City of Alhambra (PERB 2161M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DION SALAS,
Charging Party,
V.
CITY OF ALHAMBRA,
Respondent.
Case No. LA-CE-513-M
PERB Decision No. 2161-M
February 8, 2011
Appearances: Scott Ernest Wheeler, Attorney, for Dion Salas; Burke, Williams & Sorensen by
Daphne M. Anneet, Attorney, for City of Alhambra.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the City of Alhambra (City) to the proposed
decision of an administrative law judge (ALJ). The complaint issued by PERB' s Office of the
General Counsel alleged that the City violated the Meyers-Milias-Brown Act (MMBA) 1 when
it terminated the employment of Dion Salas (Salas), a probationary employee in the City's
public works department, following a meeting in which he complained about his foreman's
conduct. The ALJ ruled that the City unlawfully discharged Salas in retaliation for his
protected conduct at the meeting.
The Board has reviewed the proposed decision and the record in light of the City's
exceptions and supporting brief, Salas' response thereto, and the relevant law. Based on this
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

review, the Board reverses the proposed decision and dismisses the complaint for the reasons
discussed below.2
FACTUAL BACKGROUND
The City hired Salas as a probationary concrete finisher on April 3, 2008. When Mary
Swink (Swink), the public works director, offered Salas the position, she told him he did not
have sufficient skills but that concrete foreman Joe Lugo (Lugo) would work with him to
improve his skills so that he could become a permanent employee. Lugo wrote Salas'
probationary reports, which were signed by Lugo's immediate supervisor, Street
Superintendent Leroy Tafoya (Tafoya), and Swink. In his two-month evaluation, Salas
received one "excellent" mark; the rest were "good;" comments were: "Good cement finisher.
Making progress on his form setting curb & gutter. Good attitude. Always on time." In his
five-month evaluation, he received all "good" marks; comments were: "Dion has made
progress on form setting and cement finishing. 	He observes rules & regulations. He is always
on time." Both evaluations stated that the City intended to retain Salas as a permanent
employee. In November 2008, Salas received a step increase in wages.
Salas was never verbally reprimanded or written up during his employment with the
City. Nonetheless, Lugo testified that Salas would get upset when Lugo tried to instruct him
about the proper way to perform concrete work. In contrast, Salas and maintenance man Gary
Dominguez (Dominguez) testified that Salas was generally receptive to Lugo's instructions.
However, Dominguez also testified about an occasion when Salas and Lugo had a
disagreement over how much water to add to the concrete mixture.
2
Along with its exceptions, the City filed a motion to reopen the record to admit two
declarations regarding the City's current fiscal condition that it claims are relevant to the ALJ's
proposed reinstatement order. In light of our dismissal of the complaint, we need not rule on
the City's motion.

3
Although he characterized his relationship with Lugo as "pretty good," Salas also
testified that Lugo had a "bad attitude" toward the crew, never expressed appreciation but
frequently criticized, did not provide adequate training, did not give adequate instructions, and
expected too much from them. According to Salas, Lugo did not tell the crew when specific
jobs had to be completed but instead gave them their assignments on a daily basis and then told
them they were not working hard or fast enough when they did not meet his expectations.
Concrete crew members Jose Flores (Flores), Luis Hernandez (Hernandez), and Dominguez,
testified that, at various times, Salas said to them that the crew was being worked too hard and
too fast, and that there was no need to rush because it was "city work."3 None testified to
agreeing with Salas' comments.
Sometime in November 2008, Tafoya told Lugo not to place Dominguez on the same
work team as Salas. Lugo testified that Tafoya told him Dominguez requested to be taken off
Salas' team because he objected to Salas' jokes. Neither Tafoya nor Dominguez testified
about the team change request.
Events of December 8 & 9, 2008
During the week of December 8, 2008, two of the five concrete crew members were
absent.4 On December 8, Salas and Flores left their jobsite at 2:20 p.m.; Lugo had a standing
rule that crew members were not to leave the jobsite until 2:30. 	Salas testified that they had
finished the assigned work and he had to use the restroom at the City yard. They could have
informed Lugo by two-way radio that they were returning to the yard, but they did not. Lugo
went to the jobsite just after they left and saw that they were gone. He testified that he
Flores and Hernandez, who were hired on the same day as Salas, were probationary
employees at the time of these statements; Dominguez had been a City public works employee
for eight years.
4 The crew consisted of two cement finishers and three maintenance workers.

