County of Merced (PERB 1975M)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF STATE,	AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES,	COUNTY, AND MUNICIPAL EMPLOYEES,
LOCAL	LOCAL 2703,	2703,
Charging Party,	Charging Party,
V .	V.
COUNTY OF MERCED,	COUNTY OF MERCED,
Respondent.	Respondent.
Case No. SA-CE-502-M
PERB Decision No. 	1975-M
September 5, 2008
Appearance: Law Offices of Bennett & Sharpe by Barry J. Bennett, Attorney, for American
Federation of State, County, and Municipal Employees, Local 2703.
Before Neuwald, Chair; McKeag, \Vesley and Dowdin Calvillo, Members.
DECISION
DOWD IN CALVILLO, Member: 	This case comes before the Public Employment
Relations Board (PERB or Board) on appeal by the American Federation of State, County, and
Municipal Employees, Local 2703 (AFSCME), of a Board agent's dismissal (attached) of its
unfair practice charge. 	The charge alleged that the County of Merced (County) violated the
Meyers-Milias-Brown Act (MMBA) 1 by retaliating against James Toews (Toews), an
employee of the County's Department of Parks and Recreation, because of his protected
activities.
The Board has reviewed the entire record in this matter, including but not limited to the
unfair practice charge, the Board agent's warning and dismissal letters, and AFSCME's appeal.
Based on this review, we adopt the Board agent's warning and dismissal letters as the decision
of the Board itself, subject to the following discussion.
1MMBA is codified at Government Code section 3500 et seq.
Appearance: Law Offices of Bennett & Sharpe by Barry J. Bennett, Attorney, for American
Federation of State, County, and Municipal Employees, Local 2703.
Before Neuwald, Chair; Mckeag, Wesley and Dowdin Calvillo, Members.
DECISION
DOWDIN CAL VILLO, Member: This case comes before the Public Employment
Relations Board (PERB or Board) on appeal by the American Federation of State, County, and
Municipal Employees, Local 2703 (AFSCME), of a Board agent's dismissal (attached) of its
unfair practice charge. The charge alleged that the County of Merced (County) violated the
Meyers-Milias-Brown Act (MMBA)' by retaliating against James Toews (Toews), an
employee of the County's Department of Parks and Recreation, because of his protected
activities.
The Board has reviewed the entire record in this matter, including but not limited to the
unfair practice charge, the Board agent's warning and dismissal letters, and AFSCME's appeal.
Based on this review, we adopt the Board agent's warning and dismissal letters as the decision
of the Board itself, subject to the following discussion.
MMBA is codified at Government Code section 3500 et seq.

DISCUSSION
Protected Activity
The Board agent concluded that the charge failed to allege facts showing Toews
engaged in protected activity. This conclusion was based on two findings. 	First, the Board
agent found the allegation that Toews was an AFSCME member failed to demonstrate
protected activity as a matter
of
law. 	Second, the Board agent found the allegation that
AFSCME represented Toews "during various disputes with the County that arose in the fall
of
2006" failed to comply with PERB Regulation 32615(a)(5)2b because it was "vague and
ambiguous."
We agree with both
of
these findings but nonetheless conclude that the charge did
allege facts showing that Toews engaged in protected activity. In addition to the two
allegations considered by the Board agent, the charge also alleged: "On February 13, 2007, the
November 27, 2006 Intent to Suspend was downgraded to a written warning after Toews and
AFSCME questioned whether that level
of
discipline was justified." Representation by a union
in a work-related dispute is a protected activity. 	(Regents
of
the University
of
California
(Costa) PERB Decision No. 1087-H; Los Angeles Unified School District (1992) PERB
Decision No. 957 (LAUSD).) This allegation therefore provides a "clear and concise"
statement
of
facts showing that Toews engaged in conduct protected by the MMBA. Further,
it establishes that the County had knowledge of Toews' protected activity. Accordingly, we
conclude that the charge sufficiently alleged both Toews' protected activity and the County's
knowledge
of
his protected activity.
2PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq. PERB Regulation 32615(a)(5) states that a charge must contain a "clear and concise
statement of the facts and conduct alleged to constitute an unfair practice."
2
DISCUSSION
Protected Activity
We agree with both of these findings but nonetheless conclude that the charge did
allege facts showing that Toews engaged in protected activity. In addition to the two
allegations considered by the Board agent, the charge also alleged: "On February 13, 2007, the
November 27, 2006 Intent to Suspend was downgraded to a written warning after Toews and
AFSCME questioned whether that level of discipline was justified." Representation by a union
in a work-related dispute is a protected activity. (Regents of the University of California
(Costa) PERB Decision No. 1087-H; Los Angeles Unified School District (1992) PERB
Decision No. 957 (LAUSD).) This allegation therefore provides a "clear and concise"
statement of facts showing that Toews engaged in conduct protected by the MMBA. Further,
it establishes that the County had knowledge of Toews' protected activity. Accordingly, we
conclude that the charge sufficiently alleged both Toews' protected activity and the County's
knowledge of his protected activity.
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq. PERB Regulation 32615(a)(5) states that a charge must contain a "clear and concise
statement of the facts and conduct alleged to constitute an unfair practice."
2

