City of Modesto (PERB 1994M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY EMPLOYEES' ASSOCIATION,
Charging Party,
V.
CITY OF MODESTO,
Respondent.
CITY OF MODESTO,
Case No. SA-CE-486-M
PERB Decision No. 	1994-M
December 19, 2008
Appearances: 	Rose Law Firm by Joseph W. Rose, Attorney, for Modesto City Employees'
Association; Liebert Cassidy Whitmore by Jesse J. Maddox, Attorney, for City of Modesto.
Before Wesley, Rystrom and Dowdin Calvillo, Members.
DPCISION
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the Modesto City Employees' Association
(Association) to the proposed decision of an administrative law judge (ALJ). 	The complaint
alleged that the City of Modesto (City) violated the Meyers-Milias-Brown Act (MMBA) 1 by
increasing City employee Blair Bradley's (Bradley) disciplinary suspension from two days to
five days in retaliation for his appeal of the suspension. The ALJ found the Association failed
to establish a prima facie case of retaliation.
The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charge, the complaint and answer, the hearing transcripts and exhibits, the
ALJ' s proposed decision, the Association's exceptions and the City's response thereto.
Based on this review, the Board affirms the ALJ's dismissal of the complaint and underlying
unfair practice charge for the reasons discussed below.
1MMBA is codified at Government Code section 3500 et seq. 	Unless otherwise	U
indicated, all statutory references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY EMPLOYEES' ASSOCIATION,
Charging Party, 	Case No. SA-CE-486-M
V. 	PERB Decision No. 1994-M
December 19, 2008
Respondent.
Appearances: Rose Law Firm by Joseph W. Rose, Attorney, for Modesto City Employees'
Association; Liebert Cassidy Whitmore by Jesse J. Maddox, Attorney, for City of Modesto.
Before Wesley, Rystrom and Dowdin Calvillo, Members.
DECISION
DOWDIN CAL VILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the Modesto City Employees' Association
(Association) to the proposed decision of an administrative law judge (ALJ). The complaint
alleged that the City of Modesto (City) violated the Meyers-Milias-Brown Act (MMBA) by
increasing City employee Blair Bradley's (Bradley) disciplinary suspension from two days to
five days in retaliation for his appeal of the suspension. The ALJ found the Association failed
to establish a prima facie case of retaliation.
The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charge, the complaint and answer, the hearing transcripts and exhibits, the
ALJ's proposed decision, the Association's exceptions and the City's response thereto.
Based on this review, the Board affirms the ALJ's dismissal of the complaint and underlying
unfair practice charge for the reasons discussed below.
'MMBA is codified at Government Code section 3500 et seq. 	nless otherwise
indicated, all statutory references are to the Government Code.

BACKGROUND
Bradley is a senior environmental compliance inspector in the water quality control
division
of
the City's public works department. At the time
of
the PERB hearing, Bradley had
worked for the City for more than
18
years. Bradley served
as
president
of
the Association
from 2002 to 2006. 2 Since 2006, he has been a union steward for the Association.
First Vehicle Incident
On January 6, 2006, Bradley left his assigned City vehicle unattended without setting
the parking brake. The vehicle rolled into a storm drain basin and was submerged. As a result,
the $7,900 vehicle was totaled.
On May 22, 2006, Deputy Public Works Director, Dan Wilkowsky (Wilkowsky) issued
Bradley a Notice
of
Intent to Recommend Suspension and Right to Respond. The notice
proposed to suspend Bradley for three days without pay. 	On June 2, Bradley received a
Skelly3 hearing before Public Works Director, Dr. Nicholas Pinhey (Pinhey). Bradley was	hearing before Public Works Director, Dr. Nicholas Pinhey (Pinhey). Bradley was
represented at the hearing by the Association's attorney, Robert Phibbs. On June 30, Pinhey
issued a final notice
of
suspension that reduced the suspension to two days based on Bradley's
work history and acceptance
of
responsibility for the incident.
2
BACKGROUND
Bradley is a senior environmental compliance inspector in the water quality control
division of the City's public works department. At the time of the PERB hearing, Bradley had
worked for the City for more than 18 years. Bradley served as president of the Association
from 2002 to 2006. " Since 2006, he has been a union steward for the Association.
First Vehicle Incident
On January 6, 2006, Bradley left his assigned City vehicle unattended without setting
the parking brake. The vehicle rolled into a storm drain basin and was submerged. As a result,
the $7,900 vehicle was totaled.
On May 22, 2006, Deputy Public Works Director, Dan Wilkowsky (Wilkowsky) issued
Bradley a Notice of Intent to Recommend Suspension and Right to Respond. The notice
proposed to suspend Bradley for three days without pay. On June 2, Bradley received a
Skelly'
represented at the hearing by the Association's attorney, Robert Phibbs. On June 30, Pinhey
issued a final notice of suspension that reduced the suspension to two days based on Bradley's
work history and acceptance of responsibility for the incident.
"The record does not establish when in 2006 Bradley's term as Association president
ended.
'In Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215 [124 Cal.Rptr. 14]
Skelly), the Supreme Court held that to satisfy due process requirements, a public employer
must provide an employee with "notice of the proposed [ disciplinary] action, the reasons
therefor, a copy of the charges and materials upon which the action is based, and the right to
respond, either orally or in writing, to the authority initially imposing discipline."
2
2The record does not establish when in 2006 Bradley's term as Association president
ended.
3In Skelly v. State Personnel Board (1975) 15 Cal.3d 194,215 [124 Cal.Rptr. 14]
(Skelly), the Supreme Court held that to satisfy due process requirements, a public employer
must provide an employee with "notice of the proposed [disciplinary] action, the reasons
therefor, a copy of the charges and materials upon which the action is based, and the right to
respond, either orally or in writing, to the authority initially imposing discipline."

Second Vehicle Incident
On November 7, 2006, Bradley rear-ended a garbage truck with his assigned City
vehicle. Bradley did not see the truck because he was making a U-turn while checking his
pager. 	The City vehicle suffered $3,183 in damage. The garbage truck was also damaged and
the truck driver sustained minor injuries.
