County of Merced (PERB 2361M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MERCED COUNTY SHERIFF'S EMPLOYEE
ASSOCIATION
Charging Party, 	Case Nos. SA-CE-640-M
SA-CE-690-M
V. 	PERB Decision No. 2361-M
March 25, 2014COUNTY OF MERCED,
Respondent.
Appearances: Weinberg, Roger & Rosenfeld by Leslie V. Freeman, Attorney, for Merced
County Sheriff's Employee Association; Richard M. Flores, Assistant County Counsel, for
County of Merced.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an exception filed by the County of Merced (County) to the proposed
decision (attached) of an administrative law judge (ALJ). The Merced County Sheriff's
Employee Association (MCSEA or Association) alleged that the Merced County Sheriff's
Department (Department): (1) threatened to discipline MCSEA President Frank Melo (Melo)
unless he disclosed the identity of a bargaining unit member that informed the MCSEA
Executive Board and its Attorney, Barry Bennett (Bennett), that a fight in the yard of the
Merced County Main Jail Facility (Main Jail) had posed a safety issue for MCSEA bargaining
unit members; (2) threatened to stop assigning MCSEA bargaining unit members desirable
assignments unless the union withdrew a letter sent by Bennett to Sheriff Mark Pazin (Pazin);
(3) initiated an internal investigation against MCSEA Board Member Tom Schiffler (Schiffler)
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MERCED COUNTY SHERIFF'S EMPLOYEE
ASSOCIATION,
Charging Party,
V.
COUNTY OF MERCED,
Respondent.
Case Nos. SA-CE-640-M
SA-CE-690-M
PERB Decision No. 2361-M
March 25, 2014
Appearances: 	Weinberg, Roger & Rosenfeld by Leslie V. Freeman, Attorney, for Merced
County Sheriff's Employee Association; Richard M. Flores, Assistant County Counsel, for
County
of
Merced.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an exception filed by the County
of
Merced (County) to the proposed
decision (attached)
of
an administrative law judge (ALJ). 	The Merced County Sheriff's
Employee Association (MC SEA or Association) alleged that the Merced County Sheriff's
Department (Department): (1) threatened to discipline MCSEA President Frank Melo (Melo)
unless he disclosed the identity
of
a bargaining unit member that informed the MCSEA
Executive Board and its Attorney, Barry Bennett (Bennett), that a fight in the yard
of
the
Merced County Main Jail Facility (Main Jail) had posed a safety issue for MCSEA bargaining
unit members; (2) threatened to stop assigning MCSEA bargaining unit members desirable
assignments unless the union withdrew a letter sent by Bennett to Sheriff Mark Pazin (Pazin);
(3) initiated an internal investigation against MCSEA Board Member Tom Schiffler (Schiffler)

and MCSEA Spokesman Jeffrey Miller (Miller) in retaliation for the Bennett letter to Pazin;
and (4) ordered Schiffler and Miller to return an internal affairs investigative file and
questioned them regarding whether anyone else had copies of the file.
The ALJ determined that the County interfered with employee rights under the Meyer-
Milias-Brown Act (MMBA)' when it threatened to discipline Melo unless he revealed the
name of the Association member who reported a safety concern to the Association and when it
threatened to stop assigning MCSEA members to desirable assignments unless the Association
retracted the Bennett letter to Pazin. The ALJ also determined that the County did not violate
the MMBA when it investigated Schiffler and Miller, nor when it ordered them to return an
internal affairs file and reveal the names of anyone who had a copy of the file.
The County has taken only one exception, which was to the interference determination
regarding Melo. MCSEA has not excepted to any of the ALJ's determinations.
We have reviewed the record, the proposed decision, the County's exception and
MCSEA's response in light of the record and the relevant law. The ALJ's findings of fact are
supported by the record and we adopt them as the findings of the Board itself. The ALJ's
conclusions of law are well-reasoned and in accordance with applicable law. We therefore
affirm and adopt the ALJ's conclusions as the conclusions of the Board itself, subject to our
discussion below of the County's exception.
PROCEDURAL HISTORY
Case No. SA-CE-640-M
On December 7, 2009, MCSEA filed an unfair practice charge against the County. On
December 21, 2009, the County filed its first position statement. On August 2, 2010, MCSEA
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2
and MCSEA Spokesman Jeffrey Miller (Miller) in retaliation for the Bennett letter to Pazin;
and (
4)
ordered Schiffler and Miller to return an internal affairs investigative file and
questioned them regarding whether anyone else had copies
of
the file.
The ALJ determined that the County interfered with employee rights under the Meyer-
Milias-Brown Act (MMBA) 1 when it threatened to discipline Melo unless he revealed the
name
of
the Association member who reported a safety concern to the Association and when it
threatened to stop assigning MCSEA members to desirable assignments unless the Association
retracted the Bennett letter to Pazin. The ALJ also determined that the County did not violate
the MMBA when it investigated Schiffler and Miller, nor when it ordered them to return an
internal affairs file and reveal the names
of
anyone who had a copy
of
the file.
The County has taken only one exception, which was to the interference determination
regarding Melo. MCSEA has not excepted to any
of
the ALJ's determinations.
We have reviewed the record, the proposed decision, the County's exception and
MCSEA's response in light
of
the record and the relevant law. The ALJ's findings
of
fact are
suppor:ted by the record and we adopt them as the findings
of
the Board itself. The ALJ' s
conclusions
of
law are well-reasoned and in accordance with applicable law. We therefore
affirm and adopt the ALJ's conclusions as the conclusions
of
the Board itself, subject to our
discussion below
of
the County's exception.
PROCEDURAL HISTORY
Case No. SA-CE-640-M
On December 7, 2009, MCSEA filed an unfair practice charge against the County. On
December 21, 2009, the County filed its first position statement. On August 2, 2010, MCSEA
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2

filed its first amended charge. On October 5, 2010, PERB's Office of the General Counsel
issued a complaint alleging that the County violated MMBA sections 3503, 3506, and 3509(b)
as well as PERB Regulation 32603(a) when it threatened to discipline Melo unless he revealed
the name of an Association member who reported a safety concern to the Association and
when it threatened to stop assigning desirable work assignments to MCSEA bargaining unit
members and begin assigning the work to non-bargaining unit members if MCSEA did not
retract a letter written by Bennett to Pazin. On October 25, 2010, the County filed its answer
denying any violation of the MMBA or PERB regulations. An informal conference was held
on November 9, 2010, but the matter was not resolved. A formal hearing was scheduled for
March 30 and 31, 2011, in Sacramento.
Case No. SA-CE-690-M
On November 23, 2010, MCSEA filed a second unfair practice charge against the
County. The County filed its position statement to this charge on December 7, 2010. MCSEA
filed a first amended charge on December 15, 2010, and the County filed its second position
statement on December 23, 2010. On January 4, 2011, PERB's Office of the General Counsel
issued a complaint alleging that the County violated MMBA sections 3503, 3506, and 3509(b)
and PERB Regulation 32603(a) and (b) when it interrogated Schiffler and Miller and ordered
them to return the County's internal investigation file. On January 20, 2011, the County
answered the complaint denying any violation of the MMBA or PERB regulations.
Consolidation for Hearing
On February 4, 2011, MCSEA filed a motion to consolidate Case Nos. SA-CE-640-M
and SA-CE-690-M. An informal conference regarding Case No. SA-CE-690-M was held on
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
filed its first amended charge. On October 5, 2010, PERB's Office of the General Counsel
issued a complaint alleging that the County violated MMBA sections 3503, 3506, and 3509(b)
as well as PERB Regulation 32603(a)2 when it threatened to discipline Melo unless he revealed
the name of an Association member who reported a safety concern to the Association and
when it threatened to stop assigning desirable work assignments to MCSEA bargaining unit
members and begin assigning the work to non-bargaining unit members if MC SEA did not
retract a letter written by Bennett to Pazin. On October 25, 2010, the County filed its answer
denying any violation of the MMBA or PERB regulations. An informal conference was held
on November 9, 2010, but the matter was not resolved. A formal hearing was scheduled for
March 3 0 and 31, 2011, in Sacramento.
Case No. SA-CE-690-M
On November 23, 2010, MCSEA filed a second unfair practice charge against the
County. The County filed its position statement to this charge on December 7, 2010. MCSEA
filed a first amended charge on December 15, 2010, and the County filed its second position
statement on December 23, 2010. On January 4, 2011, PERB's Office of the General Counsel
issued a complaint alleging that the County violated MMBA sections 3503, 3506, and 3509(b)
and PERB Regulation 32603(a) and (b) when it interrogated Schiffler and Miller and ordered
them to return the County's internal investigation file. 	On January 20, 2011, the County
answered the complaint denying any violation of the MMBA or PERB regulations.
Consolidation for Hearing
On February 4, 2011, MCSEA filed a motion to consolidate Case Nos. SA-CE-640-M
and SA-CE-690-M. An informal conference regarding Case No. SA-CE-690-M was held on
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3

February 7, 2011, but the dispute was not resolved. On February 10, 2011, PERB's ALJ
denied the motion to consolidate the two cases and issued a notice of formal hearing in Case
No. SA-CE-690-M for June 7 and 8, 2011, in Sacramento. On February 11, 2011, MCSEA
filed a request for reconsideration of the ALJ's denial of its motion to consolidate. On
February 15, 2011, based on support of both parties for this outcome, the ALJ granted the
motion to consolidate. On March 25, 2011, the ALJ sent an amended notice of formal hearing,
scheduling the consolidated complaints for June 6 and 7, 2011, in Sacramento.
Hearing and Appeal
The formal hearing was held on June 6 and 7, 2011. PERB received both parties' final
briefs on August 29, 2011. On October 8, 2012, the ALJ issued his proposed decision.
On October 29, 2012, the County filed its exception to the ALJ's proposed decision.
On November 19, 2012, PERB received MCSEA's response to the County's exception. On
November 20, 2012, PERB's Appeals Assistant notified the parties that the appeal filings were
complete.
FACTUAL SUMMARY
Since the County took exception to only one issue, we summarize only the facts
pertinent to that issue. On or about August 8, 2009, the MCSEA Executive Board met with
Bennett, to discuss several concerns which had arisen among MCSEA members regarding their
employment with the Department. Among the issues raised at this meeting were the
Department's increased use of "extra-help" employees and retired annuitants. In addition, at
the meeting, an August 7, 2009, incident was discussed wherein several inmates at the Main
Jail attacked another inmate in the Main Jail yard. According to the information about the
incident provided to the MCSEA board, the assigned officers were not provided with non-
February
7,
2011, but the dispute was not resolved. On February 10, 2011, PERB's ALJ
denied the motion to consolidate the two cases and issued a notice
of
formal hearing in Case
No. SA-CE-690-M for June 7 and 8,2011, in Sacramento. On February 11, 2011, MCSEA
filed a request for reconsideration
of
the ALJ' s denial
of
its motion to consolidate. On
February 15, 2011, based on support
of
both parties for this outcome, the ALJ granted the
motion to consolidate. On March 25, 2011, the ALJ sent an amended notice
of
formal hearing,
scheduling the consolidated complaints for June 6 and
7,
2011, in Sacramento.
Hearing and Appeal
The formal hearing was held on June 6 and
7,
2011. PERB received both parties' final
briefs on August 29, 2011. On October 8, 2012, the ALJ issued his proposed decision.
On October 29, 2012, the County filed its exception to the ALJ's proposed decision.
On November 19, 2012, PERB received MCSEA's response to the County's exception. 	On
November 20, 2012, PERB's Appeals Assistant notified the parties that the appeal filings were
complete.
FACTUAL SUMMARY
Since the County took exception to only one issue, we summarize only the facts
pertinent to that issue. On or about August
8,
2009, the MCSEA Executive Board met with
Bennett, to discuss several concerns which had arisen among MCSEA members regarding their
employment with the Department. Among the issues raised at this meeting were the
Department's increased use of "extra-help" employees and retired annuitants. In addition, at
the meeting, an August 7, 2009, incident was discussed wherein several inmates at the Main
Jail attacked another inmate in the Main Jail yard. According to the information about the
incident provided to the MCSEA board, the assigned officers were not provided with non-
4

lethal weapons and, consequently, were unable to deter the inmates from continuing their
assault. The safety of inmates and the officers was placed at risk.
On August 10, 2009, these concerns were memorialized in a letter written by Bennett
and sent to Pazin. Sometime thereafter, Pazin provided Department Commander Joe Scott
(Scott) with a copy of the letter. Scott oversees the Department's John Latorraca Correctional
Facility, another County jail located outside the Merced city limits. Shortly after receiving the
copy of the letter, Scott notified Commander Rick Thoreson (Thoreson), who oversees the
Main Jail, of the letter. Subsequently, Thoreson issued a pepperball launcher-a forced
compliance weapon that launches a projectile which breaks on impact and releases a chemical
irritant-to an officer positioned in a tower/catwalk position above the Main Jail yard.
At some point prior to August 18, 2009, Scott obtained the video footage for the Main
Jail for August 7, 2009. Scott did not see in the video the reported fight in the Main Jail yard
on that date, although there was a fight that occurred in the doorway leading out to the yard
from one of the Main Jail blocks. Scott testified that he did not believe a pepperball launcher
would have been effective in stopping the fight he saw, as the pepperballs could not have been
shot inside the Main Jail block.
On August 18, 2009, Scott invited Thoreson and Melo to review the August 7, 2009
Main Jail footage. After viewing the footage, Thoreson remarked to Scott and Melo that there
was not a fight in the yard as Bennett's letter had indicated. Scott asked Melo if he thought a
pepperball launcher would have prevented the fight. Melo said that he did not know because
he was not present during the fight. Thoreson asked Melo who had told him there had been a
fight in the yard. Melo told him, "we discussed it among ourselves." Thoreson again asked
Melo who had told him there was a fight in the yard. Melo asked Thoreson if he was ordering
lethal weapons and, consequently, were unable to deter the inmates from continuing their
assault. The safety of inmates and the officers was placed at risk.
On August 10, 2009, these concerns were memorialized in a letter written by Bennett
and sent to Pazin. Sometime thereafter, Pazin provided Department Commander Joe Scott
(Scott) with a copy of the letter. Scott oversees the Department's John Latorraca Correctional
Facility, another County jail located outside the Merced city limits. Shortly after receiving the
copy of the letter, Scott notified Commander Rick Thoreson (Thoreson), who oversees the
Main Jail, of the letter. Subsequently, Thoreson issued a pepperball launcher-a forced
compliance weapon that launches a projectile which breaks on impact and releases a chemical
irritant-to an officer positioned in a tower/catwalk position above the Main Jail yard.
At some point prior to August 18, 2009, Scott obtained the video footage for the Main
Jail for August 7, 2009. Scott did not see in the video the reported fight in the Main Jail yard
on that date, although there was a fight that occurred in the doorway leading out to the yard
from one of the Main Jail blocks. Scott testified that he did not believe a pepperball launcher
would have been effective in stopping the fight he saw, as the pepperballs could not have been
shot inside the Main Jail block.
On August 18, 2009, Scott invited Thoreson and Melo to review the August 7, 2009
Main Jail footage. 	After viewing the footage, Thoreson remarked to Scott and Melo that there
was not a fight in the yard as Bennett's letter had indicated. Scott asked Melo if he thought a
pepperball launcher would have prevented the fight. 	Melo said that he did not know because
he was not present during the fight. 	Thoreson asked Melo who had told him there had been a
fight in the yard. Melo told him, "we discussed it among ourselves." Thoreson again asked
Melo who had told him there was a fight in the yard. Melo asked Thoreson if he was ordering
5

