County of Santa Clara (PERB 1877M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LUELLA M. SEELEY,
Charging Party,
V.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-276-M
PERB Decision No. 	1877-M
January 	10, 	2007
Appearance: Irene Martell, Personal Representative, for Luella M. Seeley.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
SHEK, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Luella M. Seeley (Seeley) of a Board agent's dismissal
(attached) of her unfair practice charge. The charge alleged that the County of Santa Clara
(County) violated the Meyers-Milias-Brown Act (MMBA)1 by: (1) denying her union
representation on September 14, 2004; and (2) discriminating against her for filing grievances
by not reasonably accommodating her illnesses and injuries. Seeley alleged that this conduct
constituted a violation ofMMBA sections 3503.and 3506.
The Board has reviewed the entire record in this matter, including but not limited to the
unfair practice charge, the County's position statement, the warning and dismissal letters, and
the appeal. Based upon this review, the Board finds that the warning and dismissal letters are
free from prejudicial error, and adopts them as the decision of the Board itself, subject to the
following discussion.
1MMBA is codified at Government Code section 3500, et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LUELLA M. SEELEY,
Charging Party, 	Case No. SF-CE-276-M
V . 	PERB Decision No. 1877-M
COUNTY OF SANTA CLARA, January 10, 2007
Respondent.
Appearance: Irene Martell, Personal Representative, for Luella M. Seeley.
Before Duncan, Chairman; Shek and Mckeag, Members.
DECISION
SHEK, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Luella M. Seeley (Seeley) of a Board agent's dismissal
(attached) of her unfair practice charge. The charge alleged that the County of Santa Clara
(County) violated the Meyers-Milias-Brown Act (MMBA)' by: (1) denying her union
representation on September 14, 2004; and (2) discriminating against her for filing grievances
by not reasonably accommodating her illnesses and injuries. Seeley alleged that this conduct
constituted a violation of MMBA sections 3503 and 3506.
The Board has reviewed the entire record in this matter, including but not limited to the
unfair practice charge, the County's position statement, the warning and dismissal letters, and
the appeal. Based upon this review, the Board finds that the warning and dismissal letters are
free from prejudicial error, and adopts them as the decision of the Board itself, subject to the
following discussion.
MMBA is codified at Government Code section 3500, et seq.

On appeal, Seeley alleges new charge allegations and new evidence. Unless good cause
is shown, a charging party may not present on appeal new charge allegations or new supporting
evidence. (PERB Reg. 32635(b);2 Los Angeles County Office of Education (2005) PERB
Decision No. 1743.) The appeal does not demonstrate that there is good cause for allowing the
presentation of new charge allegations or new evidence, and therefore, the Board upholds the
dismissal of the unfair practice charge.
ORDER
The unfair practice charge in Case No. SF-CE-276-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member McKeag joined in this Decision.
2PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
2
On appeal, Seeley alleges new charge allegations and new evidence. Unless good cause
is shown, a charging party may not present on appeal new charge allegations or new supporting
evidence. (PERB Reg. 32635(b); Los Angeles County Office of Education (2005) PERB
Decision No. 1743.) The appeal does not demonstrate that there is good cause for allowing the
presentation of new charge allegations or new evidence, and therefore, the Board upholds the
dismissal of the unfair practice charge.
ORDER
The unfair practice charge in Case No. SF-CE-276-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Mckeag joined in this Decision.
PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
2

STATE OF CALIFORNIA 	( 	======~~~-======-( 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB
Sacramento Regional Office
103 I 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
December 16, 2005
Luella M. Seeley
P.O. Box 24203
San Jose, CA 95154
Re: 	Luella M. Seeley v. County of Santa Clara
Unfair Practice Charge No. SF-CE-276-M
DISMISSAL LETTER
Dear Ms. Seeley:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 17, 2005. You allege that the County of Santa Clara
(County) violated the Meyers-Milias-Brown Act (MMBA)1 by interfering with your rights by
not allowing you to have the union representative of your choosing present for a meeting in
September 2004 and by discriminating against you by not granting you additional unpaid leave
when you did not to return to work in December 2004 or January 2005.
I indicated to you in my attached letter dated October 5, 2005, 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 October 24, 2005, the charge would be dismissed.