On January 16, 2007, Wilkowsky issued Bradley a written notice
of
his intent to
recommend that Bradley be suspended for five days without pay for the November 7, 2006
collision. That same day, the Association's new attorney, Joseph Rose (Rose), filed an appeal
of
the proposed suspension with City Personnel Director, Robin Renwick (Renwick).4
Renwick instructed Deputy Personnel Director, Barbara Santos (Santos) to contact Rose about
the appeal. 	Santos informed Rose that the appeal was premature because no final notice
of
discipline had yet been issued.
On February
1,
2007, Pinhey conducted a Skelly hearing regarding the discipline for
Bradley's November 7, 2006 collision. During the hearing, Rose proposed reducing the
suspension to two days. Bradley testified that Pinhey told him he would reduce the suspension
to two days with three days held in abeyance. 	When Bradley asked what that meant, Pinhey
responded that the three days held in abeyance would be added to any future discipline
imposed for a similar incident. Conversely, Pinhey testified that he never told Bradley or Rose
that he would reduce the suspension. Pinhey also testified that he alone had the authority to
determine the length
of
suspension to impose on Bradley and that any reduction by him would
3
Second Vehicle Incident
On November 7, 2006, Bradley rear-ended a garbage truck with his assigned City
vehicle. Bradley did not see the truck because he was making a U-turn while checking his
pager. The City vehicle suffered $3,183 in damage. The garbage truck was also damaged and
the truck driver sustained minor injuries.
On January 16, 2007, Wilkowsky issued Bradley a written notice of his intent to
recommend that Bradley be suspended for five days without pay for the November 7, 2006
collision. That same day, the Association's new attorney, Joseph Rose (Rose), filed an appeal
of the proposed suspension with City Personnel Director, Robin Renwick (Renwick).*
Renwick instructed Deputy Personnel Director, Barbara Santos (Santos) to contact Rose about
the appeal. Santos informed Rose that the appeal was premature because no final notice of
discipline had yet been issued.
On February 1, 2007, Pinhey conducted a Skelly hearing regarding the discipline for
Bradley's November 7, 2006 collision. During the hearing, Rose proposed reducing the
suspension to two days. Bradley testified that Pinhey told him he would reduce the suspension
to two days with three days held in abeyance. When Bradley asked what that meant, Pinhey
responded that the three days held in abeyance would be added to any future discipline
imposed for a similar incident. Conversely, Pinhey testified that he never told Bradley or Rose
that he would reduce the suspension. Pinhey also testified that he alone had the authority to
determine the length of suspension to impose on Bradley and that any reduction by him would
`Article 43 of the memorandum of understanding (MOU) between the City and the
Association provides that an employee has the right to appeal a disciplinary action to binding
arbitration. The employee must file a written appeal with the personnel director within 30 days
following the notice of discipline. Upon receiving the appeal, the City must request a list of
seven arbitrators from the State Mediation and Conciliation Service (SMCS).
3
Article 43
of the memorandum of understanding (MOU) between the City and the
Association provides that an employee has the right to appeal a disciplinary action to binding
arbitration. The employee must file a written appeal with the personnel director within 30 days
following the notice of discipline. Upon receiving the appeal, the City must request a list of
seven arbitrators from the State Mediation and Conciliation Service (SMCS).

be communicated in the final notice
of
discipline,
as
it had been in the June 30, 2006 final
notice regarding the first vehicle incident.
After the Skelly hearing, Rose and Pinhey continued to discuss a reduction
of
Bradley's
suspension. 	On March
9,
2007, Pinhey engaged in an e-mail exchange with Gail Wax (Wax),
the public works department's administrative services officer. Pinhey wrote that a two-day
suspension in exchange for Bradley's agreement not to appeal the suspension "might be a
reasonable counter" to Rose's proposal. Wax expressed concern about making offers and
counteroffers as part
of
the Skelly process. Pinhey responded that he had the same concern
because such a practice would make it more difficult for the department to say in the future
that particular discipline was non-negotiable.
Pinhey's April 23, 2007 Letter and Bradley's Appeal
On April 23, 2007, Pinhey faxed to Rose a letter about Bradley's proposed discipline.
The letter began by recounting the offer and counteroffer made by each
of
them. It then stated
that "the Skelly process is not a starting point for negotiations" and that Pinhey had exercised
his discretion regarding Bradley's discipline "in a fair and reasonable manner." The letter then
formally rejected Rose's counteroffer
of
a two-day suspension. Following a brief summary
of
the November 7, 2006 collision, the letter stated: "The discipline to be imposed upon Mr.
Bradley for each incident is a suspension
of
wo (2) days without pay, equal to sixteen (16)
working hours, with three (3) days without pay, equal to twenty-four (24) hours, to be held in
abeyance." The letter ended with a paragraph informing Bradley
of
his appeal rights under
article 43
of the MOU.
t
Immediately upon receiving the letter, Rose e-mailed a copy to Bradley. Bradley and
Rose then discussed the letter by phone. During this conversation, Bradley told Rose to appeal
the letter. Later that same day, Rose faxed to Renwick a letter that stated in full:
4
be communicated in the final notice of discipline, as it had been in the June 30, 2006 final
notice regarding the first vehicle incident.
After the Skelly hearing, Rose and Pinhey continued to discuss a reduction of Bradley's
suspension. On March 9, 2007, Pinhey engaged in an e-mail exchange with Gail Wax (Wax),
the public works department's administrative services officer. Pinhey wrote that a two-day
suspension in exchange for Bradley's agreement not to appeal the suspension "might be a
reasonable counter" to Rose's proposal. Wax expressed concern about making offers and
counteroffers as part of the Skelly process. Pinhey responded that he had the same concern
because such a practice would make it more difficult for the department to say in the future
that particular discipline was non-negotiable.
Pinhey's April 23, 2007 Letter and Bradley's Appeal
On April 23, 2007, Pinhey faxed to Rose a letter about Bradley's proposed discipline.