assumed they went back to the yard for more materials. He gave them the benefit of the doubt
and did not report the incident to his superiors.
On Tuesday, December 9, Salas and Flores were at another construction site. At
approximately 2: 15 p.m., they ran out of "spreaders" and went back to the City yard to make
more. 5 Again they did not inform Lugo, who found out they were gone when he went to check
on the site shortly after they left. When Lugo confronted them at the yard, he asked why they
left early and whether they finished the two jobs assigned for that day. According to Salas,
when he explained why they left, Lugo became angry and said the jobs had to be finished by
that Friday. According to Lugo and Flores, Salas then said, "hey, this is city work, if we don't
finish today there's always tomorrow." Lugo responded that they were paid to do a job and if
it were himself and another crew member, they would have already finished the job. Salas
responded "that's not us," explaining that he and Flores had less experience and it would take
them a bit more time. Salas also said he was used to bosses like Lugo who did not appreciate
the work of their crews and called Lugo a "slave driver."
Lugo also told them they could have made additional spreaders at the jobsite, which he
had taught them to do. Salas said he preferred making them at the yard because they could be
made to "perfection." Salas then told Lugo they were being rushed, corners would have to be
cut which would require later corrections which would take longer, and someone might get
hurt. At that point, Tafoya, who was Salas' ride home, arrived to pick Salas up and leave for
the day. Tafoya asked if everything was OK, and Lugo said it was. 	Salas then told Lugo,
"we'll continue the meeting tomorrow."
5 "Spreaders" are pieces of wood used in setting forms for concrete.
4

Salas testified that he did not discuss Lugo on the ride home, while Tafoya testified that
Salas complained to him about Lugo during the ride. Salas and Tafoya both claim to have
suggested holding a meeting with Lugo the next day.
The December 10 Concrete Crew Meeting
At the start of the workday on December 10, Tafoya called Lugo, Salas, Flores, and
Hernandez into his office for a meeting. Tafoya also asked Rick Vegara (Vegara), an asphalt
crew member and employee association representative, to attend as a witness. 6 Lugo
suggested that Swink be included because she was the department head, but Tafoya said he
wanted it in his office with his crew. 7
Salas began the meeting by saying that the crew was shorthanded yet the workload was
not adjusted down. Lugo replied that it was the proper amount of work for the crew members
he had that week. 8 Salas then asked who told him that the work had to be done by Friday.
Lugo replied that the directive came from Deputy Director of Public Works Mary Chavez
(Chavez). According to Lugo, Salas kept asking why the work had to be rushed, and Lugo
kept assuring him that the deadline came from Chavez. Lugo also testified that Salas repeated
his comment that "if we don't finish today there's always tomorrow." Salas then expressed
concerns about Lugo's supervision and requested that Lugo be less critical and more
The employee association does not represent the City's probationary employees.
Thus, Vegara did not act as Salas' representative during the meeting.
7 Swink testified that she had told Tafoya not to hold meetings with employees in his
office, other than regular safety meetings, because she heard rumors he had threatened
employees with termination during meetings. Based on these same rumors, Swink had
removed Tafoya's authority to discipline, reprimand, or discharge employees, and had
encouraged Tafoya' s subordinates to come to her with their concerns. Tafoya denied that
Swink had imposed a prohibition on meetings prior to December I 0, 2008.
8 Lugo testified that he had decided not to pour concrete that week because the crew
was shorthanded. However, there is no evidence that he told this to the crew before
December 10.
5

