Contra Costa County Health Services Department (PERB 1752M)

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

DONALD E. NEAL, RNC,
Charging Party, Case No. SF-CE-730-M

Vv. PERB Decision No. 1752-M

CONTRA COSTA COUNTY HEALTH February 11, 2005

SERVICES DEPARTMENT,

Respondent.

Appearances: Donald E. Neal, RNC, on his own behalf; Beatrice Liu, Deputy County Counsel,
for Contra Costa County Health Services Department.

Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal of a Board agent’s dismissal (attached) of an unfair practice
charge. The unfair practice charge alleges that Donald E. Neal, RNC (Neal) was terminated
from his position as a probationary charge nurse for the Contra Costa County Health Services
Department (County) because of his protected activity, in violation of the Meyers-Milias-
Brown Act (MMBA).!

The Board agent dismissed the charge for failure to state a prima facie case. Neal filed
an appeal. The County responded to the appeal stating that the appeal did not meet the

requirements of PERB Regulation 32635.

‘The MMBA is codified at Government Code section 3500, et seq.

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

We have reviewed the entire record in this case, including the initial unfair practice
charge, the County's response, the warning and dismissal letters, Neal's appeal and the
County's response to the appeal. We find the warning and dismissal letters of the Board agent
to be free of prejudicial error and adopt them as the decision of the Board itself, as outlined in
the discussion below.
DISCUSSION
In the appeal, Neal does not adhere to the elements of PERB Regulation 32635(a) as
required for an appeal to the Board. The appeal fails to set forth "the specific issues of
procedure, fact, law or rationale to which the appeal is taken; (2) [i]dentify the page or part of
the dismissal to which each appeal is taken; [and] (3) [s]tate the grounds for each issue
stated."3
The appeal filed by Neal reiterates the facts alleged in his unfair practice charge. Neal
does not specifically address why the Board agent's dismissal should be reversed. In County
of Solano (Human Resources Department) (2004) PERB Decision No. 1598-M and Contra
Costa County Health Services Department (2005) PERB Decision No. 1742-M,4 the Board
dismissed the unfair practice charges for failure to state a prima facie case and because the
appeals did not comply with the requirements of PERB Regulation 32635. Here also, Neal has
failed to set forth a prima facie case and has filed an appeal that does not comply with PERB
Regulation 32635.
3PERB Regulation 32635(a).
4See also, United Teachers of Los Angeles (Robinson) (1996) PERB Order
No. Ad-273.
2

ORDER
The unfair practice charge in Case No. SF-CE 730-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Whitehead and Shek joined in this Decision.
3

.

=ST=A=T=E=O=F=CA=L=I=FO=RNIA========'--r·=·•==============(·) 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
December 2, 2004
Donald Neal
P.O. Box 7528
Vallejo, CA 94590
Re: 	Donald E. Neal, Rnc v. Contra Costa County Health Serv Dept
Unfair Practice Charge No. SF-CE-730-M
DISMISSAL LETTER
Dear Mr. Neal:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 15, 2004. Donald E. Neal alleges that the Contra Costa
County Health Service Department violated the Meyers-Milias-Brown Act (MMBA)1 by
terminating his employment.
I indicated to you in my attached letter dated November 24, 2004, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to December 1, 2004, the charge would be
dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my November 24, 2004
letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-730-M
December 2, 2004
Page2
(
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and· proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class m~il, postage paid and properly addressed. A document filed by,
facsimile transmission may be concurrently served via' facsimile transmission on all parties to '
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)

SF-CE-730-M
December 2, 2004
Page3
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
B y /./-/- 	;z_-------~--=--------------Kristin L. Rosi
Regional Attorney
Attachment
cc: Beatrice Liu