The letter began by recounting the offer and counteroffer made by each of them. It then stated
that "the Skelly process is not a starting point for negotiations" and that Pinhey had exercised
his discretion regarding Bradley's discipline "in a fair and reasonable manner." The letter then
formally rejected Rose's counteroffer of a two-day suspension. Following a brief summary of
the November 7, 2006 collision, the letter stated: "The discipline to be imposed upon Mr.
Bradley for each incident is a suspension of two (2) days without pay, equal to sixteen (16)
working hours, with three (3) days without pay, equal to twenty-four (24) hours, to be held in
abeyance." The letter ended with a paragraph informing Bradley of his appeal rights under
article 43 of the MOU.
Immediately upon receiving the letter, Rose e-mailed a copy to Bradley. Bradley and
Rose then discussed the letter by phone. During this conversation, Bradley told Rose to appeal
the letter. Later that same day, Rose faxed to Renwick a letter that stated in full:

This letter will serve
as
Blair Bradley's notice
of
appeal from
Nick Pinhey's notice to suspend him without pay, which I
received by fax today. 	A copy
of
Mr. Pinhey's letter is enclosed.
This appeal is made under Article 43
of
the Memorandum
of
Understanding (MOU) between the Modesto City Employees'
Association (MCEA).
Please have the appropriate representative
of
the City
of
Modesto
contact me to coordinate the scheduling
of
binding arbitration.
Enclosed is my letter to the California State Mediation and
Conciliation Service requesting a list
of
seven (7) neutrals from
which to select an arbitrator to hear this case.
Attached to the letter were Pinhey's April 23, 2007 letter to Rose and Rose's letter to
SMCS requesting a list
of
arbitrators.
Upon receiving the appeal, Renwick advised Rose by e-mail that the MOU required the
City to request the list
of
arbitrators from SMCS so that the case could be properly assigned
within the city attorney's office. Renwick testified she did not mention the appeal being
premature at this time because Santos had already discussed that issue with Rose following his
January 16, 2007 appeal.
E-mail Correspondence About Bradley's Suspension and Appeal
Pinhey began a week's vacation on April 30, 2007. Nonetheless, the personnel and
public works departments continued to discuss Bradley's discipline while Pinhey was gone.
On April 30, Santos e-mailed various City employees stating that Pinhey had reduced
Bradley's suspension "in an effort to avoid arbitration" and she did not support reducing it
further. 	Among the recipients
of
the e-mail were Pinhey, Wax, and Janice Stewart (Stewart), a
retired annuitant who handled various personnel matters for the public works department under
Wax's direct supervision. 5
Stewart worked in the City's personnel department for fourteen years before retiring
from her position as deputy personnel director in April 2006.
5
This letter will serve as Blair Bradley's notice of appeal from
Nick Pinhey's notice to suspend him without pay, which I
received by fax today. A copy of Mr. Pinhey's letter is enclosed.
This appeal is made under Article 43 of the Memorandum of
Understanding (MOU) between the Modesto City Employees'
Association (MCEA).
Please have the appropriate representative of the City of Modesto
contact me to coordinate the scheduling of binding arbitration.
Enclosed is my letter to the California State Mediation and
Conciliation Service requesting a list of seven (7) neutrals from
which to select an arbitrator to hear this case.
Attached to the letter were Pinhey's April 23, 2007 letter to Rose and Rose's letter to
SMCS requesting a list of arbitrators.
Upon receiving the appeal, Renwick advised Rose by e-mail that the MOU required the
City to request the list of arbitrators from SMCS so that the case could be properly assigned
within the city attorney's office. Renwick testified she did not mention the appeal being
premature at this time because Santos had already discussed that issue with Rose following his
January 16, 2007 appeal.
E-mail Correspondence About Bradley's Suspension and Appeal
Pinhey began a week's vacation on April 30, 2007. Nonetheless, the personnel and
public works departments continued to discuss Bradley's discipline while Pinhey was gone.
On April 30, Santos e-mailed various City employees stating that Pinhey had reduced
Bradley's suspension "in an effort to avoid arbitration" and she did not support reducing it
further. Among the recipients of the e-mail were Pinhey, Wax, and Janice Stewart (Stewart), a
retired annuitant who handled various personnel matters for the public works department under
Wax's direct supervision.
Stewart worked in the City's personnel department for fourteen years before retiring
from her position as deputy personnel director in April 2006.
5

On May 2, 2007, Stewart responded to Santos' April 30 e-mail; among the recipients
were Pinhey and Wax. Stewart indicated she agreed with Santos about not reducing Bradley's
suspension further. 	She then stated: "The 'offer' on the table was already a reduction to
attempt to avoid arbitration.
	If
they still want to go to arbitration, it was my understanding that
all were in agreement that the days in 'abeyance' would be imposed."
Six minutes later, Jill Peltier (Peltier), an employee relations specialist in the personnel
department, responded to Stewart's e-mail. Peltier's e-mail, sent to the same recipients as
Stewart's, stated in full:
Also, just to be clear and get everyone up to speed, Joe Rose sent
a Notice
of
Appeal to Robin dated 4/23/07. Joe also sent a
separate letter on 4/23/07 to the State Mediation and Conciliation
Service requesting a list
of
arbitrators. A copy
of
the letter was
sent to Robin.
Later that day, Santos sent an e-mail to Wax and Stewart containing settlement
language used by another City department in which the department agreed to hold suspension
days in abeyance in exchange for the employee not appealing the reduced suspension.
Final Notice
of
Suspension
On May 3, 2007, Stewart sent an e-mail to Pinhey informing him that she and Wax
were drafting for Pinhey's signature a final notice of discipline imposing a five-day suspension
on Bradley.
When Pinhey returned from vacation on May 7, 2007, there were approximately 250
e-mails in his inbox. Pinhey testified that he did not read any
of
the e-mail correspondence
about Bradley's appeal that was sent while he was on vacation until after he had signed the
final notice. On May 10, Rose filed an appeal from the final notice "in an abundance
of
caution."
6
On May 2, 2007, Stewart responded to Santos' April 30 e-mail; among the recipients
were Pinhey and Wax. Stewart indicated she agreed with Santos about not reducing Bradley's
suspension further. She then stated: "The "offer' on the table was already a reduction to
attempt to avoid arbitration. If they still want to go to arbitration, it was my understanding that
all were in agreement that the days in "abeyance' would be imposed."