him to reveal the name. Thoreson told him that he was. Melo told Scott and Thoreson that
Miller had provided the information. Thoreson said, "that is your problem right there."
Melo testified that after the August 18, 2009, meeting with Scott and Thoreson, he no
longer wanted to perform his duties as MCSEA president because he feared that he would be
fired and did not want another confrontation with Scott and Thoreson. Melo testified that he
asked another MCSEA member to perform Melo's representational duties, but that the
MCSEA board convinced Melo not to resign as president before his term expired.
The ALJ framed the question at issue thusly: "Did Thoreson interfere with employee
rights under the MMBA by ordering Melo to divulge his source of information?" (Proposed
Dec., at p. 17.) The ALJ applied the test set forth in Public Employees Association of Tulare
County, Inc. v. Board of Supervisors of Tulare County (1985) 167 Cal.App.3d 797, 807
(Tulare County). Under Tulare County, in order to demonstrate that an employer has
interfered with the rights of employees under the MMBA, the charging party must prove:
(1) that employees 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 the employer's conduct was not justified by a legitimate business reason.
In addition, the ALJ noted the elements of the test for interference violations under the
Educational Employment Relations Act (EERA) first set forth in Carlsbad Unified School
District (1979) PERB Decision No. 89 (Carlsbad) and made applicable to the MMBA under
Stanislaus Consolidated Fire Protection District (2012) PERB Decision No. 2231-M. (See
also, State of California (Department of Personnel Administration) (2011) PERB Decision
EERA is codified at Government Code section 3540 et seq.
him to reveal the name. Thoreson told him that he was. Melo told Scott and Thoreson that
Miller had provided the information. Thoreson said, "that is your problem right there."
Melo testified that after the August 18, 2009, meeting with Scott and Thoreson, he no
longer wanted to perform his duties as MCSEA president because he feared that he would be
fired and did not want another confrontation with Scott and Thoreson. Melo testified that he
asked another MCSEA member to perform Melo's representational duties, but that the
MCSEA board convinced Melo not to resign as president before his term expired.
PROPOSED DECISION	PROPOSED DECISION
The ALJ framed the question at issue thusly: "Did Thoreson interfere with employee
rights under the MMBA by ordering Melo to divulge his source of information?" (Proposed
Dec., at p. 17.) The ALJ applied the test set forth in Public Employees Association of Tulare
County, Inc. v. Board of Supervisors of Tulare County (1985) 167 Cal.App.3d 797, 807
(Tulare County). Under Tulare County, in order to demonstrate that an employer has
interfered with the rights of employees under the MMBA, the charging party must prove:
(1) 	that employees 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 the employer's conduct was not justified by a legitimate business reason.
In addition, the ALJ noted the elements of the test for interference violations under the
Educational Employment Relations Act (EERA)3 first set forth in Carlsbad Unified School
District (1979) PERB Decision No. 89 (Carlsbad) and made applicable to the MMBA under
Stanislaus Consolidated Fire Protection District (2012) PERB Decision No. 2231-M. (See
also, State of California (Department of Personnel Administration) (2011) PERB Decision
3 EERA is codified at Government Code section 3540 et seq.
6

No. 2106a-S, p. 14, fn. 12 ["the Tulare County standard, which applies in interference cases
under the MMBA, is consistent with the Carlsbad interference standard"].)*
First, the ALJ determined that the MCSEA bargaining unit members engaged in
protected activity under MMBA sections 3502 and 3503' by having their attorney raise
concerns within the scope of representation in the letter to Pazin. This conclusion was not
excepted to by the County.
Next, the ALJ determined that the County had interfered with employee rights when
Thoreson repeatedly asked, then ordered, Melo to divulge the name of the employee who had
informed him that there had been a fight in the yard of the Main Jail. In making this
determination, the ALJ stated:
Such inquiry creates at least slight harm to employee rights as it
would tend to chill MCSEA representatives [sic] discussions with
their legal representatives if they knew such discussions would
later be the subject of immediate disclosure by a manager's order.
(Proposed Dec., at p. 19.)
* Under the Carlsbad test, where the harm to employees' rights is slight and the
employer offers justification based on operational necessity, the competing interest of the
employer and the rights of the employees will be balanced. Where the harm is inherently
destructive of employees' rights, the employer's conduct will be excused only on proof that it
was occasioned by circumstances beyond the employer's control and that no alternative course
of action was available. Carlsbad thus provides the analytical tool for assessing the
employer's proffered legitimate business reason.
MMBA section 3502 states, in pertinent part:
[P]ublic employees shall have the right to form, join, and
participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations.
MMBA section 3503 states, in pertinent part:
Recognized employee organizations shall have the right to
represent their members in their employment relations with
public agencies.
7
No. 2106a-S, p. 14, fn. 12 ["the Tulare County standard, which applies in interference cases
under the MMBA, is consistent with the Carlsbad interference standard"].)4
First, the ALJ determined that the MCSEA bargaining unit members engaged in
protected activity under MMBA sections 3502 and 3503 5 by having their attorney raise
concerns within the scope of representation in the letter to Pazin. This conclusion was not
excepted to by the County.
Next, the ALJ determined that the County had interfered with employee rights when
Thoreson repeatedly asked, then ordered, Melo to divulge the name of the employee who had
informed him that there had been a fight in the yard of the Main Jail. In making this
determination, the ALJ stated:
Such inquiry creates at least slight harm to employee rights as it
would tend to chill MCSEA representatives [sic] discussions with
their legal representatives if they knew such discussions would
later be the subject of immediate disclosure by a manager's order.
(Proposed Dec., at p. 19.)
4 Under the Carlsbad test, where the harm to employees' rights is slight and the
employer offers justification based on operational necessity, the competing interest of the
employer and the rights of the employees will be balanced. Where the harm is inherently
destructive of employees' rights, the employer's conduct will be excused only on proof that it
was occasioned by circumstances beyond the employer's control and that no alternative course
of action was available. Carlsbad thus provides the analytical tool for assessing the
employer's proffered legitimate business reason.
5 MMBA section 3502 states, in pertinent part:
[P]ublic employees shall have the right to form, join, and
participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations.
MMBA section 3503 states, in pertinent part:
Recognized employee organizations shall have the right to
represent their members in their employment relations with
public agencies.
7

Finally, the ALJ determined that there was no legitimate business reason for ordering
Melo to reveal the employee's name and that Thoreson wanted the name merely to disparage
the employee. This conclusion was not excepted to by the County.
POSITIONS OF THE PARTIES
According to the County, Thoreson did not know, nor could he reasonably have known,
that Melo obtained the information about the fight in the Main Jail yard during an MCSEA
executive meeting. Thus, urges the County, the ALJ erred in finding that Thoreson's
questioning of Melo on the identity of the informer tended to interfere with employee rights.
The County excepts to the proposed decision on the ground that there was no competent
evidence presented that Melo first learned of the Main Jail yard fight at a meeting between
MCSEA and Bennett. The County argues that if Miller had told Melo of the Main Jail yard
fight prior to the meeting, that initial knowledge was not cloaked "with any degree of protected
confidentiality" merely because it was subsequently discussed at an MCSEA Executive Board
meeting. (Id. at p. 4.)
MCSEA replies that there is ample support in the record for the ALJ's determination.
MCSEA cites several passages from the hearing transcript which indicate that Commanders
Thoreson and Scott had received and reviewed the Bennett letter, that Melo was repeatedly
questioned about the name of the Main Jail incident reporter by Thoreson, and that Melo only
revealed the name when ordered to do so.
DISCUSSION
In reviewing an ALJ's findings of fact, "[while the Board will afford deference to the
ALJ's findings of fact which incorporate credibility determinations, the Board is required to
consider the entire record, including the totality of testimony offered, and is free to draw its
Finally, the ALJ determined that there was no legitimate business reason for ordering
Melo to reveal the employee's name and that Thoreson wanted the name merely to disparage
the employee. This conclusion was not excepted to by the County.
POSITIONS OF THE PARTIES
According to the County, Thoreson did not know, nor could he reasonably have known,
that Melo obtained the information about the fight in the Main Jail yard during an MCSEA
executive meeting. Thus, urges the County, the ALJ erred in finding that Thoreson's
questioning of Melo on the identity of the informer tended to interfere with employee rights.
The County excepts to the proposed decision on the ground that there was no competent
evidence presented that Melo first learned of the Main Jail yard fight at a meeting between
MC SEA and Bennett. The County argues that if Miller had told Melo of the Main Jail yard
fight prior to the meeting, that initial knowledge was not cloaked "with any degree of protected
confidentiality" merely because it was subsequently discussed at an MCSEA Executive Board
meeting. (Id. at p. 4.)
MC SEA replies that there is ample support in the record for the ALJ' s determination.
MCSEA cites several passages from the hearing transcript which indicate that Commanders
Thoreson and Scott had received and reviewed the Bennett letter, that Melo was repeatedly
questioned about the name of the Main Jail incident reporter by Thoreson, and that Melo only
revealed the name when ordered to do so.
DISCUSSION
In reviewing an ALJ's findings of fact, "[w]hile the Board will afford deference to the
ALJ' s findings of fact which incorporate credibility determinations, the Board is required to
consider the entire record, including the totality of testimony offered, and is free to draw its
8

own and perhaps contrary inferences from the evidence presented." (County of Riverside
(2011) PERB Decision No. 2184-M; see also County of Santa Clara (2012) PERB Decision
No. 2267-M ["The Board has determined that it will normally afford deference to
administrative law judge's findings of fact involving credibility determinations unless they are
unsupported by the record as a whole"].)
In relevant part, the County's sole exception, contends that:
The hearing was devoid of any competent evidence indicating
that Melo had been told of the alleged jail yard incident by Miller
at an Executive Board meeting in which MCSEA's attorney was
present . . .
The evidence in this matter clearly demonstrated that neither
Thoreson nor Scott knew or reasonably should have known that
Melo only knew of the alleged incident as a result of discussions
held during a MCSEA executive board meeting . . . .
Also, if Miller had told Melo of the alleged incident prior to any
MCSEA executive board meeting, the fact that the matter was
subsequently discussed in meeting [sic] does not cloak Melo's
initial knowledge with any degree of protected confidentiality.
(County's Exceptions, p. 3.)
Although presented as a single exception, the County raises two issues: (1) was there
enough competent evidence for the ALJ to determine that Thoreson and Scott knew or should
have known that Melo learned about the alleged Main Jail yard fight at an Association
meeting? And, (2) if Melo learned about the incident from Miller prior to the Association
meeting, was that communication nonetheless protected? Since unlawful motivation is not an
element of an interference claim, the employer's knowledge of whether or not it was
interfering with employees' rights under the MMBA is of no relevance. (Sacramento City
Unified School District (1985) PERB Decision No. 492 ["In an interference case, it is not
necessary for the charging party to show that the respondent acted with an unlawful
own and perhaps contrary inferences from the evidence presented." (County of Riverside
(2011) PERB Decision No. 2184-M; see also County of Santa Clara (2012) PERB Decision
No. 2267-M ["The Board has determined that it will normally afford deference to
administrative law judge's findings of fact involving credibility determinations unless they are
unsupported by the record as a whole"].)
In relevant part, the County's sole exception, contends that:
The hearing was devoid of any competent evidence indicating
that Melo had been told of the alleged jail yard incident by Miller
at an Executive Board meeting in which MCSEA's attorney was
present ....
The evidence in this matter clearly demonstrated that neither
Thoreson nor Scott knew or reasonably should have known that
Melo only knew of the alleged incident as a result of discussions
held during a MCSEA executive board meeting ....
Also, if Miller had told Melo of the alleged incident prior to any
MCSEA executive board meeting, the fact that the matter was
subsequently discussed in meeting [sic] does not cloak Melo's
initial knowledge with any degree of protected confidentiality.
(County's Exceptions, p. 3.)
Although presented as a single exception, the County raises two issues: (1) was there
enough competent evidence for the ALJ to determine that Thoreson and Scott knew or should
have known that Melo learned about the alleged Main Jail yard fight at an Association
meeting? And, (2) if Melo learned about the incident from Miller prior to the Association
meeting, was that communication nonetheless protected? Since unlawful motivation is not an
element of an interference claim, the employer's knowledge of whether or not it was
interfering with employees' rights under the MMBA is of no relevance. (Sacramento City
Unified School District (1985) PERB Decision No. 492 ["In an interference case, it is not
necessary for the charging party to show that the respondent acted with an unlawful
9

motivation"].) Therefore, whether or not Thoreson and Scott knew, or should have known,
that they were interfering with rights protected under the MMBA is of no consequence to our
analysis.
Moreover, according to the ALJ:
Melo's response to Thoreson's initial inquiry as to who stated the
fight occurred on the yard was "we discussed it among
ourselves," however, such response was coupled with the
statements in Bennett's letter that he met with Association
members to address these concerns. These two together
establishes to a reasonable person that this discussion occurred
among the MCSEA representatives. Therefore, when Thoreson
ordered Melo to answer his question after his second inquiry, he
was now inquiring into the internal discussions of MCSEA as
they were meeting with their attorney. Such inquiry creates at
least slight harm to employee rights as it would tend to chill
MCSEA representatives discussions with their legal
representatives if they knew such discussions would later be the
subject of immediate disclosure by a manager's order.
(Proposed Dec., pp. 18-19.) In making his determination, the ALJ credited the testimony of
the County's witnesses (Scott and Thoreson) that Melo had told them the Main Jail yard
incident was discussed among themselves." Both commanders testified that they had received
copies of Bennett's August 10, 2009 letter. Thus, even the County's version of what Melo told
the commanders, together with the plain language of Bennett's letter, was sufficient for the
ALJ to determine that a reasonable person would conclude that the Main Jail yard fight
incident was the subject of an internal MCSEA discussion and the Department's repeated
inquiry interfered with employee rights. We conclude with the ALJ there was competent
Melo testified that he told the two commanders the Main Jail yard incident "had come
up at with our meeting with our Attorney." (Hearing Transcript, Vol. I, at p. 78: 26-27.)
However, since both commanders "denied that Melo said anything other than "we discussed it
among ourselves,'" the ALJ determined that MCSEA had not met its burden of proof of
establishing Melo's testimony on this issue. (Proposed Dec., p. 7, fn. 5.)
10
motivation"].) Therefore, whether or not Thoreson and Scott knew, or should have known,
that they were interfering with rights protected under the MMBA is of no consequence to our
analysis.
Moreover, according to the ALJ:
Melo's response to Thoreson's initial inquiry as to who stated the
fight occurred on the yard was "we discussed it among
ourselves," however, such response was coupled with the
statements in Bennett's letter that he met with Association
members to address these concerns. These two together
establishes to a reasonable person that this discussion occurred
among the MCSEA representatives. Therefore, when Thoreson
ordered Melo to answer his question after his second inquiry, he
was now inquiring into the internal discussions of MCSEA as
they were meeting with their attorney. Such inquiry creates at
least slight harm to employee rights as it would tend to chill
MCSEA representatives discussions with their legal
representatives if they knew such discussions would later be the
subject of immediate disclosure by a manager's order.
(Proposed Dec., pp. 18-19.) In making his determination, the ALJ credited the testimony of
the County's witnesses (Scott and Thoreson) that Melo had told them the Main Jail yard
incident was discussed among themselves. 6 Both commanders testified that they had received
copies of Bennett's August 10, 2009 letter. Thus, even the County's version of what Melo told
the commanders, together with the plain language of Bennett's letter, was sufficient for the
ALJ to determine that a reasonable person would conclude that the Main Jail yard fight
incident was the subject of an internal MCSEA discussion and the Department's repeated
inquiry interfered with employee rights. We conclude with the ALJ there was competent
6 Melo testified that he told the two commanders the Main Jail yard incident "had come
up at with our meeting with our Attorney." (Hearing Transcript, Vol. I, at p. 78: 26-27.)
However, since both commanders "denied that Melo said anything other than 'we discussed it
among ourselves,"' the ALJ determined that MCSEA had not met its burden of proof of
establishing Melo's testimony on this issue. (Proposed Dec., p. 7, fn. 5.)
10

