 In the absence of facts sufficient to establish the requisite “adverse action” element,
the “nexus” element is not further analyzed herein. Any amended charge seeking to correct the
“adverse action” deficiency should also address the “nexus” element per the factors described
above.

ago and the City having “Y-rated” several employees in 2005 despite assurances to the
contrary. The logical inference regarding this allegation is that employees were left with the
impression that the City could act with impunity. In addition to failing to provide timely
allegations (i.e., within the six-month period preceding the filing of the charge) of City conduct
that allegedly interfered with employees’ rights, there is no specific evidence that any
employees19 were engaged in protected activity. Thus, this allegation does not meet the above-
described test and must be dismissed. (Board o f Supervisors o f Tulare County, supra, 167
Cal.App.3d 797, 807.)
III. Allegations in Second, Third, and Fourth Amended Charge
1. Grievances
At the outset, it must be noted that allegations regarding the City’s handling of the various
grievances described in the charge appear to be two-fold, namely: (1) dissatisfaction with the
City’s ultimate response to the grievances; and (2) Gordon’s objections that the City did not
schedule in-person meetings with Gordon to discuss the grievance before issuing a written
determination. As to the latter allegation, PERB has no authority to remedy a breach of a
contractual grievance procedure—e.g., failure to follow exactly the procedural steps outlined
for grievance processing in a collective bargaining agreement—unless the breach also
constitutes an unfair practice. (Los Angeles Unified School District (2009) PERB Decision
No. 2073.) A unilateral change in an established policy, such as that set forth in a collective
bargaining agreement, may demonstrate a violation of the statutory duty to bargain in good
faith. However, this duty is only owed between an employee organization and the employer.
(Bay Area Air Quality Management District (2006) PERB Decision No. 1807-M.) For this
reason, PERB has long held that an individual employee lacks standing to allege a unilateral
change violation, (Oxnard School District (Gorcey and Tripp) (1988) PERB Decision
No. 667.) Thus, an individual employee lacks standing to allege that a breach of a contractual
grievance procedures amounts to a unilateral change. (Los Angeles Unified School District,
supra, PERB Decision No. 2073; Bay Area Air Quality Management District, supra, PERB
Decision No. 1807-M.) Accordingly, Gordon, as an individual, lacks standing to allege that
the City violated the MOU by failing to adhere to the terms of the grievance procedure. Nor
can she, as an individual, assert the rights of other bargaining unit employees who may be
affected by or are the subject of a grievance. (California Nurses Association (O’Malley),
supra, PERB Decision No. 1607-H.)
Allegations that the Union may pursue as unfair practices regarding the various grievances in
the charge are discussed below.
19 No employees were actually named in the original or first amended charges as having
their rights allegedly interfered with by the City. Thus, this allegation also suffers from a lack
of specificity and may also be dismissed on this basis. (United Teachers-Los Angeles
(Ragsdale), supra, PERB Decision No. 944.)