Six minutes later, Jill Peltier (Peltier), an employee relations specialist in the personnel
department, responded to Stewart's e-mail. Peltier's e-mail, sent to the same recipients as
Stewart's, stated in full:
Also, just to be clear and get everyone up to speed, Joe Rose sent
a Notice of Appeal to Robin dated 4/23/07. Joe also sent a
separate letter on 4/23/07 to the State Mediation and Conciliation
Service requesting a list of arbitrators. A copy of the letter was
sent to Robin.
Later that day, Santos sent an e-mail to Wax and Stewart containing settlement
language used by another City department in which the department agreed to hold suspension
days in abeyance in exchange for the employee not appealing the reduced suspension.
Final Notice of Suspension
On May 3, 2007, Stewart sent an e-mail to Pinhey informing him that she and Wax
were drafting for Pinhey's signature a final notice of discipline imposing a five-day suspension
on Bradley.
When Pinhey returned from vacation on May 7, 2007, there were approximately 250
e-mails in his inbox. Pinhey testified that he did not read any of the e-mail correspondence
about Bradley's appeal that was sent while he was on vacation until after he had signed the
final notice. On May 10, Rose filed an appeal from the final notice "in an abundance of
caution."
6

ALJ' s Proposed Decision
The ALJ concluded that the Association failed to establish a prima facie case of
retaliation. 	The ALJ found that Bradley's April 23, 2007 appeal was protected activity and
that the five-day suspension was an adverse action. However, the ALJ found the Association
did not establish employer knowledge of Bradley's protected activity because the record
showed Pinhey was unaware of Bradley's appeal at the time he signed the final notice of
discipline imposing the five-day suspension. Based on this finding, the ALJ dismissed the
complaint and the underlying charge.
Association's Exceptions
The Association challenges the proposed decision on two grounds. First, the
Association argues the ALJ erroneously credited Pinhey's testimony that he was unaware of
Bradley's appeal when he signed the final notice of discipline. According to the Association,
this testimony was "implausible" because Pinhey received multiple e-mail communications
discussing the appeal and it is hard to believe that he did not read any of those e-mails, or
otherwise learn about the appeal from other City employees, before he issued the final notice.
Second, the Association asserts that Wax and Stewart both knew of the appeal at the time they
drafted the final notice for Pinhey's signature. Therefore, the Association argues, Wax and
Stewart's retaliatory motive for increasing Bradley's suspension to five days should be
imputed to Pinhey and the City under a "subordinate bias liability" theory.
City's Response to Exceptions
The City argues in response that Pinhey was on vacation during the time that the
e-mails about Bradley's suspension were sent to his e-mail account and the record contains no
evidence that any of the other parties to those communications informed Pinhey of the appeal
by any other means before he issued the final notice of discipline. The City also contends that
7
ALJ's Proposed Decision
The ALJ concluded that the Association failed to establish a prima facie case of
retaliation. The ALJ found that Bradley's April 23, 2007 appeal was protected activity and
that the five-day suspension was an adverse action. However, the ALJ found the Association
did not establish employer knowledge of Bradley's protected activity because the record
showed Pinhey was unaware of Bradley's appeal at the time he signed the final notice of
discipline imposing the five-day suspension. Based on this finding, the ALJ dismissed the
complaint and the underlying charge.
Association's Exceptions
The Association challenges the proposed decision on two grounds. First, the
Association argues the ALJ erroneously credited Pinhey's testimony that he was unaware of
Bradley's appeal when he signed the final notice of discipline. According to the Association,
this testimony was "implausible" because Pinhey received multiple e-mail communications
discussing the appeal and it is hard to believe that he did not read any of those e-mails, or
otherwise learn about the appeal from other City employees, before he issued the final notice.
Second, the Association asserts that Wax and Stewart both knew of the appeal at the time they
drafted the final notice for Pinhey's signature. Therefore, the Association argues, Wax and
Stewart's retaliatory motive for increasing Bradley's suspension to five days should be
imputed to Pinhey and the City under a "subordinate bias liability" theory.
City's Response to Exceptions
The City argues in response that Pinhey was on vacation during the time that the
e-mails about Bradley's suspension were sent to his e-mail account and the record contains no
evidence that any of the other parties to those communications informed Pinhey of the appeal
by any other means before he issued the final notice of discipline. The City also contends that
7

there is no factual basis for the Association's "subordinate bias liability" theory because: 	(
1)
Wax and Stewart are not Pinhey's subordinates, and (2) neither Wax nor Stewart were aware
that Bradley had appealed Pinhey's April 23, 2007 letter or that the letter had reduced the
suspension to two days with three days held in abeyance. Finally, the City asserts that there is
no circumstantial evidence
of
a nexus between Bradley's appeal and the five-day suspension,
again because Wax and Stewart lacked knowledge
of
what exactly Bradley had appealed.
DISCUSSION
1.
	Request for Oral Argument
Pursuant to PERB Regulation 32315, the Association has filed a request for oral
argument. 6 The Association asserts that its request should be granted because it excepts to the
ALJ' s proposed decision, but provides no further reasons why oral argument is necessary in
this matter. 	The City does not oppose the Association's request but merely asks that
if
the
Board grants the request, the City also "be allowed to participate in oral argument before the
Board."
Historically, the Board has denied requests for oral argument when an adequate record
has been prepared, the parties had ample opportunity to present briefs and have availed
themselves
of
that opportunity, and the issues before the Board are sufficiently clear to make oral
argument unnecessary. (Antelope Valley Health Care District (2006) PERB Decision
No. 1816-M; Arvin Union School District (1983) PERB Decision No. 300.) Based on our
6PERB regulations are codified at California Code
of
Regulations, title 8, section 31001
et seq. PERB Regulation 32315 provides in full:
A party desiring to argue orally before the Board itself regarding
the exceptions to the proposed decision shall file with the
statement of exceptions or the response to the statement of
exceptions a written request stating the reasons for the request.
Upon such request or its own motion the Board itself may direct
oral argument.