You were granted three additional extensions of time through requests by your representative,
Ms. Irene Martell. The last request was through December 15, 2005. 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 October 5, 2005 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.
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
December 16, 2005
Luella M. Seeley
Re: 	Luella M. Seeley v. County of Santa Clara
Unfair Practice Charge No. SF-CE-276-M
DISMISSAL LETTER
Dear Ms. Seeley:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 17, 2005. You allege that the County of Santa Clara
(County) violated the Meyers-Milias-Brown Act (MMBA)' by interfering with your rights by
not allowing you to have the union representative of your choosing present for a meeting in
September 2004 and by discriminating against you by not granting you additional unpaid leave
when you did not to return to work in December 2004 or January 2005.
I indicated to you in my attached letter dated October 5, 2005, 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 October 24, 2005, the charge would be dismissed.
You were granted three additional extensions of time through requests by your representative,
Ms. Irene Martell. The last request was through December 15, 2005. 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 October 5, 2005 letter.
Right to Appeal
Pursuant to PERB Regulations," 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.
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.
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-276-M
December 16, 2005
Page 2
(
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 mail, 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-276-M
December 16, 2005
Page 2
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 mail, 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-276-M
December 16, 2005
Page 3
• Final Date
(
If no appeal is filed within the specified time limits, the dismissal will become tip.al when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By	By§k~mith
Labor Relations Specialist
Attachment
cc: Irene Martell
My-Le Jacqueline Duong
C
SF-CE-276-M
December 16, 2005
Page 3
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
Roger Smith
Labor Relations Specialist
Attachment
cc: Irene Martell
My-Le Jacqueline Duong

STATE OF CALIFORNIA 	ARNOLD SCBWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
October 5, 2005
Luella M. Seeley
P.O. Box 24203
San Jose, CA 95154
Re: 	Luella M. Seeley v. County of Santa Clara
Unfair Practice Charge No. SF-CE-276-M
WARNING LETTER
Dear Ms. Seeley:
(',
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 17, 2005. You allege that the County of Santa Clara
(County) violated the Meyers-Milias-Brown Act (MMBA)1 by interfering with your rights by
not allowing you to have the union representative of your choosing present for a meeting in
September 2004 and by discriminating against you by not granting you additional unpaid leave
when you did not to return to work in December 2004 or January 2005.
This charge was not being processed while awaiting settlement discussions between the
County, your exclusive representative, SEIU Local 715 and your representative, Irene Martell
regarding numerous grievances which you had filed. 	I attempted to contact Ms. Martell to
ascertain the status of the settlement discussions but discovered her telephone number had been
disconnected and there was no new number to reference. 	Since I am unsure as to the status of
the case, I have decided to spell out the deficiencies in the statements supporting the charge
and give you an opportunity to respond to this letter with additional facts. 	·
The two basic violations which you seek PERB to review are (1) the County's denial of
representation by the union representative of your choosing on September 14, 2004 and (2) the
County's discriminating against you by not reasonably accommodating you due to your
illnesses and injuries and for filing numerous grievances through the contract between SEIU
Local 715 and the County. Specifically you assert that the County has failed to reasonably
accommodate you pursuant to your Doctor's instructions and County policies.
The background information I was able to gather from the charge and supporting documents is
that you are employed as an Office Specialist III by the County. You were employed in the
Cal WORKS Department of Social Services when you went on an unpaid leave from November
2000 to August 2002. You returned to work in that Department with accommodations to your
work restrictions based on medical concerns. You continued to work there until June 1, 2004
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.
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
October 5, 2005
Luella M. Seeley
Re: 	Luella M. Seeley v. County of Santa Clara
Unfair Practice Charge No. SF-CE-276-M
WARNING LETTER
Dear Ms. Seeley:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 17, 2005. You allege that the County of Santa Clara
(County) violated the Meyers-Milias-Brown Act (MMBA)' by interfering with your rights by
not allowing you to have the union representative of your choosing present for a meeting in
September 2004 and by discriminating against you by not granting you additional unpaid leave
when you did not to return to work in December 2004 or January 2005.
