County of San Diego (PERB 2005M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RON MONTGOMERY REED KROOPKIN,
Charging Party,
V.
COUNTY OF SAN DIEGO,
Respondent.
Case No. LA-CE-434-M
PERB Decision No. 	2005-M
February 27, 2009
Appearance: 	Jeff Geraci, Attorney, for Ron Montgomery Reed Kroopkin.
Before Neuwald, Wesley and Dowdin Calvillo, Members.
DECISION
NEUWALD, Member: 	This case is before the Public Employment Relations Board
(Board) on appeal by Ron Montgomery Reed Kroopkin (Kroopkin) of a Board agent's
dismissal ( attached) of his unfair practice charge. 	The charge alleged that the County of
San Diego (County) violated the Meyers-Milias-Brown Act (MMBA)1 when it: 	(1) removed
material he posted on his union's bulletin board; (2) denied his request for release time;
(3) placed him on administrative leave; (4) issued him a letter of warning; (5) disbanded the
Foster Care Worksite Issues Committee; (6) refused to process a grievance filed by him
regarding the County's decision to disband the Foster Care Worksite Issues Committee;
(7) issued him a disciplinary memorandum; (8) advised the president of Service Employees
International Union, Local 221, that the County was suspending Employment and Eligibility
Labor/Management Meetings (Labor/Management Meetings) because of Kroopkin' s conduct
at a past Labor/Management Meeting; and (9) denied a grievance filed by Kroopkin regarding
1MMBA is codified at Government Code section 3 500 et seq. 	Unless otherwise
indicated, all statutory references are to the Government Code.

the County's decision to suspend the Labor/Management Meetings. Kroopkin alleged that this
conduct constituted a violation
of
MMBA sections 3502, 3502.1, 3506 and 3578.2 The Board
agent dismissed all allegations in the charge.
On appeal, Kroopkin does not challenge the dismissal
of
allegations (1) through (7).
Accordingly, the Board has only considered allegations (8) and (9) on appeal.
The Board has reviewed the entire record in this matter, including but not limited to, the
original and amended unfair practice charge, the County's position statement, the Board
agent's warning and dismissal letters, and Kroopkin's appeal. Based on this review, the Board
finds the Board agent's warning and dismissal letters to be a correct statement
of
the law and
well reasoned, and therefore adopts them as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-434-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Wesley and Dowdin Calvillo joined in this Decision.
2Section 3578 is part of the Higher Education Employer-Employee Relations Act
(HEERA) (HEERA is codified at Sec. 3560 et seq.), not the MMBA. Because the County is
not an "employer" as defined in HEERA section 3562(g), HEERA provisions are not
applicable in this case.
2

.,,,.-·
(	STATE OF CALIFORNIA
	-t
================
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
December 17, 2008
Jeff Geraci, Attorney
Law Office
of
Jeff Geraci
2550 Fifth Avenue, Ninth Floor
San Diego, CA 92103
ARNOLD SCHWARZENEGGER, Governor
Re: 	Ron Montgomery Reed "MONTY" Kroopkin
v.
County
of
San Diego
Unfair Practice Charge No. LA-CE-434-M
DISMISSAL LETTER
Dear Mr. Geraci:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 26, 2008 and was amended on April
8,
2008. Ron
Montgomery Reed "MONTY" Kroopkin1 alleges that the County
of
San Diego (County)
violated sections 3502, 3502.1, 3506 and 3578
of
the Meyers-Milias-Brown Act (MMBA or
Act)2 by: (1) removing material he posted on his union's (SEIU Local 221) bulletin board; (2)
denying his request for release time; (3) placing him on administrative leave; (4) issuing him a
Letter of Warning; (5) disbanding the Foster Care Worksite Issues Committee; (6) refusing to
process a grievance filed by him regarding the County's decision to disband the Foster Care
Worksite Issues Committee; (7) issuing him a Disciplinary Memorandum; (8) advising the
president of Local 221 that the County was suspending E & E Labor/Management Meetings
(Labor/Management Meetings or Union-management meetings) because of Mr. Kroopkin's
conduct at a past Labor/Management Meeting and (9) denying a grievance filed by him
regarding the County's decision to suspend the Labor/Management Meetings.
Mr. Geraci was informed in the attached Warning Letter dated November 20, 2008, that the
above-referenced charge did not state a prima facie case. Mr. Geraci was advised that, if there
were any factual inaccuracies or additional facts which would correct the deficiencies
explained in the November 20 Warning Letter, he should amend the charge. Mr. Geraci was
further advised that, unless the charge was amended to state a prima facie case or withdrawn
prior to December 1, 2008, the charge would be dismissed.
On November 25 and December 4, 2008, Mr. Geraci requested and received extensions of time
to file an amended charge. On December 12, 2008, PERB received an amended charge in the
above-referenced case. The December 12 amended charge is devoid of new facts and
1 Mr. Kroopkin is represented by attorney Jeff Geraci.
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.