evidence presented at hearing supporting the ALJ's conclusion and deny the first element of
the exception.
The County's compound exception raises a second issue: would Miller's disclosure
about the Main Jail yard fight have been protected if it had been disclosed to Melo before the
meeting? Assuming arguendo that Miller did tell Melo about the Main Jail yard fight prior to
the union meeting, that disclosure, contrary to the County's exception, would also be protected.
Reporting safety concerns to an exclusive representative is protected activity. (See Regents of
the University of California (1983) PERB Decision No. 319-H, p. 15.) Employer conduct
which tends to chill that activity interferes with employee and union rights. (See Los Angeles
Unified School District (1992) PERB Decision No. 957 [an employee engages in protected
activity when he or she reports a work-related safety complaint].) Therefore, whether Miller
told Melo, or any other Association representative, about his safety concerns prior to the
MCSEA executive board meeting does not change our conclusion that Thoreson's dogged
inquiry about the identity of the reporter interfered with protected rights in this case. The harm
here is not simply seeking to learn what transpired at a union meeting and is not dependent on
whether an attorney was present. The harm lies in the potential chilling effect the employer's
conduct under the facts in this case has on employees' discussions with their union
representative about matters protected under the MMBA.
CONCLUSION
We affirm the ALJ's conclusion that the County interfered with Melo's exercise of
rights protected under the MMBA when its agent ordered Melo to reveal the name of the
MCSEA bargaining unit member who informed the union of his safety concerns arising from
1 1
evidence presented at hearing supporting the ALJ's conclusion and deny the first element of
the exception.
The County's compound exception raises a second issue: would Miller's disclosure
about the Main Jail yard fight have been protected if it had been disclosed to Melo before the
meeting? Assuming arguendo that Miller did tell Melo about the Main Jail yard fight prior to
the union meeting, that disclosure, contrary to the County's exception, would also be protected.
Reporting safety concerns to an exclusive representative is protected activity. (See Regents of
the University a/California (1983) PERB Decision No. 319-H, p. 15.) Employer conduct
which tends to chill that activity interferes with employee and union rights. (See Los Angeles
Unified School District (1992) PERB Decision No. 957 [an employee engages in protected
activity when he or she reports a work-related safety complaint].) Therefore, whether Miller
told Melo, or any other Association representative, about his safety concerns prior to the
MCSEA executive board meeting does not change our conclusion that Thoreson's dogged
inquiry about the identity of the reporter interfered with protected rights in this case. The harm
here is not simply seeking to learn what transpired at a union meeting and is not dependent on
whether an attorney was present. The harm lies in the potential chilling effect the employer's
conduct under the facts in this case has on employees' discussions with their union
representative about matters protected under the MMBA.
CONCLUSION
We affirm the ALJ's conclusion that the County interfered with Melo's exercise of
rights protected under the MMBA when its agent ordered Melo to reveal the name of the
MCSEA bargaining unit member who informed the union of his safety concerns arising from
11

the Main Jail yard fight. We likewise affirm the ALJ's proposed remedy, including the cease
and desist order and the posting order."
ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, the Public Employment Relations Board (PERB) finds in Case Nos. SA-CE-640-M
and SA-CE-690-M, that the County of Merced (County) violated the Meyers-Milias-Brown
Act (MMBA), Government Code sections 3503 and 3506 and PERB Regulation 32603(a) and
(b) by interfering with employee rights when it ordered a union president to disclose the source
of information obtained at a meeting between the union's executive board and its attorney and,
also, when it threatened to withdraw desirable assignments if the union did not withdraw the
August 10, 2009, letter sent by its attorney to the Merced County Sheriff Mark Pazin. All
other allegations in these cases are dismissed.
The County, its governing board and its representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the rights of employees guaranteed by the MMBA.
2. 	Denying Merced County Sheriff's Employee Association (MCSEA) its
right to represent its bargaining unit members in their employment relations with the County.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICES OF THE MMBA:
1 . 	Within ten (10) workdays of service of a final decision in this matter,
post at all work locations where notices to employees in the County are customarily posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
In City of Sacramento (2013) PERB Decision No. 2351-M, PERB set forth a new rule
which may require electronic posting of the notice to employees. We adopt the ALJ's
proposed order subject to this new rule.
12
the Main Jail yard fight. 	We likewise affirm the ALJ's proposed remedy, including the cease
and desist order and the posting order. 7
ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, the Public Employment Relations Board (PERB) finds in Case Nos. SA-CE-640-M
and SA-CE-690-M, that the County of Merced (County) violated the Meyers-Milias-Brown
Act (MMBA), Government Code sections 3503 and 3506 and PERB Regulation 32603(a) and
(b) by interfering with employee rights when it ordered a union president to disclose the source
of information obtained at a meeting between the union's executive board and its attorney and,
also, when it threatened to withdraw desirable assignments if the union did not withdraw the
August 10, 2009, letter sent by its attorney to the Merced County Sheriff Mark Pazin. All
other allegations in these cases are dismissed.
The County, its governing board and its representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the rights of employees guaranteed by the MMBA.
2. 	Denying Merced County Sheriffs Employee Association (MCSEA) its
right to represent its bargaining unit members in their employment relations with the County.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICES OF THE MMBA:
1. 	Within ten (10) workdays of service of a final decision in this matter,
post at all work locations where notices to employees in the County are customarily posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
7 In City of Sacramento (2013) PERB Decision No. 2351-M, PERB set forth a new rule
which may require electronic posting of the notice to employees. We adopt the ALJ' s
proposed order subject to this new rule.
12

authorized agent of the County, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for at least thirty (30) consecutive workdays. The County, its
governing board and its representatives shall take reasonable steps to ensure that the posted
Notice is not reduced in size, defaced, altered or covered by any material. In addition to
physical posting of paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used by the County to communicate with
its employees in the MCSEA bargaining unit.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The County
shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on MCSEA.
Chair Martinez and Member Winslow joined in this Decision.
13	13
authorized agent of the County, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for at least thirty (30) consecutive workdays. The County, its
governing board and its representatives shall take reasonable steps to ensure that the posted
Notice is not reduced in size, defaced, altered or covered by any material. In addition to
physical posting of paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used by the County to communicate with
its employees in the MCSEA bargaining unit.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The County
shall provide reports, in writing, as directed by the General Counsel or his/her designee. 	All
reports regarding compliance with this Order shall be concurrently served on MCSEA.
Chair Martinez and Member Winslow joined in this Decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. SA-CE-640-M; SA-CE-690-M, Merced
County Sheriff's Employee Association v. County of Merced, in which all parties had the right
to participate, it has been found that the County of Merced (County) violated the Meyers-
Milias-Brown Act (MMBA), Government Code section 3500 et seq., by ordering a union
activist to disclose the source of information obtained when union representatives were
meeting with their attorney and by threatening to withdraw desirable assignments if the
Merced County Sheriff's Employee Association (MCSEA) did not withdraw its August 10,
2009, letter to the Merced County Sheriff Mark Pazin.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1 . 	Interfering with the rights of employees guaranteed by the MMBA.
2 . 	Denying MCSEA its right to represent its bargaining unit members in
their employment relations with the County.
Dated: 	COUNTY OF MERCED
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case Nos. SA-CE-640-M; SA-CE-690-M, Merced
County Sheriff's Employee Association
v.
County
of
Merced, in which all parties had the right
to participate, it has been found that the County
of
Merced (County) violated the Meyers-
Milias-Brown Act (MMBA), Government Code section 3500 et seq., by ordering a union
activist to disclose the source
of
information obtained when union representatives were
meeting with their attorney and by threatening to withdraw desirable assignments
if
the
Merced County Sheriff's Employee Association (MCSEA) did not withdraw its August 10,
2009, letter to the Merced County Sheriff Mark Pazin.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Interfering with the rights
of
employees guaranteed by the MMBA.
2. 	Denying MCSEA its right to represent its bargaining unit members in
their employment relations with the County.
Dated: 	COUNTY OF MERCED
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MERCED COUNTY SHERIFF'S EMPLOYEE
ASSOCIATION/TEAMSTERS LOCAL 856,
UNFAIR PRACTICE
Charging Party, 	CASE NO. SA-CE-640-M
CASE NO. SA-CE-690-M
PROPOSED DECISION
(October 8, 2012)	COUNTY OF MERCED,
Respondent.
Appearances: Weinberg, Roger & Rosenfeld by Leslie V. Freeman, Attorney, for Merced
County Sheriff's Employee Association; Richard M. Flores, Assistant County Counsel, for the
County of Merced.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges a public employer's ordering a union activist to report what occurred
during a union meeting; urging the union to withdraw a letter to the employer or lose desirable
assignments for its members; initiating an investigation against two union activists after the
letter was sent to the employer; and interrogating union activists concerning their possession of
an internal affairs investigative file. The public employer denies any violation of the Meyers-
Milias-Brown Act (MMBA).'
On December 7, 2009, the Merced County Sheriff's Employee Association (MCSEA or
Association) filed an unfair practice charge (charge) against the County of Merced (County).
(PERB Case No. SA-CE-640-M.) On August 2, 2010, MCSEA filed an amended charge.
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated all statutory references are to the Government Code.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MERCED COUNTY SHERIFF'S EMPLOYEE
AS SOCIA TI ON/TEAMSTERS LOCAL 856,.
Charging Party,
v .
COUNTY OF MERCED,
Respondent.
V.
UNFAIR PRACTICE
CASE NO. SA-CE-640-M
CASE NO. SA-CE-690-M
PROPOSED DECISION
(October 8, 2012)
,,\ppearances: Weinberg, Roger & Rosenfeld
by
Leslie V. Freeman, Attorney, for Merced
County Sheriff's Employee Association; Richard M. Flores, Assistant County Counsel, for the
County
of
Merced.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges a public employer's ordering a union activist to report what occurred
during a union meeting; urging the union to withdraw a letter to the employer or lose desirable
assignments for its members; initiating an investigation against two union activists after the
letter was sent to the employer; and interrogating union activists concerning their possession
of
an internal affairs investigative file. The public employer denies any violation
of
the Meyers-
Milias-Brown Act (MMBA). 1
On December 7, 2009, the Merced County Sheriff's Employee Association (MCSEA or
Association) filed an unfair practice charge (charge) against the County
of
Merced (County).
(PERB Case No. SA-CE-640-M.) On August 2, 2010, MCSEA filed an amended charge.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated all statutory references are to the Government Code.

On October 5, 2010, the Office of General Counsel of the Public Employment Relations
Board (PERB) issued a complaint alleging that the Merced County Sheriff's Department
(Department) threatened to discipline MCSEA President Frank Melo (Melo) unless he
disclosed what was said between MCSEA representatives; threatened to stop assigning
members to desirable assignments unless union activists withdrew a letter to the Sheriff; and
initiated an investigation against union activists for issuing the letter to the Sheriff. Such
actions were alleged to have interfered with employee rights and discriminated against union
activists for exercising protected activities in violation of MMBA sections 3503, 3506, and
3509(b) and PERB Regulation 32603(a) and (b).2
On October 25, 2010, the County filed its answer denying any violation of the MMBA
or PERB Regulation. On November 9, 2010, an informal conference was held, but the dispute
was not resolved.
On November 23, 2010, MCSEA filed a second charge against the County. (PERB
Case No. SA-CE-690-M.) An amended charge was filed on December 15, 2010. On
January 4, 2011, the PERB Office of the General Counsel issued a complaint alleging that the
Department interrogated two MCSEA activists because of their possession of an internal
affairs investigative file and directed them to turn over such file. Such actions were alleged to
have interfered with employee rights and denied MCSEA the right to represent its members in
violation of MMBA sections 3503, 3506, and 3509(b) and PERB Regulation 32603(a) and (b).
On January 20, 2011, the County filed its answer denying any violation of the MMBA
or PERB Regulation. On February 7, 2011, an informal conference was held, but the dispute
was not resolved.
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
On October
5,
2010, the Office
of
General Counsel
of
the Public Employment Relations
Board (PERB) issued a complaint alleging that the Merced County Sheriffs Department
(Department) threatened to discipline MC SEA President Frank Melo (Melo) unless he
disclosed what was said between MCSEA representatives; threatened
to
stop assigning
members to desirable assignments unless union activists withdrew a letter to the Sheriff; and
initiated an investigation against union activists for issuing the letter to the Sheriff. Such
actions were alleged to have interfered with employee rights and discriminated against union
activists for exercising protected activities in violation
of
MMBA sections 3503, 3506, and
3509(b) and PERB Regulation 32603(a) and
(b ).2
On October 25, 2010, the County filed its answer denying any violation
of
the MMBA
or PERB Regulation. On November 9, 2010, an informal conference was held, but the dispute
was not resolved.
On November 23, 2010, MCSEA filed a second charge against the County. (PERB
Case No. SA-CE-690-M.) An amended charge was filed on December 15, 2010. On
January 4, 2011, the PERB Office
of
the General Counsel issued a complaint alleging that the
Department interrogated two MC SEA activists because
of
their possession
of
an internal
affairs investigative file and directed them to tum over such file. 	Such actions were alleged to
have interfered with employee rights and denied MCSEA the right to represent its members in
violation ofMMBA sections 3503, 3506, and 3509(b) and PERB Regulation 32603(a) and (b).
On January 20, 2011, the County filed its answer denying any violation
of
the MMBA
or PERB Regulation. 	On February 7, 2011, an informal conference was held, but the dispute
was not resolved.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

On February 15, 2011, the Administrative Law Judge (ALJ) consolidated PERB Case
Nos. SA-CE-640-M and SA-CE-690-M for hearing at the request of both parties. Formal
hearing was held on June 6 and 7, 2011.
On June 6, 2011, MCSEA proposed to admit the internal affairs investigation that the
County initiated against two union activists as a result of allegedly creating a hostile working
environment for Correctional Officer A (Officer A.)." The investigation is admitted for the
limited purpose of demonstrating: when the investigation was initiated and completed; the
content of the allegations; the number of witnesses interviewed; the statements of the
witnesses; the findings of the investigative sergeants; and the determinations by the assigned
Commander and Undersheriff. Without any objection from either party, the document was
sealed from public inspection to protect the privacy of the witnesses and parties of the
investigation (the alleged victim and the accused). (Government Code section 11425.20, Penal
Code section 832.7 and 832.8(e), and Evidence Code sections 1043 and 1045.)
With the filing of post-hearing briefs on August 26, 2011, the matter was submitted for
proposed decision.
FINDINGS OF FACT
Jurisdiction
The County is a "public agency" within the meaning of MMBA section 3501(c).
MCSEA is an "employee organization" within the meaning of MMBA section 3501(a) and an
"exclusive representative" within the meaning of PERB Regulation 32016(b) of the County's
Correctional Officers (Unit 2), and Security Systems Operators and Dispatchers (Unit 12).
' The ALJ has chosen to refer to the complainant in the internal affairs investigative file
as Officer A.
On February 15, 2011, the Administrative Law Judge (ALJ) consolidated PERB Case
Nos. SA-CE-640-M and SA-CE-690-M for hearing at the request
of
both parties. Formal
hearing was held on June 6 and 7, 2011.
On June 6, 2011, MC SEA proposed to admit the internal affairs investigation that the
County initiated against two union activists
as
a result
of
allegedly creating a hostile working
environment for Correctional Officer A (Officer A.). 3 The investigation is admitted for the
limited purpose
of
demonstrating: when the investigation was initiated and completed; the
content
of
the allegations; the number
of
witnesses interviewed; the statements
of
the
witnesses; the findings
of
the investigative sergeants; and the determinations by the assigned
Commander and Undersheriff. Without any objection from either party, the document was
sealed from public inspection to protect the privacy
of
the witnesses and parties
of
the
investigation (the alleged victim and the accused). 	(Government Code section 11425.20, Penal
Code section 832.7 and 832.8(e), and Evidence Code sections 1043 and 1045.)
With the filing
of
post-hearing briefs on August 26, 2011, the matter was submitted for
proposed decision.
FINDINGS OF FACT
Jurisdiction
The County is a "public agency" within the meaning ofMMBA section 3501(c).
MCSEA is an "employee organization" within the meaning ofMMBA section 3501(a) and an
"exclusive representative" within the meaning
of
PERB Regulation 32016(b)
of
the County's
Correctional Officers (Unit 2), and Security Systems Operators and Dispatchers (Unit 12).
3 The ALJ has chosen to refer to the complainant in the internal affairs investigative file
as Officer A.
3