6
communicative, stop rushing them to finish work, and discuss evaluations personally with
them, which had not been done before. 	Salas also claimed that he was not receiving sufficient
behind-the-wheel practice time to obtain the Class-B driver's license required for him to pass
probation, and complained that the crew was afraid to take their full work breaks at the
jobsites. Toward the end of the meeting, Salas asked Lugo how the probationary employees
were doing; Lugo responded that it was stated in their evaluations.
At some point during the meeting, Lugo said to Salas, "If [you are] representing the
other guys [then] why don't you give these guys a chance to talk and see what they have to
say." Flores then said he agreed with Salas, and Hernandez said he was neutral between Salas
and Lugo.
Tafoya told the three crew members that he had heard good things about them and did
not see any reason why they should not pass their probation. He told them to go back to work,
not to kill themselves, but to give an honest day's work. Tafoya testified that he felt everyone
had a chance to express themselves. He did not make, or see the need to make, any safety or
schedule adjustments or take other action as a result of the meeting.
The Meetings with Chavez
During a regularly scheduled meeting later that morning, Tafoya told Chavez about the
earlier concrete crew meeting. According to Tafoya's testimony,9 he told Chavez that Salas
had complained about Lugo's attitude and the way he treats the crew. He also testified that
Chavez did not express concern over him holding the meeting.
Shortly after Tafoya left Chavez's office, Lugo arrived to discuss the concrete crew
meeting. Lugo told Chavez that during the meeting Salas complained about never receiving a
compliment from him, questioned where the work came from, and objected to being assigned
9 Chavez did not testify.

too much work. According to Lugo, Chavez said he is the one who sets the schedule, and the
crew does not have the right to question it. Lugo told her that Flores said he agreed with
whatever Salas said, and Hernandez said he was neutral. Lugo also told Chavez that Tafoya
had to make a crew change, switching Dominguez to another team. Lugo first testified that he
did not give Chavez any reason for the switch but later claimed he told Chavez that Dominguez
requested to be taken off Salas' team because he objected to Salas' jokes. Lugo also told
Chavez that Salas and Flores left the jobsite early two days in a row, but he did not tell her that
on December 9 he told Tafoya everything was OK.
The Phone Conversation with Swink
Chavez then phoned Swink, and put the call on speaker-phone for Lugo to participate.
According to Swink, Chavez first said she was upset because Tafoya held a meeting "to beat
up Joe Lugo." Swink responded that she had not been told about the meeting and Tafoya did
not put it in his daily report. Chavez then said that Salas and Flores left the jobsite early on
December 8 and 9, and that when Lugo confronted Salas about it on December 9 an argument
ensued between them which continued into the meeting of December 10. Chavez said Salas
expressed concern about the crew being shorthanded and the level of work expected of those
remaining; demanded to know who scheduled the work for them; and complained that Lugo
did not praise them. Lugo also mentioned Salas' comment that "this is city work, if we don't
finish today there's always tomorrow." Either Chavez or Lugo said that during the meeting
Flores expressed his agreement with Salas, and that Hernandez said he was neutral.
Swink responded that Salas had no right to question the workload, and that she was not
concerned with the level of work because she trusts Lugo to adjust it to available personnel.
She then asked if there were other examples of Salas being insubordinate or having issues with
co-workers. Chavez told her that Dominguez asked to be removed from Salas' team, but
7