Adverse Action
The Board agent found that neither the July 16, 2007 letter advising Toews that he
would be subject to termination if he did not return to work by July 23, nor the July 23 notice
to vacate the County-owned residence, constituted adverse action. In making these findings,
the Board agent relied on State of California (Department of Health Services) (1999) PERB
Decision No. 1357-S (State of California (DHS)), for the proposition that "notice from an
employer that it would be seeking adverse action is not itself an adverse action." We find this
to be an inaccurate statement of the law arising from an overly broad interpretation of State of
California (DHS).
It is well-established in PERB case law that unequivocal notice of the employer's
intent to impose discipline is an adverse action. 	(Carmichael Recreation and Park District
(2008) PERB Decision No. 1953-M [notice of intent to suspend]; LAUSD [notice of intended
dismissal]; Monterey County Office of Education (1991) PERB Decision No. 913 [notice of
intent to dismiss].) While it appears to reach a contrary result, State of California (DHS) is in
fact distinguishable from those cases because it does not involve unequivocal notice of intent
to discipline. There, the employee's supervisor told the employee that "she would be seeking
adverse action against him." The supervisor provided no specifics about the threatened
adverse action, orally or in writing. The Board found the supervisor's isolated statement
insufficient to constitute adverse action for purposes of establishing a prima facie case of
retaliation. In light of its facts, State of California (DHS) does not apply, as the dismissal
suggests, to all notices of intent to impose discipline. Rather, the case applies only when the
employer's notice does not indicate that it has made a firm decision to impose discipline, such
as when the notice fails to provide any specifics of the action sought or the reasons therefore.
3
Adverse Action
It is well-established in PERB case law that unequivocal notice of the employer's
intent to impose discipline is an adverse action. (Carmichael Recreation and Park District
(2008) PERB Decision No. 1953-M [notice of intent to suspend]; LAUSD [notice of intended
dismissal]; Monterey County Office of Education (1991) PERB Decision No. 913 [notice of
intent to dismiss].) While it appears to reach a contrary result, State of California (DHS) is in
fact distinguishable from those cases because it does not involve unequivocal notice of intent
to discipline. There, the employee's supervisor told the employee that "she would be seeking
adverse action against him." The supervisor provided no specifics about the threatened
adverse action, orally or in writing. The Board found the supervisor's isolated statement
insufficient to constitute adverse action for purposes of establishing a prima facie case of
retaliation. In light of its facts, State of California (DHS) does not apply, as the dismissal
suggests, to all notices of intent to impose discipline. Rather, the case applies only when the
employer's notice does not indicate that it has made a firm decision to impose discipline, such
as when the notice fails to provide any specifics of the action sought or the reasons therefore.
w