This charge was not being processed while awaiting settlement discussions between the
County, your exclusive representative, SEIU Local 715 and your representative, Irene Martell
regarding numerous grievances which you had filed. I attempted to contact Ms. Martell to
ascertain the status of the settlement discussions but discovered her telephone number had been
disconnected and there was no new number to reference. Since I am unsure as to the status of
the case, I have decided to spell out the deficiencies in the statements supporting the charge
nd give you an opportunity to respond to this letter with additional facts	a
The two basic violations which you seek PERB to review are (1) the County's denial of
representation by the union representative of your choosing on September 14, 2004 and (2) the
County's discriminating against you by not reasonably accommodating you due to your
illnesses and injuries and for filing numerous grievances through the contract between SEIU
Local 715 and the County. Specifically you assert that the County has failed to reasonably
accommodate you pursuant to your Doctor's instructions and County policies
The background information I was able to gather from the charge and supporting documents is
that you are employed as an Office Specialist III by the County. You were employed in the
Cal WORKS Department of Social Services when you went on an unpaid leave from November
2000 to August 2002. You returned to work in that Department with accommodations to your
work restrictions based on medical concerns. You continued to work there until June 1, 2004
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-276-M
October 5, 2005
Page 2
(
when you again went out on an unpaid leave due to medical issues. At that same time the
Manager of the program informed you that the Department could no longer accommodate your
restrictions. The County with your concurrence then placed you with the Public
Administrator/Guardian/ Conservator's Office beginning in mid-August 2004.
On September 7, 2004 an incident at work occurred in which you assert that you were verbally,
mentally, emotionally and physically abused by a co-worker. The details of the incident are
unclear but it caused you to leave your job and call in sick for a few days. On September 13,
2004, you were telephoned and advised that you needed to come to the office on the following
day and that you would need medical clearance to return to work. On September 14, 2004 you
went to your office and requested the presence of Olga Martinez as a union representative.
The County failed to comply with your request. You subsequently were notified by a number
of letters that your unpaid leave was going to expire and that unless you received medical
clearance to return to work and reported to work, the County would begin the process to
terminate your employment status. The charge does not indicate whether the termination ever
occurred. Numerous grievances were filed and were being processed at the same time you
filed this charge. 2
An employee required to attend an investigatory interview with the employer is entitled to
union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. (Social Workers' Union. Local 535 v. Alameda County Welfare
Department (1974) 11 Cal.3d 382.) In order to establish a violation of this right, the charging
party must demonstrate: (a) the employee requested representation, (b) for an investigatory
meeting, (c) which the employee reasonably believed might result in disciplinary action; and
(d) the employer denied the request. (Id.; Civil Service Assn. v. City and County of San
Francisco (1978) 22 Cal.3d 552.)
In Social Workers' Union, Local 535, supra at page 391, the Court noted the importance of
using federal decisions to guide interpretation of state labor provisions the language of which
parallels that of federal statutes. California courts have taken notice of such federal precedent
in representation matters, citing with favor the U.S. Supreme Court's ruling in NLRB v.
Weingarten (1975) 420 U.S. 251. (Civil Service Assn., supra at 556.) In approving the
Weingarten rule, the U.S. Supreme Court noted with approval the National Labor Relations
Board would not apply it to "such run-of-the-mill shop-floor conversations as, for example, the
giving of instructions or training or needed corrections of work techniques." (Weingarten,
quoting Quality Manufacturing Co. (1972) 195 NLRB 197, 199 [79 LRRM 1269, 1271].)
You did not provide any facts to demonstrate that a meeting was held with your supervisor on
September 14, 2004 in which questions were asked of you. The County indicates that you
simply picked up a letter addressed to you and no interview was conducted. Without an
assertion that an investigatory meeting was conducted, a violation can not be stated.
2 I note that the current MOU between the County and SEIU Local 715 does contain a
non-discrimination clause at Article 2 Section 2.1 and Section 2.4 requires the parties to review
compliance with the ADA. This MOU also contains a binding arbitration procedure.
SF-CE-276-M
October 5, 2005
Page 2
when you again went out on an unpaid leave due to medical issues. At that same time the
Manager of the program informed you that the Department could no longer accommodate your
restrictions. The County with your concurrence then placed you with the Public
Administrator/Guardian/ Conservator's Office beginning in mid-August 2004.
On September 7, 2004 an incident at work occurred in which you assert that you were verbally,
mentally, emotionally and physically abused by a co-worker. The details of the incident are
unclear but it caused you to leave your job and call in sick for a few days. On September 13,
2004, you were telephoned and advised that you needed to come to the office on the following
day and that you would need medical clearance to return to work. On September 14, 2004 you
went to your office and requested the presence of Olga Martinez as a union representative.