neither Chavez nor Lugo said why. According to Swink, Lugo said he asked Dominguez why
he made the request but Dominguez did not answer. Lugo also told Swink that he tried several
times to help Salas do the work better, but found him to be argumentative and to take
suggestions as though he were being personally attacked; Lugo did not go into any detail about
any of these incidents nor did Swink ask him for any.
Swink then expressed her opinion that Salas should be released from probation, and
asked Lugo if he could do without another crew member; he said yes. '0 Swink denied that
either Chavez or Lugo told her that Salas raised safety or work break issues or lack of driver's
training during the meeting; Lugo could not remember any of those issues being discussed with
Swink during the call.
Salas' Rejection on Probation
After the phone conversation, Swink met with Personnel Director Richard Bacio
(Bacio) to discuss the matter. Swink testified that:
• 	n "ne r..fu" "a"' th0	
• • 	V 	V.1. 	.:, .:, vv .l \.; Lrnac=mber	.l..J\.,, \.,, 	10] mea+;n,-,	.l 	\.,,l,.l 15 a".:, ha1'n,-,	U\,,, 1 l:S
something that the employees were doing. It was something that
Mr. Tafoya had orchestrated and brought aboutY lJ And so we
were seeing it as that, as that Leroy held a meeting that he wasn't
supposed to hold, and once again it was, the purpose of that
meeting and the only purpose of that meeting was to embarrass
and to, I'd say, beat up Joe Lugo. And so that's how we saw the
meeting. We didn't reaHy see it, that the issue of Dion Salas and
his performance was not the issue of that meeting.
She later testified that she believed Salas' complaints at the meeting were "more personal
attacks toward Joe than it was a concern about their safety or their work level." Swink next
met with City Manager Julio Fuentes (Fuentes) and they had basically the same conversation;
Swink could not hire another employee to replace Salas because of an ongoing hiring
freeze.
11 Swink was aware that Tafoya did not like Lugo, and that Tafoya and Salas had been
carpooling to and from work.
8

9
she testified Fuentes was angry that Tafoya held the meeting. Both Bacio and Fuentes agreed
with Swink's decision to reject Salas on probation.
12
After these meetings Swink called Chavez and told her the rejection decision had been
made, and that she would call Salas to her office that afternoon. In the early afternoon, Swink,
Chavez, Tafoya, and Salas met in a conference room at city hall. Swink explained her
philosophy on reviewing probationary employees and then told Salas that he was being
released from probation because he "no longer fit into the organization." Salas asked for a
reason; she responded she did not have to give him any. 	She told him to gather his things and
leave before everyone got back to the City yard from their jobsites.
After Salas left the room, Swink told Tafoya that she was upset he held a meeting
without talking to her first, and accused him
of
trying to run things his way knowing that she
would be leaving the department soon.
13
She testified that Tafoya became angry and started to
storm out
of
the room. She told him to sit down, which he did; she then said Chavez was soon
to take over the department and that she had confidence in her. Tafoya left the room and
accompanied Salas out
of
the building.
A few days later Salas received a dismissal notice in the mail; the reason cited was
"[ e]mployee did not pass probation." Flores was not terminated or disciplined, and passed his
probation upon Lugo's recommendation.
12
Neither Bacio nor Fuentes testified.
13
Swink was about to be promoted to Director of Utilities.

Swink's Decision
Swink testified that she did not believe Salas was "the fit that we needed in the City
of
Alhambra:"
I was concerned that I had an employee that was leading other
employees with a bad example that he was questioning his
supervisor, he was being insubordinate, that he was demanding
answers, and I was very concerned at the attitude
of
this person.
Specifically, Swink stated that she made the decision to reject Salas because of: (1) his
complaints about the concrete crew being worked too hard; (2) his leaving the jobsite early two
days in a row; (3) his lack
of
respect for Lugo; and (4) his problems getting along with others.
Swink said that Salas' complaints about being worked too hard concerned her because they
raised doubts about whether he could or would perform at the required level. She was also
greatly disturbed by Salas' comment to Lugo that City workers did not need to work as hard
as
private contractors. She felt that it was improper for Salas to leave the jobsite early without
Lugo' s permission. Swink also believed that Salas' questions and comments during the
December
IO
meeting were insubordinate and aimed at denigrating Lugo in front
of
the crew,
and she was concerned that Salas would not take direction from Lugo. Finally, because the
public works crews are small, she said she could not afford to have an employee who could not
get along with others, thereby limiting the number
of
possible work team configurations.
Swink admitted that her decision to reject Salas on probation was based solely on
information she learned during the call with Chavez and Lugo. Before making her decision,
Swink did not speak with any
of
the other participants in that morning's concrete crew
meeting. She did not ask Lugo why Salas and Flores left the jobsite early on December 8, nor
did she speak to Salas or Flores about that incident or the similar one on December 9. 	She did
not ask Lugo for any specifics about instances when Salas had been argumentative with him.
Nor did she speak with Tafoya or Dominguez about the latter's request not to work with Salas.
10