Here, the County "notified Toews in writing that he was absent without leave as
of
July 16, 2007 and directed him to return to work by July 23, 2007 or the department would
begin the Intent to Terminate process." This letter did not provide unequivocal notice that the
County had decided to terminate Toews' employment. Rather, it shows that as
of
July
16
the
County's decision to terminate still depended upon whether or not Toews returned to work by
July 23. 	Therefore, under State
of
California (DHS), the July 16, 2007 letter did not constitute
adverse action.
Regarding the notice to vacate, it appears from the facts alleged in the charge that the
County provided Toews with a residence at Yosemite Lake Park
as
a part
of
his employment.
When Toews was terminated, he lost his entitlement to reside at the park. Because he no
longer had a place to live, the County's elimination
of
this entitlement was certainly adverse to
Toews. 	(See Trustees
of
the California State University (2003) PERB Decision No. 1507-H
[stating "disciplinary action may have a direct impact on wages, health and welfare benefits,
and other terms and conditions
of
employment since such action may reduce or eliminate
entitlement to those items"].) The notice to vacate informed Toews
of
the County's definite
intent to take this adverse action because
of
his termination. 	Therefore, the notice itself
constituted an adverse action. Nonetheless, the charge fails to establish that the County took
this adverse action because
of
Toews' engagement in protected activity. Consequently, this
allegation does not support a prima facie case
of
retaliation.
Additional Facts on Appeal
PERB Regulation 32635(b) states that a "charging party may not raise new allegations
or present new supporting evidence on appeal without establishing good cause." The Board
has found good cause when "the information provided could not have been obtained through
4
Here, the County "notified Toews in writing that he was absent without leave as of
July 16, 2007 and directed him to return to work by July 23, 2007 or the department would
begin the Intent to Terminate process." This letter did not provide unequivocal notice that the
County had decided to terminate Toews' employment. Rather, it shows that as of July 16 the
County's decision to terminate still depended upon whether or not Toews returned to work by
July 23. Therefore, under State of California (DHS), the July 16, 2007 letter did not constitute
adverse action.
Regarding the notice to vacate, it appears from the facts alleged in the charge that the
County provided Toews with a residence at Yosemite Lake Park as a part of his employment.
When Toews was terminated, he lost his entitlement to reside at the park. Because he no
longer had a place to live, the County's elimination of this entitlement was certainly adverse to
Toews. (See Trustees of the California State University (2003) PERB Decision No. 1507-H
[stating "disciplinary action may have a direct impact on wages, health and welfare benefits,
and other terms and conditions of employment since such action may reduce or eliminate
entitlement to those items"].) The notice to vacate informed Toews of the County's definite
intent to take this adverse action because of his termination. Therefore, the notice itself
constituted an adverse action. Nonetheless, the charge fails to establish that the County took
this adverse action because of Toews' engagement in protected activity. Consequently, this
allegation does not support a prima facie case of retaliation.
Additional Facts on Appeal
PERB Regulation 32635(b) states that a "charging party may not raise new allegations
or present new supporting evidence on appeal without establishing good cause." The Board
has found good cause when "the information provided could not have been obtained through
CA

reasonable diligence prior to the Board agent's dismissal of the charge." (Sacramento City
Teachers Association (Ferreira) (2002) PERB Decision No. 1503.)
The Board agent concluded that the charge failed to demonstrate a nexus between
Toews' protected activity and the County's adverse actions. AFSCME claims on appeal that
such a connection did exist and provides additional facts in support of that connection.
Specifically, AFSCME alleges on appeal that Deputy Director of Parks and Recreation Peggy
Vejar "played a substantial role in the decision to terminate" Toews, "signed the letter of intent
to terminate as well as the notice to vacate the residence," and "was carbon copied on other
written correspondence to Toews." Nothing in the appeal indicates that AFSCME could not
have discovered these facts prior to the dismissal of the charge. Accordingly, the Board will
not consider these allegations on appeal.
ORDER
The unfair practice charge in Case No. SA-CE-502-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Neuwald and Members McKeag and Wesley joined in this Decision.
5
reasonable diligence prior to the Board agent's dismissal of the charge." (Sacramento City
Teachers Association (Ferreira) (2002) PERB Decision No. 1503.)
The Board agent concluded that the charge failed to demonstrate a nexus between
Toews' protected activity and the County's adverse actions. AFSCME claims on appeal that
such a connection did exist and provides additional facts in support of that connection.
Specifically, AFSCME alleges on appeal that Deputy Director of Parks and Recreation Peggy
Vejar "played a substantial role in the decision to terminate" Toews, "signed the letter of intent
to terminate as well as the notice to vacate the residence," and "was carbon copied on other
written correspondence to Toews." Nothing in the appeal indicates that AFSCME could not
have discovered these facts prior to the dismissal of the charge. Accordingly, the Board will
not consider these allegations on appeal.
ORDER
The unfair practice charge in Case No. SA-CE-502-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Neuwald and Members Mckeag and Wesley joined in this Decision.