LA-CE-434-M
December 1
7, 2008
Page 2
arguments regarding allegations
1- 7.
	Accordingly, allegations
1-
7 are hereby dismissed for the
reasons stated in the attached November 20 Warning Letter.
In regards to allegation
8,
the December 12 amended charge provides in relevant part:
The County knew, or should have known that its letters would be
re-published and their contents discussed. The approximately
2,000 people to whom the County's defamatory letter was
published are not only union members, they are Mr. Kroopkin's
co-workers. There
is
an undeniable, daily impact on his working
conditions
as
a result of the Union choosing to publish the
information in the manner that it did. While there may be
situations in which publishing the information about one
employee would not harm his working relationships, this
is
not
one
of
them. Each
of
these co-workers, and potential co-workers
and supervisors, was notified that Mr. Kroopkin made "threats"
of such magnitude that multiple "members of management feel
threatened," and that they no longer felt "safe" to attend a long
standing meeting, and, because "employee safety," is the
County's "number one priority," the meeting had to be
completely suspended.	
It
is clear that attitudes toward a co
worker identified in this way would be changed. At a minimum,
it is enough to allow a full evidentiary hearing to determine the
extent of the negative impact the publication
of
information has
had on Mr. Kroopkin.
The future impact of the information is also obvious. People who
now, or will in the future, have input into promotional and other
employment decisions, have information which is likely to
disqualify Mr. Kroopkin and certainly places him at a severe
disadvantage. 	It also exposes him to further retaliation by the
County. He has filed multiple grievances and Unfair Labor
Practice charges. A publication of this type is known to his
supervisors and to Labor Relations and makes it far more likely
actions will be taken against him in the future.	
It
is inevitable
that he has been marginalized and made to appear that not only
will the County will [sic] threaten to, or actually discipline him, it
will falsely label him as dangerous and defame him to co-workers
and others, and refuse to even meet with him.
[fil
Mr. Kroopkin had a right to participate in union activities and
neither the County nor the Union can interfere with that right. 	It
is clear that barring his attendance at union-management

LA-CE-434-M
December 17, 2008
Page 3
( 	(
meetings and branding him as dangerous, interfered with his
ability to participate.
In regards to allegation 9, the December 12 amended charge provides in relevant part:
Mr.
Kroopkin grieved these issues and, at each step, was advised
they were not grievable. For example, on October 23, 2007, the
County refused to rule, claiming, "The subject matter of your
grievance
is
not grievable." Under Article 3 of the Memorandum
of Agreement between the County and the Union, Mr. Kroopkin
was entitled to receive the rights afforded by the Agreement
without being discriminated against in any way for his union
activities. He was denied participation in a Union-Management
meeting, something referred to specifically in Article 2 of the
MOA. His grievance should have been processed.
Attached to the December 12 amended charge is a partial copy of Article 2 of the
Memorandum
of
Agreement (MOU) and a complete copy of Article 3 of the MOU. Article 3
prohibits the County from discriminating against employees for various reasons, including an
employee's "union activities or membership. The portion of Article 2 filed with PERB
provides:
ARTICLE 2. UNION RIGHTS 	(Cont'd)
A. 	The following procedure shall apply to:
1.	
Grievance handling.
2. 	Proceedings for appealing Performance Evaluation
and/or Disciplinary actions.
3. 	Union-management committees for which the
employee has been designated as a member.
4. 	Formal meet and confer meetings with the County:
5. 	Meetings of the Board of Supervisors, Civil
Service Commission, or proceedings under the
Labor Relations Ordinance which directly affect
employees represented by the Union.
6. 	Union-management meetings convened and
approved by the Agency and the Union.
7. 	Release time for one (1) employee to attend and
make a one-half (1/2) hour presentation at the
Agency's orientation during formal new employee
training to acquaint new employees with the Union
and its services.
B. 	The employee shall complete an Agency Release Time
Form.