8
there is no factual basis for the Association's "subordinate bias liability" theory because: (1)
Wax and Stewart are not Pinhey's subordinates, and (2) neither Wax nor Stewart were aware
that Bradley had appealed Pinhey's April 23, 2007 letter or that the letter had reduced the
suspension to two days with three days held in abeyance. Finally, the City asserts that there is
no circumstantial evidence of a nexus between Bradley's appeal and the five-day suspension,
again because Wax and Stewart lacked knowledge of what exactly Bradley had appealed.
DISCUSSION
1 . 	Request for Oral Argument
Pursuant to PERB Regulation 32315, the Association has filed a request for oral
argument. " The Association asserts that its request should be granted because it excepts to the
ALJ's proposed decision, but provides no further reasons why oral argument is necessary in
this matter. The City does not oppose the Association's request but merely asks that if the
Board grants the request, the City also "be allowed to participate in oral argument before the
Board."
Historically, the Board has denied requests for oral argument when an adequate record
has been prepared, the parties had ample opportunity to present briefs and have availed
themselves of that opportunity, and the issues before the Board are sufficiently clear to make oral
argument unnecessary. (Antelope Valley Health Care District (2006) PERB Decision
No. 1816-M; Arvin Union School District (1983) PERB Decision No. 300.) Based on our
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq. PERB Regulation 32315 provides in full:
A party desiring to argue orally before the Board itself regarding
the exceptions to the proposed decision shall file with the
statement of exceptions or the response to the statement of
exceptions a written request stating the reasons for the request.
Upon such request or its own motion the Board itself may direct
oral argument.
8

review
of
the record, all
of
the above criteria are met in this case. Therefore, the Association's
request for oral argument is denied.
2.
	Association's Rebuttal
The Association filed a rebuttal to the City's response to its exceptions. The City then
filed a formal objection to the rebuttal, asserting that "such additional argument is not allowed
under the PERB Regulations."
PERB regulations do not expressly provide for or preclude the filing
of
reply or rebuttal
briefs on appeal. (Los Angeles Unified School District/Los Angeles Community College
District (1984) PERB Decision No. 408.) Consequently, the Board has ruled that it has	District (1984) PERB Decision No. 408.) Consequently, the Board has ruled that it has
discretion to allow the filing of a reply brief when a response to exceptions "raises new issues,
discusses new case law or formulates new defenses to allegations." (Ibid.)
The Association's rebuttal does not address arguments, case law or defenses raised for
the first time in the City's response. Rather, the rebuttal provides additional argument and record
citations to bolster arguments originally made in the Association's exceptions and addressed by
the City in its response. Accordingly, the Board declines to exercise its discretion to consider the
Association's rebuttal.
3. 	Retaliation	Retaliation
To establish a prima facie case
of
retaliation in violation ofMMBA section 3506 and
PERB Regulation 32603(a), the Association must show that: (1) Bradley exercised rights
under the MMBA; (2) the City had knowledge
of
his exercise
of
those rights; and (3) the City
imposed or threatened to impose reprisals, discriminated or threatened to discriminate, or
otherwise interfered with, restrained, or coerced Bradley because of his exercise of those
rights. 	(Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d
9
review of the record, all of the above criteria are met in this case. Therefore, the Association's
request for oral argument is denied.
2. 	Association's Rebuttal
The Association filed a rebuttal to the City's response to its exceptions. The City then
filed a formal objection to the rebuttal, asserting that "such additional argument is not allowed
under the PERB Regulations."
PERB regulations do not expressly provide for or preclude the filing of reply or rebuttal
briefs on appeal. (Los Angeles Unified School District/Los Angeles Community College
discretion to allow the filing of a reply brief when a response to exceptions "raises new issues,
discusses new case law or formulates new defenses to allegations." (Ibid.)
The Association's rebuttal does not address arguments, case law or defenses raised for
the first time in the City's response. Rather, the rebuttal provides additional argument and record
citations to bolster arguments originally made in the Association's exceptions and addressed by
the City in its response. Accordingly, the Board declines to exercise its discretion to consider the
Association's rebuttal.
3.
To establish a prima facie case of retaliation in violation of MMBA section 3506 and
PERB Regulation 32603(a), the Association must show that: (1) Bradley exercised rights
under the MMBA; (2) the City had knowledge of his exercise of those rights; and (3) the City
imposed or threatened to impose reprisals, discriminated or threatened to discriminate, or
otherwise interfered with, restrained, or coerced Bradley because of his exercise of those
rights. (Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d
9

416 [182 Cal.Rptr. 461] (Campbell); San Leandro Police Officers Assn. v. City
of
San Leandro
(1976)
55
Cal.App.3d 553 [127 Cal.Rptr. 856] (San Leandro).)
a. 	Protected Activity	Protected Activity
The complaint alleged that Bradley engaged in conduct protected by the MMBA when
he appealed Pinhey's April 23, 2007 letter pursuant to article 43
of
the parties' MOU. MMBA
section 3502 grants public employees "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." PERB has long recognized that "[a]n employee's
attempt to assert rights established by the terms
of
a negotiated agreement clearly constitutes
participation in the activities
of
an employee organization." iliorth Sacramento School District
(1982) PERB Decision No. 264 (North Sacramento
).)7
Because Bradley's appeal was an attempt
to assert a right established by the parties' MOU, the appeal was protected under the MMBA.
b. 	The City's Knowledge of Bradley's Protected Activity	The City's Knowledge
of
Bradley's Protected Activity
The Association must also show that the City had knowledge
of
Bradley's April 23,
2007 appeal.8 The ALJ found the Association failed to make this showing because it did not
prove "that Pinhey knew about Bradley's April 23 appeal when he issued the final notice
of
discipline on May 7." This finding was based on Pinhey's testimony that he did not read any
of
the e-mails about Bradley's appeal until after he signed the final notice
of
discipline.
7When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City
of
Vallejo (1974) 12 Cal.3d 608 [116
Cal.Rptr. 507].)