------------------------ -----	
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PUBLIC EMPLOYMENT RELA
e
Fax: (213) 73
Bennett & Sharpe
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-7508
Fax: (213) 736-4901
January 31, 2008
Barry J. Bennett, Esquire
Bennett & Sharpe
2444 Main Street, Suite 110
Fresno, CA 93721-2751
Re: 	AFSCME Local 2703
v.
County
of
Merced
Unfair Practice Charge No. SA-CE-502-M	Unfair Practice Charge No. SA-CE-502-M
DISMISSAL LETTER
Dear Mr. Bennett:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 17, 2007. AFSCME Local 2703 (AFSCME
the County of Merced (County) violated the Meyers-Milias-Brown Act (MMBA or Act) by	the County of Merced (County) violated the Meyers-Milias- 	1
retaliating against AFSCME bargaining unit member James Toews for engaging in protected	es Toews for engaging in protected
activity.
I informed Mr. Bennett in my attached letter dated January 14, 2008, that the above-referenced
charge did not state a prima facie case. Mr. Bennett was advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter, he
should amend the charge. Mr. Bennett was further advised that, unless he amended the charge
to state a prima facie case or withdrew it prior to January 25, 2008, the charge would be
dismissed.
On January 23, 2008, Mr. Bennett's assistant, Heather Phillips, requested an extension
of
time
to either withdraw the charge or file an amended charge on behalf
of
AFSCME. Ms. Phillips'
request was granted and AFSCME was given until February 4, 2008, to amend the charge.
However, on January 31, 2008, Ms. Philips informed me via telephone that Mr. Bennett was
not interested in filing an amended charge. Accordingly, the charge is dismissed for the
reasons contained in my January 14, 2008 letter.
ARNOLD SCHWARZENEGGER, Governor
530 Wilshire Blud., Suite 1435
Los Angeles, CA 90010-2334
elephone: (213) 736-7508
PERB
January 31, 2008
Barry J. Bennett, Esquire
2444 Main Street, Suite 110
Fresno, CA 93721-2751
Re: 	AFSCME Local 2703 v. County of Merced
DISMISS
Dear Mr.
The above-referenced unfair practice charge was filed with the Public Employ
Board (PERB or Board) on August 17, 2007. AFSCME Local 2703 (AFSCME) alleges that
Bennett:
) alleges that
Brown Act (MMBA or Act) 	by
retaliating against AFSCME bargaining unit member Jam
activity.
1
TThe MMBA is codified at Government Code section 3500 etseq. The text of the	seq. The text of the
MMBA	MMBA and the Board's Regulations may be found on the Internet at w	and the Board's Regulations may be found on the Internet at ww.perb.ca.gov.

SA-CE-502-M
January 31, 2008
Page 2
Right to Appeal
Pursuant to PERB Regulations,2 AFSCME may obtain a review of this dismissal of the charge
by filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.	the 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
ofRegulation 32135(d), provided the filing party also places the original, together with the
required number of copies and proof of service, in the U.S. mail. 	(Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
AFSCME files a timely appeal of the refusal to issue a complaint, any other party may file
with the Board an original and five copies of a statement in opposition within twenty (20)
calendar days following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. 	(See.Regulation 32140 for the required contents.) 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).)
2 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

SA-CE-502-M
January 31, 2008
Page 3
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must
be
in writing and filed with the Board at the previously noted address. 	A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. 	The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. 	(Regulation 32132.)
Final Date
If
no
appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI
R.
BOGERT
General	General Counsel	Counsel
By
Sean McKee
Regional Attorney
Attachment
cc: 	Fernanda A Saude, Assistant County Counsel
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STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-7508
Fax: (213) 736-4901
January 14, 2008
Barry J. Bennett, Esquire
Bennett & Sharpe
2444 Main Street, Suite 110
Fresno, CA 93721-2751
Re: 	AFSCME Local 2703
v.
County
of
Merced
Unfair Practice Charge No. SA-CE-502-M
WARNING LETTER
Dear Mr. Bennett:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Rn.arrl
/PPRB
or
Rn.arrl\ 	August 17 	AFSCM
	n.nnl
'1"70'.l
	AFSCMD\ nlleges that
the County
of
Merced (County) violated the Meyers-Milias-Brown Act (MMBA or Act)1
by
retaliating against AFSCME bargaining unit member James Toews for engaging in protected	retaliating against AFSCME bargaining unit member James Toews for engaging in protected
activity.
Facts
AFSCME is an employee organization that represents approximately 1400
of
the County's
employees. James Toews (Toews) was hired by the County in July 2003. Toews joined
AFSCME in August 2006.
"Prior to the time when Toews joined AFSCME," the County's Deputy Director
of
Parks and
Recreation, Peggy Vejar (Vejar), told Toews and other employees that "there was no need for
them to join AFSCME because they were already represented." "Following negotiations for a
pay increase in 2006 where AFSCME rejected [the County's] proposed pay scales," Vejar told
Toews and other employees that "AFSCME had just screwed them out of a 16 percent pay
increase."
AFSCME's charge then provides:
After joining AFSCME, Toews was provided with representation
during various disputes with [the County] that arose in the Fall of
2006. Subsequent to these events, [the County] began a
campaign of retaliation against Toews that includes the
following:
1 The	he MMBA is codified at Government Code section 3500 et seq. The text of 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.
ARNOLD
SCHWARZENEGGER, Governor
Att	
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ARNOLD SCHWARZENEGGER, Governor
J
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 17, 2007. AFSCME Local 2703 (AFSCME) alleges that
the County of Merced (County) violated the Meyers-Milias-Brown Act (MMBA or Act) by
activity.
w	MMBA and the Board's Regulations may be found on the Internet at