A. Employees’ CalPERS Accounts
The City issued a written response to this grievance on August 6, 2007, outlining the steps it
would take to audit payroll records for a seven-year period to correct any errors found in the
City’s potential failure to properly enroll employees in the public retirement system, and also
describing steps employees could take to provide evidence that they should have been enrolled
if their situation was not encompassed by the seven-year review. Also on this date, Gordon
requested that the grievance be advanced to the City Manager level (Ewell). There is no
information in the charge whether Ewell subsequently issued a separate response, nor is the
MOU section addressing the grievance procedure provided in or attached to the charge.
To sustain an allegation of an unlawful unilateral change, it must be demonstrated that: (1) the
employer breached or altered the parties’ written agreement or past practice; (2) such action
was taken without giving the exclusive representative notice or an opportunity to bargain over
the change; (3) the change was not merely an isolated breach of the contract, but amounts to a
change of policy (i.e., has a generalized effect or continuing impact upon the terms and
conditions of employment of bargaining unit members); and (4) the change in policy concerns
a matter within scope of representation. (Trustees o f the California State University (2006)
PERB Decision No. 1876-H; Grant Joint Union High School District (1982) PERB Decision
No. 196.) Since the MOU grievance procedure is not provided in or with the charge, it cannot
be determined whether any policy was changed by Ewell’s failure to provide a separate
response. (City o f Commerce (2008) PERB Decision No. 1937-M [where charging party
references a grievance procedure but does not establish what the terms or past practices of this
procedure are, it does not provide sufficient facts to show that the employer breached or altered
the parties’ written agreement or established past practice].) Even assuming arguendo, that
such conduct did deviate from the MOU, there is insufficient evidence that such would amount
to anything other than an isolated breach of the contract. (Ibid, [a single isolated breach of a
contract’s grievance procedure does not state a prima facie case for a unilateral change because
it fails to establish that the violation has a generalized effect or continuing impact on unit
members].) Thus, there is insufficient evidence of a unilateral change to the grievance
procedure in violation of the MMBA.
Additionally, although the MMBA provides exclusive representatives the right to file
grievances (Omnitrans (2009) PERB Decision No. 2010-M), nothing contained in the MMBA
guarantees a particular desired outcome. (County o f Riverside (2009) PERB Decision
No. 2065-M.) Dissatisfaction with an employer’s response to a grievance does not
demonstrate a violation of the MMBA. (Ibid.) As previously stated, PERB has no authority to
remedy contractual disputes absent an independent violation of the MMBA. (Los Angeles
Unified School District, supra, PERB Decision No. 2073; see also Regents o f the University of
California (2010) PERB Decision No. 2105-H.) The record shows that the City answered this
grievance. The fact that the Union, or Gordon, was unhappy with the outcome does not show
that the City engaged in unlawful conduct. Accordingly, this allegation does not state a prima
facie case and must be dismissed.

B. Workers’ Compensation/Code 40
The City responded to this grievance on August 6, 2007, stating that it had corrected the sick
leave buy-back for any employee assigned Code 40 while on workers’ compensation leave for
the fiscal year in question. Gordon alleges that this subject matter is a “negotiation issue” and
that the City continues to use the Code 40 designation. However, there is no information in the
charge that this grievance was appealed and/or sought to be advanced to the next level of
processing. Additionally, Gordon alleges that the City’s use of this code can be viewed as
retaliatory and/or coercive against employees because it may impair their ability to promote,
citing as examples employees Haas and Morales who were informed of such, and also that
employee Macanov was quoted allegedly incorrect premiums to continue his medical coverage
after having been on worker’s compensation leave for an extended period.
i. “Negotiation Issue’/ Unilateral Change Issue
The City responded to this grievance. Again, mere dissatisfaction with that response does not
demonstrate a violation of the MMBA. (County o f Riverside, supra, PERB Decision No.
2065-M.) There are no facts to demonstrate that the City’s response constituted a change in
grievance policy or practice, or even that the Union sought additional review. (City of
Commerce, supra, PERB Decision No. 1937-M.) Despite Gordon’s characterization that this
matter is a “negotiation issue,” there are no facts to demonstrate that the Union demanded to
bargain over this subject. The duty to bargain arises on demand. If no bargaining demand is
made, then no violation is shown by a failure to bargain. (Stanislaus County Department of
Education (1985) PERB Decision No. 556 [determinative factor is whether desire to bargain is
made known].) For theses reasons, this allegation does not support a finding that the City
violated its duty to bargain in good faith.
ii. Retaliation/Interference by City’s Use of Code 40
As stated above, in order to demonstrate an employer’s unlawful retaliation, it must be shown
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, supra, PERB
Decision No. 210.) In order to demonstrate unlawful interference with protected conduct, it
must be shown: (1) that employees were engaged in protected activity; (2) that the employer
engaged in conduct which tends to interfere with, restrain, or coerce employees in the exercise
of those activities, and (3) that employer’s conduct was not justified by legitimate business
reasons. (Board of Supervisors o f Tulare County, supra, 167 Cal.App.3d 191, 807.) Neither of
the above-stated tests are met under these circumstances because there are no facts in the
charge to demonstrate that employees Haas, Macanov, or Morales exercised any protected
rights under the Act. Thus, retaliation and or/interference by the City is not demonstrated and
this allegation must be dismissed.