8PERB commonly phrases the legal standard as whether the employer had knowledge
of
the employee's protected activity. However, the actual inquiry is whether the individual(s)
who made the ultimate decision to take adverse action against the employee had such
knowledge. (See Sacramento City Unified School District (1985) PERB Decision No. 492
[finding employer did not have knowledge of employee's protected activity when selection
committee that did not select employee for position had no such knowledge but other district
employees did].)
10
416 [182 Cal.Rptr. 461] (Campbell); San Leandro Police Officers Assn. v. City of San Leandro
(1976) 55 Cal.App.3d 553 [127 Cal.Rptr. 856] (San Leandro).)
a.
The complaint alleged that Bradley engaged in conduct protected by the MMBA when
he appealed Pinhey's April 23, 2007 letter pursuant to article 43 of the parties' MOU. MMBA
section 3502 grants public employees "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." PERB has long recognized that "[ajn employee's
attempt to assert rights established by the terms of a negotiated agreement clearly constitutes
participation in the activities of an employee organization." (North Sacramento School District
(1982) PERB Decision No. 264 (North Sacramento).)' Because Bradley's appeal was an attempt
to assert a right established by the parties' MOU, the appeal was protected under the MMBA.
b.
The Association must also show that the City had knowledge of Bradley's April 23,
2007 appeal. The ALJ found the Association failed to make this showing because it did not
prove "that Pinhey knew about Bradley's April 23 appeal when he issued the final notice of
discipline on May 7." This finding was based on Pinhey's testimony that he did not read any
of the e-mails about Bradley's appeal until after he signed the final notice of discipline.
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116
Cal.Rptr. 507].)
PERB commonly phrases the legal standard as whether the employer had knowledge
of the employee's protected activity. However, the actual inquiry is whether the individual(s)
who made the ultimate decision to take adverse action against the employee had such
knowledge. (See Sacramento City Unified School District (1985) PERB Decision No. 492
finding employer did not have knowledge of employee's protected activity when selection
committee that did not select employee for position had no such knowledge but other district
employees did].)
10

In its exceptions, the Association argues that Pinhey was not a credible witness because
his testimony contained internal inconsistencies and also conflicted with testimony he gave at a
January 2008 arbitration hearing over Bradley's two vehicle incidents. The Association further
argues that Pinhey's testimony was "implausible" because it requires one to believe that none
of
the City employees who knew
of
Bradley's appeal mentioned it to Pinhey before he signed
the final notice
of
discipline. 9
"[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 own and perhaps contrary
inferences from the evidence presented." (Santa Clara Unified School District (1979) PERB
Decision No. 104 (Santa Clara USD).)
The record contains ample support for the
ALJ's
determination that Pinhey's testimony
was credible. The evidence establishes that Pinhey began a week's vacation on April 30, 2007.
Two days later, on May 2, Pinhey was copied on two e-mails discussing Bradley's appeal.
Pinhey testified that upon his return to work on May 7, there were approximately 250 e-mails in
his inbox and that he signed Bradley's final notice
of
suspension before reading either
of
the
May 2 e-mails about Bradley's appeal. The Association presented no testimony or evidence that
contradicted Pinhey's testimony. Based on this evidence, we agree with the ALJ's finding that
Pinhey was unaware
of
Bradley's April 23, 2007 appeal at the time he signed and issued the final
notice suspending Bradley for five days.
11
In its exceptions, the Association argues that Pinhey was not a credible witness because
his testimony contained internal inconsistencies and also conflicted with testimony he gave at a
January 2008 arbitration hearing over Bradley's two vehicle incidents. The Association further
argues that Pinhey's testimony was "implausible" because it requires one to believe that none
of the City employees who knew of Bradley's appeal mentioned it to Pinhey before he signed
the final notice of discipline."
"[WJhile 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 own and perhaps contrary
inferences from the evidence presented." (Santa Clara Unified School District (1979) PERB
Decision No. 104 (Santa Clara USD).)
The record contains ample support for the ALJ's determination that Pinhey's testimony
was credible. The evidence establishes that Pinhey began a week's vacation on April 30, 2007.
Two days later, on May 2, Pinhey was copied on two e-mails discussing Bradley's appeal.
Pinhey testified that upon his return to work on May 7, there were approximately 250 e-mails in
his inbox and that he signed Bradley's final notice of suspension before reading either of the
May 2 e-mails about Bradley's appeal. The Association presented no testimony or evidence that
contradicted Pinhey's testimony. Based on this evidence, we agree with the ALJ's finding that
Pinhey was unaware of Bradley's April 23, 2007 appeal at the time he signed and issued the final
notice suspending Bradley for five days.
The Association also argues that Pinhey's testimony was not credible because it
conflicted with the content of his April 23, 2007 letter. Pinhey testified that the portions of the
etter imposing the two day suspension with three days held in abeyance and informing
Bradley of his appeal rights were included in error because he did not intend for the letter to be
a final notice of discipline. It also appears from the record that no other City employee
reviewed this letter before Pinhey faxed it to Rose. While this evidence indicates a troubling
lack of care on the part of Pinhey and the City, it does not indicate that Pinhey testified
untruthfully.
11
The Association also argues that Pinhey's testimony was not credible because it
conflicted with the content
of
his April 23, 2007 letter. Pinhey testified that the portions
of
the
letter imposing the two day suspension with three days held in abeyance and informing
Bradley of his appeal rights were included in error because he did not intend for the letter to be
a final notice of discipline. 	It also appears from the record that no other City employee
reviewed this letter before Pinhey faxed it to Rose. 	While this evidence indicates a troubling
lack of care on the part of Pinhey and the City, it does not indicate that Pinhey testified
untruthfully.

Nonetheless, we disagree with the ALJ's finding that the City had
no
knowledge
of
Bradley's protected activity. As pointed out in the Association's exceptions, both Wax and
Stewart knew
of
Bradley's April 23, 2007 appeal at the time they drafted the final notice
of
discipline for Pinhey's signature. PERB may impute an employee's knowledge
of
protected
activity to the employer
if
the employee was directly involved in the adverse action. 	(Regents
of
the University
of
California (1983) PERB Decision No. 319-H.) Accordingly, based on Wax
and Stewart's knowledge
of
Bradley's appeal, we find that the City had knowledge
of
Bradley's
protected activity at the time it took adverse action against him. 10
c.	