SA-CE-502-M
January 14, 2008
Page 2
a. 	In September, 2006, Toews received a performance
evaluation where he was rated as "needs improvement" in
his quality of work and leadership potential. Prior to this
date, Toews had never received so much as a "Needs
Improvement" on any evaluation of work performed at
Merced County;
b. 	On September 29, 2006 David Hatcher, Toews'
immediate supervisor, told Toews that he would bring him
the items from his in-box. Hatcher delivered 	e
with a note to Toews directing him to pick up
his paperwork every Friday, especially when in town;
c. 	On October 20, 2006, Hatcher complained to other
employees that he was unable to reach Toews by phone,
though he made no attempts to call Toews' personal cell
phone;
d. 	In or around November, 2006, [the County] issued to the
Park Caretakers new procedures for completing weekly
work schedules and Vejar stated that because of
AFSCME, Park Caretakers would be required to complete
the weekly schedule for posting by Wednesday;
e. 	In or around November, 2006, [the County] directed
Toews [to] no longer 	use his personal computer for
creating weekly work schedules, but to complete them by
hand instead. Toews had previously used his personal
computer for creating work schedules and was provided
ink by [the County]. 	[The County] was no longer willing
to supply ink to Toews for printing work schedules;
f. 	On November 17, 2006, [the County] issued a notice to
Toews that the winter work schedule would be changed
due to an increase in the number of park reservations.
This new schedule now required Toews to work on
weekends during the winter months, when he normally
would have weekends off;
g. 	On November 27, 2006, Toews was issued a letter of
Intent to Suspend for neglect of duty, dishonesty, and
conduct unbecoming of a public employee;
C.
d
e.
f .
g.
In September, 2006, Toews received a performance
evaluation where he was rated as "needs improvement" in
his quality of work and leadership potential. Prior to this
date, Toews had never received so much as a "Needs
Improvement" on any evaluation of work performed at
Merced County;
On September 29, 2006 David Hatcher, Toews'
immediate supervisor, told Toews that he would bring him
the items from his in-box. Hatcher delivered the
paperwork with a note to Toews directing him to pick up
his paperwork every Friday, especially when in town;
On October 20, 2006, Hatcher complained to other
employees that he was unable to reach Toews by phone,
though he made no attempts to call Toews' personal cell
phone;
In or around November, 2006, [the County] issued to the
Park Caretakers new procedures for completing weekly
work schedules and Vejar stated that because of
AFSCME, Park Caretakers would be required to complete
the weekly schedule for posting by Wednesday;
In or around November, 2006, [the County] directed
Toews [to] no longer . . . use his personal computer for
creating weekly work schedules, but to complete them by
hand instead. Toews had previously used his personal
computer for creating work schedules and was provided
ink by [the County]. [The County] was no longer willing
to supply ink to Toews for printing work schedules;
On November 17, 2006, [the County] issued a notice to
Toews that the winter work schedule would be changed
due to an increase in the number of park reservations.
This new schedule now required Toews to work on
weekends during the winter months, when he normally
would have weekends off;
On November 27, 2006, Toews was issued a letter of
Intent to Suspend for neglect of duty, dishonesty, and
conduct unbecoming of a public employee;
th
paperwork
...