Background
Merced County Sheriff Mark Pazin (Sheriff Pazin or Sheriff) has been the elected
Sheriff for all times pertinent. Bill Blake (Blake) was the County's Undersheriff up to
December 2009 and Mark Cavallero (Cavallero) has been the Undersheriff since
December 22, 2009. The Department consists of the Operations, Corrections, Civil, Court
Security, and Coroner's Divisions. The Corrections Division primarily consists of the "Main
Jail" facility (Main Jail) located within the city limits of Merced and the John Latorraca
Correctional Facility (Latorraca facility) located outside of city limits.
A commander oversees the day-to-day operations of each correctional facility.
Commander Rick Thoreson (Commander Thoreson or Thoreson) oversees the Main Jail and
Commander Joe Scott (Scott) oversees the Latorraca facility. Approximately 30 Correctional
Officers (CO's or officers) are employed at the Main Jail and 40 CO's are employed at the
Latorraca facility. Approximately seven Security Systems Operators (SSO's) are employed
within the Department. Additionally, part-time employees and extra-help employees, such as
Security Attendants (SA's) are employed to assist the CO's provide security. Part-time/extra-
help employees are non-represented.
In December 2008, the MCSEA membership elected an almost entirely new Board of
Directors which included CO Frank Melo (Melo) as president and SSO Tom Schiffler
(Schiffler) as a board member. Melo wanted to establish a working relationship with the
Sheriff's command whereas Schiffler wanted to focus on a more aggressive representation of
the membership, especially at investigatory interviews and disciplinary proceedings.
CO Jeffrey Miller (Miller), while not a board member, became the MCSEA spokesman.
MCSEA eventually appointed Schiffler to explore the possibility of having the
Teamsters represent MCSEA. Eventually, MCSEA associated with the Teamsters on
Background
Merced County Sheriff Mark Pazin (Sheriff Pazin or Sheriff) has been the elected
Sheriff for all times pertinent. Bill Blake (Blake) was the County's Undersheriffup to
December 2009 and Mark Cavallero (Cavallero) has been the Undersheriff since
December 22, 2009. The Department consists
of
the Operations, Corrections, Civil, Court
Security, and Coroner's Divisions. The Corrections Division primarily consists
of
the
"Main
Jail" facility (Main Jail) located within the city limits
of
Merced and the John Latorraca
Correctional Facility (Latorraca facility) located outside
of
city limits.
A commander oversees the day-to-day operations
of
each correctional facility.
Commander Rick Thoreson (Commander Thoreson or Thoreson) oversees the Main Jail and
Commander Joe Scott (Scott) oversees the Latorraca facility. Approximately 30 Correctional
Officers (CO's or officers) are employed at the Main Jail and 40 CO's are employed at the
Latorraca facility. Approximately seven Security Systems Operators (SSO's) are employed
within the Department. Additionally, part-time employees and extra-help employees, such
as
Security Attendants (SA's) are employed to assist the CO's provide security. Part-time/extra-
help employees are non-represented.
In December 2008, the MCSEA membership elected an almost entirely new Board
of
Directors which included CO Frank Melo (Melo) as president and SSO Tom Schiffler
(Schiffler) as a board member. Melo wanted to establish a working relationship with the
Sheriff's command whereas Schiffler wanted to focus on a more aggressive representation
of
the membership, especially at investigatory interviews and disciplinary proceedings.
CO Jeffrey Miller (Miller), while not a board member, became the MCSEA spokesman.
MCSEA eventually appointed Schiffler to explore the possibility of having the
Teamsters represent MCSEA. Eventually, MCSEA associated with the Teamsters on
4

August 8, 2009. Barry Bennett (Bennett), Esq. represented MCSEA on legal issues and
negotiations.
At the first MCSEA Board meeting in 2009, Commanders Thoreson and Scott were
invited to attend an MCSEA Board meeting to inform the board as to the future of the
Corrections Division. Both attended. After they gave their report, they were asked to leave.
Melo and Schiffler believed that Thoreson and Scott expected to stay. Thoreson and Scott did
not recount ever taking offense at having to leave.
On August 10, 2009, Bennett sent Sheriff Pazin a letter on behalf of MCSEA with a
copy to Melo, which provided in pertinent part:
This office, as you know, is counsel to Merced County Sheriff's
Employee Association, which represents the employees at the
County Correctional Facilities. Several concerns have arisen
among the membership of the Association, and I met with the
Association Board on Saturday. August 8, 2009, to address those
concerns. Several of those concerns appear to suggest that the
Department is either violating local ordinance, or neglecting
safety issues which are pertinent to the Unit employees' ability to
perform the duties of their position.
As you may be aware, the County Human Resources Rules and
Regulations, at section 2(AA), provide that extra help employees
may be engaged for "temporary, emergency, or seasonal help."
Notwithstanding that limitation, it appears that the Sheriff's
extra help employees, to the detriment of regular full-time
employees. While various rationales have been advanced by
department administration for the use of these extra help
employees, their numbers have been increasing, and slots on the
schedule have actually been made available to them, which
regular full-time employees could and should have occupied. I
am writing to you in an effort to have the department cease that
practice, and to create a scheduling system that returns shift
selection ability to full-time employees before extra help
employees are used. If we cannot agree on such an arrangement,
then the Association has authorized me to take legal recourse. . . .
In similar fashion, the Department appears to be resorting more
and more to the use of retired annuitants, on a "960 hour" basis,
5
August
8,
2009. Barry Bennett (Bennett), Esq. represented MCSEA on legal issues and
negotiations.
At the first MCSEA Board meeting in 2009, Commanders Thoreson and Scott
were
invited to attend an MC SEA Board meeting to inform the board
as
to the future
of
the
Corrections Division. Both attended. After they gave their report, they were asked to leave.
Melo and Schiffler believed that Thoreson and Scott expected
to
stay. Thoreson and
Scott
did
not recount ever taking offense at having to leave.
On August 10, 2009, Bennett sent Sheriff Pazin a letter on behalf
of
MCSEA with a
copy to Melo, which provided in pertinent part:
This office, as you know, is counsel to Merced County Sheriffs
Employee Association, which represents the employees at the
County Correctional Facilities. Several concerns have arisen
among the membership
of
the Association, and I met with the
Association Board on Saturday, August 8, 2009, to address those
concerns. Several
of
those concerns appear to suggest that the
Department is either violating local ordinance, or neglecting
safety issues which are pertinent to the Unit employees' ability to
perform the duties
of
their position.
As you may be aware, the County Human Resources Rules and
Regulations, at section 2(AA), provide that extra help employees
may be engaged for "temporary, emergency, or seasonal help."
Notwithstanding that limitation, it appears that the Sheriffs
Department has dramatically increased the number
of
part-time,	Department has dramatically increased the number of part-time,
extra help employees, to the detriment ofregular full-time
employees. While various rationales have been advanced by
department administration for the use
of
these extra help
employees, their numbers have been increasing, and slots on the
schedule have actually been made available to them, which
regular full-time employees could and should have occupied. I
am writing to you in an effort to have the department cease that
practice, and to create a scheduling system that returns shift
selection ability to full-time employees before extra help
employees are used.
	If
we cannot agree on such an arrangement,
then the Association has authorized me to take legal recourse
....
In similar fashion, the Department appears to be resorting more
and more to the use of retired annuitants, on a "960 hour" basis,
5

to fill full-time positions. There are now three or four such
individuals working within the corrections division, to the
detriment of full-time officers, and their promotional
opportunities. Once again, these individuals should be
considered extra help employees, and are not to be used other
than for purposes stated in County ordinance. While the
Association has tolerated the retention of such individuals in the
past, in part out of personal regard which many Association
employees have for these individuals, the Department's
increasing use of such persons is creating a problem, particularly
given the increasing numbers of other part-time employees.
Finally, an incident occurred on or about August 7, involving
inmates who were attempting to assault another inmate who had
been suspected of being a snitch. As a result of the Sheriff's
removing less-lethal weapons from them, the inmates were able
to act with impunity, jeopardizing the safety of the fellow inmate
as well as assigned officers. The "white shirt"* in the tower had
been trained in the use of less-lethal weapons, but having no
weapon at his disposal, could take no action to deter the inmates
in question. While the Association recognizes that the
Department has the discretion to determine whether or not
particular posts will be staffed by armed individuals, it is our
belief that discretion that has its limits, particularly where the
safety of officers and inmates is at stake. In this case, that
appears to be the case, and the Association has requested our
office to determine whether or not in fact a violation of Labor
Code section 6300, and analogous regulations, is created by the
absence of any armed personnel at various locations within the
facility. Once again, dialog with the Association would have
been helpful in this regard, but your administrative officers chose
not to follow that route.
I would appreciate your attention to all of these matters. The
Association believes that it has been exceedingly cooperative
with your administration to date, but will not put itself in a
position where the work opportunities, and safety, of its members
are subordinated to the interests of "getting along." We would
appreciate a prompt response from you and your commanders
regarding these issues.
(Emphasis added.)
A "white shirt" is the common name given to an extra-help SA.
6
to fill full-time positions. There are now three or four such
individuals working within the corrections division, to the
detriment
of
full-time officers, and their promotional
opportunities. Once again, these individuals should be
considered extra help employees, and are not to be used other
than for purposes stated in County ordinance. While the
Association has tolerated the retention
of
such individuals in the
past, in part out
of
personal regard which many Association
employees have for these individuals, the Department's
increasing use
of
such persons is creating a problem, particularly
given the increasing numbers
of
other part-time employees.
Finally, an incident occurred on or about August 7, involving
inmates who were attempting to assault another inmate who had
been suspected
of
being a snitch. As a result
of
the Sheriffs
Department policy to disarm employees in the tower, even	Department policy to disarm employees in the tower, even
removing less-lethal weapons from them, the inmates were able
to act with impunity, jeopardizing the safety
of
the fellow inmate
as
well as assigned officers. The "white shirt"[4l in the tower had
been trained in the use ofless-lethal weapons, but having no
weapon at his disposal, could take no action to deter the inmates
in question. While the Association recognizes that the
Department has the discretion to determine whether or not
particular posts will be staffed by armed individuals, it is our
belief that discretion that has its limits, particularly where the
safety
of
officers and inmates is at stake. In this case, that
appears to be the case, and the Association has requested our
office to determine whether or not in fact a violation
of
Labor
Code section 6300, and analogous regulations, is created by the
absence
of
any armed personnel at various locations within the
facility. 	Once again, dialog with the Association would have
been helpful in this regard, but your administrative officers chose
not to follow that route.
I would appreciate your attention to all
of
these matters. The
Association believes that it has been exceedingly cooperative
with your administration to date, but will not put itself in a
position where the work opportunities, and safety,
of
its members
are subordinated to the interests
of
"getting along." We would
appreciate a prompt response from you and your commanders
regarding these issues.
(Emphasis added.)
# A "white shirt" is the common name given to an extra-help SA.
6

August 18. 2010 Meeting Between Commanders Scott and Thoreson, and Melo
The Sheriff's secretary placed Bennett's August 10, 2009 letter in Commander Scott's
mailbox. Scott also notified Thoreson of the letter. The day after receiving the letter Thoreson
had a pepper ball gun issued to the SA position in the tower/catwalk position over the yard.
Scott and Thoreson wondered why MCSEA did not approach them and simply ask to restore
the pepper ball gun to the position, rather than to elevate the matter with a formal letter to the
Sheriff.
Scott obtained copies of the video footage for August 7, 2009 for the Main Jail to
review if there was a fight on the yard and what occurred. After reviewing the footage, Scott
saw that there wasn't a fight on the yard, but he noticed a fight which occurred right inside the
door which led out to the yard from Three Block. Scott did not believe the SA could have
stopped the incident with a pepper ball gun as he could not have shot the pepper ball inside
Three Block when the fight was occurring.
On August 18, 2009, Scott decided to invite Thoreson and MCSEA President Melo to
view the footage. After showing Melo the footage, Thoreson told Melo that there wasn't a
fight on the yard as the letter stated. Scott asked Melo whether the pepper ball gun would have
prevented the fight. Melo responded that he could not say one way or another as he was not
present during the fight. Thoreson asked Melo to tell him who said the fight happened on the
yard. Melo responded, "We discussed it among ourselves." Again, Thoreson asked Melo
who said the fight occurred on the yard. Melo asked whether Thoreson was giving him an
"Melo stated that he had told Thoreson that it came up in their discussions with the
attorney rather than "we discussed it among ourselves." Both Scott and Thoreson denied that
Melo said anything other than "we discussed it among ourselves." As the burden of proof is on
MCSEA, MCSEA has not met its burden of establishing Melo's testimony on this matter.
August 18, 2010 Meeting Between Commanders Scott and Thoreson, and Melo
The
Sheriffs
secretary placed Bennett's August 10, 2009 letter in Commander
Scott's
mailbox. Scott also notified Thoreson
of
the letter. The day after receiving the letter Thoreson
had a pepper ball gun issued to the SA position in the tower/catwalk position over the yard.
Scott and Thoreson wondered why MCSEA did not approach them and simply ask to restore
the pepper ball gun
to
the position, rather than to elevate the matter with a formal letter to the
Sheriff.
Scott obtained copies
of
the video footage for August 7, 2009 for the Main Jail to
review
if
there was a fight on the yard and what occurred. After reviewing the footage, Scott
saw that there wasn't a fight on the yard, but he noticed a fight which occurred right inside the
door which led out to the yard from Three Block. Scott did not believe the SA could
have
stopped the incident with a pepper ball gun as he could not have shot the pepper ball inside
Three Block when the fight was occurring.
On August 18, 2009, Scott decided to invite Thoreson and MCSEA President Melo to
view the footage. 	After showing Melo the footage, Thoreson told Melo that there
wasn't
a
fight on the yard as the letter stated. Scott asked Melo whether the pepper ball gun would have
prevented the fight. 	Melo responded that he could not say one way or another as he was not
present during the fight. 	Thoreson asked Melo to tell him who said the fight happened on the
yard. Melo responded, "We discussed it among ourselves."5 Again, Thoreson asked Melo
who said the fight occurred on the yard. Melo asked whether Thoreson was giving him an
5 Melo stated that he had told Thoreson that it came up in their discussions with the
attorney rather than "we discussed it among ourselves." Both Scott and Thoreson denied that
Melo said anything other than "we discussed it among ourselves." As the burden of proof is on
MCSEA, MCSEA has not met its burden of establishing Mela's testimony on this matter.
7

order. Thoreson replied that he was. Melo stated that it came from Miller. Thoreson
responded, "that is your problem right there," as Thoreson believes Miller tends to exaggerate.
After Melo disclosed Miller's name to Thoreson and Scott, he was devastated. He
telephoned Schiffler and explained how he had been ordered to provide the source of his
information. Schiffler provided Melo with Bennett's phone number and Melo contacted
Bennett. Eventually Melo contacted Miller to inform him what he did.
After this incident, Melo did not want to perform his duties as MCSEA President and
passed off his representational duties to MCSEA activist Chris Navarro (Navarro). Melo was
afraid he would get fired and did not want to confront Thoreson or Scott. He decided to focus
on only doing his job with the Department. Because of the MCSEA Board's recommendation,
he decided not to resign from his position as president before his term expired.
August 25. 2009 Statements by Commander Scott in Classroom
On August 25, 2009, during a lunch break at a classroom in the Latorraca facility,
Commander Scott came into the classroom and stated to Set. Bobrowski that the Sheriff was
upset about a letter he received from Bennett about the Sheriff's use of part-time and extra-
help employees. Scott further stated that the Sheriff said if the union did not retract the letter,
he would be removing certain desirable assignments from CO's in the Corrections Division,
such as transportation and backgrounds, and assign them to the deputy sheriffs.
CO Shambaugh was only five to six feet away from Scott and noticed that Scott looked
directly at him when he said this.
Scott admits that he said something about the Corrections Division needing to be
careful how they conducted themselves, but he did not intend it to be threatening. Rather, he
was being "protective" of the Corrections Division.
order. 	Thoreson replied that he was. Melo stated that it came from Miller. Thoreson
responded, "that is your problem right there," as Thoreson believes Miller tends to exaggerate.
After Melo disclosed Miller's name to Thoreson and Scott, he was devastated.
	He
telephoned Schiffler and explained how he had been ordered to provide the source
of
his
information. Schiffler provided Melo with Bennett's phone number and Melo contacted
Bennett. Eventually Melo contacted Miller to inform him what he did.
After this incident, Melo did not want to perform his duties as MCSEA President and
passed
off
his representational duties to MC SEA activist Chris Navarro (Navarro). Melo was
afraid he would get fired and did not want to confront Thoreson or Scott. He decided to focus
on only doing his job with the Department. Because
of
the MCSEA Board's recommendation,
he decided not to resign from his position
as
president before his term expired.
August 25, 2009 Statements by Commander Scott in Classroom
On August 25, 2009, during a lunch break at a classroom in the Latorraca facility,
Commander Scott came into the classroom and stated to Sgt. Bobrowski that the Sheriff was
upset about a letter he received from Bennett about the Sheriff's use
of
part-time and extra-
help employees. Scott further stated that the Sheriff said
if
the union did not retract the letter,
he would be removing certain desirable assignments from CO's in the Corrections Division,
such as transportation and backgrounds, and assign them to the deputy sheriffs.
CO Shambaugh was only five to six feet away from Scott and noticed that Scott looked
directly at him when he said this.
Scott admits that he said something about the Corrections Division needing to be
careful how they conducted themselves, but he did not intend it to be threatening. Rather, he
was being "protective" of the Corrections Division.
8