Adverse Action	c . 	Adverse Action
Evidence
of
adverse action is also required to support a claim
of
retaliation. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) PERB has held, and the parties agree,
that a final notice
of
suspension is an adverse action. (Los Angeles County Superior Court
(2008) PERB Decision No. 1979-C; see Regents
of
the University
of
California (1983) PERB
Decision No. 310-H (suspension was adverse action].) Thus, the May 7, 2007 final notice
of
discipline imposing a five-day suspension on Bradley constituted an adverse action.
d. 	Nexus	Nexus
Finally, the Association must demonstrate a "nexus" between Bradley's protected activity
and the City's adverse action. In other words, the Association must show that the City acted
with discriminatory intent. Because direct evidence
of
discriminatory intent
is
rarely possible,
the Board has held that "unlawful motive can be established by circumstantial evidence and
inferred from the record as a whole." iliovato Unified School District (1982) PERB Decision
No. 210 lliovato USD).)
1 The record also shows that several employees in the City's personnel department and
city attorney's office knew of Bradley's appe·a1 before the May 7, 2007 final notice of
discipline issued. However, because none of these employees was involved in issuing the final
notice, their knowledge of Bradley's protected activity cannot be imputed to the City.
12
Nonetheless, we disagree with the ALJ's finding that the City had no knowledge of
Bradley's protected activity. As pointed out in the Association's exceptions, both Wax and
Stewart knew of Bradley's April 23, 2007 appeal at the time they drafted the final notice of
discipline for Pinhey's signature. PERB may impute an employee's knowledge of protected
activity to the employer if the employee was directly involved in the adverse action. (Regents
of the University of California (1983) PERB Decision No. 319-H.) Accordingly, based on Wax
and Stewart's knowledge of Bradley's appeal, we find that the City had knowledge of Bradley's
protected activity at the time it took adverse action against him."
Evidence of adverse action is also required to support a claim of retaliation. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) PERB has held, and the parties agree,
that a final notice of suspension is an adverse action. (Los Angeles County Superior Court
(2008) PERB Decision No. 1979-C; see Regents of the University of California (1983) PERB
Decision No. 310-H [suspension was adverse action].) Thus, the May 7, 2007 final notice of
discipline imposing a five-day suspension on Bradley constituted an adverse action.
d.
Finally, the Association must demonstrate a "nexus" between Bradley's protected activity
and the City's adverse action. In other words, the Association must show that the City acted
with discriminatory intent. Because direct evidence of discriminatory intent is rarely possible,
the Board has held that "unlawful motive can be established by circumstantial evidence and
inferred from the record as a whole." (Novato Unified School District (1982) PERB Decision
No. 210 (Novato USD).)
"The record also shows that several employees in the City's personnel department and
city attorney's office knew of Bradley's appeal before the May 7, 2007 final notice of
discipline issued. However, because none of these employees was involved in issuing the final
notice, their knowledge of Bradley's protected activity cannot be imputed to the City.
12

The occurrence
of
the adverse action close in time
to
the employee's protected activity
is an important indicia
of
unlawful motive.
	llorth
Sacramento.) However, timing alone is
insufficient to establish retaliation. (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 (Campbell; 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 (San Leandro; Santa Clara USD); (3) the employer's inconsistent or contradictory
justifications for its actions (San Leandro; State
of
California (Department
of
Parks and
Recreation (1983) PERB Decision No. 328-S (Parks and Recreation)); (4) the employer's
cursory investigation
of
the employee's misconduct (Trustees
of
the California State
University (1990) PERB Decision No. 805-H); (5) the employer's offering
of
exaggerated,
vague, or ambiguous reasons for its actions (McFarland Unified School District (1990) PERB
Decision No. 786); (6) employer animosity towards union activists (San Leandro; Los Angeles
County Employees Assn.
v.
County
of
Los Angeles (1985) 168 Cal.App.3d 683 [214 Cal.Rptr.
350]; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any
other facts which might demonstrate the employer's unlawful motive (Novato USD; North
Sacramento).
Because Pinhey had no knowledge
of
Bradley's protected activity, he could not have
acted with an unlawful motive in issuing the final notice
of
five-day suspension. As a result,
the Association argues in its exceptions that Wax and Stewart's unlawful motive should be
imputed to Pinhey under a "subordinate bias liability" theory. The unlawful motive of
subordinates may be imputed to the decisionmaker when the subordinates exerted influence on
the decisionmaking process that led to the adverse action. 	(State of California (Department of
13
The occurrence of the adverse action close in time to the employee's protected activity
is an important indicia of unlawful motive. (North Sacramento.) However, timing alone is
insufficient to establish retaliation. (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 (Campbell; 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 (San Leandro; Santa Clara USD); (3) the employer's inconsistent or contradictory
justifications for its actions (San Leandro; State of California (Department of Parks and
Recreation (1983) PERB Decision No. 328-S (Parks and Recreation)); (4) the employer's
cursory investigation of the employee's misconduct (Trustees of the California State
University (1990) PERB Decision No. 805-H); (5) the employer's offering of exaggerated,
vague, or ambiguous reasons for its actions (Mcfarland Unified School District (1990) PERB
Decision No. 786); (6) employer animosity towards union activists (San Leandro; Los Angeles
County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683 [214 Cal.Rptr.
350]; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any
other facts which might demonstrate the employer's unlawful motive (Novato USD; North
Sacramento).
Because Pinhey had no knowledge of Bradley's protected activity, he could not have
acted with an unlawful motive in issuing the final notice of five-day suspension. As a result,
the Association argues in its exceptions that Wax and Stewart's unlawful motive should be
imputed to Pinhey under a "subordinate bias liability" theory. The unlawful motive of
subordinates may be imputed to the decisionmaker when the subordinates exerted influence on
the decisionmaking process that led to the adverse action. (State of California (Department of
13

Corrections) (2001) PERB Decision No. 1435-S; Parks and Recreation.) In this case, however,
the Association has failed to show that Wax and Stewart had an unlawful motive in drafting for
Pinhey' s signature the May 7, 2007 final notice of discipline.