SA-CE-502-M	SA-CE-502-M
January 14, 2008	January 14, 2008
Page 3	Page 3
h. 	On February 13, 2007, the November 27, 2006 Intent to
Suspend was downgraded to a written warning after
Toews and AFSCME questioned whether that level of
discipline was justified;
1. 	On March 23, 2007, Toews was placed on a medical leave
of absence, after filing a workers' compensation claim for
stress and anxiety resulting from his treatment at his
workplace;
j. 	On June 7, 2007, while on medical leave of absence,
Toews underwent surgery for an injury unrelated to his
workers' compensation claim. Toews was provided with
a release to return to work on July 30, 2007 with no
restrictions;
k. 	On July 2, 2007, [the County] informed Toews that he had	On July 2, 2007, [the County] informed Toews that he had
been released by his workers' compensation doctor to	been released by his workers' compensation doctor to
return to work with no restrictions. Toews was also	return to work with no restrictions. Toews was also
informed that his FMLA had expired on June 15, 2007,	informed that his FMLA had expired on June 15, 2007,
but a 30 day extension of his leave of absence was	but a 30 day extension of his leave of absence was
authorized from June 15, 2007 to July 15, 2007;	authorized from June 15, 2007 to July 15, 2007;
1. 	On July 2, 2007, Toews requested an additional 15 day
extension to accommodate the doctor's order that he
remain off work until July 30, 2007 to recover from the
June 7, 2007 operation;
m. 	On July 5, 2007, [the County] denied Toews' request for
an additional 15 day extension of medical leave of
absence until July 30, 2007;
n. 	On July 16, 2007, [the County] notified Toews in writing
that he was absent without leave as of July 16, 2007 and
directed him to return to work by July 23, 2007 or the	directed him to return to work by July 23, 2007 or the
department would begin the Intent to Terminate process;
o. 	On July 23, 2007, [the County] notified Toews in writing
of its intent to terminate him effective July 30, 2007. [The
County] also provided 30 day notice that Toews was to
vacate the residence provided by the County by August
24, 2007;
p. 	On or about August 1, 2007, [the County] changed the	On or about August 1, 2007, [the County] changed the
locks to Yosemite Lake Park, preventing Toews from
h.
i.
J.
1.
On February 13, 2007, the November 27, 2006 Intent to
Suspend was downgraded to a written warning after
discipline was justified;
On March 23, 2007, Toews was placed on a medical leave
of absence, after filing a workers' compensation claim for
stress and anxiety resulting from his treatment at his
On June 7, 2007, while on medical leave of absence,
Toews underwent surgery for an injury unrelated to his
workers' compensation claim. Toews was provided with
a release to return to work on July 30, 2007 with no
restrictions;
Toews and AFSCME questioned whether that level of

SA-CE-502-M	SA-CE-502-M
January 14, 2008	January 14, 2008
Page4	Page 4
entering the park, and consequently his County supplied
residence, after business hours.
Discussion
PERB's Statute of Limitations
PERE Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department of Food and Agriculture) (1994) PERE
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERE Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School County (1991) PERE Decision No. 873.)
The	The charging party's burden also includes alleging facts showing that the unfair practice	charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months	charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing
of	prior to the filing of the charge. (Los Angeles Unified School County (2007) PERB Decision	the charge. (Los Angeles Unified School County (2007) PERE Decision
No.	No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited	1929; City
of
Santa Barbara (2004) PERE Decision No. 1628-M.) PERE
is
prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice	from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than	occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito	six months prior to the filing of the charge. (Coachella Valley Mosquito
and Vector Control County	and Vector Control County v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)	
v.
Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The	The limitations period begins to run once the charging party knows, or should have known, of	limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan	the conduct underlying the charge. (Gavilan Joint Community College County (1996) PERB	Joint Community College County (1996) PERE
Decision No. 1177.)	Decision No. 1177.)
As previously stated, the above-titled charge was filed on August 17, 2007. Applying PERB's
six-month statute of limitations to the present charge results in a determination that the alleged
unfair practices by the County occurring prior to February 17, 2007 are untimely. Specifically,
AFSCME alleges that in 2006 the County's Deputy Director of Parks and Recreation, Peggy
Vejar, made statements that interfered with AFSCME's rights. However, this allegation is
untimely because the alleged unlawful statements were made prior to February 17, 2007.
AFSCME also alleges that the County began retaliating against Toews for engaging in
protected activity in 2006. AFSCME asserts that the adverse actions the County imposed
against Toews for engaging in protected activity gradually escalated until Toews was
terminated in July 2007. The alleged unlawful adverse actions taken against Toews by the
County prior to February 17, 2007 are untimely because they occurred outside of PERE' s six
month statute of limitations.
Retaliation/Discrimination Occurring After February 17. 2007
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 the MMBA; (2) the employer had knowledge of the exercise of those

