City of Beverly Hills (Transportation Department) (PERB 1913M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
F
SAMSON TESFASION,
Charging Party,
V.
CITY OF BEYERL Y HILLS
(TRANSPORTATION DEPARTMENT),
Respondent.
Case No. LA-CE-282-M
PERB Decision No. 	1913-M
June 	26, 	2007
Appearances: 	Samson Tesfasion, on his own behalf; Richards, Watson, Gershon by Roy A.
Clarke, Assistant City Attorney, for City of Beverly Hills (Transportation Department).
Before Shek, McKeag and Neuwald, Members.
DECISION
SHEK, Member: 	This case is before the Public Employment Relations Board (Board)
on appeal by Samson Tesfasion (Tesfasion) of a Board agent's dismissal (attached) of his
unfair practice charge. The charge alleged that the City of Beverly Hills (Transportation
Department) (City) violated the Meyers-Milias-Brown Act (MMBA) 1 by denying him his
deceased brother Michael Tesfasion's (Michael) life insurance benefits.2
The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charges, the warning and dismissal letters, Tesfasion's appeal and the
City's response. The Board finds the warning and dismissal letters to be free of prejudicial
error and adopts them as the decision of the Board itself.
1MMBA is codified at Government Code section 3500, et seq.
2Absent any evidence to substantiate Tesfasion's allegation that he is the executor of his
deceased brother Michael's estate, it is not necessary for us to decide whether or not Tesfasion,
as the alleged estate executor, has any standing to file a charge on behalf of Michael.

ORDER
The unfair practice charge in Case No. LA-CE-282-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Neuwald joined in this Decision.
2

STATE
OF
CALYFORNIA 	ARNOLD SCHWARZENEGGER,
Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1020
Fax: (510) 622-1027
F
October 5, 2006
Samson Tesfazion
83
9 West Adams Blvd., #204
Los Angeles, CA 90007
Re: 	Samson Tesfazion v. City
of
Beverly Hills (Transportation Department)
Unfair Practice Charge No. LA-CE-282-M
DISMISSAL LETTER
Dear Mr. Tesfazion:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or'Board) on May 19, 2006. 1 You allege that the City
of
Beverly Hills
(Transportation Department) violated the Meyers-Milias-Brown Act (MMBA)2
by denying you
your deceased brother's benefits.
I indicated to you in my attached letter dated August 30 that the above-referenced charge did
not state a prima facie case. 	You were advised that,
if
there were any factual inaccuracies or
additional facts which would correct the deficiencies explained in that letter, you should amend
the charge. You were further advised that, unless you amended the charge to state a prima
facie case or withdrew it prior to September 11, the charge would be dismissed. On September
7, I granted an extension until September 25. On September 18, I received a first amended
charge.
Your amendment contains no new information that establishes a prima facie violation.
Essentially, you bonfirm that your brother, Michael Tesfazion, worked for the City
of
Beverly
Hills for many years as a parking permit assistant. He began his employment on March 18,
1989, and was a valued employee
of
the City's engineering/transportation department. He was
a member
of
the Part-Time Unit, whose members may work at or near 40 hours in any
particular week
br
weeks3 and for whom no life insurance benefit had been negotiated.
Michael became ill in 2001, had heart surgery, and then returned to work. Unfortunately, your
brother passed away on December 20, 2005 due to cardiac arrest and cardiomyopathy.
1 All dates refer to calendar year 2006 unless otherwise indicated.
2 The MMBA is codified at Government Code section 3500 et seq. The text
of
the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
3 The pay stubs that you attached indicate that he earned base bay for 80 hours and
overtime pay for 14.50 hours for the 2 week pay period ending September 2, 2005, and base
pay for 77.50 hours and overtime pay for 4 hours for the 2 week pay period ending December
9, 2005. The number of hours worked and pay conform to the provisions outlined in Section 9.
Hours of the Part-Time Unit MOU.

LA-CE-282-M
October 5, 2006
Page 2
Your amended charge re-asserts your belief that Michael had a life insurance policy through
the City, as demonstrated by the deduction
of
93
cents per pay period for survivor benefits on
the two pay stub~. A copy
of
his death certificate and two letters dated December 28, 2004 and
January 5, 2005 from City personnel confirming Michael's employment status were also
submitted.
My
warning letter analyzed your allegations using the standing to file4 and unilateral change
standards. In addition, to establish a prima facie case
of
discrimination in violation
of
Government Code section 3506 and PERB Regulation 32603(a), the charging party must show
that: 	(1) the employee exercised rights under MMBA; (2) the employer had knowledge
of
the
exercise
of
those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employee because
of
the exercise
of
those rights. (Campbell Municipal Employees
Association v. City
of
Campbell (1982)
131
Cal.App.3d 416 (Campbell); San Leandro Police
Officers Association v. City
of
San Leandro (1976) 55 Cal.App.3d 553.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more
of
the following nexus factors should be present: (1) the employer's disparate
treatment
of
the employee (Campbell, supra); (2) the employer's departure from established
procedures and itandards when dealing with the employee (San Leandro Police Officers
Association, supra.); (3) the employer's inconsistent or contradictory justifications for its
actions (San Leandro Police Officers Association, supra.); (4) the employer's cursory
investigation
of
the employee's misconduct; (5) the employer's failure to offer the employee
justification at the time it took action or the offering
of
exaggerated, vague, or ambiguous
reasons; or (6) employer animosity towards union activists (San Leandro Police Officers
Association, supra; Los Angeles County Employees Association v. County
of
Los Angeles
(1985) 168 Cal.App.3d 683.).
Unfortunately, you have no standing to file this charge as you are not an employee
of
the City.
In addition, your brother did not exercise rights under MMBA for which the City undertook
either a unilater~l change or somehow discriminated against him in violation
of
Government
Code section 3566 and PERB regulation 32603(a). 	Finally, the deduction
of
93 cents per pay
period for surviv'or benefits shown on the two stubs you submitted does not amount to a prima
facie violation. Therefore, I am dismissing the charge based on the facts and reasons contained
in this and my August 30, 2006 letter.
Right to Appeal;'
4 Michael's death certificate in the "Informant" section names you as his brother and
lists your address.