The timing of the final notice of discipline, issued two weeks after Bradley filed his
appeal, supports an inference of unlawful motivation. Nonetheless, the evidence does not
establish any of the other six specific nexus factors. 	Thus, it appears that the Association is
relying on the "catch all" factor of "any other facts which might demonstrate the employer's
unlawful motive."
The Association argues both Wax and Stewart were aware that the City was seeking
Bradley's agreement not to appeal the suspension in return for reducing his suspension to two
days with three days held in abeyance. According to the Association, once Wax and Stewart
learned of Bradley's appeal, they decided to increase Bradley's suspension to five days from
the two days plus three in abeyance stated in Pinhey' s April 23, 2007 letter.
Wax and Stewart testified they were both aware that Pinhey was considering reducing
Bradley's suspension in exchange for an agreement not to appeal the suspension. However,
neither was aware that Pinhey's April 23, 2007 letter purported to reduce the suspension to two
days with three days held in abeyance. Wax testified she never saw any version of Pinhey's
April 23 letter until after the final notice of discipline issued on May 7. Stewart testified she
saw a draft of the letter prior to April 23 that did not include the statement that the discipline
would be two days suspension with three days held in abeyance or the final paragraph about
the right to appeal the discipline. 	She also testified she did not see the version of Pinhey's
letter that was actually sent to Rose until after May 7. Moreover, the record establishes that as
of May 7 the only notice either Wax or Stewart had of Bradley's appeal was Peltier's May 2
e-mail stating that Rose had sent a notice of appeal. 	There is no evidence that prior to May 7
14
Corrections) (2001) PERB Decision No. 1435-S; Parks and Recreation.) In this case, however,
the Association has failed to show that Wax and Stewart had an unlawful motive in drafting for
Pinhey's signature the May 7, 2007 final notice of discipline.
The timing of the final notice of discipline, issued two weeks after Bradley filed his
appeal, supports an inference of unlawful motivation. Nonetheless, the evidence does not
establish any of the other six specific nexus factors. Thus, it appears that the Association is
relying on the "catch all" factor of "any other facts which might demonstrate the employer's
unlawful motive."
The Association argues both Wax and Stewart were aware that the City was seeking
Bradley's agreement not to appeal the suspension in return for reducing his suspension to two
days with three days held in abeyance. According to the Association, once Wax and Stewart
learned of Bradley's appeal, they decided to increase Bradley's suspension to five days from
the two days plus three in abeyance stated in Pinhey's April 23, 2007 letter.
Wax and Stewart testified they were both aware that Pinhey was considering reducing
Bradley's suspension in exchange for an agreement not to appeal the suspension. However,
neither was aware that Pinhey's April 23, 2007 letter purported to reduce the suspension to two
days with three days held in abeyance. Wax testified she never saw any version of Pinhey's
April 23 letter until after the final notice of discipline issued on May 7. Stewart testified she
saw a draft of the letter prior to April 23 that did not include the statement that the discipline
would be two days suspension with three days held in abeyance or the final paragraph about
the right to appeal the discipline. She also testified she did not see the version of Pinhey's
letter that was actually sent to Rose until after May 7. Moreover, the record establishes that as
of May 7 the only notice either Wax or Stewart had of Bradley's appeal was Peltier's May 2
e-mail stating that Rose had sent a notice of appeal. There is no evidence that prior to May 7
14

Wax or Stewart saw the appeal letter itself (which did not mention the length
of
the
suspension) or the copy
of
Pinhey' s April 23 letter attached to it.
Viewed as a whole, this evidence shows that neither Wax nor Stewart were aware at the
time they drafted the May 7, 2007 final notice
of
discipline that Pinhey had purported to
impose a two-day suspension with three days held in abeyance rather than a five-day
suspension. Without such knowledge, neither could have acted with the intent
of
increasing
the suspension because
of
Bradley's appeal. Further, while Wax testified that the May 7 final
notice issued as a result
of
Bradley's appeal, this in itself is insufficient to establish unlawful
motive. Wax testified that Bradley's appeal indicated to her that a settlement exchanging a
reduced suspension for a promise not to appeal was no longer possible. As a result, she
instructed Stewart to prepare the final notice imposing the five-day suspension that had
originally been recommended in Wilkowsky's January 16, 2007 notice.
The Association has not proven that either Wax or Stewart had an unlawful motive in
drafting the May 7, 2007 final notice
of
discipline. Consequently, there is no unlawful motive
to impute to Pinhey, who made the ultimate decision on Bradley's suspension. Because it has
not demonstrated a nexus between Bradley's appeal and the City's imposition
of
a five-day
suspension, the Association has failed to establish a prima facie case
of
retaliation.
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-486-M are
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Wesley and Rystrom joined in this Decision.
15
Wax or Stewart saw the appeal letter itself (which did not mention the length of the
suspension) or the copy of Pinhey's April 23 letter attached to it.
Viewed as a whole, this evidence shows that neither Wax nor Stewart were aware at the
time they drafted the May 7, 2007 final notice of discipline that Pinhey had purported to
impose a two-day suspension with three days held in abeyance rather than a five-day
suspension. Without such knowledge, neither could have acted with the intent of increasing
the suspension because of Bradley's appeal. Further, while Wax testified that the May 7 final
notice issued as a result of Bradley's appeal, this in itself is insufficient to establish unlawful
motive. Wax testified that Bradley's appeal indicated to her that a settlement exchanging a
reduced suspension for a promise not to appeal was no longer possible. As a result, she
instructed Stewart to prepare the final notice imposing the five-day suspension that had
originally been recommended in Wilkowsky's January 16, 2007 notice.
The Association has not proven that either Wax or Stewart had an unlawful motive in
drafting the May 7, 2007 final notice of discipline. Consequently, there is no unlawful motive
to impute to Pinhey, who made the ultimate decision on Bradley's suspension. Because it has
not demonstrated a nexus between Bradley's appeal and the City's imposition of a five-day
suspension, the Association has failed to establish a prima facie case of retaliation.
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-486-M are
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Wesley and Rystrom joined in this Decision.
15