SA-CE-502-M
January 14, 2008
Page 5
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	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 County (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,
131
Cal.App.3d 416); (2) the employer's
departure from established procedures and standards when dealing with the employee (San
Leandro Police Officers Association, supra, 55 Cal.App.3d 553); (3) the employer's
inconsistent or contradictory justifications for its actions (Id.); (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 (Id.; Los Angeles Countv
Employees Association
v.
County of Los Angeles (1985) 168 Cal.App.3d 683).
Protected Activity
The Board has held that simply maintaining union membership
is
insufficient to demonstrate
that an employee engaged in protected activity. 	(Chula Vista Elementary School County
(1997) PERB Decision No. 1232; citing Novato Unified School County (1982) PERB Decision
No. 210.)
Here, AFSCME asserts that in 2006, Toews became an AFSCME member. Based on the
above-cited case law, Toews' membership in AFSCME is insufficient to demonstrate that he
engaged in protected activity. AFSCME also asserts that: "After joining AFSCME, Toews
was provided with representation during various disputes with [the County] that arose in the
Fall of 2006." Alleging that an employee was '~provided with representation during various
disputes in the Fall of 2006" does not satisfy PERB Regulation 32615(a)(5) because the
statement is vague and ambiguous. Consequently, AFSCME has failed to show that Toews
engaged in protected activity. Without demonstrating that Toews engaged in protected
activity, AFSCME cannot show that the County was aware that Toews engaged in protected
activity or that the County retaliated against Toews for engaging in protected activity. 	(Novato
Unified School County, supra, PERB Decision No. 210.)
However, for the reasons that follow, even if Toews did engage in protected activity when he
was "provided with representation during various disputes in the Fall of 2006" and the County
was aware that Toews engaged in protected activity, AFSCME has not demonstrated that the
County retaliated against Toews for being provided with representation from AFSCME.

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January 14, 2008
Page 6
1.	
Being Placed on Medical Leave
When determining whether an employee has suffered adverse action, the inquiry is whether a
reasonable person under the same circumstances would consider the action to have an adverse
impact on his or her employment. (SEIU Local 790 (Montgomery) (2004) PERB Decision
No. 1644-M; citing Regents
of
the University of California (1998) PERB Decision No. 1263-
H; Palo Verde Unified School County (1988) PERB Decision No. 689; Newark Unified School
County (1991) PERB Decision No. 864.)
Here, Toews was placed on a medical leave of absence after filing a workers' compensation
claim for stress and anxiety resulting from his treatment at his workplace. While the
imposition
of
involuntary disability leave is an adverse action (California State University,
Long Beach (1987) PERB Decision No. 641-H
),
2 AFSCME does not allege that Toews was
involuntarily placed on a medical leave of absence. The facts show that Toews requested to be
placed on medical leave to relieve the stress and anxiety he was encountering at his
workplace. 3 Therefore, since the purpose of the medical leave was to remedy Toews' stress
and anxiety he suffered while at work, a reasonable person under the same circumstances as
Toews would not consider being placed on medical leave adverse action.
2. 	Request for a 15 Day Extension of Medical Leave
On
July 5, 2007, Toews' request for an additional 15 day extension of medical leave was
denied by the County. The facts demonstrate that Toews' was granted medical leave because
of
his workers' compensation claim, not because
of
his operation. Toews' operation was
prompted because of "an injury unrelated to his workers' compensation claim." The facts also
show that Toews' request for an extension was prompted by his medical operation since
Toews' workers' compensation doctor released him with no restrictions on July 2, 2007. A
reasonable employee under the same circumstances would not consider the County's refusal to
grant Toews' additional medical leave for his workers' compensation claim adverse action
since Toews' request for additional medical leave was prompted by "an injury unrelated to his
workers' compensation claim." However, even if the County's actions did adversely affect
Toews' employment, AFSCME has failed to provide facts demonstrating the causal connection
or nexus between the County's denial of Toews' request and AFSCME' s representation
ofToews during "various disputes in the Fall of 2006."
In Konocti Unified School District (1982) PERB Decision No. 217, PERB refused to
automatically impute union animus to the entire school board despite finding that the
2 In Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608, the California Supreme
Court explained that it is appropriate to take guidance from cases that interpret California labor
relations statutes with parallel provisions.
3 This conclusion is supported by Toews' requests for a 30 and then 15-day extension to
remain on medical leave.
1.
Toews during "various disputes in the Fall of 2006."
In
"T