DISCUSSION
1. 	Timeliness of the Citv' s Exceptions
Salas claims in his response that the City's exceptions were untimely because they were
filed 25 days after the ALJ' s proposed decision was served on the parties. PERB Regulation
32300(a) provides that exceptions to a proposed decision may be filed "within 20 days
following the date of service of the decision."14 PERB Regulation 32130(c) provides, in
relevant part, that a "five day extension of time shall apply to any filing made in response to
documents served by mail if the place of address is within the State of California."
On January 25, 2010, PERB served the ALJ's proposed decision on the parties by
mailing copies of the decision to their representatives ofrecord at the representatives'
addresses in California. Because the proposed decision was served by mail, pursuant to PERB
Regulation 32130(c) the City had an additional five days to file exceptions. The City filed its
exceptions on February 19, 2010, exactly 25 days after service of the decision. The City's
exceptions thus were timely filed.
2. 	Retaliation
To establish a prima facie case that an employer retaliated against an employee in
violation of MMBA section 3506 and PERB Regulation 32603(a), 15 the charging party must
show that: (1) the employee exercised rights guaranteed by the MMBA; (2) the employer had
knowledge of the employee's exercise of those rights; (3) the employer took an adverse action
against the employee; and (4) the employer took the adverse action because of the employee's
14 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
15 Under PERB Regulation 32603(a), it is an unfair practice for a public agency to
"[i]nterfere with, intimidate, restrain, coerce or discriminate against public employees because
of their exercise ofrights guaranteed by Government Code section 3502 or by any local rule
adopted pursuant to Government Code section 3507."
11

exercise of guaranteed rights. (Santa Clara County Counsel Attorneys Assn. v. Woodside
(1994) 7 Cal.4th 525, 555-556; Novato Unified School District (1982) PERB Decision
No. 210.) 16
a. 	Protected Activity
The statutes administered by PERB, including the MMBA, regulate specific conduct by
public employers and employee organizations concerning employer-employee relations.
(Los Angeles Community College District (1979) PERB Order No. Ad-64.) These statutes do
not regulate every aspect of the public employer's conduct. (Ibid.) Thus, PERB may only
remedy retaliation that was taken because an employee exercised rights guaranteed by one of
the statutes PERB administers.
The complaint in this matter alleged that Salas engaged in activity protected by the
MMBA when, during the December 10, 2008 meeting, he "expressed concerns about Mr.
Lugo's negative attitude toward the crew, Mr. Lugo's failing to communicate with the crew,
and his making the crew complete tasks in the City Yard faster than they were able to safely
perform them." Although the record establishes that Salas raised these issues at the
December 10 meeting, we conclude for the following reasons that his statements were not
protected under the MMBA.
MMBA section 3502 gives public employees the right to "represent themselves
individually in their employment relations with the public agency." Interpreting similar
language in Educational Employment Relations Act (EERA) 17 section 3543, PERB has held
that individual complaints related to employment matters made by an employee to his superior
1 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.)
17EERA is codified at Government Code section 3540 et seq.
12