C. Compensation Study
The City (by Bancroft) first responded in December 2007 that the grievance disputing the
City’s compensation study regarding four job classifications was denied due to untimeliness.
Gordon protested the City’s determination, explained that the City’s unresponsiveness to
information requests caused any issue regarding timeliness, and sought advancement of the
grievance to the next level of processing. In January 2008, City Manager Ewell responded
substantively to the grievance without addressing the issue of untimeliness and found that the
City had adhered to the terms of agreement between the Union and the City at all times during
its compensation and/or classification studies, and further that no adjustments in pay were
found to be warranted. Gordon protested the City’s determination and makes various
allegations in the charge that the City intentionally performs incorrect studies to avoid making
equity-pay adjustments, invented a side agreement regarding this issue to avoid following the
terms of the MOU, and only uses higher-paying comparison cities to adjust management pay
rates, but refuses to do so for rank-and-file positions.
The City responded to this grievance at two levels and there is no allegation in the charge that
the City deviated from the established grievance procedure in this instance. Any dispute over
methodology used for compensation studies is a contractual issue and not one properly decided
by PERB in this case. (County o f Riverside, supra, PERB Decision No. 2065-M; Los Angeles
Unified School District, supra, PERB Decision No. 448.) The particular provisions of the
MOU regarding compensation studies were not included in or with the charge, and therefore it
cannot be determined whether there was any change in policy regarding such. (City of
Commerce, supra, PERB Decision No. 1937-M.) As discussed above, disagreement with the
employer’s conclusion regarding a grievance does not demonstrate that the employer acted
unlawfully. (County of Riverside, supra, PERB Decision No. 2065-M.) Accordingly, this
allegation fails to state a prima facie case and must be dismissed.
D. Out-of-Class-Pay
A grievance meeting was held regarding the issue of out-of-class pay for Mr. Todd and Mr.
Lopez on November 29, 2007 where Gordon was informed that the City believed that Mr.
Todd was not working out-of-class and thus was not entitled to any additional compensation.
In December 2007 and January 2008, a Union attorney wrote letters to City management
requesting that the grievance be advanced to higher levels for processing and requesting a
meeting over the issue. In February 2008, Gordon amended the grievance to provide
additional argument. In June 2008, the City responded by letter noting that Mr. Lopez’s
position was audited and he was paid for working out-of-class for a little more than two years
and that no further money was owed to him. The City found that Mr. Todd was not working
out-of-class. In June and July 2008, Gordon protested the City’s findings and the lack of in-
person meetings. On September 9, 2008, the City and Union attorney Horton met over the
issue, and Gordon did not learn of this meeting until after it happened. Gordon objects to
having been excluded from the meeting.

The record shows that this grievance was answered by the City and that the City met with the
Union over the issue. Whether the exact steps of the grievance procedure were followed
cannot be determined from the charge and any deviation from such cannot be remedied by
PERB absent an independent violation of the MMBA. (Los Angeles Unified School District,
supra, PERB Decision No. 2073.) Gordon’s displeasure at not being included as a participant
in the September 2008 meeting does not show that the City violated the MMBA. (County o f
San Diego (2009) PERB Decision No. 2005-M [because the MMBA does not grant an
individual employee the right to attend labor/management meetings, employer did not interfere
with employee’s rights by barring employee from labor/management meetings].) Gordon has
no legal basis to dictate or object to the Union’s chosen representatives. (Chaffey Joint Union
High School District (1982) PERB Decision No. 202.) Mere disagreement with the City’s
conclusion regarding this grievance, as previously stated, does not demonstrate a violation of
the MMBA. (County of Riverside, supra, PERB Decision No. 2065-M.)
Additionally, there is an allegation in the third amended charge that because employees’
supervisors repeatedly assured them that they would be compensated for working out-of-class,
and then HR negated the determination of the supervisors, that this conduct tended to interfere
with the employees’ protected rights. In addition to the fact that the record clearly shows that
Mr. Lopez was paid for working out-of-class, it is not clear how assurances that payments
would be made followed by delays of payment, or changed City positions, would tend to
discourage employees from seeking out-of-class pay or from filing grievances. This conduct
by the City does not rise to the level of interference with employees’ rights under the MMBA.
For these reasons, the allegations regarding the out-of-class pay grievance do not state a prima
facie case and must be dismissed.
2. Miscellaneous Interference Allegations
A. Letter to the City Council
Gordon alleges that Bancroft in some manner “intimidated” the Union into making the
statement that Gordon does not represent the Union after Bancroft forwarded to the Union
Gordon’s letter to the City Council advocating against contracting out. There is insufficient
evidence in the charge that Bancroft took any action or made any statements to the Union that
intimidated or coerced the Union to say what it did. Pleading or raising a bare allegation
without sufficient supporting facts is insufficient for the purposes of stating a prima facie case.
(Regents o f the University o f California (2010) PERB Decision No. 2109-H.) Furthermore,
there no grounds to find that Bancroft’s action of supplying the Union with Gordon’s letter
would tend to discourage or interfere with Gordon’s exercise of protected activity. Therefore,
this allegation does not state a prima facie case and must be dismissed.