SA-CE-502-M
January 14, 2008
Page 7
superintendent harbored union animus. PERB relied heavily on the fact that the school board
was independent and that it rejected the superintendent's recommendations. 	(Id.)
Here, AFSCME offers the statements that Vejar made in 2006 as evidence that the County
possessed an unlawful motive when it denied Toews' request for an extension. However,
AFSCME does not allege that Vejar denied Toews' request for an extension. There are no
facts contained in the charge that demonstrate that Vejar had any connection to the County's
decision to deny Toews' extension request. 	In addition, AFSCME failed to show who denied
Toews' request for an extension on July 5, 2007. Thus, it is unknown whether the person who
denied Toews request was influenced by Vejar or whether he or she was capable of making an
independent decision. Accordingly, AFSCME has not demonstrated that Toews' request was
denied because he was "provided with representation during various disputes in the Fall of
2006."
3. 	Notice of Intent to Terminate
The Board has held that notice from an employer that it would be seeking adverse action is not
itself an adverse action. 	(State of California (Department of Health Services) (1999) PERB
Decision No. 1357-S, (Department of Health Services).) The Board reasoned that while the
employee "may have been apprehensive about a possible future adverse action, his subjective
reactions do not establish the required adverse action." (MJ
Here, in a letter dated July 16, 2007, the County notified Toews that if he did not return to
work by July 23, 2007, the County would begin the Intent to Terminate process. The County's
July 16, 2007 letter does not impose adverse action, but instead, notifies Toews of the
County's intent to take adverse action against him ifhe did not return to work by July 23,
2007. As a result, AFSCME has failed to show that a reasonable person under the same
circumstances as Toews would consider the action to have an adverse impact on his or her
employment.
4. 	Termination of Toews' Employment
Discharging an employee is an adverse action. (Regents of the University of California
(Einheber) (1997) PERB Decision No. 949-H.) On July 30, 2007, the County terminated
Toews' employment. The County alleged that it was terminating Toews' employment because
he did not report to work by July 23, 2007. AFSCME alleges that the County terminated
Toews' employment because he engaged in protected activity.
As previously stated, AFSCME has not demonstrated that Toews engaged in protected activity	As previously stated, AFSCME has not demonstrated that Toews engaged in protected activity
or that the County was aware that Toews engaged in protected activity. However, even if
Toews did engage in protected activity by being "provided with representation during various
disputes with [the County] that arose in the Fall of 2006," AFSCME has failed to demonstrate
the necessary connection or nexus between Toews' termination and the alleged protected
activity. As previously stated, the comments made by Vejar in 2006 cannot be automatically
imputed to the entire County. (Konocti Unified School District, supra, PERB Decision

(
\ 	(
SA-CE-502-M
January 14, 2008
Page 8
No. 217.) AFSCME does not allege that Vejar terminated Toews' employment or that Vejar
was in any way involved with the County's decision to discharge Toews. In addition, there are
no facts contained in the charge that show who terminated Toews' employment. 	Thus, it is
unknown whether the person who terminated Toews' employment was influenced by Vejar or
whether he or she was capable of making
an
independent decision. Therefore, AFSCME has
failed to show that the County possessed the requisite unlawful intent when it discharged
Toews, as required by Novato Unified School County, supra, PERB Decision No. 210.
5. 	Notifying Toews to Vacate the County Provided Residence
As previously stated, notice from an employer that it would be seeking adverse action is not	As previously stated, notice from an employer that it would be seeking adverse action is not
itself adverse action. (Department
of
Health Services, supra, PERB Decision No. 1357-S.) On
July 23, 2007, the County provided Toews with notice that he had 30 days to vacate the
residence provided by the County. Relying on the Board's decision in Department of Health
Services, supra, PERB Decision No. 1357-S, the County's notice of its intent to remove Toews
from his County residence
is
not itself adverse action. Toews' subjective reactions do not
establish the required adverse action. (Id.)
6. 	Locking Toews Out
of
His County Provided Residence
The term "wages" includes emoluments
of
value. (Trustees of the California State University
(San Marcos) (2004) PERB Decision No. 1584-H.) The County provided residence is an
emolument of value because it provides Toews with a place to reside when he is not at work.
On or about August
1,
2007, the County changed the locks to Yosemite Lake Park,
consequently preventing Toews from. entering his County provided residence. A reasonable
employee under the same circumstance as Toews would consider being locked out of his or her
workplace and home to have an adverse impact on his or her employment. Nonetheless,
AFSCME has failed to demonstrate that Toews was locked out of the park and his County
provided residence because he was "provided with representation during various disputes in
the Fall of 2006."
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 AFSCME wishes to make, and be signed under penalty of perjury.
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.
C
establish the required adverse action. (Id.)

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January 14, 2008
Page 9
If I do not receive an amended charge or withdrawal from AFSCME before January 25, 2008, I
shall dismiss AFSCME' s charge. 	Questions concerning this matter should be directed to the
above telephone number.
Sincerely,
Sean McKee
Regional Attorney