August 21. 2009 Officer A.'s Petition
On August 21, 2009, Officer A. wrote a petition to be submitted to Sheriff Pazin, which
provided in part:
I am writing this in regards to a recent letter that was given to
Sheriff Pazin from Barry Bennett on behalf of MCSEA. This
letter is to the entire Correctional Division. I believe this effects
[sic]not only the MCSEA members, but also the Correctional
Officers, the extra help employees, the [Facilities Admissions
Clerks], the [SSO's], the Sergeants, and this department as a
whole.
I personally would like the Sheriff to know that we do not all
agree with this letter and the threat against the [Clounty to take
"legal recourse" as stated in Barry Bennett's letter on behalf of
MCSEA.
I would also like to inform our extra help employees of what
could be in their near future. I understand it may seem as though
this letter from Barry Bennett on behalf of MCSEA is "looking
out" for your best interest, but here are some things to keep in
mind. First of all, there is a strong possibility that your hours will
now be cut down to only thirty-two hours a week. You are no
longer allowed to work any overtime, whether it be mandatory
hold over or signing up to work overtime. I believe for most
people this will cause financial strain, and make it difficult to
support your family, pay for your home, your cars, and the living
arrangement that you have become accustomed to. . . . '
As a full time employee of this department I would like to
express my concerns regarding this matter. Due to the extra help
employees being unable to work overtime, this will cause myself
and even more senior officers than me to have to work mandatory
overtime. I recall when I had only been here for a short period of
time all of our employees were so exhausted from being forced to
work so much mandatory overtime. It came to a point that
everyone started calling in sick so they could rest, causing even
more overtime. It was an ongoing problem, and we went to our
Sheriff and requested help. We requested more staff to assist in
covering the overtime. The Sheriff responded by giving us extra
help employees to assist with our staffing issues. We now have
more employees in the Correctional Division that we have ever
had before. The Sheriff and our Commanders have fought to
make this a safer environment for all of the Correctional
Division. In return we thank him by having our attorney write
August 21, 2009 Officer A.' s Petition
On August 21, 2009, Officer
A.
wrote a petition to be submitted to Sheriff Pazin, which
provided in part:
I am writing this in regards to a recent letter that was given to
Sheriff Pazin from Barry Bennett on behalf
of
MC SEA. This
letter is to the entire Correctional Division. I believe this effects
[sic]not only the MCSEA members, but also the Correctional
Officers, the extra help employees, the [Facilities Admissions
Clerks], the [SSO's], the Sergeants, and this department
as
a
whole.
I personally would like the Sheriff to know that we do not all
agree with this letter and the threat against the [C]ounty
to
take
"legal recourse" as stated in
BmTy
Bennett's letter on behalf
of
MCSEA.
I would also like to inform our extra help employees
of
what
could be in their near future. 	I understand it may seem as though
this letter from Barry Bennett on behalf
of
MC SEA is "looking
out" for your best interest, but here are some things to keep in
mind. First
of
all, there is a strong possibility that your hours will
now be cut down to only thirty-two hours a week. You are no
longer allowed to work any overtime, whether it be mandatory
hold over or signing up to work overtime. I believe for most
people this will cause financial strain, and make it difficult to
support your family, pay for your home, your cars, and the living
arrangement that you have become accustomed to
....
,r
As a full time employee
of
this department I would like to
express my concerns regarding this matter. Due to the extra help
employees being unable to work overtime, this will cause myself
and even more senior officers than me to have to work mandatory
overtime. I recall when I had only been here for a short period
of
time all
of
our employees were so exhausted from being forced to
work so much mandatory overtime.	
It
came to a point that
everyone started calling in sick so they could rest, causing even
more overtime. It was an ongoing problem, and we went to our
Sheriff and requested help. We requested more staff to assist in
covering the overtime. The Sheriff responded by giving us extra
help employees to assist with our staffing issues. We now have
more employees in the Correctional Division that we have ever
had before. The Sheriff and our Commanders have fought to
make this a safer environment for all of the Correctional
Division. In return we thank him by having our attorney write
9

him a letter with complaints regarding our extra help employees
and threaten to take legal recourse. What will it take for MCSEA
to be satisfied? 1 . . . 1
I am certain that by writing this, it may cause controversy and
turmoil between myself, my fellow officers and the MCSEA
board. I feel as though my rights to express my opinion on this
matter were taken from me and from me and from my fellow
MCSEA members by not allowing us to vote on this letter being
sent to the Sheriff. . . .
If you would like to let MCSEA, our fellow officers, [Facilities
Admissions Clerks], [SSO's], Sergeants, Commanders, and our
Sheriff know that we do not all support this letter written by
Barry Bennett on behalf of MCSEA please print and sign your
name on the attached list.
Thank you for your time and consideration regarding this matter.
My hope is that in the future MCSEA and its members can work
with Administration to give Corrections a brighter future.
Officer A. presented her petition to Sheriff Pazin. Sheriff Pazin accepted the petition
and replied that he understood there was a difference of opinion. In early September 2009,
Officer A.'s MCSEA membership was revoked.
Allegations Leading to the Investigation of Miller and Schiffler
The Department has a discipline policy which mandates that it investigate all
allegations of misconduct regardless of the source of that information. However, if the
allegation is a violation of the County's Anti-Harassment and Discrimination Policy, the
Undersheriff has the discretion to initiate an investigation or refer the matter to the County
Human Resources Department for investigation." Regardless of these policies, the Department
will not initiate an investigation if the matter has been resolved at a lower level between the
parties.
The Undersheriff has the authority to initiate an investigation in the Department.
10
him a letter with complaints regarding our extra help employees
and threaten
to
take legal recourse. What will it take for MCSEA
to
be satisfied?
i1
...
i1
I am certain that by writing this, it may cause controversy and
turmoil between myself, my fellow officers and the MCSEA
board. I feel as though my rights to express my opinion on this
matter were taken from me and from me and from my fellow
MCSEA members by not allowing us to vote on this letter being
sent to the Sheriff.
...
If
you would like to let MCSEA, our fellow officers, [Facilities
Admissions Clerks], [SSO's], Sergeants, Commanders, and our
Sheriff know that we do not all support this letter written by
Barry Bennett on behalf
of
MC SEA please print and sign your
name on the attached list.
Thank you for your time and consideration regarding this matter.
My hope is that in the future MCSEA and its members can work
with Administration to give Corrections a brighter future.
Officer A. presented her petition to Sheriff Pazin. Sheriff Pazin accepted the petition
and replied that he understood there was a difference
of
opinion. In early September 2009,
Officer A.'s MCSEA membership was revoked.
Allegations Leading to the Investigation
of
Miller and Schiffler
The Department has a discipline policy which mandates that it investigate all
allegations
of
misconduct regardless
of
the source
of
that infomrntion. However,
if
the
allegation is a violation
of
the County's Anti-Harassment and Discrimination Policy, the
Undersheriff has the discretion to initiate an investigation or refer the matter to the County
Human Resources Department for investigation. 6 Regardless
of
these policies, the Department
will not initiate an investigation
if
the matter has been resolved at a lower level between the
parties.
6 The Undersheriff has the authority to initiate an investigation in the Department.
10

Between November 11 and 13, 2009, Officer A. approached Thoreson to discuss a
number of incidents of harassment from Miller/Schiffler. At that time, Officer A. had not
reduced them to writing, but just wanted Thoreson to listen to her. She did not request an
investigation. Thoreson brought these issues to Undersheriff Blake's attention who then
authorized that an investigation be initiated.
Officer A. then handwrote a two-page document which included portions of the four
incidents' which were eventually investigated. Those incidents can be summarized as:
1) In August 2009, Schiffler used the control room speakerbox
to listen in on a conversation that Officer A. was having with
the Deputy Sheriff's Association President where Officer A.
was complaining about MCSEA.
2) On November 4, 2009, while Officer A. was in the
breakroom with another officer, Miller told her that her
retiring and she was not going to have the protection from
her "daddy's good ole boys" as they would be gone in
three to four years and she better stop burning her bridges.
Miller also stated that he had a favorable relationship with
the likely appointment to Undersheriff position, Cavallero.
3) On November 9, 2009, Schiffler prematurely closed an
electronically-operated door in front of Officer A., and when
Schiffler re-opened the door stated, "that didn't take long"
and laughed.
4) On November 11, 2009, at work, Navarro was explaining a
MCSEA bylaws provision to Officer A. about being required
to appear at her membership revocation appeals hearing,
when Schiffler told Officer A. to get a "fucking" attorney
and challenge Navarro's interpretation if she did not like it.
A fifth incident was written down by Officer A., but was not investigated.
Specifically, Officer A. complained that Miller threatened that if she turned in her petition to
the Sheriff, she would not be considered a member in "good standing," and therefore would
not have legal representation for one year.
Officer A.'s father was a former Commander of the Corrections Division and well-
respected.
1 1
Between November
11
and 13, 2009, Officer A. approached Thoreson to discuss a
number
of
incidents
of
harassment from Miller/Schiffler. At that time, Officer
A.
had
not
reduced them to writing, but just wanted Thoreson to listen to her. 	She did not request an
investigation. Thoreson brought these issues to Undersheriff Blake's attention who then
authorized that an investigation be initiated.
Officer
A.
then handwrote a two-page document which included portions
of
the four
incidents7 which were eventually investigated. Those incidents can be summarized as:
1)	
In August 2009, Schiffler used the control room speakerbox
to listen in on a conversation that Officer A. was having with
the Deputy Sheriff's Association President where Officer A.
was complaining about MCSEA.
2)	
On November 4, 2009, while Officer
A.
was in the
breakroom with another officer, Miller told her that her
'Uncle Ricci" (Thoreson) and Blake were going to be	Ricci" (Thoreson) and Blake were going to be
retiring and she was not going to have the protection from
her "daddy's good ole
boys"[SJ
as they would be gone in
three to four years and she better stop burning her bridges.
Miller also stated that he had a favorable relationship with
the likely appointment to Undersheriff position, Cavallero.
"Uncle
3) 	On November 9, 2009, Schiffler prematurely closed an
electronically-operated door in front
of
Officer A., and when
Schiffler re-opened the door stated, "that didn't take long"
and laughed.
4) 	On November 11, 2009, at work, Navarro was explaining a
MCSEA bylaws provision to Officer A. about being required
to appear at her membership revocation appeals hearing,
when Schiffler told Officer A. to get a "fucking" attorney
and challenge Navarro's interpretation
if
she did not like it.
7 A fifth incident was written down by Officer A., but was not investigated.
Specifically, Officer A. complained that Miller threatened that
if
she turned in her petition to
the Sheriff, she would not be considered a member in "good standing," and therefore would
not have legal representation for one year.
8 Officer A.'s father was a former Commander of the Corrections Division and well-
respected.
11

On November 13, 2009, Miller and Schiffler were both notified that they were the
subject of an internal affairs investigation." Miller was also notified that he was being
transferred to the Latorraca facility, but he would keep his same days off and shift. Schiffler
was notified that he was being transferred to the Work Release Division. The transfers were
justified by Miller/Schiffler allegedly creating a hostile working environment for Officer A.
When Miller received the notice from Thoreson, Miller stated that Thoreson said, "it is all her,
man."
During the evening of November 13, 2009, Miller telephoned Thoreson about another
work-related matter. At the end of the conversation, Thoreson asked Miller how Schiffler was
doing. Miller explained that he wasn't doing well. Miller told Thoreson that he would never
do what he was accused of doing. Thoreson replied that he knew there was nothing to the
charges, but since Miller and Schiffler were the leaders they were going to have to "take it."
Thoreson denied making such a comment.
Schiffler was originally assigned to the Work Release Division for approximately three
weeks, but was allowed to return to his position at the Main Jail control room as Officer A.
was placed on extended leave from the end of November 2009 until January 11, 2010, when
Officer A. returned from her leave and Schiffler was reassigned to the control room at the
Latorraca facility. Schiffler became ill from the ventilation system in the Latorraca facility
control room, and reported his unhealthy environment to Set. Salacup. When the matter was
brought to Scott's attention, Scott directed Sgt. Salacup to move Schiffler to the front desk, but
the redirection did not take place. On February 27, 2010, Schiffler was hospitalized for flu-
like symptoms. Although he was released that day, he did not return to work until
"These allegations in the notices included violating the County's Anti-Harassment and
Discrimination Policy.
12
On November 13, 2009, Miller and Schiffler were both notified that they were
the
subject
of
an internal affairs investigation.9 Miller was also notified that he was being
transferred to the Latorraca facility, but he would keep his same days
off
and shift. Schiffler
was notified that he was being transferred to the Work Release Division. The transfers were
justified by Miller/Schiffler allegedly creating a hostile working environment for Officer A.
When Miller received the notice from Thoreson, Miller stated that Thoreson said, "it is all her,
man."
During the evening
of
November 13, 2009, Miller telephoned Thoreson about another
work-related matter. At the end
of
the conversation, Thoreson asked Miller how Schiffler was
doing. Miller explained that he wasn't doing well. Miller told Thoreson that he would never
do what he was accused
of
doing. Thoreson replied that he knew there was nothing to the
charges, but since Miller and Schiffler were the leaders they were going to have to "take it."
Thoreson denied making such a comment.
Schiffler was originally assigned to the Work Release Division for approximately three
weeks, but was allowed to return to his position at the Main Jail control room as Officer A.
was placed on extended leave from the end
of
November 2009 until January 11, 2010, when
Officer A. returned from her leave and Schiffler was reassigned to the control room at the
Latorraca facility. 	Schiffler became ill from the ventilation system in the Latorraca facility
control room, and reported his unhealthy environment to Sgt. Salacup. When the matter was
brought to Scott's attention, Scott directed Sgt. Salacup to move Schiffler to the front desk, but
the redirection did not take place. On February 27, 2010, Schiffler was hospitalized for flu-
like symptoms. Although he was released that day, he did not return to work until
9 These allegations in the notices included violating the County's Anti-Harassment and
Discrimination Policy.
12