LA-CE-434-M
December 17, 2008
Page 4
(
C.	
The employee shall submit the completed form to his/her
immediate supervisor for approval.
Discussion
1.
	Retaliation
As stated in the November 20 Warning Letter, to demonstrate that an employer discriminated
or retaliated against an employee in violation of Government Code section 3506 and PERB
Regulation 32603(a),3 the charging party must show that: (1) the employee exercised rights
under MMBA; (2) the employer had knowledge of the exercise
of
those rights; (3) the
employer took adverse action against the employee; and (4) the employer took the action
because
of
the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato): Campbell Municipal Employees Assn. v. City of Campbell (1982)131
Cal.App.3d 416 (Campbell); San Leandro Police Officers Assn.
v.
City of San Leandro
(1976) 55 Cal.App.3d 553 (San Leandro).) In determining whether evidence of adverse action
is established, the Board uses an objective test and will not rely upon the subjective reactions
of the employee. (Palo Verde Unified School District (1988) PERB Decision No. 689.) In a
later decision, the Board further explained that:
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.
(Newark Unified School District (1991) PERE Decision No. 864; emphasis added; footnote
omitted.)
PERB 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.) Speculation, conjecture or legal conclusions are insufficient to state a prima facie
case. (Regents of the University of California (2005) PERB Decision No. 1771-H.)
The December 12 amended charge asserts, "The County knew, or should have known that its
letters would be re-published and their contents discussed." However, there are no facts
contained in either the charge or subsequent amendments that support this conclusion. To the
3 PERE' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-434-M
December 17, 2008
Page 5
contrary, the record demonstrates that the County only sent the August
23
letter to the
president
of
Local 221.
Nevertheless, even
if
the County knew that Local 221 would disclose the contents
of
the
August 23 letter with others, Mr. Kroopkin's allegation that his employment was adversely
impacted by the August
23
letter is speculative. While Mr. Kroopkin alleges that distribution
of
the August
23
letter would cause his coworkers' and supervisors' attitudes toward him to
change, there is no evidence that Mr. Kroopkin's coworkers' or supervisors' attitudes toward
him have changed. 	Similarly, Mr. Kroopkin's allegation that distribution of the August 23
letter will adversely impact his employment in the future
is
speculative because it requires the
prediction
of
future events. Accordingly, Mr. Kroopkin's allegation that the County retaliated
against him for exercising his rights under the MMBA by sending the August
23
letter to the
president of Local 221 is
dismissed for the reasons stated above and for the reasons provided in
the November 20 Warning Letter.
2.
	Interference
A. 	Labor/Management Meetings
As stated in the November 20 Warning Letter, the test for whether a respondent has interfered
with the rights of employees under the MMBA does not require that unlawful motive be
established, only that at least slight harm to employee rights results from the conduct. 	The
courts have described the standard
as
follows:
All [a charging party] must prove to 'establish an interference
violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons.
(Public Employees Association of Tulare County, Inc. v. Board of Supervisors
of Tulare County (1985) 167 Cal.App.3d 797, 807.)
MMBA section 3502 provides in relevant part: 	"public employees shall have the right to form,
join, and participate in the activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee relations." Mr. Kroopkin
alleges County interfered with his right to participate in protected activities under the MMBA
by "barring his attendance at union-management meetings
....
" However, the record does not
support Mr. Kroopkin's allegation that he was barred from attending Labor/Management
Meetings.4 Moreover, even if the County barred Mr. Kroopkin from Labor/Management
4 The County's August 23 letter provides in its entirety:

LA-CE-434-M
December 17, 2008
Page 6
Meetings, Mr. Kroopkin has not established that he has an individual right to attend
Labor/Management Meetings.
On the contrary, the partial MOU provided to PERB by Mr. Kroopkin lists "Union
management meetings" as one
of
several "UNION RIGHTS." As stated in the November 20
Warning Letter, Mr. Kroopkin does not have standing to allege that the County's decision to
suspend Labor/Management Meetings violates Local 221 's right to select its representatives.
(State of California (Department of Corrections) (1993) PERB Decision No. 972-S; Savanna
School District (1982) PERB Decision No. 276; Westminster School District (1982) PERB
Decision No. 277.) Accordingly, Mr. Kroopkin's allegation that the County interfered with his
right to attend Labor/Management Meetings
is
dismissed for the reasons stated above and for
the reasons provided in the November 20 Warning Letter.
B. 	Processing Mr. Kroopkin's Grievance
As stated above, the record demonstrates that Labor/Management Meetings are one
of
Local
221
's
rights under the MOU. Mr. Kroopkin has not presented any evidence establishing that
individual employees have a right to attend Labor/Management Meetings. 	Consequently, Mr.
Kroopkin has not demonstrated that he has an individual right to grieve the County's decision
to suspend the Labor/Management Meetings. Accordingly, Mr. Kroopkin's allegation that the
County interfered with his right to grieve its decision to suspend Labor/Management Meetings
is dismissed for the reasons provided above and for the reasons provided in the November 20
W aming Letter.
The December 12 amended charge alleges that the County discriminated against Mr. Kroopkin
by not processing his grievance regarding the County's decision to suspend
Labor/Management Meetings. 	As stated above, the Board has held that in order for an
employee to demonstrate a prima facie case of retaliation/discrimination, the employee must
establish that the employer took action that adversely impacts the employee's employment.
(Newark Unified School District, supra, PERB Decision No. 864.)
The record does not establish that Mr. Kroopkin's employment was adversely impacted by the
County's decision to suspend Labor/Management Meetings. Thus, Mr. Kroopkin has failed to
satisfy all of the elements of discrimination/retaliation set forth in Novato, supra, PERB
Decision No. 210. Consequently, this allegation is dismissed.
As a result of the incident involving SEIU Steward, Monty
Kroopkin, members of the management feel threatened and have
requested that Labor Relations suspend the E & E
Labor/Management Meeting. This meeting is a valuable source
of information for both SEIU and the County; however, employee
safety is the County's number one priority. 	At this time the E &
E Labor/Management Meeting will be suspended indefinitely.