LA-CE-282-M
October
5,
2006:
Page 3
Pursuant to PERB Regulations,5 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(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
Regulation 32135(d), provided the filing party also places the original, together with the
required
numbe;of
copies and proof
of
service, in the U.S. mail. (Regulations 32135(b), (c)
and (d); see also'Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-8231
FAX: (916) 327-7960
If
you file a timJly appeal
of
the refusal to issue a complaint, any other party may file with the
Board an originil and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and
1a
"proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
	··
Extension of Time
A request for an:extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at feast three (3) calendar days before the expiration of the time required for
5 PERB'sRegulations are codified at California Code of Regulations, title 8, section
31001 et seq.

(
LA-CE-282-M
October 5, 2006
Page 4
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by
proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have,expired.
Sincerely,
ROBIN WESLEY
Acting General Counsel
Regional Director
Attachment
cc: 	Sandra Olivencia

STATE
OF
CALIFORNIA	
r 	ARNOLD
SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone:
(5
I 0) 622-1020
Fax: (510) 622-1027
F
August 30, 2006
SAMSON TESFAS ION
474 So. Hartford
Ave.,#
7
Los Angeles, CA 90017
Re: 	Samson Tesfasion v. City
of
Beverly Hills Transportation Department
Unfair Practice Charge No. LA-CE-282-M
WARNING LETTER
Dear Mr. Tesfasion:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 19, 2006. You allege that the City
of
Beverly Hills
Transportation Department violated the Meyers-Milias-Brown Act (MMBA) 1 by denying you
your deceased brother's benefits.
My investigation revealed the following. You are the brother
of
Michael Tesfasion who was
employed by the City
of
Beverly Hills on March 18, 1989, through the date
of
his death on
December 20, 2005. Michael was a regular part-time employee who worked in the
transportation department as a parking permit assistant. This classification is included in the
Part-Time Unit represented by the Municipal Employees Association. A Memorandum
of
Understanding (MOU) currently exists with effective dates
of
January
1,
2005 through
December 31, 2006.
As a member of the Part-Time Unit, Michael was eligible for health insurance (Section 4.
Health Insurance and Section
5.
Dental Plan) and retirement benefits through the Public
Employees Retirement System (PERS). Life insurance is not a benefit that has been negotiated
for part-time employees.
Part-time employees may work at or near 40 hours in any particular week or weeks; hours
worked over 40 hours a week are compensated at 1 ½ the hourly rate (Section 9. Hours). Part
time employees are also entitled to leave benefits (Section 6. Leave Benefits). At the time
of
his death, Michael had accumulated approximately 130 hours pursuant to this provision.
However, pursuant to section 6.A.2, "leave hours remaining upon separation from City
employment shall have no monetary value."
In your charge, you allege that the City denied you Michael's life insurance benefit, leave
of
absence payments, and other death benefits. 	You further assert that some of your brother's pay
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-282-M
August 30, 2006
Page 2
stubs indicate that he worked 40 hours per week, over 40 hours per week, and two-three hours
less than 40 hours per week, thereby entitling him to life insurance.
Analysis
PERB Regulation 32602 (b) provides that
(b) Except
as
provided in subsections (c), (d) and (e), unfair practice charges may be
filed by an employee, employee organization, or employer against an employee
organization or employer. (Emphasis added)
You are not an employee
of
the City, nor have you filed any documentation that designates you
as
executor
of
Michael's estate. Therefore, you do not have standing to file an unfair practice
charge and for that reason, your charge must be dismissed.
Your charge does not specify what specific section
of
the statute the City has violated nor do
you provide facts to demonstrate a prima facie violation. 	I have therefore reviewed your
allegations and analyzed them as alleged unilateral changes. (Lillian H. Burton v. Los Angeles
County Education Association, CTA/NEA (1999) PERB Decision No. 1358.)
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),2 PERB utilizes either the "per se" or "totality
of
the conduct" test,
depending on the specific conduct involved and the effect
of
such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143.)3 Unilateral
changes are considered "per se" violations
if
certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Vernon Fire Fighters v. City
of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin County Employees Association v. City
of
Stockton (1984)
161
Cal.App.3d 813; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
Individual employees do not have standing to allege unilateral change violations, (Oxnard
School District (Gorcey/Tripp) (1988) PERB Decision No. 667.) nor allege violations
of
sections which protect the collective bargaining rights
of
employee organizations. (State
of
California (Department
of
Corrections) (1993) PERB Decision No. 972-S.)
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001etseq
..
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

(
LA-CE-282-M
August 30, 2006
Page 3
Your brother was a member
of
the Part-Time Unit, and as such, was eligible to work 40 hours
or more in any particular week(s). However, it was his unit designation, not the number
of
hours worked, that made him ineligible for a life insurance benefit.4 Finally, the MOU
specifically provides that leave balances have no monetary value.
For these reasons the charge, as presently written, does not state a prima facie case.
	If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared
on
a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
	If
I do not receive an
amended charge or withdrawal from you before September 11, 2006, I shall dismiss your
charge.
	If
you have any questions, please call me at the above telephone number.
Sincerely,
Anita
I.
Martinez
Regional Director
AIM
Apparently another unit in the City represented by the Municipal Employees
Association has a life insurance benefit.