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	(,__ 	(- -~
==========.;._ 	.=========~~==~==- 	=================
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
November 24, 2004
Donald Neal
P.O. Box 7528
Vallejo, CA 94590
Re: 	Donald E. Neal, Rnc v. Contra Costa County Health Serv Dept
Unfair Practice Charge No. SF-CE-730-M
WARNING LETTER
Dear Mr. Neal:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 15, 2004. Donald E. Neal alleges that the Contra Costa
County Health Service Department violated the Meyers-Milias-Brown Act (MMBA)1 by
terminating his employment.
Investigation of the charge revealed the following. 	You were employed by the County as a
Charge Nurse at the County's Detention Facility in Martinez. As such, you are exclusively
represented by the California Nurses Association. CNA and the County are parties to a
collective bargaining agreement that expires on June 30, 2005. With regard to Probation,
Article 19 of the Agreement provides as follows:
19.1 Duration. All appointments from officially promulgated
employment lists for original entrance or promotion shall be
subject to a probationary period. This period shall be from six (6)
months to two (2) years duration.
19.2 Those classes represented by the Association which have
probation periods in excess of six (6) months: None.
19.5 Rejection During Probation. An employee who is rejected
during the probation period and restored to the eligible list shall
begin a new probationary period if subsequently certified and
appointed.
A. Appeal from rejection. Notwithstanding any other provisions
of this section; an employee (probationer) shall have the right to
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-730-M
November 24, 2004
Page2
appeal from any rejection during the probationary period based
on political, or religious or union activities, or race, color,
national origin, sex, age, disability, or sexual orientation.
B. The appeal must be written, must be signed by the employee
and set forth in facts by which it is claimed that grounds for
appeal exist under Subsection A and must be filed through the
Director of Human Resources to the Merit Board by 5:00 p.m. on
the seventh (7th) calendar day after the date of delivery to the
employee of notice of rejection.
C. The Merit Board shall consider the appeal, and if it finds
probable cause to believe that the rejection may have been based
on grounds prohibited in Subsection A, it may refer the matter to
a Hearing Officer for hearing, recommended findings of fact,
conclusions of law and decision, pursuant to the relevant
provisions of the Merit Board rules in which proceedings
the rejected probationer has the burden of proof.
D. If the Merit Board finds no probable cause for a hearing, it
shall deny the appeal. If, after hearing, the Merit Board upholds
the appeal, it shall direct that the appellant shall begin a new
probationary period unless the Merit Board specifically reinstates
the former period.
On May 24, 1993, the federal Office of Personnel Management proposed your debarment for a
period concurrent with its Department of Health and Human Services exclusion. OPM's
debarment became effective July 16, 1993. This debarment prevented you and your
subsequent employers from billing any federal insurance programs for services you provide. It
appears you did not inform the County of this debarment when you applied for your position.
On or about March 13, 2004, the County hired you as a probationary Charge Nurse. On March
31, 2004, the County became aware of the sanctions placed upon you by the OPM. The
County advised you that the sanction needed to be removed as it rendered the County unable to
bill the federal government for any Medicare/Medical services provided by you.
On September 13, 2004, the County terminated your employment during your probationary
period. Although not required by law, the County indicated that it terminated you for the
following reasons: (1) From the period of May 5, 2004 through September 2004, you were
absent 88 hours out of a total of 518 hours or 17% of the time; and (2) you failed to secure
removal of the federal sanctions against you.
On September 24, 2004, pursuant to Article 19 of the Agreement, you appealed your
termination to the Merit Board. The appeal alleged that you were not excessively absent

SF-CE-730-M
November 24, 2004
Page 3
during this time period and that the sanctions against you were irrelevant to your job
performance.
On October 12, 2004, the Merit Board considered your appeal. At the beginning of the
hearing, the Merit Board made clear that probationary employees may appeal their termination
only if they allege unlawful discrimination based on some protected class. You responded to
this statement by arguing that a misstatement of facts in your termination letter was
discriminatory. When the Merit Board rejected this argument, you then argued the termination
was unlawful based on your use of sick leave. The Merit Board rejected this argument as well
noting that you only took two days of sick leave during the time period considered, and two
days was not excessive use of sick leave. The Merit Board again reiterated that even if the
facts of your termination were incorrect, a probationary employee may be terminated for any
reason that is not discriminatory in nature. As such, the Board rejected your appeal and denied
you a hearing on the matter. On October 20, 2004, the Board memorialized this finding by
letter.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation of the MMBA, for the reasons provided below.
As the charge does not allege any specific violations of the MMBA, I must assume that the
Charging Party intends to allege the County discriminated against him in terminating his
employment.
To establish a prima facie case of discrimination in violation of Government Code section
3506 and PERB Regulation 32603(a), the charging party must show that: (1) the employee
exercised rights under MMBA; (2) the employer had knowledge of the exercise of those rights;
and (3) the employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained or coerced the employee because of the
exercise of those rights. (Campbell Municipal Employees Association v. City of Campbell
(1982) 131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Association v. City of
San Leandro (1976) 55 Cal.App.3d 553.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action in protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more of
the following nexus factors should be present: (1) the employer's disparate treatment of the
employee (Campbell, supra); (2) the employer's departure from established procedures and
standards when dealing with the employee (San Leandro Police Officers Association, supra.);
(3) the employer's inconsistent or contradictory justifications for its actions (San Leandro
Police Officers Association, supra.); (4) the employer's cursory investigation of the employee's
misconduct; (5) the employer's failure to offer the employee justification at the time it took
action or the offering of exaggerated, vague, or ambiguous reasons; or (6) employer animosity
towards union activists (San Leandro Police Officers Association, supra; Los Angeles County
Employees Association v. County of Los Angeles (1985) 168 Cal.App.3d 683.).

SF-CE-730-M
November 24, 2004
Page4
(
Herein, you did not engage in any activity considered protected by the MMBA. As such, any
allegation that the County discriminated against you because of your protected activity must be
dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number writtenon the top right hand
comer of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before December 1. 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
'
Kristin L. Rosi
Regional Attorney
KLR