are protected. (See, e.g., Pleasant Valley School District (1988) PERB Decision No. 708.)
This right of self-representation, however, is not unlimited. For instance, the Board has held
that employee complaints to employers are protected when those complaints "are a logical
continuation of group activity." (Los Angeles Unified School District (2003) PERB Decision
No. 1552; State of California, Department of Transportation (1982) PERB Decision
No. 257-S.) Conversely, PERB has found such complaints to be unprotected when they are
undertaken for the employee's sole benefit or are the result of a personal grudge. (Los Angeles
Unified School District, supra; State of California, Department of Transportation, supra; see
Mushroom Transportation Co. v. National Labor Relations Bd. (3d Cir. 1964) 330 F.2d 683,
685 ["mere griping" is not protected activity].)
Nothing in the record indicates that Salas' complaints at the December l 0, 2008
meeting were a continuation of, or even related to, group activity. There is no evidence that he
and the other crew members discussed his concerns with Lugo's supervision before the
meeting, or that he was acting as their spokesman at the meeting. Nor is there evidence that
Salas' complaints were an attempt to initiate group action by the other crew members. 	(See
Regents of the University of California (Einheber) (1992) PERB Decision No. 949-H [an
employee's efforts to organize other employees to provide criticism of management constituted
protected activity].)
According to Lugo, during the meeting Tafoya asked Flores whether he agreed with
Salas and Flores responded that he did. However, Flores himself did not testify as to what he
said, if anything, during the meeting. Moreover, he testified that he did not feel he was being
asked to do too much work and that he had told Lugo so. There is also no evidence that Flores
and Salas conferred about working conditions before the meeting. Based on this evidence, we
cannot conclude that Flores was part of any group activity with Salas. Additionally, it is clear
13

from the record that Hernandez did not share Salas' views regarding Lugo and was not part of
any concerted activity with him.
The record also shows that Salas held animosity toward Lugo at the time of the
December 10, 2008 meeting. Prior to that date Lugo and Salas had disagreements over how
particular work was to be done and Salas became upset when Lugo attempted to offer
constructive criticism of Salas' work. On several occasions Salas complained to co-workers
about Lugo giving the concrete crew too much work, saying that they did not need to work that
hard because it was "city work." On December 9, the discussion between Lugo and Salas over
why he and Flores left the jobsite early became heated and ended with Salas telling Lugo,
"we'll continue the meeting tomorrow."
The lack of support among the other crew members for Salas' criticisms of Lugo' s
supervision, coupled with Salas' ongoing unhappiness with Lugo, establish that his complaints
in the December 10, 2008 meeting were the result of his personal dislike of Lugo' s manner of
directing work and were not undertaken on behalf of other employees. Accordingly, we
conclude that Salas' complaints about Lugo did not constitute activity protected by the
MMBA.
Additionally, at the hearing and in subsequent briefing, Salas attempted to establish that
he raised safety concerns during the meeting. PERB has held that an employee's rnporting of
workplace safety concerns is protected activity. (Oakdale Union Elementary School District
(1998) PERB Decision No. 1246; Los Angeles Unified Schoo/District (1995) PERB Decision
No. 1129; Regents of the University of California (1983) PERB Decision No. 319-H.)
However, Salas' brief references to safety during his testimony show that he was concerned
about the safety of the public from rushed concrete work, not the safety of the concrete crew.
None of the other meeting participants remembered Salas raising any safety issues during the
14