The County failed to comply with your request. You subsequently were notified by a number
of letters that your unpaid leave was going to expire and that unless you received medical
clearance to return to work and reported to work, the County would begin the process to
terminate your employment status. The charge does not indicate whether the termination ever
occurred. Numerous grievances were filed and were being processed at the same time you
filed this charge.
An employee required to attend an investigatory interview with the employer is entitled to
union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. (Social Workers' Union, Local 535 v. Alameda County Welfare
Department (1974) 11 Cal.3d 382.) In order to establish a violation of this right, the charging
party must demonstrate: (a) the employee requested representation, (b) for an investigatory
meeting, (c) which the employee reasonably believed might result in disciplinary action; and
(d) the employer denied the request. (Id.; Civil Service Assn. v. City and County of San
Francisco (1978) 22 Cal.3d 552.)
In Social Workers' Union, Local 535, supra at page 391, the Court noted the importance of
using federal decisions to guide interpretation of state labor provisions the language of which
parallels that of federal statutes. California courts have taken notice of such federal precedent
in representation matters, citing with favor the U.S. Supreme Court's ruling in NLRB v.
Weingarten (1975) 420 U.S. 251. (Civil Service Assn., supra at 556.) In approving the
Weingarten rule, the U.S. Supreme Court noted with approval the National Labor Relations
Board would not apply it to "such run-of-the-mill shop-floor conversations as, for example, the
giving of instructions or training or needed corrections of work techniques." (Weingarten,
quoting Quality Manufacturing Co. (1972) 195 NLRB 197, 199 [79 LRRM 1269, 1271].)
You did not provide any facts to demonstrate that a meeting was held with your supervisor on
September 14, 2004 in which questions were asked of you. The County indicates that you
simply picked up a letter addressed to you and no interview was conducted. Without an
assertion that an investigatory meeting was conducted, a violation can not be stated.
I note that the current MOU between the County and SEIU Local 715 does contain a
non-discrimination clause at Article 2 Section 2.1 and Section 2.4 requires the parties to review
compliance with the ADA. This MOU also contains a binding arbitration procedure.

SF-CE-276-M
October 5, 2005
Page 3
( 	(
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 and the 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.).
With regard to adverse action, the Court of Appeal in Campbell held that if the employer's
conduct is "inherently destructive" of important employee rights, proof of unlawful intent is
not required under the MMBA, even if the employer's conduct was motivated by business
considerations. (Campbell at 423.) However, if the adverse effect on employee rights is
"comparatively slight," unlawful intent must be proved if the employer produces evidence of
legitimate and substantial business justifications. (Campbell at 424.)
You have not stated how the County's advising you that your two years of unpaid
administrative leave was about to expire and that failure to return to work with your Doctor's
medical assurance was a discriminatory act. Were you treated disparately from other
employees who may have exhausted their two year leave allotment? Without further
information which would establish the necessary "nexus", this allegation fails to state a
violation of the MMBA.
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 written on the top right hand
SF-CE-276-M
October 5, 2005
Page 3
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 and the 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.).
With regard to adverse action, the Court of Appeal in Campbell held that if the employer's
conduct is "inherently destructive" of important employee rights, proof of unlawful intent is
not required under the MMBA, even if the employer's conduct was motivated by business
considerations. (Campbell at 423.) However, if the adverse effect on employee rights is
"comparatively slight," unlawful intent must be proved if the employer produces evidence of
legitimate and substantial business justifications. (Campbell at 424.)
You have not stated how the County's advising you that your two years of unpaid
administrative leave was about to expire and that failure to return to work with your Doctor's
medical assurance was a discriminatory act. Were you treated disparately from other
employees who may have exhausted their two year leave allotment? Without further
information which would establish the necessary "nexus", this allegation fails to state a
violation of the MMBA.
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 written on the top right hand

SF-CE-276-M
October 5, 2005
Page4
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corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before October 24, 2005, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Roger Smith
Labor Relations Specialist
RCS
cc: Irene Martell
SF-CE-276-M
October 5, 2005
Page 4
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before October 24, 2005, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Roger Smith
Labor Relations Specialist
RCS
cc: Irene Martell