March 2, 2010. Schiffler refused to return to the Latorraca control room and remained in the
Sergeant's office.
Investigation of Miller and Schiffler
Sets. Bobrowski and Blodgett were assigned to conduct the investigation of Miller and
Schiffler. They conducted approximately 26 different interviews of 17 witnesses between
November 17, 2009 and January 14, 2010." Other than the eavesdropping incident, which
Schiffler admitted occurred after he heard Officer A. use "motherfucker" before his name,"
the investigation revealed a conflict between Officer A.'s interview statements and
Miller/Schiffler's interview statements. Miller denied threatening Officer A. in any way in the
breakroom and did not recall making statements Officer A. attributed to him. The third officer
who was present only partially corroborated Officer A.'s statement." Schiffler denied
intentionally closing the electronically-operated door prematurely or making any comments
after that. He also denied using the word "fucking" before "attorney." Other supposed
witnesses to the events were not helpful.
Most of interviews were conducted between November 17 and 24, 2009. Schiffler
and Miller and other supplemental interviews were conducted on January 14, 2010. Thoreson,
as the Commander of the Main Jail, would have reviewed the investigative reports, but he
retired in December 2009. Sgt. Bobrowski purposely delayed some of the interviews until
after Thoreson had retired as he believed that Thoreson would have recommended a greater
level of discipline than was needed.
"After the eavesdropping incident, at the request of Set. Johann, Schiffler apologized
to Officer A. and Officer A. accepted the apology. The incident seemed resolved. Officer A.
denied using the word "motherfucker" in reference to Schiffler.
12 The other female officer in the breakroom stated that Miller told Officer A. not to
"burn her bridges" and that Thoreson was retiring soon, but she did not mention any threat
from Miller to Officer A.
13
March 2, 2010. Schiffler refused to return to the Latorraca control room and remained
in
the
Sergeant's office.
Investigation
of
Miller and Schiffler
Sgts. Bobrowski and Blodgett were assigned to conduct the investigation
of
Miller
and
Schiffler. They conducted approximately 26 different interviews
of
17 witnesses
between
November 17, 2009 and January 14, 2010.
10
Other than the eavesdropping incident,
which
Schiffler admitted occurred after
he
heard Officer A. use "motherfucker" before his
name,
11
the investigation revealed a conflict between Officer A.
's
interview statements and
Miller/Schiffler's interview statements. Miller denied threatening Officer A. in any
way
in the
breakroom and did not recall making statements Officer A. attributed to him. The third officer
who was present only partially corroborated Officer
A.'
s statement. 12
Schiffler denied
intentionally closing the electronically-operated door prematurely or making any comments
after that. He also denied using the word "fucking" before "attorney." Other supposed
witnesses to the events were not helpful.
1
Most
of
interviews were conducted between November 17 and 24, 2009. Schiffler
and Miller and other supplemental interviews were conducted on January 14, 2010. Thoreson,
as the Commander
of
the Main Jail, would have reviewed the investigative reports, but he
retired in December 2009. Sgt. Bobrowski purposely delayed some
of
the interviews until
after Thoreson had retired as he believed that Thoreson would have recommended a greater
level
of
discipline than was needed.
11
After the eavesdropping incident, at the request
of
Sgt. Johann, Schiffler apologized
to Officer A. and Officer A. accepted the apology. The incident seemed resolved. Officer A.
denied using the word "motherfucker" in reference to Schiffler.
12
The other female officer in the breakroom stated that Miller told Officer A. not to
"bum her bridges" and that Thoreson was retiring soon, but she did not mention any threat
from Miller to Officer A.
13

During the interviews of Miller and Schiffler, they both stated that they believed
Officer A. created a hostile working environment for them" and that she was resentful that the
MCSEA Board decided to enlist the help of the Teamsters and disagreed with them on other
union issues. Both of them decided not to file a complaint or complain about Officer A. out of
respect for her father.
Sets. Bobrowski and Blodgett prepared a report which sustained almost all of the
allegations against Miller and Schiffler. The report was forwarded to Commander B.J. Jones
(Commander Jones or Jones) as Commander Scott thought it best to remove himself from such
review after being named in the first unfair practice charge. After Commander Jones reviewed
the matter, he disagreed with the investigators and communicated his disagreement with
Undersheriff Cavallero who agreed with Jones. Ultimately, Undersheriff Cavallero did not
think the evidence supported the findings and did not sustain the allegations against Miller
and/or Schiffler. Additionally, Undersheriff Cavallero used his discretion to decide not to
conduct any further investigation into this matter, including any investigation about Officer A.
harassing Miller and Schiffler. Undersheriff Cavallero did not discuss his determination(s)
with Sheriff Pazin.
On March 12, 2010, Commander Jones provided written notices to both Miller and
Schiffler stating that Undersheriff Cavallero and he determined the allegations against him
were not sustained. Both Miller and Schiffler returned to their prior positions at the Main Jail.
Miller and Schiffler also went to speak with Commander Scott. Both Miller and Schiffler
questioned Scott as to the Department conducting an investigation on Officer A. creating a
hostile working environment for them. Scott responded that Miller and Schiffler could file a
ficer A. admitted in her interview that she told Miller and Navarro that they were a
"bunch of Nazi's" because none of the members were allowed to express their own opinions on
union issues.
14
During the interviews
of
Miller and Schiffler, they both stated that they believed
Officer
A.
created a hostile working environment for them
13
and that she was resentful
that
the
MC SEA Board decided
to
enlist the help
of
the Teamsters and disagreed with them on
other
union issues. Both
of
them decided not to file a complaint or complain about Officer A. out
of
respect for her father.
Sgts. Bobrowski and Blodgett prepared a report which sustained almost all
of
the
allegations against Miller and Schiffler. The report was forwarded to Commander B.J. Jones
(Commander Jones or Jones) as Commander Scott thought it best to remove himself from such
review after being named in the first unfair practice charge. After Commander Jones reviewed
the matter, he disagreed with the investigators and communicated his disagreement with
Undersheriff Cavallero who agreed with Jones. Ultimately, Undersheriff Cavallero did not
think the evidence supported the findings and did not sustain the allegations against Miller
and/or Schiffler. Additionally, Undersheriff Cavallero used his discretion to decide not to
conduct any further investigation into this matter, including any investigation about Officer
A.
harassing Miller and Schiffler. Undersheriff Cavallero did not discuss his determination(s)
with Sheriff Pazin.
On March 12, 2010, Commander Jones provided written notices to both Miller and
Schiffler stating that Undersheriff Cavallero and he determined the allegations against him
were not sustained. Both Miller and Schiffler returned to their prior positions at the Main Jail.
Miller and Schiffler also went to speak with Commander Scott. Both Miller and Schiffler
questioned Scott as to the Department conducting an investigation on Officer A. creating a
hostile working environment for them. Scott responded that Miller and Schiffler could file a
OfOfficer A. admitted in her interview that she told Miller and Navarro that they were a
"bunch of Nazi's" because none of the members were allowed to express their own opinions on
umon issues.
14

complaint with the human resources department, but the Department was closing its
investigation.
Demand to Return Internal Affairs Investigative File
On March 29, 2010, Bennett wrote a letter to Sheriff Pazin requesting that, pursuant to
the California Public Records Act (Government Code section 6250, et seq.), the Department
produce the entire internal affairs investigative file of the Miller/Schiffler investigation to him.
The matter was referred to the County Counsel's office.
On July 6, 2010, Bennett was present with Navarro at a meet and confer meeting with
the County's Human Resources Director Robert Morris. After the meeting, Bennett picked up
the investigative file from the County Counsel's office. Bennett made copies of the file and
gave a copy to Navarro who gave it to Schiffler. Schiffler reviewed the file that day.
On July 8, 2010, Schiffler and Miller were reviewing the investigative file at Schiffler's
residence. Schiffler did not understand how to view the videotapes provided with the file and
telephoned Sgt. Bobrowski to inquire how to do so. Set. Bobrowski provided the needed
information. Later, Miller asked to speak to Set. Bobrowski and placed him on the
speakerphone so both Miller and Schiffler could hear the conversation. Miller asked
Sgt. Bobrowski why he did not investigate Officer A. for filing false charges against them and
why he investigated union business. Set. Bobrowski admitted to being under a lot of
pressure"* and he would love to tell Miller about it, but could not. He admitted that he was
waiting for Commander Thoreson to retire.
Before Miller and Schiffler came to work that day, the County Counsel's Office
requested the Department to retrieve the investigative file from Miller and Schiffler as the
"Sgt. Bobrowski clarified that no one "pressured" him to come up with sustained
findings against Miller and Schiffler.
15
complaint with the human resources department, but the Department was closing its
investigation.
Demand to Return Internal Affairs Investigative File
On March 29, 2010, Bennett wrote a letter to Sheriff Pazin requesting that, pursuant to
the California Public Records Act (Government Code section 6250, et seq.), the Department
produce the entire internal affairs investigative file
of
the Miller/Schiffler investigation to him.
The matter was referred to the County Counsel's office.
On July 6, 2010, Bennett was present with Navarro at a meet and confer meeting with
the County's Human Resources Director Robe1i Morris. After the meeting, Bennett picked up
the investigative file from the County Counsel's office. Bennett made copies
of
the file and
gave a copy to Navarro who gave it to Schiffler. Schiffler reviewed the file that day.
On July 8, 2010, Schiffler and Miller were reviewing the investigative file at Schiffler's
residence. 	Schiffler did not understand how to view the videotapes provided with the file and
telephoned Sgt. Bobrowski to inquire how to do so. Sgt. Bobrowski provided the needed
information. Later, Miller asked to speak to Sgt. Bobrowski and placed him on the
speakerphone so both Miller and Schiffler could hear the conversation. Miller asked
Sgt. Bobrowski why he did not investigate Officer A. for filing false charges against them and
why he investigated union business. Sgt. Bobrowski admitted to being under a lot
of
pressure
14
and he would love to tell Miller about it, but could not. He admitted that he was
waiting for Commander Thoreson to retire.
Before Miller and Schiffler came to work that day, the County Counsel's Office
requested the Department to retrieve the investigative file from Miller and Schiffler as the
14
Sgt. Bobrowski clarified that no one "pressured" him to come up with sustained
findings against Miller and Schiffler.
15

County Counsel was not supposed to release the investigative file to them. Scott was charged
with the duty of retrieving the documents and enlisted the help of Commander Jones to assist
him.
When Miller and Schiffler arrived at work at 3:00 p.m., Scott had Miller report to his
office. Scott informed Miller that the County Counsel's office erroneously released a copy of
the investigative file and he would like him to return the file. Miller stated that the file was his
personal property given to him by Navarro who received it from their union attorney. Scott
again asked for the file and Miller responded that he did not have it. Scott ordered Miller to
return the file. Miller replied that the file was not in his possession as he was at Schiffler's
house when he reviewed it. Miller would not answer whether Schiffler had the file. Scott told
Miller to have Schiffler come to his office.
Miller retrieved Schiffler. When Schiffler came in, Miller asked if he could come in as
Schiffler's representative. Scott consented. Scott again told Schiffler that the file shouldn't
have been released to him and asked for the file to be returned. Scott asked Schiffler if he had
a copy. Schiffler admitted that he did, but it was at his home, locked in a safe. Miller asserted
himself and stated the file was our property and Schiffler got the file from Navarro who got it
from Bennett. Finally, Scott ordered Schiffler to return the file. Miller replied they would
comply with the order. Scott asked when he would return the file. Schiffler responded that he
would deliver it to Scott at the beginning of shift the next day. Scott also asked who was at the
meeting when Bennett received the file. As both Miller and Schiffler were not there, they
could not answer. Scott asked who also had copies of the investigative file and Miller stated
that Bennett and the Teamsters had copies.
On July 9, 2010, at approximately 3:00 p.m. Schiffler returned the file to Scott.
16
County Counsel was not supposed to release the investigative file to them. 	Scott was charged
with the duty
of
retrieving the documents and enlisted the help
of
Commander Jones to assist
him.
When Miller and Schiffler arrived at work at 3 :00 p.m., Scott had Miller report to his
office. 	Scott infonned Miller that the County Counsel's office erroneously released a copy
of
the investigative file and he would like him to return the file. 	Miller stated that the file was his
personal property given to him by Navarro who received it from their union attorney. 	Scott
again asked for the file and Miller responded that he did not have it. Scott ordered Miller to
return the file. 	Miller replied that the file was not in his possession as he was at Schiffler's
house when he reviewed it. Miller would not answer whether Schiffler had the file. 	Scott told
Miller to have Schiffler come to his office.
Miller retrieved Schiffler. When Schiffler came in, Miller asked
if
he could come in as
Schiffler' s representative. Scott consented. Scott again told Schiffler that the file shouldn't
have been released to him and asked for the file to be returned. 	Scott asked Schiffler
if
he had
a copy. Schiffler admitted that he did, but it was at his home, locked in a safe. Miller asserted
himself and stated the file was our property and Schiffler got the file from Navarro who got it
from Bennett. Finally, Scott ordered Schiffler to return the file. 	Miller replied they would
comply with the order. Scott asked when he would return the file. 	Schiffler responded that he
would deliver it to Scott at the beginning
of
shift the next day. 	Scott also asked who was at the
meeting when Bennett received the file. 	As both Miller and Schiffler were not there, they
could not answer. 	Scott asked who also had copies
of
the investigative file and Miller stated
that Bennett and the Teamsters had copies.
On July 9, 2010, at approximately 3:00 p.m. Schiffler returned the file to Scott.
16

ISSUES
1 . 	Did Thoreson interfere with employee rights under the MMBA by ordering
Melo to divulge his source of information?
2. 	Did Scott interfere with employee rights under the MMBA by stating that
MCSEA should retract the letter?
3. 	Did the Department retaliate against Miller and Schiffler for their exercise of
protected activities by initiating an investigation against them?
4. 	Did Scott interfere with Miller's and Schiffler's rights under the MMBA by
ordering them to return the internal affairs investigative file and asking them who had copies of
the file?
CONCLUSIONS OF LAW
Interference as to Thoreson Ordering Melo and Scott's Statement About Retracting the Letter
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 result from the conduct. If harm to employee rights is slight and the employer
offers justification based on operational necessity, the competing interests are balanced. If the
harm is inherently destructive of employee rights, the employer's conduct will be excused only
on proof that it was caused by circumstances beyond its control and no alternative course of
action was available. 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 of Tulare County, Inc. v. Board of Supervisors of Tulare
County (1985) 167 Cal.App.3d 797, 807.)
17
ISSUES
1.	
Did Thoreson interfere with employee rights under the
MMBA
by
ordering
Melo to divulge his source
of
information?
2. 	Did Scott interfere with employee rights under the MMBA
by
stating
that
MCSEA should retract the letter?
3. 	Did the Department retaliate against Miller and Schiffler for their exercise
of
protected activities
by
initiating an investigation against them?
4. 	Did Scott interfere with Miller's and Schiffler's rights under the
MMBA
by
ordering them to return the internal affairs investigative file and asking them who had copies
of
the file?
CONCLUSIONS OF LAW
Interference as to Thoreson Ordering Melo and Scott's Statement About Retracting the Letter
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 result from the conduct.	
If
harm to employee rights is slight and the employer
offers justification based on operational necessity, the competing interests are balanced.	
If
the
harm is inherently destructive
of
employee rights, the employer's conduct will be excused only
on proof that it was caused
by
circumstances beyond its control and no alternative course
of
action was available. 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
of
Tulare County, Inc.
v.
Board
of
Supervisors
of
Tulare
County (1985) 167 Cal.App.3d 797, 807.)
17