LA-CE-434-M
December 17, 2008
Page 7
Right to Appeal
(
Pursuant to PERB Regulations, Mr. Kroopkin 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. 	(Cal. Code Regs, tit. 8, § 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.
(Cal. Code Regs, tit. 8, §§ 32135(a) and 32130; see also Gov. Code,§ 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 PERB
Regulation 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. (Cal. Code Regs, tit. 8, §§
32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 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 Mr. Kroopkin 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. 	(Cal. Code Regs, tit. 8, § 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 Cal. Code Regs., tit. 8, § 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.
(Cal. Code Regs, tit. 8, § 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 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

LA-CE-434-M
December 17, 2008
Page 8
(
each other party regarding the extension, and shall be accompanied by proof of service
of
the
request upon each party. 	(Cal. Code Regs, tit.
8,
§ 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 Counsel
By,
_____________
_
Sean McKee
Regional Attorney
1 7
Attachment
cc: 	Susan Brazeau, Labor Relations Manager

ST
ATE 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
November 20, 2008
Jeff Geraci, Attorney
Law Office
of
Jeff Geraci
2550 Fifth A venue, Ninth Floor
San Diego, CA 92103
ARNOLD SCHWARZENEGGER, Governor
Re: 	Ron Montgomery Reed "MONTY" Kroopkin
v.
County of San Diego
Unfair Practice Charge No. LA-CE-434-M
WARNING LETTER
Dear Mr. Geraci:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 26, 2008 and was amended on April
8,
2008. Ron
Montgomery Reed "MONTY" Kroopkin alleges that the County of San Diego (County)
violated sections 3502, 3502.1, 3506 and 3578 of the Meyers-Milias-Brown Act (MMBA or
Act) 1 by: 	(1) removing material he posted on his union's (SEID Local 221) bulletin board; (2)
denying his request for release time; (3) placing him on administrative leave; (4) issuing him a
Letter of Warning; (5) disbanding the Foster Care Worksite Issues Committee; (6) refusing to
process a grievance filed by him regarding the County's decision to disband the Foster Care
Worksite Issues Committee; (7) issuing him a Disciplinary Memorandum; (8) advising the
president of Local 221 that the County was suspending E & E Labor/Management Meetings
(Labor/Management Meetings) because of Mr. Kroopkin' s conduct at a past
Labor/Management Meeting and (9) denying a grievance filed by him regarding the County's
decision to disband the Labor/Management Meetings.
Background
In 2006 and 2007, Mr. Kroopkin filed four unfair practice charges against the County (PERB
Case Nos. LA-CE-332-M, LA-CE-335-M, LA-CE-338-M and LA-CE-376-M). These four
charges contain several of the above-described allegations. 	On May 18, 2007, PERB
dismissed Case Number LA-CE-376-M. On August 21, 2008, PERB issued a complaint
against the County in Case Number LA-CE-332-M. Thereafter, an informal settlement
conference was held between Mr. Kroopkin and the County resulting in the withdrawal
of
Case
Numbers LA-CE-332-M, LA-CE-335-M and LA-CE-338-M.
On November 19, 2008, Mr. Geraci and the undersigned discussed the above-titled case via
telephone. During that telephone conversation, Mr. Geraci stated that the present charge only
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-434-M
November 20, 2008
Page 2
concerns allegations 8 and
9.
	Therefore, this Warning Letter only analyzes whether the County
violated the MMBA by advising Local 221
's
president that the County was suspending
Labor/Management Meetings because
of
Mr. Kroopkin' s conduct at a past Labor/Management
Meeting and by denying a grievance filed by Mr. Kroopkin regarding the County's decision to
disband Labor/Management Meetings.2
Mr. