State of California (Board of Equalization) (PERB 2237S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALFRED GUTIERREZ,
Charging Party,
V.
STATE OF CALIFORNIA (BOARD OF
EQUALIZATION),
Respondent.
Case No. SA-CE-1849-S
PERB Decision No. 2237-S
February 7, 2012
Appearances: 	Law Firm of Joanne DeLong by Joanne DeLong, Attorney, for Alfred Gutierrez;
State of California (Department of Personnel Administration) by Casey C. Tichy, Labor
Relations Counsel, for State of California (Board of Equalization).
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Alfred Gutierrez (Gutierrez) to a PERB administrative
law judge's (ALJ) proposed decision (attached) arising out of Gutierrez's unfair practice
charge against the State of California (Board of Equalization) (BOE). PERB' s Office of the
General Counsel issued an unfair practice complaint alleging that the BOE violated the
Ralph C. Dills Act (Dills Act or Act) 1 by denying Gutierrez the right to be represented by his
employee organization at an investigatory interview, and by taking adverse action against
Gutierrez because he sought to prepare a grievance. The complaint alleged that this conduct
constituted violations of the Dills Act section 35 l 9(a).
1 The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALFRED GUTIERREZ,
Charging Party, 	Case No. SA-CE-1849-S
V . 	PERB Decision No. 2237-S
February 7, 2012	STATE OF CALIFORNIA (BOARD OF
EQUALIZATION),
Respondent.
Appearances: Law Firm of Joanne DeLong by Joanne DeLong, Attorney, for Alfred Gutierrez;
State of California (Department of Personnel Administration) by Casey C. Tichy, Labor
Relations Counsel, for State of California (Board of Equalization).
Before Martinez, Chair; Mckeag and Dowdin Calvillo, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Alfred Gutierrez (Gutierrez) to a PERB administrative
law judge's (ALJ) proposed decision (attached) arising out of Gutierrez's unfair practice
charge against the State of California (Board of Equalization) (BOE). PERB's Office of the
General Counsel issued an unfair practice complaint alleging that the BOE violated the
Ralph C. Dills Act (Dills Act or Act)' by denying Gutierrez the right to be represented by his
employee organization at an investigatory interview, and by taking adverse action against
Gutierrez because he sought to prepare a grievance. The complaint alleged that this conduct
constituted violations of the Dills Act section 3519(a).
The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

On May 9, 2011, the case was submitted for decision following a formal hearing on
January 26, 2011, and the filing of post-hearing briefs. On June 21, 2011, the ALJ issued a
proposed decision finding in favor of the BOE. The ALJ concluded that Gutierrez did not
establish by a preponderance of the evidence violations of the Dills Act as alleged.
Accordingly, the ALJ proposed that the unfair practice complaint and underlying charge be
ordered dismissed.
The Board has reviewed the entire record in this matter. Based on this review, the
Board finds the proposed decision to be well-reasoned, adequately supported by the
evidentiary record and in accordance with the applicable law. Accordingly, the Board adopts
the proposed decision as the decision of the Board itself, as supplemented by a discussion of
Gutierrez's exceptions.
DISCUSSION
Credibility Determinations
Gutierrez excepts to the ALJ's determination that Gutierrez's supervisor, Steven Hall
(Hall), did not threaten a write-up as Gutierrez was preparing a grievance on December 23,
2009. Gutierrez testified that Hall made the threat. Hall testified that he did not. This
exception turns on the credibility of the two main witnesses, Gutierrez and Hall. Citing the
standards set forth in Evidence Code section 780 for evaluating witness credibility, the ALJ
gave specific examples of why Hall's testimony should be credited over the conflicting
testimony of Gutierrez.
When the Board considers the record, it is free to draw its own and perhaps contrary
inferences from the evidence. It is a well-established principle, however, that the Board will
defer to credibility determinations of the administrative law judge absent evidence to support
2
On May 9, 2011, the case was submitted for decision following a formal hearing on
January 26, 2011, and the filing of post-hearing briefs. On June 21, 2011, the ALJ issued a
proposed decision finding in favor of the BOE. The ALJ concluded that Gutierrez did not
establish by a preponderance of the evidence violations of the Dills Act as alleged.
Accordingly, the ALJ proposed that the unfair practice complaint and underlying charge be
ordered dismissed.
The Board has reviewed the entire record in this matter. Based on this review, the
Board finds the proposed decision to be well-reasoned, adequately supported by the
evidentiary record and in accordance with the applicable law. Accordingly, the Board adopts
the proposed decision as the decision of the Board itself, as supplemented by a discussion of
Gutierrez's exceptions.
DISCUSSION
Credibility Determinations
Gutierrez excepts to the ALJ's determination that Gutierrez's supervisor, Steven Hall
(Hall), did not threaten a write-up as Gutierrez was preparing a grievance on December 23,
2009. Gutierrez testified that Hall made the threat. Hall testified that he did not. This
exception turns on the credibility of the two main witnesses, Gutierrez and Hall. Citing the
standards set forth in Evidence Code section 780 for evaluating witness credibility, the ALJ
gave specific examples of why Hall's testimony should be credited over the conflicting
testimony of Gutierrez.
When the Board considers the record, it is free to draw its own and perhaps contrary
inferences from the evidence. It is a well-established principle, however, that the Board will
defer to credibility determinations of the administrative law judge absent evidence to support
N

overturning such conclusions. (Trustees of the California State University (San Marcos)
(2010) PERB Decision No. 2093-H.)
Gutierrez argues that he was a credible witness for three reasons. Gutierrez argues that
he must have been a credible witness given that the ALJ incorporated some of his testimony
into the Findings of Fact, such as Gutierrez's classification. Facts like Gutierrez's
classification were not, however, in dispute. The ALJ had to decide whom to believe where
the testimony of Hall and Gutierrez conflicted, and for the reasons stated above we defer to the
judgment of the ALJ. As the trier of fact, the ALJ was present during the questioning and had
the opportunity to observe the demeanor and attitude of the witnesses, and the character of
their testimony. Gutierrez also argues that his testimony about the alleged threat is
corroborated by his rebuttal memorandum of January 19, 2010. Consistency in Gutierrez's
account of events does not undermine the ALJ' s determination that Hall's account should be
credited over Gutierrez's.2 Gutierrez's final argument on this point is that a supervisor in a
different unit never knew Gutierrez to lie to him. That supervisor's testimony in response to
the question whether Gutierrez ever lied to him was, "[n]ot that I know of." We do not find
this statement to be an adequate basis upon which to overturn the ALJ' s credibility
determination.
In addition to arguing that Gutierrez was a credible witness, Gutierrez also argues that
Hall was not a credible witness, citing what he believes are seven instances in which Hall's
testimony was inconsistent or incredulous. Gutierrez made a shorter version of the same
It is also noted that Gutierrez's testimony about the threat does not support his claim.
According to Gutierrez, he was not threatened for preparing a grievance, but for being
disrespectful and not following instructions when he insisted that he should not be required to
leave the work area. Gutierrez admitted that Hall never denied his requests for union time off
from work to write a grievance. Hall testified credibly that he had no problem with Gutierrez
working on grievances during work hours.
3
overturning such conclusions. (Trustees of the California State University (San Marcos)
(2010) PERB Decision No. 2093-H.)
Gutierrez argues that he was a credible witness for three reasons. Gutierrez argues that
he must have been a credible witness given that the ALJ incorporated some of his testimony
into the Findings of Fact, such as Gutierrez's classification. Facts like Gutierrez's
classification were not, however, in dispute. The ALJ had to decide whom to believe where
the testimony of Hall and Gutierrez conflicted, and for the reasons stated above we defer to the
judgment of the ALJ. As the trier of fact, the ALJ was present during the questioning and had
the opportunity to observe the demeanor and attitude of the witnesses, and the character of
their testimony. Gutierrez also argues that his testimony about the alleged threat is
corroborated by his rebuttal memorandum of January 19, 2010. Consistency in Gutierrez's
account of events does not undermine the ALJ's determination that Hall's account should be
credited over Gutierrez's." Gutierrez's final argument on this point is that a supervisor in a
different unit never knew Gutierrez to lie to him. That supervisor's testimony in response to
the question whether Gutierrez ever lied to him was, "[njot that I know of." We do not find
this statement to be an adequate basis upon which to overturn the ALJ's credibility
determination.
In addition to arguing that Gutierrez was a credible witness, Gutierrez also argues that
Hall was not a credible witness, citing what he believes are seven instances in which Hall's
testimony was inconsistent or incredulous. Gutierrez made a shorter version of the same
It is also noted that Gutierrez's testimony about the threat does not support his claim.
According to Gutierrez, he was not threatened for preparing a grievance, but for being
disrespectful and not following instructions when he insisted that he should not be required to
leave the work area. Gutierrez admitted that Hall never denied his requests for union time off
from work to write a grievance. Hall testified credibly that he had no problem with Gutierrez
working on grievances during work hours.
3

argument to the ALJ in his post-hearing brief. After reviewing the transcript, exhibits and the
entire record, we believe the ALJ's credibility determinations are well-reasoned and adequately
supported by the record, and find no basis to overturn them.
Respondent's Exhibit No. 2
Respondent's Exhibit No. 2 is a prior notice of adverse action. 	Gutierrez argues that it
is inadmissible hearsay and not properly authenticated. PERB Regulation 321763 provides:
Compliance with the technical rules of evidence applied in the
courts shall not be required. . . . Hearsay evidence is admissible
but shall not be sufficient in itself to support a finding unless it
would be admissible over objection in civil actions.
Under this regulation, the ALJ was not precluded from admitting into evidence Respondent's
Exhibit No. 2. As this exhibit was not in itself the basis for a finding, it is unnecessary to
determine whether it would be admissible over objection in civil actions.
In support of his argument that Respondent's Exhibit No. 2 was not properly
authenticated, Gutierrez refers to the testimony of Brian Branine (Branine). Branine, however,
was called upon to authenticate Respondent's Exhibit No. 3, the decision of the State
Personnel Board (SPB), not Respondent's Exhibit No. 2. In the course of making this
argument, Gutierrez claims that the ALJ was subject to Branine's improper attempt to bond
vvith her v1hen he referred to the format of the SPB's decision as being the same as it was when
the ALJ worked at the SPB. The Board has held that "unless the judge makes statements
indicating a clear predisposition against a party, no bias or prejudice is established." (Gonzales
Union High School District (1985) PERB Decision No. 480.) Not one scintilla of evidence
exists showing that the ALJ formed any opinions or conclusions in this matter that were not
strictly based on the evidence before her.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4
argument to the ALJ in his post-hearing brief. After reviewing the transcript, exhibits and the
entire record, we believe the ALJ's credibility determinations are well-reasoned and adequately
supported by the record, and find no basis to overturn them.
Respondent's Exhibit No. 2
Respondent's Exhibit No. 2 is a prior notice of adverse action. Gutierrez argues that it
is inadmissible hearsay and not properly authenticated. PERB Regulation 32176' provides:
Compliance with the technical rules of evidence applied in the
courts shall not be required. . . . Hearsay evidence is admissible
but shall not be sufficient in itself to support a finding unless it
would be admissible over objection in civil actions.
Under this regulation, the ALJ was not precluded from admitting into evidence Respondent's
Exhibit No. 2. As this exhibit was not in itself the basis for a finding, it is unnecessary to
determine whether it would be admissible over objection in civil actions.
In support of his argument that Respondent's Exhibit No. 2 was not properly
authenticated, Gutierrez refers to the testimony of Brian Branine (Branine). Branine, however,
was called upon to authenticate Respondent's Exhibit No. 3, the decision of the State
Personnel Board (SPB), not Respondent's Exhibit No. 2. In the course of making this
argument, Gutierrez claims that the ALJ was subject to Branine's improper attempt to bond
with her when he referred to the format of the SPB's decision as being the same as it was when
the ALJ worked at the SPB. The Board has held that "unless the judge makes statements
indicating a clear predisposition against a party, no bias or prejudice is established." (Gonzales
Union High School District (1985) PERB Decision No. 480.) Not one scintilla of evidence
exists showing that the ALJ formed any opinions or conclusions in this matter that were not
strictly based on the evidence before her.
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4

The Discrimination/Retaliation Claim
Gutierrez excepts to the ALJ's conclusion regarding the nexus element of the prima
facie case and the BO E's burden of proof under Novato Unified School District (1982) PERB
Decision No. 210. Regarding the nexus argument, Gutierrez argues that the proposed decision
makes "two concessions," one that timing is a factor and the other that direct evidence of
improper motive is not required. These are not concessions, but standards of law. Gutierrez
goes on to argue that direct evidence of improper motive exists in Joint Exhibit No. 1, Hall's
memorandum to Gutierrez entitled "Disrespectful Behavior." We do not agree that Hall's
reference to inappropriate actions taken by Gutierrez "regarding the grievance issue" is direct
evidence of any improper motive on Hall's part. As mentioned above, Gutierrez admitted that
Hall never denied his requests for union time off from work to prepare grievances. By
extracting a short phrase from a single-spaced document, Gutierrez has robbed himself of
context and perspective. The memorandum was not prepared in an act of retaliation for writing
a grievance but to express management's view that grievances are to be prepared outside the
work area.
Regarding the BOE burden issue, Gutierrez excepts to the ALJ's statement that the
BOE would have taken the same action even in the absence of protected activity. Gutierrez
argues that this statement is pure speculation given the absence of any legitimate basis for the
action. The ALJ's analysis of this issue will not be repeated here, but suffice it to say that
Gutierrez's insistence on being able to prepare grievances in an open print shop rather than in a
quiet and private area arranged for by management, as management had done in the past,
provides an adequate basis for the ALJ' s conclusion. 	What precipitated the memorandum was
Gutierrez's insistence on doing things his way, and not his action of writing a grievance.
Moreover, PERB Regulation 32178 provides that the "charging party shall prove the complaint
5
The Discrimination/Retaliation Claim
Gutierrez excepts to the ALJ's conclusion regarding the nexus element of the prima
facie case and the BOE's burden of proof under Novato Unified School District (1982) PERB
Decision No. 210. Regarding the nexus argument, Gutierrez argues that the proposed decision
makes "two concessions," one that timing is a factor and the other that direct evidence of
improper motive is not required. These are not concessions, but standards of law. Gutierrez
goes on to argue that direct evidence of improper motive exists in Joint Exhibit No. 1, Hall's
memorandum to Gutierrez entitled "Disrespectful Behavior." We do not agree that Hall's
reference to inappropriate actions taken by Gutierrez "regarding the grievance issue" is direct
evidence of any improper motive on Hall's part. As mentioned above, Gutierrez admitted that
Hall never denied his requests for union time off from work to prepare grievances. By
extracting a short phrase from a single-spaced document, Gutierrez has robbed himself of
context and perspective. The memorandum was not prepared in an act of retaliation for writing
a grievance but to express management's view that grievances are to be prepared outside the
work area.
Regarding the BOE burden issue, Gutierrez excepts to the ALJ's statement that the
BOE would have taken the same action even in the absence of protected activity. Gutierrez
argues that this statement is pure speculation given the absence of any legitimate basis for the
action. The ALJ's analysis of this issue will not be repeated here, but suffice it to say that
Gutierrez's insistence on being able to prepare grievances in an open print shop rather than in a
quiet and private area arranged for by management, as management had done in the past,
provides an adequate basis for the ALJ's conclusion. What precipitated the memorandum was
Gutierrez's insistence on doing things his way, and not his action of writing a grievance.
Moreover, PERB Regulation 32178 provides that the "charging party shall prove the complaint
5

by a preponderance of the evidence in order to prevail." We agree with the ALJ that Gutierrez
failed to prove the elements of the prima facie case by a preponderance of the evidence.
Therefore, notwithstanding the burden shifting analysis performed by the ALJ for the sake of
completeness, the burden of proof never shifted to the BOE.
Weingarten4 Right to Union Representation
Gutierrez excepts to the ALJ's determination that the January 14, 2010, meeting was
not a disciplinary interview. As the ALJ explained, PERB adopted the Weingarten rule in
Rio Hondo Community College District (1982) PERB Decision No. 260. In order to establish
a violation of this right, the charging party must demonstrate: (a) the employee requested
representation; (b) for an investigatory meeting; (c) which the employee reasonably believed
might result in disciplinary action; and ( d) the employer denied the request. (See Redwoods
Community College Dist. v. Public Employment Relations Bd. (1984) 159 Cal.App.3d 617;
Fremont Union High School District (1983) PERB Decision No. 301; see also Social Workers'
Union, Local 535 v. Alameda County Welfare Department (1974) 11 CaL3d 382.)
The issue presented by Gutierrez's exception is whether Gutierrez has proven by a
preponderance of the evidence the existence of element (b) above, i.e., an investigatory
meeting. The ALJ found that the meeting was short, 10 to 15 minutes in length, that the
purpose of the meeting was informative and instructional, and that Gutierrez was not
questioned during the meeting. Based upon these factual findings, the ALJ concluded that the
meeting was not an investigatory interview. We agree that Gutierrez failed to establish that the
meeting was investigatory in purpose, a failure fatal to Gutierrez's case.
In National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court granted employees the right to representation during disciplinary
interviews.
6
by a preponderance of the evidence in order to prevail." We agree with the ALJ that Gutierrez
failed to prove the elements of the prima facie case by a preponderance of the evidence.
Therefore, notwithstanding the burden shifting analysis performed by the ALJ for the sake of
completeness, the burden of proof never shifted to the BOE.
Weingarten" Right to Union Representation
Gutierrez excepts to the ALJ's determination that the January 14, 2010, meeting was
not a disciplinary interview. As the ALJ explained, PERB adopted the Weingarten rule in
Rio Hondo Community College District (1982) PERB Decision No. 260. In order to establish
a violation of this right, the charging party must demonstrate: (a) the employee requested
representation; (b) for an investigatory meeting; (c) which the employee reasonably believed
might result in disciplinary action; and (d) the employer denied the request. (See Redwoods
Community College Dist. v. Public Employment Relations Bd. (1984) 159 Cal.App.3d 617;
Fremont Union High School District (1983) PERB Decision No. 301; see also Social Workers'
Union, Local 535 v. Alameda County Welfare Department (1974) 11 Cal.3d 382.)
The issue presented by Gutierrez's exception is whether Gutierrez has proven by a
preponderance of the evidence the existence of element (b) above, i.e., an investigatory
meeting. The ALJ found that the meeting was short, 10 to 15 minutes in length, that the
purpose of the meeting was informative and instructional, and that Gutierrez was not
questioned during the meeting. Based upon these factual findings, the ALJ concluded that the
meeting was not an investigatory interview. We agree that Gutierrez failed to establish that the
meeting was investigatory in purpose, a failure fatal to Gutierrez's case.
" In National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court granted employees the right to representation during disciplinary
interviews.
6

In corning to this conclusion, we are persuaded by the weight of precedent decisions
holding that in order to establish a Weingarten violation, the nature of the meeting must be
investigatory, i.e., a questioning session, interrogation or interview. The United States
Supreme Court in Weingarten describes the right as the right to have a union representative
present at an "investigatory interview." As the Court stated:
A single employee confronted by an employer investigating
whether certain conduct deserves discipline may be too fearful or
inarticulate to relate accurately the incident being investigated, or
too ignorant to raise extenuating factors.
(Weingarten, supra, 420 U.S. at pp. 262-264.)
Because a meeting with management whose essential purpose is to elicit damaging
facts from the employee has the potential to impact the employment relationship, denial of the
assistance of the employee organization frustrates the statutory purposes of representation.
(Placer Hills Union School District (1984) PERB Decision No. 377.) If the meeting's purpose
is otherwise, however, such as when the employer simply intends to deliver notice of a
disciplinary decision already made, the right does not attach. (Trustees of the California State
University (2006) PERB Decision No. 1853-H.) But if the employer persists in seeking
information to support its potential case for discipline, a violation occurs. (California State
University, Long Beach (1991) PERB Decision No. 893-H; see also Baton Rouge Water Works
Co. (1979) 246 NLRB 995 [the full panoply of Weingarten protections can become applicable
even at a disciplinary interview, however, if the employer engages in investigatory conduct
"beyond merely informing the employee of a previously made disciplinary decision"].)
Here, the purpose of the meeting was to review interactions between Hall and Gutierrez
that occurred in December 2009, and to provide information and instruction to Gutierrez
regarding those interactions. Hall was a participant in those interactions, and there was
nothing for him to investigate. Hall did not seek to obtain damaging facts from Gutierrez nor
7
In coming to this conclusion, we are persuaded by the weight of precedent decisions
holding that in order to establish a Weingarten violation, the nature of the meeting must be
investigatory, i.e., a questioning session, interrogation or interview. The United States
Supreme Court in Weingarten describes the right as the right to have a union representative
present at an "investigatory interview." As the Court stated:
A single employee confronted by an employer investigating
whether certain conduct deserves discipline may be too fearful or
inarticulate to relate accurately the incident being investigated, or
too ignorant to raise extenuating factors.
(Weingarten, supra, 420 U.S. at pp. 262-264.)
Because a meeting with management whose essential purpose is to elicit damaging
facts from the employee has the potential to impact the employment relationship, denial of the
assistance of the employee organization frustrates the statutory purposes of representation.
Placer Hills Union School District (1984) PERB Decision No. 377.) If the meeting's purpose
is otherwise, however, such as when the employer simply intends to deliver notice of a
disciplinary decision already made, the right does not attach. (Trustees of the California State
University (2006) PERB Decision No. 1853-H.) But if the employer persists in seeking
information to support its potential case for discipline, a violation occurs. (California State
University, Long Beach (1991) PERB Decision No. 893-H; see also Baton Rouge Water Works
Co. (1979) 246 NLRB 995 [the full panoply of Weingarten protections can become applicable
even at a disciplinary interview, however, if the employer engages in investigatory conduct
"beyond merely informing the employee of a previously made disciplinary decision"].)
Here, the purpose of the meeting was to review interactions between Hall and Gutierrez
that occurred in December 2009, and to provide information and instruction to Gutierrez
regarding those interactions. Hall was a participant in those interactions, and there was
nothing for him to investigate. Hall did not seek to obtain damaging facts from Gutierrez nor
7

did he seek an admission
of
wrongdoing. Hall had already determined what needed to be done
and was not seeking to support a case for discipline.
Although the meeting was memorialized in a memorandum given to Gutierrez on
January 19, 2010, the memorandum was not placed in Gutierrez's official personnel file and
the events memorialized in the memorandum were not being investigated for possible
discipline. Regardless
of
how the memorandum is characterized, no discipline was imposed as
a result
of
the meeting
of
January 14, 2010. Facts used by Hall to support the memorandum
were those gathered and observed by Hall during his interactions with Gutierrez in December
2009. 	This case is best analogized to cases where the meeting between management and the
employee is simply to deliver notice
of
a disciplinary decision already made, although in this
case no formal discipline was imposed. (See also Amoco Chemicals Corp. (1978) 237 NLRB
394 [counseling sessions for absenteeism conducted with management's assurance that the
sessions were not disciplinary meetings and would not be recorded in the employees'
personnel files were deemed unprotected by the Weingarten rule].) In sum, Weingarten seeks
to protect against compelled participation in an investigatory interview, not an informational or
instructional meeting. As the meeting on January 14, 2010, did not have an investigatory
purpose, no Weingarten violation occurred.
ORDER
The unfair practice complaint and underlying unfair practice charge in Case
No. SA-CE-1849-S is hereby DISMISSED.
Members McKeag and Dowdin Calvillo joined in this Decision.
8
did he seek an admission of wrongdoing. Hall had already determined what needed to be done
and was not seeking to support a case for discipline.
Although the meeting was memorialized in a memorandum given to Gutierrez on
January 19, 2010, the memorandum was not placed in Gutierrez's official personnel file and
the events memorialized in the memorandum were not being investigated for possible
discipline. Regardless of how the memorandum is characterized, no discipline was imposed as
a result of the meeting of January 14, 2010. Facts used by Hall to support the memorandum
were those gathered and observed by Hall during his interactions with Gutierrez in December
2009. This case is best analogized to cases where the meeting between management and the
employee is simply to deliver notice of a disciplinary decision already made, although in this
case no formal discipline was imposed. (See also Amoco Chemicals Corp. (1978) 237 NLRB
394 [counseling sessions for absenteeism conducted with management's assurance that the
sessions were not disciplinary meetings and would not be recorded in the employees'
personnel files were deemed unprotected by the Weingarten rule].) In sum, Weingarten seeks
to protect against compelled participation in an investigatory interview, not an informational or
instructional meeting. As the meeting on January 14, 2010, did not have an investigatory
purpose, no Weingarten violation occurred.
ORDER
The unfair practice complaint and underlying unfair practice charge in Case
No. SA-CE-1849-S is hereby DISMISSED.
Members Mckeag and Dowdin Calvillo joined in this Decision.
DO

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ALFRED GUTIERREZ,
Charging Party,
V.
STATE OF CALIFORNIA (BOARD OF
EQUALIZATION),
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-1849-S
PROPOSED DECISION
(6/21/2011)
Appearances: Joanne DeLong, Attorney, for Alfred Gutierrez; State
of
California
(Department
of
Personnel Administration) by Casey C. Tichy, Labor Relations Counsel,
for State
of
California (Board
of
Equalization).
Before Christine A. Bologna, Acting Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges denial
of
the right to representation during an investigatory interview,
and discrimination/retaliation against the employee for preparing a grievance. The employer
denies committing any unfair practices.
On January 29, 2010, Alfred Gutierrez (Gutierrez) filed an unfair practice charge
(charge) against the State
of
California (Board
of
Equalization) (BOE); on May 10, Gutierrez
filed an amended charge. On
J\1ay
26, the Public Employment Relations Board (PERB or
Board) Office
of
the General Counsel issued an unfair practice complaint (complaint) alleging
that a bargaining unit employee requested union representation during an investigatory
interview over his grievance but representation was denied, and retaliation against the
employee when he received a discipiinary memorandum (memo) after 	to 	the
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ALFRED GUTIERREZ,
UNFAIR PRACTICE
Charging Party, 	CASE NO. SA-CE-1849-S
V . 	PROPOSED DECISION
(6/21/2011)
STATE OF CALIFORNIA (BOARD OF
EQUALIZATION),
Respondent.
Appearances: Joanne DeLong, Attorney, for Alfred Gutierrez; State of California
(Department of Personnel Administration) by Casey C. Tichy, Labor Relations Counsel,
for State of California (Board of Equalization).
Before Christine A. Bologna, Acting Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges denial of the right to representation during an investigatory interview,
and discrimination/retaliation against the employee for preparing a grievance. The employer
denies committing any unfair practices.
On January 29, 2010, Alfred Gutierrez (Gutierrez) filed an unfair practice charge
(charge) against the State of California (Board of Equalization) (BOE); on May 10, Gutierrez
filed an amended charge. On May 26, the Public Employment Relations Board (PERB or
Board) Office of the General Counsel issued an unfair practice complaint (complaint) alleging
that a bargaining unit employee requested union representation during an investigatory
interview over his grievance but representation was denied, and retaliation against the
employee when he received a disciplinary memorandum (memo) after seeking to write the

grievance, in violation
of
Government Code section 3519(a)
of
the Ralph
C.
Dills Act (Dills
Act). 1
On June 14, 2010, Respondent BOE answered the complaint, denying all substantive
allegations and asserting affirmative defenses. On June 17, 2010, an informal settlement
conference was conducted but the dispute was not resolved.
On January 26, 2011, formal hearing was held in Sacramento. On May 9, the case was
submitted for decision following receipt
of
the parties' post-hearing briefs.
FINDINGS OF FACT
Jurisdiction
Respondent BOE admitted that the Department
of
Personnel Administration is the State
employer and the Governor's designated representative under sections 3513G) and 19815.4(g).
It is found that Gutierrez is an employee under section 3513(c). It is also found that BOE is an
appointing authority
of
employees in various bargaining units.
Background
Gutierrez is a Sheetfed Offset Press Operator II in the BOE Printing and Publishing
Services Unit and Copy Center (Print Shop),2 and has worked for BOE since June 1996. He is
a union member, and was a shop steward for several years3 until the end of2010 or early 2011,
the only steward in the BOE Print Shop. Gutierrez also served on the bargaining unit
negotiating team five years ago.
1 Unless otherwise indicated, all statutory references are to the Government Code. The
Dills Act is codified at section 3512 et seq. PERB regulations are codified at California Code
of Regulations, title 8, section 31001 et seq.
Gutierrez works Monday through Friday from 7:45 a.m. to 4:45 p.m.
Gutierrez testified that he served as a steward for eight to nine years. Steven Hall
(Hall), his supervisor, testified that Gutierrez was a steward for five to six years.
2
grievance, in violation of Government Code section 3519(a) of the Ralph C. Dills Act (Dills
Act).'
On June 14, 2010, Respondent BOE answered the complaint, denying all substantive
allegations and asserting affirmative defenses. On June 17, 2010, an informal settlement
conference was conducted but the dispute was not resolved.
On January 26, 2011, formal hearing was held in Sacramento. On May 9, the case was
submitted for decision following receipt of the parties' post-hearing briefs.
FINDINGS OF FACT
Jurisdiction
Respondent BOE admitted that the Department of Personnel Administration is the State
employer and the Governor's designated representative under sections 3513(j) and 19815.4(g).
It is found that Gutierrez is an employee under section 3513(c). It is also found that BOE is an
appointing authority of employees in various bargaining units.
Background
Gutierrez is a Sheetfed Offset Press Operator II in the BOE Printing and Publishing
Services Unit and Copy Center (Print Shop)," and has worked for BOE since June 1996. He is
a union member, and was a shop steward for several years' until the end of 2010 or early 2011,
the only steward in the BOE Print Shop. Gutierrez also served on the bargaining unit
negotiating team five years ago.
Unless otherwise indicated, all statutory references are to the Government Code. The
Dills Act is codified at section 3512 et seq. PERB regulations are codified at California Code
of Regulations, title 8, section 31001 et seq.
2
2 Gutierrez works Monday through Friday from 7:45 a.m. to 4:45 p.m.
3
3Gutierrez testified that he served as a steward for eight to nine years. Steven Hall
(Hall), his supervisor, testified that Gutierrez was a steward for five to six years.
2

Service Employees International Union Local I 000 (SEIU or union) is the exclusive
representative for State Bargaining Unit
14
(Printing Trades).4
Printing Trades Supervisor
II
Hall has supervised Gutierrez for
11
years. Hall is a
member
of
the Association
of
California State Supervisors. When Hall was a unit
14
printer,
he was a member
of
the California State Employees Association (CSEA), before CSEA
affiliated with SEIU.
3
Business Services Officer II Julio DeAnda (DeAnda) manages the BOE Print Shop and
Supply Unit. DeAnda supervises Hall, and supervised Warehouse Manager I Richard "Hank"
Renner (Renner) until Renner retired at the end
of
2010. In DeAnda's absence, Renner
supervised Hall.
The BOE Print Shop is a large open production area without partitions or dividers. It
contains seven printing presses, bindery equipment, and other machines; when machines are
operating, the environment is loud and noisy. There are two desks in cubicles assigned to Hall
and the Attendance Coordinator. Printing trades employees obtain work from carts and
counters. Any writing is done while employees are standing at the countertops or carts.
On September 22, 2007, Gutierrez and Hall signed a BOE Print Shop Work
Expectations memo setting forth general office policy and guidelines. "Office Etiquette and
Common Courtesy"
of
the memo calls for courtesy in all interpersonal contacts, and directs
that complaints be made to the immediate supervisor in a constructive manner.
Service Employees International Union Local 1000 (SEIU or union) is the exclusive
representative for State Bargaining Unit 14 (Printing Trades).*
Printing Trades Supervisor II Hall has supervised Gutierrez for 1 1 years. Hall is a
member of the Association of California State Supervisors. When Hall was a unit 14 printer,
he was a member of the California State Employees Association (CSEA), before CSEA
affiliated with SEIU.
Business Services Officer II Julio DeAnda (DeAnda) manages the BOE Print Shop and
Supply Unit. DeAnda supervises Hall, and supervised Warehouse Manager I Richard "Hank"
Renner (Renner) until Renner retired at the end of 2010. In DeAnda's absence, Renner
supervised Hall.
The BOE Print Shop is a large open production area without partitions or dividers. It
contains seven printing presses, bindery equipment, and other machines; when machines are
operating, the environment is loud and noisy. There are two desks in cubicles assigned to Hall
and the Attendance Coordinator. Printing trades employees obtain work from carts and
counters. Any writing is done while employees are standing at the countertops or carts.
On September 22, 2007, Gutierrez and Hall signed a BOE Print Shop Work
Expectations memo setting forth general office policy and guidelines. "Office Etiquette and
Common Courtesy" of the memo calls for courtesy in all interpersonal contacts, and directs
that complaints be made to the immediate supervisor in a constructive manner.
# Gutierrez worked with at least seven SEIU representatives during his five to six years
as a steward.
Gutierrez worked with at least seven SEIU representatives during his five to six years
as a steward.

Prior Discipline	Prior Discipline
On May 1, 2009, Gutierrez received a notice
of
adverse action
of
20 working days
suspension, effective May 8 through June
8,
for insubordination; discourteous treatment
toward Hall and another supervisor, manager DeAnda, and two coworkers; willful
disobedience; and other on duty failure
of
good behavior, based on nine incidents from March
2007 to February 2009. He appealed the discipline to the State Personnel Board (SPB). A
hearing was held on June 7 and 9, 2010.
On August 26, 2010, the SPB Administrative Law Judge (ALJ) issued a proposed
decision that Respondent BOE proved the factual charges by a preponderance
of
the evidence;
the facts established the four legal causes for discipline; and the penalty was appropriate,
despite Gutierrez' prior discipline-free work history. 5 On September 8, SPB adopted the
proposed decision.
Mediation
In early 2010, SEIU contacted BOE to arrange for mediation between supervisor Hall
and Gutierrez to resolve their issues. The mediation was scheduled for March 4 at University
of
California, Davis. Hall went to the mediation, but neither Gutierrez nor a SEIU
representative appeared. Hall met with the mediator for one hour.
Gutierrez testified that he and SEIU initiated the mediation. When the mediator called
to schedule it, Gutierrez asked to postpone the mediation until after the SPB hearing. He
received no further communications about the mediation. Gutierrez did not seek to reschedule
the mediation after the SPB decision.
The SPB ALJ made credibility determinations between the conflicting testimony ofGutierrez and supervisor Hall, finding that the coworkers, the other supervisor, and manager
DeAnda corroborated Hall's version. The ALJ also rejected Gutierrez' affirmative defenses of
working out-of-class and retaliation for protected union activity.
4
On May 1, 2009, Gutierrez received a notice of adverse action of 20 working days
suspension, effective May 8 through June 8, for insubordination; discourteous treatment
toward Hall and another supervisor, manager DeAnda, and two coworkers; willful
disobedience; and other on duty failure of good behavior, based on nine incidents from March
2007 to February 2009. He appealed the discipline to the State Personnel Board (SPB). A
hearing was held on June 7 and 9, 2010.
On August 26, 2010, the SPB Administrative Law Judge (ALJ) issued a proposed
decision that Respondent BOE proved the factual charges by a preponderance of the evidence;
the facts established the four legal causes for discipline; and the penalty was appropriate,
despite Gutierrez' prior discipline-free work history. On September 8, SPB adopted the
proposed decision.
Mediation
In early 2010, SEIU contacted BOE to arrange for mediation between supervisor Hall
and Gutierrez to resolve their issues. The mediation was scheduled for March 4 at University
of California, Davis. Hall went to the mediation, but neither Gutierrez nor a SEIU
representative appeared. Hall met with the mediator for one hour.
Gutierrez testified that he and SEIU initiated the mediation. When the mediator called
to schedule it, Gutierrez asked to postpone the mediation until after the SPB hearing. He
received no further communications about the mediation. Gutierrez did not seek to reschedule
the mediation after the SPB decision.
5
The SPB ALJ made credibility determinations between the conflicting testimony of
Gutierrez and supervisor Hall, finding that the coworkers, the other supervisor, and manager
DeAnda corroborated Hall's version. The ALJ also rejected Gutierrez' affirmative defenses of
working out-of-class and retaliation for protected union activity.

December 2009 Events
On December 16, 2009, Gutierrez questioned Hall about why a female employee was
being trained in another work area. Hall responded that it was the last day
of
training.
On December
21
or 22, 2009, Gutierrez inquired about the female employee's training
on that day, complaining to Hall that it was unfair to the others. Hall responded that the
situation was temporary, and it was a management decision. According to Gutierrez, Hall
threatened him with a write-up; Hall denied this. Later that day, Gutierrez told Hall that he
would file a grievance over the issue, and asked for union time off work to prepare the
grievance. Hall granted his request to work on the grievance the next morning. 6
December 23, 2009 Grievance Preparation	December 23, 2009 Grievance Preparation
On December 23, 2009, neither Hall nor DeAnda were at work when Gutierrez
reported. 	Gutierrez informed Renner that he would take union time to file a grievance, and
asked to use DeAnda's cubicle. Renner offered another vacant cubicle, and also suggested the
mailroom or cafeteria; Gutierrez responded that he was kidding about DeAnda's cubicle, and
he would prepare the grievance in his own work area. Renner replied that was okay, but he
should talk to Hall when his supervisor arrived.
Hall reported at 8:25 a.m. He observed Gutierrez in the work unit, not performing any
work. Hall asked Gutierrez what he was doing. Gutierrez responded that he was filing the
grievance. Hall replied that Gutierrez could not write the grievance in the unit, and Hall would
provide him with a quiet private room to do so. Gutierrez responded that he would not be
Gutierrez' January 19, 2010 rebuttal memo states that the second discussion with Hall
about the female employee's training occurred on December 21, 2009, and he requested union
time to file the grievance that day. Hall responded that he would get back to him. Gutierrez
reminded Hall on December 22 that he had asked for union time to file the grievance, and Hall
agreed that he could do so the next morning, December 23. Hall's January 19, 2010 memo
5
December 2009 Events
On December 16, 2009, Gutierrez questioned Hall about why a female employee was
being trained in another work area. Hall responded that it was the last day of training.
On December 21 or 22, 2009, Gutierrez inquired about the female employee's training
on that day, complaining to Hall that it was unfair to the others. Hall responded that the
situation was temporary, and it was a management decision. According to Gutierrez, Hall
threatened him with a write-up; Hall denied this. Later that day, Gutierrez told Hall that he
would file a grievance over the issue, and asked for union time off work to prepare the
grievance. Hall granted his request to work on the grievance the next morning."
On December 23, 2009, neither Hall nor DeAnda were at work when Gutierrez
reported. Gutierrez informed Renner that he would take union time to file a grievance, and
asked to use DeAnda's cubicle. Renner offered another vacant cubicle, and also suggested the
mailroom or cafeteria: Gutierrez responded that he was kidding about DeAnda's cubicle, and
he would prepare the grievance in his own work area. Renner replied that was okay, but he
should talk to Hall when his supervisor arrived.
Hall reported at 8:25 a.m. He observed Gutierrez in the work unit, not performing any
work. Hall asked Gutierrez what he was doing. Gutierrez responded that he was filing the
grievance. Hall replied that Gutierrez could not write the grievance in the unit, and Hall would
provide him with a quiet private room to do so. Gutierrez responded that he would not be
"Gutierrez' January 19, 2010 rebuttal memo states that the second discussion with Hall
about the female employee's training occurred on December 21, 2009, and he requested union
time to file the grievance that day. Hall responded that he would get back to him. Gutierrez
reminded Hall on December 22 that he had asked for union time to file the grievance, and Hall
agreed that he could do so the next morning, December 23. Hall's January 19, 2010 memo
asserts that the second discussion and Gutierrez's request for union time to prepare the
grievance both occurred on December 22, 2009.
asserts that the second discussion and Gutierrez's request for union time to prepare the
grievance both occurred on December 22, 2009.
5

comfortable elsewhere, and should be allowed to prepare the grievance in his work area. 7
According to Gutierrez, Hall threatened him with a letter; Hall denied this. Hall told Gutierrez
that he would look into the matter and get back to him, and to resume working until then. That
afternoon, Hall told Gutierrez that he could not prepare the grievance in the work area, and had
to go to a quiet room to do so. 8 Gutierrez declined the offer, and continued working.
Gutierrez testified that he did not complete or file the grievance because he was
intimidated and discouraged by the discussion with Hall, and the prospect
of
receiving another
disciplinary write-up.
Gutierrez admitted that Hall never denied any
of
his requests for union time to work on
grievances.
grievances in his work area. He then met with a SEIU representative outside the work unit to
finalize the grievance(s). Gutierrez did not know
of
any written BOE or other poiicy that
prevented writing a grievance in the work unit, and Hall did not limit where he could write the
grievance when he gave permission to prepare it the day before. Hall testified that this was
first time Gutierrez sought to write a grievance in the work area. On three or four prior
occasions, he asked for union time to prepare grievances, and Hall found locations outside the
work unit: quiet rooms in the lobby, the break room in the mail unit across the hall, and the
cafeteria. Gutierrez testified that the noise in the Print Shop did not bother him because his
work area was in the farthest corner
of
the unit; he was not comfortable in the cafeteria because
he had gone there before; he did not want to go to the mailroom break room because those
employees would question what he was doing there; and the presses and other machines shut
down at 4:00 p.m. Hall testified that Gutierrez' work station was three feet from the next work
Hall explained the reasons for not allowing grievances to be prepared in the Print
Shop. It was noisy, and lacked privacy and confidentiality. Moving equipment was
distracting. Employees could be intimidated if they thought they were being written up.
Renner and DeAnda agreed that the Print Shop was not conducive to preparing grievances
Gutierrez filed grievances over the counseling and corrective memos that were the
basis for the 20 work days suspension.
6
comfortable elsewhere, and should be allowed to prepare the grievance in his work area."
According to Gutierrez, Hall threatened him with a letter; Hall denied this. Hall told Gutierrez
that he would look into the matter and get back to him, and to resume working until then. That
afternoon, Hall told Gutierrez that he could not prepare the grievance in the work area, and had
to go to a quiet room to do so." Gutierrez declined the offer, and continued working.
Gutierrez testified that he did not complete or file the grievance because he was
intimidated and discouraged by the discussion with Hall, and the prospect of receiving another
disciplinary write-up."
9
Gutierrez admitted that Hall never denied any of his requests for union time to work on
grievances.
Gutierrez testified that he had written one prior grievance, but always prepared draft
area; he was seated, facing employees who were working, close enough to talk to them.
Gutierrez and the employees were not conversing, however.
7 Gutierrez testified that he had written one prior grievance, but always prepared draft
grievances in his work area. He then met with a SEIU representative outside the work unit to
finalize the grievance(s). Gutierrez did not know of any written BOE or other policy that
prevented writing a grievance in the work unit, and Hall did not limit where he could write the
grievance when he gave permission to prepare it the day before. Hall testified that this was the	the
first time Gutierrez sought to write a grievance in the work area. On three or four prior
occasions, he asked for union time to prepare grievances, and Hall found locations outside the
work unit: quiet rooms in the lobby, the break room in the mail unit across the hall, and the
cafeteria. Gutierrez testified that the noise in the Print Shop did not bother him because his
work area was in the farthest corner of the unit; he was not comfortable in the cafeteria because
he had gone there before; he did not want to go to the mailroom break room because those
employees would question what he was doing there; and the presses and other machines shut
down at 4:00 p.m. Hall testified that Gutierrez' work station was three feet from the next work
area; he was seated, facing employees who were working, close enough to talk to them.
Gutierrez and the employees were not conversing, however.
8
Hall explained the reasons for not allowing grievances to be prepared in the Print
Shop. It was noisy, and lacked privacy and confidentiality. Moving equipment was
distracting. Employees could be intimidated if they thought they were being written up.
Renner and DeAnda agreed that the Print Shop was not conducive to preparing grievances
because of the noise, lack of privacy, disruptions, and interruptions.	because of the noise, lack of privacy, disruptions, and interruptions.
9
" Gutierrez filed grievances over the counseling and corrective memos that were the
basis for the 20 work days suspension.
6

January 14, 20
IO
Request for Representation
January 19, 2010 Memos
On January 19, 2010, Hall gave Gutierrez a memo entitled "Disrespectful Behavior" at
the end of the workday. The memo documented the January 14, 2010 meeting and discussions,
and 	incidents of December 22 and 23, 2009. That evening, Gutierrez prepared a rebuttal
memo at home. At 9:23 p.m., Gutierrez sent the rebuttal memo to Hall, DeAnda, Renner, a
Hall testified that Gutierrez requested union representation once, and he responded
once.
7
January 14. 2010 Request for Representation
At 4:00 p.m. on January 14, 2010, Hall asked Gutierrez to meet with him and DeAnda.
Gutierrez brought out his "Dills card," read his rights, and requested union representation.
Hall responded that the meeting had nothing to do with adverse action, and they wanted to
discuss some information. Gutierrez again asked for union representation. Hall replied that
the meeting had nothing to do with discipline.10
Hall, DeAnda, and Gutierrez then met in the mail unit break room. Gutierrez testified
that the grievance was discussed at the meeting, including what it was about, how long he
would take to write it, and where he could write it. Hall testified that the meeting took ten to
15 minutes. Hall informed Gutierrez that he could prepare the grievance on union time, but
not in the work area, and asked him to schedule meetings in the future to discuss workplace
concerns. Hall did not question Gutierrez during the meeting.
DeAnda testified that the purpose of the meeting was to provide information on where
to prepare or write up grievances. DeAnda did not recall what, if anything, he said at the
meeting. DeAnda did not recall if Hall asked any questions, or if Gutierrez said anything at th
meeting. Gutierrez did not request union representation during the meeting, and DeAnda was
not aware that he ever requested union representation.
7
At 4:00 p.m. on January
14,
2010, Hall asked Gutierrez to meet with him and DeAnda.
Gutierrez brought out his "Dills card," read his rights, and requested union representation.
Hall responded that the meeting had nothing to
do
with adverse action, and they wanted to
discuss some information. Gutierrez again asked for union representation. Hall replied that
the meeting had nothing to do with discipline.
10
Hall, DeAnda, and Gutierrez then met in the mail unit break room. 	Gutierrez testified
that the grievance was discussed at the meeting, including what it was about, how long he
would take to write it, and where he could write it. Hall testified that the meeting took ten to
15
minutes. Hall informed Gutierrez that he could prepare the grievance on union time, but
not in the work area, and asked him to schedule meetings in the future to discuss workplace
concerns. Hall did not question Gutierrez during the meeting.
DeAnda testified that the purpose
of
the meeting was to provide information on where
to prepare or write up grievances. DeAnda did not recall what, if anything, he said at the
meeting. 	DeAnda did not recall
if
Hall asked any questions, or
if
Gutierrez said anything at the	e
meeting. 	Gutierrez did not request union representation during the meeting, and DeAnda was
not aware that he ever requested union representation.
January 19. 2010 Memos
On January 19, 2010, Hall gave Gutierrez a memo entitled "Disrespectful Behavior" at
the end of the workday. The memo documented the January 14, 2010 meeting and discussions,
and the incidents of December 22 and 23, 2009. That evening, Gutierrez prepared a rebuttal
memo at home. At 9:23 p.m., Gutierrez sent the rebuttal memo to Hall, DeAnda, Renner, a
10
"Hall testified that Gutierrez requested union representation once, and he responded
once.

SEIU representative, and the BOE Personnel Management Section
as
an electronic mail
message (e-mail) attachment.
Hall was unable to open the e-mail attachment; he spoke with others copied and they
could not open it. Hall testified that he asked Gutierrez two or three times for a hard copy
of
the rebuttal memo, but one was not provided. Gutierrez testified that Hall did not ask him for a
copy
of
the rebuttal memo or to resend it. He did not try to resend the rebuttal memo to Hall or
the others.
Hall's January 19, 2010 memo was not placed in Gutierrez' official BOE personnel file.
Credibility Determination
Hall's January 19, 2010 memo was not placed in Gutierrez' official BOE personnel file.
It
is
located in Hall's informal supervisory "drop" file.
Credibility Determination
The standards for evaluating witness credibility in Evidence Code section 780 are:
demeanor; character
of
testimony; capacity to perceive, recollect, or communicate; bias,
interest, or motive; prior consistent or inconsistent statements; attitude; admissions
of
untruthfulness; and existence or nonexistence
of
facts testified to.
This case turns on the conflicting testimony
of
Gutierrez and his supervisor, Hall.
Hall's testimony is credited over the contrary testimony
of
Gutierrez for the following reasons.
First, Gutierrez' testimony is internally inconsistent. His testimony changed about how many
years he served as a steward. He prepared one written grievance, but always prepared drafts in
his work area. He met with union representatives outside the work unit previously, but now
was uncomfortable doing so. 	Second, Hall's testimony about the reasons for not preparing
grievances 	the Print Shop	s in t 	was corroborated by DeAnda and Renner. Finally, Gutierrez'
testimony that the January 14, 2010 meeting focused on the details of the grievance is not
believable, given that he decided not to file the grievance on December 23, 2009, 22 calendar
days and 14 work days before the meeting.
8
SEIU representative, and the BOE Personnel Management Section as an electronic mail
message (e-mail) attachment.
Hall was unable to open the e-mail attachment; he spoke with others copied and they
could not open it. Hall testified that he asked Gutierrez two or three times for a hard copy of
the rebuttal memo, but one was not provided. Gutierrez testified that Hall did not ask him for a
copy of the rebuttal memo or to resend it. He did not try to resend the rebuttal memo to Hall or
the others.
It is located in Hall's informal supervisory "drop" file.
The standards for evaluating witness credibility in Evidence Code section 780 are:
demeanor; character of testimony; capacity to perceive, recollect, or communicate; bias,
interest, or motive; prior consistent or inconsistent statements; attitude; admissions of
untruthfulness; and existence or nonexistence of facts testified to.
This case turns on the conflicting testimony of Gutierrez and his supervisor, Hall.
Hall's testimony is credited over the contrary testimony of Gutierrez for the following reasons.
First, Gutierrez' testimony is internally inconsistent. His testimony changed about how many
years he served as a steward. He prepared one written grievance, but always prepared drafts in
his work area. 	met with union representatives outside the work unit previously, but now
was uncomfortable doing so. Second, Hall's testimony about the reasons for not preparing
grievance 	he Print Shop was corroborated by DeAnda and Renner. Finally, Gutierrez'
testimony that the January 14, 2010 meeting focused on the details of the grievance is not
believable, given that he decided not to file the grievance on December 23, 2009, 22 calendar
days and 14 work days before the meeting.
8