A violation may only be found if the MMBA provides the claimed rights which were
interfered with. (City & County of San Francisco (2011) PERB Decision No. 2206-M.) In
Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a finding of
coercion does not require evidence that the employee actually felt threatened or intimidated or
was in fact discouraged from participating in protected activity.
(1) Employees Engaged in Protected Activities
MMBA section 3502 provides in part that, ". . . public employees shall have the right to
form, join, and participate in the activities of employee organizations of their own choosing for
the purpose of representation on all matters of employer-employee relations." Additionally,
MMBA section 3503 provides in part that, "Recognized employee organizations shall have the
right to represent their members in their employment relations with public agencies." When
Bennett sent a letter to the Sheriff expressing officer safety and removal of bargaining unit work
concerns, employees engaged in protected activities by having their attorney raise concerns
within the scope of presentation to the Sheriff. (Rialto Unified School District (1982) PERB
Decision No. 209; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 620.) MCSEA
has satisfied this element for establishing an interference violation.
(2) Conduct Tends to Interfere with Employee Rights.
(a) Inquiry of Melo.
Melo's response to Thoreson's initial inquiry as to who stated the fight occurred on the
yard was "we discussed it among ourselves," however, such response was coupled with the
statements in Bennett's letter that he met with Association members to address these concerns.
These two together establishes to a reasonable person that this discussion occurred among the
MCSEA representatives. Therefore, when Thoreson ordered Melo to answer his question after
18
A violation may only be found
if
the MMBA provides the claimed rights which were
interfered with. (City & County
of
San Francisco (2011) PERB Decision No. 2206-M.) 	In
Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a finding
of
coercion does not require evidence that the employee actually felt threatened or intimidated or
was in fact discouraged from participating in protected activity.
(1) Employees Engaged in Protected Activities
MMBA section 3502 provides in part
that,"
...
public employees shall have the right to
form, join, and participate in the activities
of
employee organizations
of
their own choosing for
the purpose
of
representation on all matters
of
employer-employee relations." Additionally,
MMBA section 3503 provides in part that, "Recognized employee organizations shall have the
right to represent their members in their employment relations with public agencies." When
Bennett sent a letter to the Sheriff expressing officer safety and removal
of
bargaining unit work
concerns, employees engaged in protected activities by having their attorney raise concerns
within the scope
of
presentation to the Sheriff. (Rialto Unified School District (1982) PERB
Decision No. 209; Fire Fighters Union
v.
City
of
Vallejo (1974)
12
Cal.3d 608, 620.) MCSEA
has satisfied this element for establishing an interference violation.
(2) Conduct Tends to Interfere with Employee Rights.
(a) Inquiry
of
Melo.
Melo's response to Thoreson's initial inquiry as to who stated the fight occurred on the
yard was "we discussed it among ourselves," however, such response was coupled with the
statements in Bennett's letter that he met with Association members to address these concerns.
These two together establishes to a reasonable person that this discussion occurred among the
MCSEA representatives. Therefore, when Thoreson ordered Melo to answer his question after
18

his second inquiry, he was now inquiring into the internal discussions of MCSEA as they were
meeting with their attorney. Such inquiry creates at least slight harm to employee rights as it
would tend to chill MCSEA representatives discussions with their legal representatives if they
knew such discussions would later be the subject of immediate disclosure by a manager's
order. MCSEA has satisfied the element of showing that the order tends to interfere with
employees in the exercise of employee rights.
(b) Scott's Comments in front of Shambaugh.
As summarized in County of Riverside (2010) PERB Decision No. 2119-M, p. 17:
Employer speech causes no cognizable harm to employee rights
unless it contains "threats of reprisal or force or promise of a
benefit." (Chula Vista City School District (1990) PERB
Decision No. 834.) Whether the employer's speech is protected
or constitutes a proscribed threat or promise is determined by
applying an objective rather than a subjective standard.
(California State University (1989) PERB Decision No. 777-H.)
Thus, "the charging party must show that the employer's
communications would tend to coerce or interfere with a
reasonable employee in the exercise of protected rights."
(Regents of the University of California (1983) PERB Decision
No. 366-H.) Further, statements made by an employer are to be
viewed in their overall context (i.e., in light of surrounding
circumstances) to determine if they have a coercive meaning.
(Los Angeles Unified School District (1988) PERB Decision No.
659.)
Scott's comment clearly communicates that if the letter is not retracted, desirable
assignments will be removed. While Scott may have believed his intent to be "protective" of
the Corrections Division, the comment on its face is threatening and coercive. The comment
communicates that MCSEA is forbidden to express its concerns through an attorney to the
Department's elected executive in order to resolve union issues. Such conduct creates at least
slight harm and clearly interferes with MCSEA and its employees rights.
19
his second inquiry, he was now inquiring into the internal discussions
of
MC SEA as
they
were
meeting with their attorney. 	Such inquiry creates at least slight harm to employee rights as it
would tend to chill MC SEA representatives discussions with their legal representatives
if
they
knew such discussions would later be the subject
of
immediate disclosure by a manager's
order. MCSEA has satisfied the element
of
showing that the order tends to interfere
with
employees in the exercise
of
employee rights.
(b) Scott's Comments in front
of
Shambaugh.
As summarized in County
of
Riverside (2010) PERB Decision No. 2119-M, p. 17:
Employer speech causes no cognizable harm to employee rights
unless it contains "threats
of
reprisal or force or promise
of
a
benefit." (Chula Vista City School District (1990) PERB
Decision No. 834.) Whether the employer's speech is protected
or constitutes a proscribed threat or promise is determined by
applying an objective rather than a subjective standard.
(Caftfornia State University (1989) PERB Decision No. 777-H.)
Thus, "the charging party must show that the employer's
communications would tend to coerce or interfere with a
reasonable employee in the exercise
of
protected rights."
(Regents
of
the University
of
California (1983) PERB Decision
No. 366-H.) Further, statements made by an employer are to be
viewed in their overall context (i.e., in light
of
surrounding
circumstances) to detennine
if
they have a coercive meaning.
(Los Angeles Unified School District (1988) PERB Decision No.
659.)
Scott's comment clearly communicates that
if
the letter is not retracted, desirable
assignments will be removed. While Scott may have believed his intent to be "protective"
of
the Corrections Division, the comment on its face is threatening and coercive. The comment
communicates that MCSEA is forbidden to express its concerns through an attorney to the
Department's elected executive in order to resolve union issues. 	Such conduct creates at least
slight harm and clearly interferes with MCSEA and its employees rights.
19

(3) Justification of Interference.
Both Thoreson's order to Melo and Scott's comment in front of Shambaugh were not
justified by legitimate business reasons. Thoreson's question to find out the source of the
information was only to discredit the source. Thoreson had already returned the pepper ball
gun to the SA position on the tower/catwalk and was persuaded from the videotape that a fight
did not occur on the yard. His question and the subsequent answer would not further resolving
any safety concern, but only go to impugn the credibility of an MCSEA representative."
Scott's excuse of being "protective" of the Corrective Division's resources does not
establish a legitimate business justification. On its face, the threatening comment was issued
to get the letter retracted and have no further letters written in the future.
MCSEA has established that Thoreson's order and Scott's comment interfered with
employee rights in violation of MMBA sections 3503 and 3505 and PERB Regulation
32603(a) and (b).
To demonstrate a prima facie case that the County retaliated against Miller and
Schiffler in violation of section 3506, MCSEA must show that: (1) Miller/Schiffler exercised
rights under the MMBA; (2) the County had knowledge of the exercise of those rights; (3) the
County took adverse action against Miller/Schiffler; and (4) the County took the adverse action
because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision
No. 210 (Novato) and State of California (Department of Personnel Administration) (2011)
PERB Decision No. 2106a-S.) Once MCSEA has established a prima facie case of retaliation,
" The ALJ may have reached a different conclusion if the Commanders were
investigating an incident in order to determine whether misconduct occurred, especially if
more than one person was speaking to the union attorney and an attorney/client relationship
was not established. 20
(3) Justification
of
Interference.
Both Thoreson's order to Melo and Scott's comment in front
of
Shambaugh were not
justified by legitimate business reasons. Thoreson' s question to find out the source
of
the
information was only to discredit the source. Thoreson had already returned the pepper ball
gun to the SA position on the tower/catwalk and was persuaded from the videotape that a fight
did not occur on the yard. His question and the subsequent answer would not further resolving
any safety concern, but only go to impugn the credibility
of
an MCSEA representative. 15
Scott's excuse
of
being "protective"
of
the Corrective Division's resources does
not
establish a legitimate business justification. On its face, the threatening comment was issued
to get the letter retracted and have no further letters written in the future.
MCSEA has established that Thoreson's order and Scott's comment interfered with
employee rights in violation
of
MMBA sections 3503 and 3505 and PERB Regulation
32603(a) and (b).
Retaliation for Protected Activities	Retaliation for Protected Activities
To demonstrate a prima facie case that the County retaliated against Miller and
Schiffler in violation
of
section 3506, MCSEA must show that: (1) Miller/Schiffler exercised
rights under the MMBA; (2) the County had knowledge
of
the exercise
of
those rights; (3) the
County took adverse action against Miller/Schiffler; and (4) the County took the adverse action
because
of
the exercise
of
those rights. (Novato Un(fied School District (1982) PERB Decision
No. 210 (Novato) and State
of
California (Department
of
Personnel Administration) (2011)
PERB Decision No. 2106a-S.) Once MCSEA has established a prima facie case ofretaliation,
1 The ALJ may have reached a different conclusion
if
the Commanders were
investigating an incident in order to determine whether misconduct occurred, especially
if
more than one person was speaking to the union attorney and an attorney/client relationship
was not established.
20

the burden shifts to the County to show that it would have taken the adverse action even in the
absence of their protected activities. (Novato; Wright Line, Inc. (1980) 251 NLRB 1083.)
(1) Protected Activities and Knowledge of Protected Activities
Schiffler was an MCSEA board member and Miller was the board's official
spokesperson. Both Thoreson and Scott were aware of their protected activities as they
attended an MCSEA Board meeting. Additionally, Melo communicated that Miller was the
source of information in the Bennett letter concerning the August 7 incident. MCSEA has
established the first two elements of a prima facie case.
(2) Adverse Action
The initiation of an investigation into alleged misconduct constitutes an adverse action	The initiation
of
an investigation into alleged misconduct constitutes an adverse action
against investigated employee(
s)
(State
of
California (Department
of
Youth Authority) (2000)
against investigated employee(s) (State of California (Department of Youth Authority) (2000)
PERB Decision	PERB DecisionNo.	No.1403-S), even if the investigation does not ultimately result in discipline.	1403-S), even
if
the investigation does not ultimately result in discipline.
Employees (Coelho) (1994) PERB Decision No. 1032-S.) MCSEA
(California Union of Safety Employees (Coelho) (1994) PERB Decision No. 1032-S.) MCSEA	(Cal(fornia Union
of
Safety
has satisfied the element that the Department took an adverse action against Miller and	has satisfied the element that the Department took an adverse action against Miller and
Schiffler.	Schiffler.
(3) Nexus Between Initiation of Investigation and Protected Activities
As stated in Trustees of California State University v. Public Employment Relations
Board (1992) 6 Cal.App.4th 1107, 1127:
Unlawful motive is the specific nexus required in the
establishment of a prima facie case. Direct proof of motivation is
rarely possible since motivation is a state of mind which may be
known only to the actor. Unlawful motive can be established by
circumstantial evidence and inferred from the record as a whole.
To guide its examination of circumstantial evidence of unlawful motive, PERB has
developed a set of "nexus" factors that may be used to establish a prima facie case. Although
the timing of the employer's adverse action in close temporal proximity to the employee's
21
the burden shifts to the County
to
show that it would have taken the adverse action even
in
the
absence
of
their protected activities. (Novato; Wright Line, Inc. (1980)
251
NLRB 1083.)
(1) Protected Activities and Knowledge
of
Protected Activities
Schiffler was an MCSEA board member and Miller was the board's official
spokesperson. Both Thoreson and Scott were aware
of
their protected activities as they
attended an MCSEA Board meeting. Additionally, Melo communicated that Miller was the
source
of
information in the Bennett letter concerning the August 7 incident. MC SEA
has
established the first two elements
of
a prima facie case.
(2) Adverse Action
(3) Nexus Between Initiation oflnvestigation and Protected Activities
As stated in Trustees
of
Cal(fornia State University
v.
Public Employment Relations
Board (1992) 6 Cal.App.4th 1107, 1127:
Unlawful motive is the specific nexus required in the
establishment
of
a prima facie case. Direct proof
of
motivation is
rarely possible since motivation is a state
of
mind which may be
known only to the actor. Unlawful motive can be established by
circumstantial evidence and inferred from the record as a whole.
To guide its examination
of
circumstantial evidence
of
unlawful motive, PERB has
developed a set of "nexus" factors that may be used to establish a prima facie case. Although
the timing of the employer's adverse action in close temporal proximity to the employee's
21

protected conduct is an important factor (North Sacramento School District (1982) PERB
Decision No. 264), it does not, without more, demonstrate the necessary connection or "nexus"
between the adverse action and the protected conduct. (Moreland Elementary School District
(1982) PERB Decision No. 227.) Facts establishing one or more of the following additional
factors must also be present: (1) the employer's disparate treatment of the employee (State of
California (Department of Transportation) (1984) PERB Decision No. 459-S; (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104; (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct (City of Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action (Oakland
Unified School District (2003) PERB Decision No. 1529) or the offering of exaggerated,
vague, or ambiguous reasons (Mcfarland Unified School District (1990) PERB Decision No.
786); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
unlawful motive. (North Sacramento School District, supra, PERB Decision No. 264; Novato,
supra, PERB Decision No. 210.)
(a) Disparate Treatment of Employees.
While the Department was willing to investigate Miller and Schiffler for creating a
hostile work environment for Officer A., it was not willing to conduct an investigation of
Officer A. for creating a hostile work environment for Miller and Schiffler. This disparity is
22
protected conduct is an important factor (North Sacramento School District (1982) PERB
Decision No. 264), it does not, without more, demonstrate the necessary connection
or
"nexus"
between the adverse action and the protected conduct. (Moreland Elementary School District
(1982) PERB Decision No. 227.) Facts establishing one or more
of
the following additional
factors must also be present: (1) the employer's disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S; (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104; (3) the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action (Oakland
Un(fi~d 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 Sacrmnento School District, supra, PERB Decision No. 264; Novato,
supra, PERB Decision No. 210.)
(a) Disparate Treatment of Employees.
While the Department was willing to investigate Miller and Schiffler for creating a
hostile work environment for Officer A., it was not willing to conduct an investigation
of
Officer A. for creating a hostile work environment for Miller and Schiffler. This disparity is
22

further highlighted by the fact that Officer A. took positions with the union membership which
were more favorable to the Department's current hiring policies.
(b) Departure from Establish Procedures and Standards.
Officer A. never requested Thoreson to conduct an investigation, but Thoreson, on his
own initiative, went to Undersheriff Blake who authorized the investigation and charged Miller
and Schiffler with violating the County's Anti-Harassment and Discrimination Policy. With
this policy violation, the Department need not be the one that initiates the investigation.
Additionally, the eavesdropping allegation had been previously resolved by an apology
arranged by Sgt. Johann, yet the Department still pursued it, which was contrary to its own
policy.
Based upon these nexus factors, MCSEA has established a nexus between Miller and
Schiffler's protected activities and the initiation of the investigation and has demonstrated a
prima facie case of prohibited retaliation.
(4) The Department Would Have Initiated the Investigation but for their Protected
Activities.
The most compelling allegation demanding an investigation was Miller's comment to
Officer A. that her father's "good ole boys" were all going to be gone in three to four years and
she would no longer be protected. Such a comment standing alone infers that in a short period
of time Officer A. was going to be an open target. This is an allegation that needed to be
investigated, regardless of the overlapping issues of internal union disputes, because the intent
of such a comment was to put the employee in fear. The other charges involved set forth the
stage that retribution was coming, a retribution that wasn't limited to the revocation of union
23	23
further highlighted by the fact that Officer
A.
took positions with the union membership which
were more favorable to the Department's current hiring policies.
(b) Departure from Establish Procedures and Standards.
Officer
A.
never requested Thoreson to conduct an investigation, but Thoreson,
on
his
own initiative, went to Undersheriff Blake who authorized the investigation and charged Miller
and Schiffler with violating the County's Anti-Harassment and Discrimination Policy. 	With
this policy violation, the Depaiiment need not be the one that initiates the investigation.
Additionally, the eavesdropping allegation had been previously resolved by an apology
arranged by Sgt. Johann, yet the Department still pursued it, which was contrary to its
own
policy.
Based upon these nexus factors, MCSEA has established a nexus between Miller and
Schiffler' s protected activities and the initiation
of
the investigation and has demonstrated a
prima facie case
of
prohibited retaliation.
(4) The Department Would Have Initiated the Investigation but for their Protected
Activities.
The most compelling allegation demanding an investigation was Miller's comment to
Officer A. that her father's "good ole boys" were all going to be gone in three to four years and
she would no longer be protected. Such a comment standing alone infers that in a short period
of
time Officer A. was going to be an open target. This is an allegation that needed to
be
investigated, regardless
of
the overlapping issues
of
internal union disputes, because the intent
of
such a comment was to put the employee in fear. 	The other charges involved set forth the
stage that retribution was coming, a retribution that wasn't limited to the revocation
of
union