meeting. Therefore, we conclude that Salas did not make a complaint about workplace safety
during the December 10, 2008 meeting. 18
b. 	Other Elements of Prima Facie Case
Assuming for the sake of argument that Salas's complaints at the December 10, 2008
meeting about being worked too hard were protected by the MMBA, the record establishes a
prima facie case of retaliation. It is undisputed that Swink, who made the decision to reject
Salas on probation, knew of his workload complaints at the meeting. It is also undisputed that
rejection on probation is an adverse action. (California State University, Fresno (1990) PERB
Decision No. 845-H.)
"Unlawful motive is the specific nexus required in the establishment of a prima facie
case .... Unlawful motive can be established by circumstantial evidence and inferred from the
record as a whole." (Trustees of the California State University v. Public Employment
Relations Bd. (1992) 6 Cal.App.4th 1107, 1124.) To guide its examination of circumstantial
evidence of unlawful motive, PERB has developed a set of "nexus" factors that may be used to
establish a prima facie case. Although the timing of the employer's adverse action in close
temporal proximity to the employee's protected conduct is an important factor (North
Sacramento School District (1982) PERB Decision No. 264), it does not, without more,
demonstrate the necessary nexus between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing
one or more of the following additional factors must also be present: (1) the employer's
disparate treatment of the employee (State of California (Department of Transportation)
(1984) PERB Decision No. 459-S); (2) the employer's departure from established procedures
18 Because Swink, the decision maker, was unaware of Salas' complaints about
insufficient driver training time and missed breaks, they could not have played a part in her
decision. Thus, we need not determine whether they were protected under the MMBA.
15

and standards when dealing with the employee (Santa Clara Unified School District (1979)
PERB Decision No. 104); (3) the employer's inconsistent or contradictory justifications for its
actions (State of California (Department of Parks and Recreation) (1983) PERB Decision No.
328-S); (4) the employer's cursory investigation of the employee's misconduct (City of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003)
PERB Decision No. 1560); (5) the employer's failure to offer the employee justification at the
time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the
offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (North Sacramento School District, supra,
PERB Decision No. 264; Novato Unified School District, supra, PERB Decision No. 210.)
The timing factor is easily established because the City rejected Salas on probation less
than eight hours after he complained at the concrete crew meeting about being worked too
hard. 	Swink's lack of investigation before deciding to reject Salas also supports an inference
that Salas' complaints were a motivating factor in her decision. These two factors are
sufficient to establish a prima facie case of retaliation.
Additionally, we find that Swink's refusal to give Salas a reason for his rejection on
probation does not support an inference of unlawful motivation under these circumstances. In
Novato Unified School District, supra, PERB Decision No. 210, the Board stated that
"[ e]vidence that a respondent failed to offer justification to the aggrieved employee at the time
it took action against him ... is relevant in deducing improper motive." In support of this
statement, the Board cited three National Labor Relations Board (NLRB) decisions. In two of
16

17
those decisions, Mid-Ohio Automotive (1972) 200 NLRB 680, and Taft Broadcasting Company
(1978) 238 NLRB 588, the NLRB inferred unlawful motive from, among other evidence, the
employer's refusal to give the employee a reason at the time of termination. 19 However, more
recently the NLRB refused to draw an inference of unlawful motive when the employer told
five probationary employees they were being discharged because they did not "fit into the
scheme of things." (Sacramento Recycling & Transfer Station (2005) 345 NLRB 564, 570,
575.) Similarly, PERB has found that failure to give an "at will" employee a reason for
dismissal does not indicate unlawful motive in the absence of evidence that the employer was
required by policy or past practice to do so. (Sacramento City Unified School District (2010)
PERB Decision No. 2129.) Consistent with these authorities, we find an employer's failure to
offer justification at the time it took action is not a reliable indicator of discriminatory intent
unless the employer was required by law, policy, or past practice to give a reason.
Here, Swink told Salas that he was being rejected on probation because he "no longer
fit into the organization." When Salas asked for a reason, Swink said that she did not have to
give him one. The record does not establish that the City was required by law or any City
policy to give Salas a reason for his rejection on probation, or that it had a past practice of
doing so. Indeed, Swink testified that it was her long-standing practice not to give a reason
when she rejected an employee on probation. Accordingly, we find that Swink's failure to
give Salas a specific reason for his termination does not support an inference of unlawful
motive.
In the third cited decision, Savin Business Machines (1979) 242 NLRB 435, the
NLRB inferred unlawful motive from the employer's failure to give the employee prior notice
that his conduct could lead to discipline or termination; this is not the same as failing to give a
reason for termination.

c. 	The City's Affirmative Defense
Assuming again for the sake of argument that Salas' complaints at the December 10,
2008 meeting about being worked too hard were protected and thus that a prima facie case of
retaliation has been established, we nonetheless would conclude that the City proved it would
have rejected Salas on probation despite his complaints.
Once a prima facie case is established, the employer bears the burden of proving that it
would have taken the adverse action even if the employee had not engaged in protected activity.
(Novato Unified School District, supra, PERB Decision No. 210; Martori Brothers Distributors
v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251
NLRB 1083, 1089.) Thus, when it appears that the adverse action was motivated by both valid
and invalid reasons, "the question becomes whether the [adverse action] would not have
occurred 'but for' the protected activity." (Martori Brothers Distributors, supra, 29 Cal.3d at
p. 729.) The "but for" test is "an affirmative defense which the employer must establish by a
preponderance of the evidence." (AfcPherson v. Public Employment Relations Bd. (1987)
189 Cal.App.3d 293, 304.)
It is clear that the December 10, 2008 concrete crew meeting precipitated Salas' rejection
on probation. This does not mean, however, that he was rejected because of his complaints at the
meeting. Prior to the meeting, neither Chavez nor Swink, the department employees authorized
to make disciplinary and hiring decisions, were aware of Salas' behavior issues; they only
became aware of the problems when Lugo came to them to discuss the meeting. At that point,
Lugo relayed not just what happened at the meeting but also instances where he or another
employee had a problem getting along with Salas. Thus, Swink's failure to take action prior to
December 10 does not indicate that she rejected Salas on probation because of his complaints at
18

that day's meeting. Rather, they reflect the fact that she was unaware of Salas' workplace issues
until that date.
Swink testified that she decided to reject Salas on probation because he:
(1) complained about the concrete crew being worked too hard; (2) left the jobsite early two
days in a row; (3) lacked respect for Lugo; and ( 4) had problems getting along with others.
During their phone conversation on December 10, Lugo and Chavez told Swink that during the
concrete crew meeting Salas repeatedly asked who assigned the work and commented that,
because this was "city work," the crew did not need to complete jobs so quickly. They also
told her that Salas and Flores left the jobsite early two days in a row and that Salas said he
returned to the City yard early on December 9 to make spreaders. Lugo related to Swink his
experiences with Salas' resistance to training and constructive criticism. Chavez and Lugo
also informed Swink of Dominguez's request not to work with Salas. Based on this
information, Swink concluded that Salas was not willing to perform the quantity of work
required of a City concrete finisher, had difficulty working with Lugo and other crew members,
and did not respect workplace rules. Thus, although Salas' complaints about being worked too
hard appear to have played a part in Swink's decision, the record establishes that her decision
also was based on other factors, including Salas' interactions with others outside of the meeting
and the manner in which he questioned Lugo's authority at the meeting.
As noted above, Swink made her decision based on information from one source, Lugo,
without any corroboration from other employees. Further, Swink's decision was based on her
personal feelings about Salas' suitability rather than documented performance problems.
Nonetheless, while this may demonstrate a poor personnel practice, it does not establish that
Swink rejected Salas on probation because of his complaints about being worked too hard.
(California State University (San Francisco) (1986) PERB Decision No. 559-H.) Rather,
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based on the information she had, it was reasonable for Swink to conclude that Salas's
relationship with Lugo was poor and would not improve, and that Salas' willingness to perform
at the required level was questionable. We thus conclude that the City proved it would have
rejected Salas on probation even if he had not complained at the December 10, 2008 concrete
crew meeting about being worked too hard.
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ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-513-M are
hereby DISMISSED.
Members McKeag and Wesley joined in this Decision.