B. Number of Union Representatives Allowed to Attend Employee Discipline
Meetings
The City, citing to the MOU,20 stated that although more than one Union representative could
attend meetings to discuss employee discipline, only one would be granted release time to do
so. The City’s conduct does not interfere with the Union’s right to represent its members
under these circumstances. MMBA section 3505.3 requires public agencies to allow a
reasonable number of union representatives a reasonable amount of release time for when an
employee organization and an employer are “formally” meeting and conferring. This reference
to formal meeting and conferring in the MMBA pertains to parties bargaining over matters
within the scope of representation, such as when negotiating a contract. (See e.g., County o f
Santa Clara (2010) PERB Decision No. 2120-M.) PERB has found that an employer’s rule
limiting employees to one representative for grievance and administrative review proceedings
does not interfere with employees’ protected rights. (The Regents o f the University o f
California (Berkeley) (1983) PERB Decision No. 308-H.) In this case, the City did not
actually prohibit more than one Union representative from attending an employee discipline
meeting; it simply stated it would not pay more than one employee for doing so. This conduct
does not abridge the Union’s right to represent its members, or an employee’s right to union
representation, and thus no interference violation is demonstrated.
The right to represent members rests in the exclusive representative, and thus Gordon, as an
individual, lacks standing to assert a violation of that right. (Alameda County Medical Center
(2004) PERB Decision No. 1620-M.) For these reasons, this allegation does not state a prima
facie case and must be dismissed.
C. General Pattern of Interference
Gordon alleges that the City’s recalcitrance in setting up grievance meetings with her and
failing to follow through on promises creates an impression in the employees’ minds that the
Union is powerless to enforce the contract and/or help represent them in their employment
concerns, and so this discourages employees from exercising their protected rights. The record
shows that, although not always to Gordon’s liking, meetings between the City and the Union
regarding various grievances have occurred and grievances have been addressed/resolved by
the City. As stated above, Gordon has no basis to object to whom the Union chooses to send to
meetings to represent the Union’s interests (Chaffey Joint Union High School District, supra,
PERB Decision No. 202), and the City does not violate the MMBA by failing to meet
specifically with her (County o f San Diego, supra, PERB Decision No. 2005-M).
It is clear from the information in the charge that Gordon takes issue with many of the
decisions the Union makes; however, this unfair practice charge was filed against the City.
The City cannot be held liable for the conduct of the exclusive representative. (See Union of
American Physicians & Dentists (Menaster), supra, PERB Decision No. 1918-S.)
20 No part of the MOU was included with the charge.

In sum, there is no basis to conclude that the City has engaged in a pattern of conduct that
would tend to discourage employees from exercising rights under the MMBA, and thus this
allegation must be dismissed.
Conclusion
For all of the reasons discussed herein, the above-discussed allegations, as presently written,
do not state a prima facie case.
If there are any factual inaccuracies in this letter or additional facts that would correct the
deficiencies explained above, Charging Party may amend the charge. The amended charge
should be prepared on a standard PERB unfair practice charge form, clearly labeled Fifth
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 number written on the top right hand comer of the charge form. The amended charge
must be served on the Respondent’s representative and the original proof of service must be
filed with PERB. If an amended charge or withdrawal is not filed on or before November 9
2010, PERB will dismiss the above-stated allegations from the charge. If you have any
questions, please call me at the above telephone number.
Sincerely,
Valerie Pike Racho
Regional Attorney
cc: Martha Santana, SMMEA President