membership, but which overlapped into the workplace." The investigation, however, revealed
that the allegation came down to Officer A.'s word against Miller and Schiffler's word.
Undersheriff Cavallero would not sustain these allegations based on this evidence.
Miller and Schiffler also complained of Officer A. creating a hostile working
environment for them. Miller and Schiffler stated that Officer A. disagreed with the elected
MCSEA representatives concerning enlisting the Teamsters and other union issues and called
Miller and Navarro a "bunch of Nazis" because other members were not allowed to express
their own opinions. It is not surprising that Undersheriff Cavallero denied investigating this
matter further as these issues again focused more on internal union disputes than a threat which
could overlap into the workplace. The County demonstrated that it would have initiated the
investigation regardless of MCSEA's protected activities.
Interference by Ordering the Return of the Investigative File.
As previously stated in this proposed decision, it has been establish that both Miller and
Schiffler engaged in protected activities. The remaining questions, however, are whether the
Department's ordering the return of the investigative files interfered with employees in their
exercise of MMBA rights, and whether the Department's actions were justified by legitimate
business reasons.
Penal Code section 832.7(a) provides:
Peace officer or custodial officer "personnel records and records
maintained by any state or local agency pursuant to Section 832.5,
or information obtained from these records, are confidential and
"It should be noted that the departmental investigation did not investigate the purely
internal union dispute that if Officer A. turned in her petition to the Sheriff, her union
membership would be revoked.
"Penal Code section 831.5(a) defines "custodial officer" to include a person
designated as a correctional officer.
24
membership, but which overlapped into the workplace.
16
The investigation, however, revealed
that the allegation came down to Officer
A.'
s word against Miller and Schiffler' s word.
Undersheriff Cavallero would not sustain these allegations based on this evidence.
Miller and Schiffler also complained
of
Officer
A.
creating a hostile working
environment for them. Miller and Schiffler stated that Officer
A.
disagreed with the elected
MCSEA representatives concerning enlisting the Teamsters and other union issues and called
Miller and Navarro a "bunch
of
Nazis" because other members were not allowed to express
their own opinions.	
It
is not surprising that Undersheriff Cavallero denied investigating this
matter further
as
these issues again focused more on internal union disputes than a threat which
could overlap into the workplace. The County demonstrated that it would have initiated the
investigation regardless
of
MCSEA's protected activities.
Interference by Ordering the Return
of
the Investigative File.
As previously stated in this proposed decision, it has been establish that both Miller and
Schiffler engaged in protected activities. The remaining questions, however, are whether the
Department's ordering the return
of
the investigative files interfered with employees in their
exercise
of
MMBA rights, and whether the Department's actions were justified by legitimate
business reasons.
Penal Code section 832.7(a) provides:
Peace officer or custodial officer[!?] personnel records and records
maintained by any state or local agency pursuant to Section 832.5,
or information obtained from these records, are confidential and
16
It
should be noted that the departmental investigation did not investigate the purely
internal union dispute that
if
Officer A. turned in her petition to the Sheriff, her union
membership would be revoked.
17
Penal Code section 831.S(a) defines "custodial officer" to include a person
designated as a correctional officer.
24

shall not be disclosed in any criminal or civil proceeding except by
discovery pursuant to Sections 1043 and 1046 of the Evidence
Code
(Emphasis added.)
Penal Code section 832.8 provides:
As used in Section 832.7, "personnel records" means any file
maintained under that individual's name by his or her employing
agency and containing records relating to any of the following:
(e) Complaints, or investigations of complaints, concerning an
event or transaction in which he or she participated, or
which he or she perceived, and pertaining to the manner in
which he or she performed his or her duties.
Evidence Code sections 1043 and 1045 provide the method in which such "personnel
records" are to be disclosed. Evidence Code sections 1043 and 1045 provide in pertinent part:
1043. (a) In any case in which discovery or disclosure is sought of
pursuant to Section 832.5 of the Penal Code or information from
those records, the party seeking the discovery or disclosure shall
file a written motion with the appropriate court or administrative
body upon written notice to the governmental agency which has
custody and control of the records. . ..
1045. (a) Nothing in this article shall be construed to affect the
right of access to records of complaints, or investigations of
complaints, or discipline imposed as a result of those
investigations, concerning an event or transaction in which the
peace officer or custodial officer, as defined in Section 831.5 of the
Penal Code, participated, or which he or she perceived, and
pertaining to the manner in which he or she performed his or her
duties, provided that information is relevant to the subject matter
involved in the pending litigation.
(e) The court shall, in any case or proceeding permitting the
disclosure or discovery of any peace or custodial officer records
requested pursuant to Section 1043, order that the records
disclosed or discovered may not be used for any purpose other than
a court proceeding pursuant to applicable law.
(Emphasis added.)
25
shall not be disclosed in any criminal or civil proceeding except
by
discovery pursuant to Sections 1043 and 1046
of
the Evidence
Code.
(Emphasis added.)
Penal Code section 832.8 provides:
As used in Section 832.7, "personnel records" means any file
maintained under that individual's name by his or her employing
agency and containing records relating to any
of
the following:
(e) Complaints, or investigations
of
complaints, concerning an
event or transaction in which he or she participated, or
which he or she perceived, and pertaining to the manner in
which he or she performed his or her duties.
Evidence Code sections 1043 and 1045 provide the method in which such "personnel
records" are to be disclosed. Evidence Code sections 1043 and 1045 provide in pertinent part:
1043. (a) In any case in which discovery or disclosure is sought
of
peace or custodial officer personnel records or records maintained	peace or custodial officer personnel records or records maintained
pursuant to Section 832.5
of
the Penal Code or infonnation from
those records, the party seeking the discovery or disclosure shall
file a written motion with the appropiiate court or administrative
body upon wiitten notice to the governmental agency which has
custody and control
of
the records
....
1045. (a) Nothing in this article shall be construed to affect the
right
of
access to records
of
complaints, or investigations
of
complaints, or discipline imposed as a result
of
those
investigations, concerning an event or transaction in which the
peace officer or custodial officer, as defined in Section 831.5
of
the
Penal Code, participated, or which he or she perceived, and
pe1iaining to the manner in which he or she performed his or her
duties, provided that information is relevant to the subject matter
involved in the pending litigation.
(e) The court shall, in any case or proceeding permitting the
disclosure or discovery
of
any peace or custodial officer records
requested pursuant to Section 1043, order that the records
disclosed or discovered may not be used for any purpose other than
a court proceeding pursuant to applicable law.
(Emphasis added.)
25

The California Public Records Acts (CPRA) (Government Code section 6250, et seq.)
provides a process where a member of the public can request to inspect or obtain a copy of a
public record. Government Code section 6254, however, provides numerous exemptions from
disclosure, including Government Code section 6254(k), which provides:
Except as provided in Sections 6254.7 and 6254.13, nothing in this
chapter shall be construed to require disclosure of records that are
any of the following:
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
As Penal Code section 832.7 deems custodial officers personnel records as
"confidential," they are exempt from disclosure under the CPRA. (Copley Press,
Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1284-1286.) It cannot be used for any other
proceeding unless ordered to be disclosed pursuant to Evidence Code section 1043 and 1045.
(Alford v. Superior Court (2003) 29 Cal.4th 1033.)
Ordinarily, the chief guardians of a custodial officer's personnel file is the custodial
officer and the law enforcement agency holding the personnel file. However, when the file is
not kept in the custodial officer's personnel file because the charge was not sustained, the chief
guardian of the investigative file is the law enforcement agency. In this case, the Department
had a right to secure the outstanding copies of the investigative file which were not obtained
pursuant to a lawful court order, especially from those which were departmental employees.
Additionally, Scott's questions as to who else had copies went to promote its duty to secure
these files as confidential, as those individuals also did not obtain the files pursuant to a lawful
court order. No interference can be found where Miller and Schiffler did not obtain the
investigative file by a lawful court order and the Department had every legitimate business
26	26
The California Public Records Acts (CPRA) (Government Code section 6250,
et
seq.)
provides a process where a member
of
the public can request to inspect or obtain a copy
of
a
public record. Government Code section 6254, however, provides numerous exemptions from
disclosure, including Government Code section 6254(k), which provides:
Except
as
provided in Sections 6254. 7 and 6254.13, nothing in this
chapter shall be construed to require disclosure
of
records that are
any
of
the following:
(k) 	Records, the disclosure
of
which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions
of
the Evidence Code relating to privilege.
As Penal Code section 832. 7 deems custodial officers personnel records
as
"confidential," they are exempt from disclosure under the CPRA. ( Copley Press,
Inc.
v.
Superior Court (2006) 39 Cal.4th 1272, 1284-1286.) It cannot be used for any other
proceeding unless ordered to be disclosed pursuant to Evidence Code section 1043 and 1045.
(Alford
v.
Superior Court (2003) 29 Cal.4th 1033.)
Ordinarily, the chief guardians
of
a custodial officer's personnel file is the custodial
officer and the law enforcement agency holding the personnel file. 	However, when the file is
not kept in the custodial officer's personnel file because the charge was not sustained, the chief
guardian
of
the investigative file is the law enforcement agency. In this case, the Department
had a right to secure the outstanding copies
of
the investigative file which were not obtained
pursuant to a lawful court order, especially from those which were departmental employees.
Additionally, Scott's questions as to who else had copies went to promote its duty to secure
these files as confidential, as those individuals also did not obtain the files pursuant to a lawful
court order. No interference can be found where Miller and Schiffler did not obtain the
investigative file by a lawful court order and the Department had every legitimate business

justification to recover the documents and find out others who also had them. This charge of
interference is dismissed.
REMEDY
Section 3541.5(c) of the Educational Employment Relations Act (EERA), 18
incorporated within MMBA section 3509(a) and (b), " authorizes PERB:
to issue a decision and order directing an offending party to cease
and desist from the unfair practice and to take such affirmative
action, including but not limited to the reinstatement of
employees with or without back pay, as will effectuate the
policies of this chapter.
It has been found that the County violated MMBA sections 3503 and 3506, and PERB
Regulation 32603(a) and (b) by ordering a union activist to disclose the source of information
obtained when union representatives were meeting with their attorney and by threatening to
withdraw desirable assignments if MCSEA did not withdraw its August 10, 2009 letter to the
Sheriff. It is appropriate to order the County to cease and desist from such unlawful conduct.
(Rio Hondo Community College District (1983) PERB Decision No. 292.)
It is also appropriate that the County be ordered to post a notice incorporating the terms
of the order at all locations in the County where notices to public employees are customarily
posted for employees represented by MCSEA. Posting such a notice, signed by the authorized
agent of the County, will provide employees with notice that the County has acted in an
unlawful manner, is being required to cease and desist from such activity, and will comply
with the order. It effectuates the purposes of the MMBA that employees be informed of the
EERA is codified at section 3540 et seq.
Section 3509(a) provides that the powers and duties of PERB described in EERA
section 3541.3 shall also apply to the MMBA. Section 3509(b) describes the unfair practice
jurisdiction of PERB. EERA section 3541.3(i) empowers PERB to investigate unfair practice
charges, and to take any action and make determinations as PERB deems necessary to
effectuate the policies of this chapter. 27
justification
to
recover the documents and find out others who also had them. This charge
of
interference is dismissed.
REMEDY
Section 3541.5(c)
of
the Educational Employment Relations Act (EERA),
18
incorporated within MMBA section 3509(a) and (b), 19 authorizes PERB:
to issue a decision and order directing an offending party to cease
and desist from the unfair practice and to take such affirmative
action, including but not limited to the reinstatement
of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
It has been found that the County violated MMBA sections 3503 and 3506, and PERB
Regulation 32603(a) and (b) by ordering a union activist to disclose the source
of
information
obtained when union representatives were meeting with their attorney and by threatening to
withdraw desirable assignments
if
MCSEA did not withdraw its August 10, 2009 letter to the
Sheriff. It is appropriate to order the County to cease and desist from such unlawful conduct.
(Rio Hondo Community College District (1983) PERB Decision No. 292.)
It is also appropriate that the County be ordered to post a notice incorporating the terms
of
the order at all locations in the County where notices to public employees are customarily
posted for employees represented by MCSEA. Posting such a notice, signed by the authorized
agent
of
the County, will provide employees with notice that the County has acted in an
unlawful manner, is being required to cease and desist from such activity, and will comply
with the order. It effectuates the purposes
of
the MMBA that employees be informed
of
the
18
EERA is codified at section 3540 et seq.
19
Section 3509(a) provides that the powers and duties
of
PERB described in EERA
section 3541.3 shall also apply to the MMBA. Section 3509(b) describes the unfair practice
jurisdiction of PERB. EERA section 3541.3(i) empowers PERB to investigate unfair practice
charges, and to take any action and make determinations as PERB deems necessary to
effectuate the policies of this chapter.
27

resolution of this controversy and the County's readiness to comply with the ordered remedy.
(Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the County of Merced (County) violated the Meyers-Milias-Brown Act
(MMBA or Act), Government Code sections 3503 and 3506, and Public Employment
Relations Board (PERB) Regulation 32603(a) and (b) (Cal. Code Regs., tit. 8, sec. 31001 et
seq.), by interfering with employee rights by ordering a union activist to disclose the source of
information obtained when union representatives were meeting with their attorney and by
threatening to withdraw desirable assignments if the Merced County Sheriff's Employee
Association (MCSEA) did not withdraw its August 10, 2009 letter to the Sheriff. All other
allegations are dismissed.
Pursuant to section 3509, subdivision (b) of the Government Code, it hereby is
ORDERED that the County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1 . 	Interfering with employee rights under the MMBA.
Denying MCSEA its right to represent bargaining unit members in their
employment relations with the County.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1 . 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the County customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the County, indicating that it will comply with the terms of this Order.
28
resolution
of
this controversy and the County's readiness to comply with the ordered remedy.
(Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclus1ons
of
law, and the entire record
in
the
case, it is found that the County
of
Merced (County) violated the Meyers-Milias-Brown
Act
(MMBA or Act), Government Code sections 3503 and 3506, and Public Employment
Relations Board (PERB) Regulation 32603(a) and (b) (Cal. Code Regs., tit. 8, sec. 31001 et
seq.), by interfering with employee rights
by
ordering a union activist to disclose the
source
of
information obtained when union representatives were meeting with their attorney and
by
threatening to withdraw desirable assignments
if
the Merced County
Sheriffs
Employee
Association (MCSEA) did not withdraw its August 10, 2009 letter to the Sheriff. All
other
allegations are dismissed.
Pursuant to section 3509, subdivision (b)
of
the Government Code, it hereby is
ORDERED that the County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Interfering with employee rights under the MMBA.
2.2. 	Denying MCSEA its right to represent bargaining unit members in their
employment relations with the County.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Within ten
(l
0) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees in the County customarily are posted,
copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the County, indicating that it will comply with the terms of this Order.
28

Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on MCSEA.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, $ 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, $$ 32135, subd. (a) and 32130; see also Gov. Code,
$ 1 1020, 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 California Code of Regulations, title 8, section 32135,
29
Such posting shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
2.	
2.
	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this
Order
shall be concurrently served on MCSEA.
Pursuant to California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
29

subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, $ 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $$ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $$ 32300, 32305, 32140,
and 32135, subd. (c).)
Shawn P. Cloughesy
Chief Administrative Law Judge
30	30
subdivision (d), provided the filing party also places the original, together with the required
number
of
copies and
proof
of
service, in the U.S. mail. 	(Cal. Code Regs., tit. 8, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit.
8, §§
32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently
with
its
filing upon each party to this proceeding.
	Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit.
8, §§
32300, 32305, 32140,
and 32135, subd. (c).)
Shawn P. Cloughesy
Chief Administrative Law Judge