Therefore, Hall's denials
of
threatening
to
write-up Gutierrez are credited, and it is
found that he did not make those threats. Hall's testimony that Gutierrez first sought to
prepare a grievance in the Print Shop on December 23, 2009, and that he provided alternative
locations on three to four prior occasions, is not controverted. Finally, the reasons for not
preparing grievances in the Print Shop are rational, and are credited over Gutierrez' arguments
that the alternatives were unsatisfactory.
ISSUES	ISSUES
1.	
Did BOE deny Gutierrez the right to representation during an investigatory	Did BOE deny Gutierrez the right to representation during an investigatory
interview on January 14, 20107
2. 	Did BOE discriminate or retaliate against Gutierrez by issuing the January 19,
2010 memo after he sought to write a grievance?
CONCLUSIONS OF LAW
Right to Union Representation
Did BOE discriminate or retaliate against Gutierrez by issuing the January 19,
2010 memo after he sought to write a grievance?
CONCLUSIONS OF LAW
Right to Union Representation
An employee required to attend an investigatory interview with the employer is entitled
to union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. PERB adopted the Weingarten
11
rule in Rio Hondo Community
College District (1982) PERB Decision No. 260 (Rio Hondo CCD). In order to establish a
violation
of
this right, a charging party must demonstrate: (1) the employee requested
representation, (2) for an investigatory meeting, (3) which the employee reasonably believed
might result in disciplinary action, and (d) the employer denied the request. (Redwoods
Community College District
v.
Public Employment Relations Board (1984) 159 Cal.App.3d
617 (Redwoods CCD); San Bernardino County Public Defender (2009) PERB Decision
11
In National Labor Relations Board (NLRB)
v.
Weingarten (1975) 420 U.S. 251
(Weingarten), the Court granted employees the right to representation during disciplinary
interviews.
9
Therefore, Hall's denials of threatening to write-up Gutierrez are credited, and it is
found that he did not make those threats. Hall's testimony that Gutierrez first sought to
prepare a grievance in the Print Shop on December 23, 2009, and that he provided alternative
locations on three to four prior occasions, is not controverted. Finally, the reasons for not
preparing grievances in the Print Shop are rational, and are credited over Gutierrez' arguments
that the alternatives were unsatisfactory.
1 .
interview on January 14, 2010?
2.
An employee required to attend an investigatory interview with the employer is entitled
to union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. PERB adopted the Weingarten" rule in Rio Hondo Community
College District (1982) PERB Decision No. 260 (Rio Hondo CCD). In order to establish a
violation of this right, a charging party must demonstrate: (1) the employee requested
representation, (2) for an investigatory meeting, (3) which the employee reasonably believed
might result in disciplinary action, and (d) the employer denied the request. (Redwoods
Community College District v. Public Employment Relations Board (1984) 159 Cal.App.3d
617 (Redwoods CCD); San Bernardino County Public Defender (2009) PERB Decision
"In National Labor Relations Board (NLRB) v. Weingarten (1975) 420 U.S. 251
(Weingarten), the Court granted employees the right to representation during disciplinary
interviews.
9

No. 2058-M; State
of
California (Department
of
Parks and Recreation) (1990) PERB Decision
No. 810-S and
81
0a-S; State
of
California (Department
of
Forestry) (1988) PERB Decision
No. 690-S; Fremont Union High School District (1983) PERB Decision No. 301.)
In Rio Hondo CCD, supra, PERB Decision No. 260, the Board cited Baton Rouge
Water Works Company (1979) 246 NLRB
995,997,
which held that the right to representation
applies to a disciplinary interview, whether labeled as investigatory or not, so long as the
interview in question is not merely for the purpose
of
informing the employee that he or she is
being disciplined.
12
...
were the employer to inform the employee
of
a disciplinary
action and then seek facts or evidence in support
of
that action, or
to attempt to have the employee admit his alleged wrongdoing or
to sign a statement to that effect, or to sign statements relating to
such matters as workmen's compensation,
...
the employee's
(See also Morris, The Developing Labor Law, 2d ed., pp. 152-153.)
. . were the employer to inform the employee of a disciplinary
action and then seek facts or evidence in support of that action, or
to attempt to have the employee admit his alleged wrongdoing or
to sign a statement to that effect, or to sign statements relating to
such matters as workmen's compensation, . . . the employee's
right to union representation would attach
...
.
(See also Morris, The Developing Labor Law, 2d ed., pp. 152-153.)
In approving the Weingarten rule, the U.S. Supreme Court noted that the NLRB would
not apply it to "such run-of-the-mill shop-floor conversations as, for example, the giving
of
instructions or training or needed corrections of work techniques." (Weingarten, quoting
Quality Manufacturing Co. (1972) 195 NLRB 197, 199; see also Regents of the University of
California (1983) PERB Decision No. 310-H.)
instructions or training or needed corrections
of
work techniques." (Weingarten, quoting
Quality lvfanufacturing Co. (1972) 195 NLRB 197, 199; see also Regents
of
the University
of
California (1983) PERB Decision No. 310-H.)
A meeting with management in which the essential purpose is to elicit incriminating
evidence has the potential to impact the employment relationship. In those settings, denial
of
the assistance
of
the employee organization frustrates the statutory purposes
of
representation.
(Placer Hills Union School District (1984) 	Decision No. 377 (Placer Hills).)	.) If the	the
meeting has another purpose, i.e., when the employer simply intends to deliver notice
of
a
12
University
of
California (Lawrence Berkeley Laboratory) (1993) PERB Decision
No. 998-H.
10
No. 2058-M; State of California (Department of Parks and Recreation) (1990) PERB Decision
No. 810-S and 810a-S; State of California (Department of Forestry) (1988) PERB Decision
No. 690-S; Fremont Union High School District (1983) PERB Decision No. 301.)
In Rio Hondo CCD, supra, PERB Decision No. 260, the Board cited Baton Rouge
Water Works Company (1979) 246 NLRB 995, 997, which held that the right to representation
applies to a disciplinary interview, whether labeled as investigatory or not, so long as the
interview in question is not merely for the purpose of informing the employee that he or she is
being disciplined. 12
right to union representation would attach. . . .
In approving the Weingarten rule, the U.S. Supreme Court noted that the NLRB would
not apply it to "such run-of-the-mill shop-floor conversations as, for example, the giving of
A meeting with management in which the essential purpose is to elicit incriminating
evidence has the potential to impact the employment relationship. In those settings, denial of
the assistance of the employee organization frustrates the statutory purposes of representation.
(Placer Hills Union School District (1984) PERB Decision No. 377 (Placer Hills)
meeting has another purpose, i.e., when the employer simply intends to deliver notice of a
12 University of California (Lawrence Berkeley Laboratory) (1993) PERB Decision
No. 998-H.
10

disciplinary decision already made, the right to representation does not attach. (Trustees
of
the
California State University (2006) PERB Decision No. 1853-H; State
of
California
(Department
of
California Highway Patrol) (1997) PERB Decision No. 1210-S; State
of
California (Department a/Transportation) (1994) PERB Decision No. 1049-S.)
A right to union representation may be held to exist, in the absence
of
an objectively
reasonable fear
of
discipline, only under "highly unusual circumstances." (Redwoods CCD,
supra, 159 Cal.App.3d 617
.)
The finding
of
"highly unusual circumstances" in the
Redwoods CCD case was based on the requirement that the employee attend a meeting which
she no longer sought over her appeal
of
a negative performance rating; the interview was
investigatory and formal; the interview was held by a high-ranking official
of
the employer;
and the hostile attitude
of
the official toward the employee.
In Roadway Express, Inc. (1979) 246 NLRB 1127, the NLRB observed that once an
employee makes a valid request for union representation, the employer has a choice
of
one
of
three options: (1) grant the request; (2) dispense with or discontinue the interview;
13
or
(3) offer the employee the choice
of
continuing the interview unaccompanied by a union
representative or
of
having no interview at all, and thereby dispensing with any benefits which
the interview might have conferred on the employee. The employer, however, may not
continue the interview without granting the requested union representation unless the employee
"voluntarily agrees to remain unrepresented after having been presented by the employer with
the choices" described above, or "is otherwise made aware
of
these choices."
(U
S.
Postal
13
The Weingarten rule requiring representation is inapplicable
if
no meeting or
interview takes place. (Los Angeles County Office
of
Education (1999) PERB Decision
No. 1360; San Bernardino City Unified School District (1998) PERB Decision No. 1270;
Placer Hills, supra, PERB Decision No. 377.)
11
disciplinary decision already made, the right to representation does not attach. (Trustees of the
California State University (2006) PERB Decision No. 1853-H; State of California
(Department of California Highway Patrol) (1997) PERB Decision No. 1210-S; State of
California (Department of Transportation) (1994) PERB Decision No. 1049-S.)
A right to union representation may be held to exist, in the absence of an objectively
reasonable fear of discipline, only under "highly unusual circumstances." (Redwoods CCD,
supra, 159 Cal.App.3d 617.) The finding of "highly unusual circumstances" in the
Redwoods CCD case was based on the requirement that the employee attend a meeting which
she no longer sought over her appeal of a negative performance rating; the interview was
investigatory and formal; the interview was held by a high-ranking official of the employer;
and the hostile attitude of the official toward the employee.
In Roadway Express, Inc. (1979) 246 NLRB 1127, the NLRB observed that once an
employee makes a valid request for union representation, the employer has a choice of one of
three options: (1) grant the request; (2) dispense with or discontinue the interview;"or
(3) offer the employee the choice of continuing the interview unaccompanied by a union
representative or of having no interview at all, and thereby dispensing with any benefits which
the interview might have conferred on the employee. The employer, however, may not
continue the interview without granting the requested union representation unless the employee
"voluntarily agrees to remain unrepresented after having been presented by the employer with
the choices" described above, or "is otherwise made aware of these choices." (U. S. Postal
The Weingarten rule requiring representation is inapplicable if no meeting or
interview takes place. (Los Angeles County Office of Education (1999) PERB Decision
No. 1360; San Bernardino City Unified School District (1998) PERB Decision No. 1270;
Placer Hills, supra, PERB Decision No. 377.)
11

Service (1979)
241
NLRB 141; California State University, Long Beach (1991) PERB
Decision No. 893-H.)
Where an employee requests representation which is denied, and assurances are made
that no discipline will result, the employer may not subsequently discipline the employee based
on statements during the investigatory interview. (Lake Elsinore Unified School District
(2004) PERB Decision No. 1648.)
Gutierrez' Right to Representation	Gutierrez' Right to Representation
It is undisputed that on January 14, 2010, Gutierrez requested union representation
when he was asked to meet with his supervisor, Hall, and manager, DeAnda. It is
uncontroverted that Hall, Gutierrez' supervisor and BOE's agent, denied the request, asserting
the meeting had nothing to
do
with discipline.
The meeting was not an investigatory or disciplinary interview, however. Hall did not
question Gutierrez during the brief meeting. It is unclear
if
Gutierrez said anything substantive
in response to Hill's directive that he could prepare grievances on union work time, but not in
the work unit. Thus, no inquiries were made about anything which could result in discipline or
adverse action. On the basis
of
this record, the January 14, 2010 meeting was not an
investigatory one which Gutierrez reasonably believed might result in disciplinary action.
Furthermore, DeAnda, an independent witness with no credible reason to fabricate
testimony to Gutierrez' detriment, corroborated Hall's testimony that the purpose of the
meeting was to provide information on where to write up a grievance. Therefore, two
of
the
four elements of the Weingarten	en rule, ininvestigatory meeting and reasonable belief of possible
disciplinary action, are absent.
For the same reasons, there were also no "highly unusual circumstances" creating a
right to union representation within the meaning of Redwoods CCD, supra, 159 Cal.App.3d
12
Service (1979) 241 NLRB 141; California State University, Long Beach (1991) PERB
Decision No. 893-H.)
Where an employee requests representation which is denied, and assurances are made
that no discipline will result, the employer may not subsequently discipline the employee based
on statements during the investigatory interview. (Lake Elsinore Unified School District
(2004) PERB Decision No. 1648.)
It is undisputed that on January 14, 2010, Gutierrez requested union representation
when he was asked to meet with his supervisor, Hall, and manager, DeAnda. It is
uncontroverted that Hall, Gutierrez' supervisor and BOE's agent, denied the request, asserting
the meeting had nothing to do with discipline.
The meeting was not an investigatory or disciplinary interview, however. Hall did not
question Gutierrez during the brief meeting. It is unclear if Gutierrez said anything substantive
in response to Hill's directive that he could prepare grievances on union work time, but not in
the work unit. Thus, no inquiries were made about anything which could result in discipline or
adverse action. On the basis of this record, the January 14, 2010 meeting was not an
investigatory one which Gutierrez reasonably believed might result in disciplinary action.
Furthermore, DeAnda, an independent witness with no credible reason to fabricate
testimony to Gutierrez' detriment, corroborated Hall's testimony that the purpose of the
meeting was to provide information on where to write up a grievance. Therefore, two of the
four elements of the Weingart 	vestigatory meeting and reasonable belief of possible
disciplinary action, are absent.
For the same reasons, there were also no "highly unusual circumstances" creating a
right to union representation within the meaning of Redwoods CCD, supra, 159 Cal.App.3d
12

617. The meeting was brief and informal, and was conducted by Gutierrez' immediate
supervisor.	supervisor.
A violation
of
the Weingarten right to union representation is not established
by
a
preponderance
of
the evidence.
14
Discrimination/Retaliation	Discrimination/Retaliation
To demonstrate a violation
of
Dills Act section 3519(a), a charging party must show
that: (1) the employee exercised rights under the Dills Act; (2) the employer had knowledge
of
the exercise
of
those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained, or coerced
the employees (4) because
of
the exercise
of
those rights. (Novato Unified School District
(1982) PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB
Decision No. 89 (Carlsbad); State
of
California (Department
of
Corrections) (2006) PERB
Decision No. 1826-S (Corrections).)
The Board has long recognized that direct proof
of
motivation is rarely possible, since
motivation is a state
of
mind known only to the actor; thus unlawful motive can be established
by circumstantial evidence and inferred from the record as a whole. (Carlsbad, supra, PERB
Decision No. 89; Novato, supra, PERB Decision No. 210.) PERB has therefore developed the
A charging party must prove the allegations
of
an unfair practice complaint by a
preponderance
of
the evidence. (California State University (San Francisco) (1986) PERB
Decision No. 559-H; PERB Reg. 32178.) Preponderance
of
the evidence has been defined by
the courts as "evidence that has more convincing force than that opposed to it." (Glage
v.
Officers
13
617. The meeting was brief and informal, and was conducted by Gutierrez' immediate
A violation of the Weingarten right to union representation is not established by a
preponderance of the evidence.4
To demonstrate a violation of Dills Act section 3519(a), a charging party must show
that: (1) the employee exercised rights under the Dills Act; (2) the employer had knowledge of
the exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained, or coerced
the employees (4) because of the exercise of those rights. (Novato Unified School District
(1982) PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB
Decision No. 89 (Carlsbad); State of California (Department of Corrections) (2006) PERB
Decision No. 1826-S (Corrections).)
The Board has long recognized that direct proof of motivation is rarely possible, since
motivation is a state of mind known only to the actor; thus unlawful motive can be established
by circumstantial evidence and inferred from the record as a whole. (Carlsbad, supra, PERB
Decision No. 89; Novato, supra, PERB Decision No. 210.) PERB has therefore developed the
* A charging party must prove the allegations of an unfair practice complaint by a
preponderance of the evidence. (California State University (San Francisco) (1986) PERB
Decision No. 559-H; PERB Reg. 32178.) Preponderante of the evidence has been defined by
the courts as "evidence that has more convincing force than that opposed to it." (Glage v.
Hawes Firearms Co. (1990) 226 Cal.App.3d 314 (Glage).) Preponderante of the evidence is	Hawes Firearms Co. (1990) 226 Ca1.App.3d 314 (Glage).) Preponderance
of
the evidence is
usually defined in terms
of
the probability of the truth, or such evidence which when weighed
against opposing evidence, has	against opposing evidence, has the greater probability of truth. (California Correctional Peace	the greater probability of truth. (California Correctional Peace
Assn.
v.
State Personnel Bd. (1995) 10 Cal.4 th
Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4" 1133.) If the evidence is so evenly	1133 .) If the evidence is so evenly
balanced that one is unable to say that evidence on either side of an issue preponderates, the
finding on that issue must be against the party who has the burden of proving it. (Glage,
supra, 226 Cal.App.3d 314.)
usually defined in terms of the probability of the truth, or such evidence which when weighed
balanced that one is unable to say that evidence on either side of an issue preponderates, the
finding on that issue must be against the party who has the burden of proving it. (Glage,
supra, 226 Cal.App.3d 314.)
13

following circumstantial factors showing a "nexus" between the protected activity and the
adverse action sufficient to imply unlawful motive.
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 (North Sacramento SD), it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected activity. (State
of
California (Department
of
Youth Authority) (2000) PERB Decision No. 1403-S; Moreland
Elementary School District (1982) PERB Decision No. 227 (Moreland).) Facts establishing
one or more
of
the following additional factors must also be present: (1) the employer's
disparate treatment
of
the employee (State
of
California (Department
of
Transportation)
(1984) PERB Decision No. 459-S); (2) the employer's departure from established procedures
and standards when dealing with the employee (State
of
California (Department
of
Corrections) (2001) PERB Decision No. 1435-S; 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 (Trustees
of
the California State University (1990) PERB Decision No. 805-H); (5) the employer's
failure to offer the employee justification at the time it took action or the offering
of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District (1990) PERB
Decision No. 786); (6) employer animosity toward union activists (Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts which
might demonstrate the employer's unlawful motive (Novato, supra, PERB Decision No. 210;
North Sacramento SD, supra, PERB Decision No. 264).
14
following circumstantial factors showing a "nexus" between the protected activity and the
adverse action sufficient to imply unlawful motive.
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 (North Sacramento SD), it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected activity. (State
of California (Department of Youth Authority) (2000) PERB Decision No. 1403-S; Moreland
Elementary School District (1982) PERB Decision No. 227 (Moreland).) Facts establishing
one or more of the following additional factors must also be present: (1) the employer's
disparate treatment of the employee (State of California (Department of Transportation)
(1984) PERB Decision No. 459-S); (2) the employer's departure from established procedures
and standards when dealing with the employee (State of California (Department of
Corrections) (2001) PERB Decision No. 1435-S; 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 (Trustees
of the California State University (1990) PERB Decision No. 805-H); (5) the employer's
failure to offer the employee justification at the time it took action or the offering of
exaggerated, vague, or ambiguous reasons (Mcfarland Unified School District (1990) PERB
Decision No. 786); (6) employer animosity toward union activists (Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts which
might demonstrate the employer's unlawful motive (Novato, supra, PERB Decision No. 210;
North Sacramento SD, supra, PERB Decision No. 264).
14

Evidence
of
adverse action is also required to support a claim
of
discrimination or
retaliation under the Novato standard. (Novato, supra, PERB Decision No. 210; Palo Verde
Unified School District (1988) PERB Decision No. 689 (Palo Verde).) In determining whether
such evidence is established, the Board uses an objective test and will not rely upon the
subjective reactions
of
the employee. (Ibid.) In Newark Unified School District (1991) PERB
Decision No. 864, the Board further explained:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Emphasis added; fn. omitted.)
Protected activity is broadly defined. (Novato, supra, PERB Decision No. 210.)
Holding union office, such as a job steward or bargaining team member, is protected activity.
(Central Union High School District (1983) PERB Decision No. 324; City & County
of
San Francisco (2004) PERB Decision No. 1664-M; County
of
Santa Cruz (2006) PERB
Decision No. 1849-M.)
15
An employee's participation in PERB processes and procedures,
such as filing unfair practice charges (Trustees
of
the California State University (2008) PERB
Decision No. 1970-H; Los Angeles Community College District (2004) PERB Decision
No. 1667; State
of
California (Department
of
Youth Authority) (2000) PERB Decision
No. 1403-S; Regents
of
the University
of
California (1999) PERB Decision No. I
31
San Bernardino City Unified School District (1998) PERB Decision No. 1270; Healdsburg
Union High School District (1997) PERB Decision No. 1185; California State Employees
15
PERB has also found that merely holding the position of steward or other union
office, without evidence that the employee engaged in specific protected acts, is insufficient to
constitute protected activity. (Trustees
of
the California State University (2009) PERB
Decision No. 2038-H; Chula Vista Elementary School District (1997) PERB Decision
No. 1232.)
15
Evidence of adverse action is also required to support a claim of discrimination or
retaliation under the Novato standard. (Novato, supra, PERB Decision No. 210; Palo Verde
Unified School District (1988) PERB Decision No. 689 (Palo Verde).) In determining whether
such evidence is established, the Board uses an objective test and will not rely upon the
subjective reactions of the employee. (Ibid.) In Newark Unified School District (1991) PERB
Decision No. 864, the Board further explained:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Emphasis added; fn. omitted.)
Protected activity is broadly defined. (Novato, supra, PERB Decision No. 210.)
Holding union office, such as a job steward or bargaining team member, is protected activity.
(Central Union High School District (1983) PERB Decision No. 324; City & County of
San Francisco (2004) PERB Decision No. 1664-M; County of Santa Cruz (2006) PERB
Decision No. 1849-M.)" An employee's participation in PERB processes and procedures,
such as filing unfair practice charges (Trustees of the California State University (2008) PERB
Decision No. 1970-H; Los Angeles Community College District (2004) PERB Decision
No. 1667; State of California (Department of Youth Authority) (2000) PERB Decision
No. 1403-S; Regents of the University of California (1999) PERB Decision No. 1314-H;
San Bernardino City Unified School District (1998) PERB Decision No. 1270; Healdsburg
Union High School District (1997) PERB Decision No. 1185; California State Employees
15 PERB has also found that merely holding the position of steward or other union
office, without evidence that the employee engaged in specific protected acts, is insufficient to
constitute protected activity. (Trustees of the California State University (2009) PERB
Decision No. 2038-H; Chula Vista Elementary School District (1997) PERB Decision
No. 1232.)
15

Association (Garcia) (1993) PERB Decision No. 1014-S; Lake Tahoe Unified School District
(1993) PERB Decision No. 994; Los Angeles Unified School District (1992) PERB Decision
No. 957; California State University, Hayward (1991) PERB Decision No. 869-H; Riverside
Unified School District (1987) PERB Decision No. 639); testifying at a formal hearing
(Placer Hills, supra, PERB Decision No. 377; Regents
of
the University
of
California (1984)
PERB Decision No. 403-H; California State University, Fresno (1990) PERB Decision
No. 845-H; Fresno County Office
of
Education (2004) PERB Decision No. 1674); and
participating in an informal settlement conference (Fullerton Elementary School District
(2004) PERB Decision No. 1671) is protected activity. Preparing, writing, and/or filing a
grievance is protected conduct. (North Sacramento
SD,
supra, PERB Decision No. 264;
State
of
California (Department
of
Real Estate) (1983) PERB Decision No. 287-S;
Ravenswood City School District (1984) PERB Decision No. 469; Inglewood Unified School
District (1987) PERB Decision No. 624; Corrections, supra, PERB Decision No. 1826-S.)
An employer's knowledge
of
protected activity may be proven by circumstantial
evidence. Mere coincidence in time between protected activity and employer conduct does not
establish employer knowledge without direct or persuasive circumstantial evidence. It is
irrelevant that an employer's agent knew
of
an employee's protected activity
if
there is no
evidence on which to impute the agent's knowledge to the employer. (Los Angeles Community
College District (2004) PERB Decision No. 1668; _Moreland, supra, PERB Decision No. 227;
Regents
of
the University
of
California (1983) PERB Decision No. 319-H.) PERB may impute
an employee's knowledge
of
protected activity to the employer
if
the employee is directly
involved in the adverse action, but if the employee is not involved in issuing the adverse
action, his/her knowledge of protected activity cannot be imputed to the employer. (City
of
Modesto (2008) PERB Decision No. 1994-M.)
16
Association (Garcia) (1993) PERB Decision No. 1014-S; Lake Tahoe Unified School District
(1993) PERB Decision No. 994; Los Angeles Unified School District (1992) PERB Decision
No. 957; California State University, Hayward (1991) PERB Decision No. 869-H; Riverside
Unified School District (1987) PERB Decision No. 639); testifying at a formal hearing
(Placer Hills, supra, PERB Decision No. 377; Regents of the University of California (1984)
PERB Decision No. 403-H; California State University, Fresno (1990) PERB Decision
No. 845-H; Fresno County Office of Education (2004) PERB Decision No. 1674); and
participating in an informal settlement conference (Fullerton Elementary School District
(2004) PERB Decision No. 1671) is protected activity. Preparing, writing, and/or filing a
grievance is protected conduct. (North Sacramento SD, supra, PERB Decision No. 264;
State of California (Department of Real Estate) (1983) PERB Decision No. 287-S;
Ravenswood City School District (1984) PERB Decision No. 469; Inglewood Unified School
District (1987) PERB Decision No. 624; Corrections, supra, PERB Decision No. 1826-S.)
An employer's knowledge of protected activity may be proven by circumstantial
evidence. Mere coincidence in time between protected activity and employer conduct does not
establish employer knowledge without direct or persuasive circumstantial evidence. It is
irrelevant that an employer's agent knew of an employee's protected activity if there is no
evidence on which to impute the agent's knowledge to the employer. (Los Angeles Community
College District (2004) PERB Decision No. 1668; Moreland, supra, PERB Decision No. 227;
Regents of the University of California (1983) PERB Decision No. 319-H.) PERB may impute
an employee's knowledge of protected activity to the employer if the employee is directly
involved in the adverse action, but if the employee is not involved in issuing the adverse
action, his/her knowledge of protected activity cannot be imputed to the employer. (City of
Modesto (2008) PERB Decision No. 1994-M.)
16

Gutierrez' Claim
The complaint alleges one protected act by Gutierrez: seeking to write a grievance
against his employer.
16
The evidence established that Gutierrez informed Hall that he would
file a grievance over the female employee training issue, and asked for union time off work to
prepare it. Employer knowledge
of
protected activity is also present. Hall knew about
Gutierrez' intent to file a grievance because he granted Gutierrez union time to work on it.
While the January 19, 2010 memo was not placed in Gutierrez' official personnel file, there is
no dispute that it was issued and it remains in Hall's informal supervisory file. 	The January
19
memo constitutes adverse action. (State
of
California (Department
of
Social Services) (2009)
PERB Decision No. 2072-S.)
Timing is present. The January 19, 2010 memo was issued within one month
of
Gutierrez' stated intent to file the grievance and his request for union time off work to prepare
it. The timing
of
an employer's adverse action cannot alone support a conclusion
of
unlawful
motivation or nexus, however.
Gutierrez has failed to establish a concomitant nexus/improper motive between the
adverse action
of
the January 19, 2010 memo and his single protected activity
of
filing a
grievance.
17
No credible evidence of anti-union animus by Hall was presented. Gutierrez was
given union time off work to prepare this and other grievances. The reasons for not preparing
grievances in the Print Shop are rational. Credibility determinations have been made in favor
of
Hall. Gutierrez does not argue disparate treatment, departure from established procedures
and standards, or any other factor demonstrating nexus. Thus, Gutierrez failed to establish a
The complaint does not allege protected activity in Gutierrez' request for union
representation.
Gutierrez' post-hearing brief argued the elements of interference, but the complaint
alleged discrimination/retaliation, not interference.
17
Gutierrez' Claim
The complaint alleges one protected act by Gutierrez: seeking to write a grievance
against his employer." The evidence established that Gutierrez informed Hall that he would
file a grievance over the female employee training issue, and asked for union time off work to
prepare it. Employer knowledge of protected activity is also present. Hall knew about
Gutierrez' intent to file a grievance because he granted Gutierrez union time to work on it.
While the January 19, 2010 memo was not placed in Gutierrez' official personnel file, there is
no dispute that it was issued and it remains in Hall's informal supervisory file. The January 19
memo constitutes adverse action. (State of California (Department of Social Services) (2009)
PERB Decision No. 2072-S.)
Timing is present. The January 19, 2010 memo was issued within one month of
Gutierrez' stated intent to file the grievance and his request for union time off work to prepare
it. The timing of an employer's adverse action cannot alone support a conclusion of unlawful
motivation or nexus, however.
Gutierrez has failed to establish a concomitant nexus/improper motive between the
adverse action of the January 19, 2010 memo and his single protected activity of filing a
grievance. " No credible evidence of anti-union animus by Hall was presented. Gutierrez was
given union time off work to prepare this and other grievances. The reasons for not preparing
grievances in the Print Shop are rational. Credibility determinations have been made in favor
of Hall. Gutierrez does not argue disparate treatment, departure from established procedures
and standards, or any other factor demonstrating nexus. Thus, Gutierrez failed to establish a
" The complaint does not allege protected activity in Gutierrez' request for union
representation.
"7
17
Gutierrez' post-hearing brief argued the elements of interference, but the complaint
alleged discrimination/retaliation, not interference.
17

prima facie case
of
discrimination/retaliation. Accordingly, the burden
of
proof is not shifted
to Respondent BOE to demonstrate it would have issued the January 19 memo to Gutierrez
even in the absence
of
his protected activity.
Even assuming that Gutierrez had demonstrated a prima facie case
of
discrimination/retaliation, Respondent BOE established non-discriminatory, legitimate
business reasons for issuing the January 19, 2010 memo to him even in the absence
of
his
protected activity. The memo addressed two issues: Gutierrez' protest
of
the female
employee's training and intent to file a grievance over it, and his complaint over not being
allowed to write the grievance in the work unit. 	Gutierrez was granted union time
off
work
to
prepare the grievance in non-Print Shop locations where he had previously prepared
grievances. He chose not to utilize these alternative sites, and ultimately did not file the
grievance.
Respondent BOE established that it would have taken the adverse action
of
issuing the
January 19, 2010 memo to Gutierrez notwithstanding his protected activity and/or in the
absence
of
his protected conduct. Gutierrez' protected activity
of
expressing an intent to file a
grievance and seeking work time to prepare it was not the reason for the adverse action.
Accordingly, the unfair practice charge and unfair practice complaint are dismissed.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire
record in this matter, the unfair practice complaint and underlying unfair practice charge in
Case No. SA-CE-1849-S, Alfred Gutierrez
v.
State
of
California (Board
of
Equalization), are
hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
18
prima facie case of discrimination/retaliation. Accordingly, the burden of proof is not shifted
to Respondent BOE to demonstrate it would have issued the January 19 memo to Gutierrez
even in the absence of his protected activity.
Even assuming that Gutierrez had demonstrated a prima facie case of
discrimination/retaliation, Respondent BOE established non-discriminatory, legitimate
business reasons for issuing the January 19, 2010 memo to him even in the absence of his
protected activity. The memo addressed two issues: Gutierrez' protest of the female
employee's training and intent to file a grievance over it, and his complaint over not being
allowed to write the grievance in the work unit. Gutierrez was granted union time off work to
prepare the grievance in non-Print Shop locations where he had previously prepared
grievances. He chose not to utilize these alternative sites, and ultimately did not file the
grievance.
Respondent BOE established that it would have taken the adverse action of issuing the
January 19, 2010 memo to Gutierrez notwithstanding his protected activity and/or in the
absence of his protected conduct. Gutierrez' protected activity of expressing an intent to file a
grievance and seeking work time to prepare it was not the reason for the adverse action.
Accordingly, the unfair practice charge and unfair practice complaint are dismissed.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire
record in this matter, the unfair practice complaint and underlying unfair practice charge in
Case No. SA-CE-1849-S, Alfred Gutierrez v. State of California (Board of Equalization), are
hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
18

Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916)322-8231	322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit.
8,
§ 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements ofCalifornia Code
of
Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit.
8,
§ 32135,
subds. (b), (c) and (d); see also Cai. Code Regs., tit.
8, §§ 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Christine A. Bologna
Acting Chief Administrative Law Judge
19
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
(916)
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, $ 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, $8 32135, subd. (a) and 32130; see also Gov. Code,
$ 1 1020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, $ 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $8 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $$ 32300, 32305, 32140,
and 32135, subd. (c).)
Christine A. Bologna
Acting Chief Administrative Law Judge
19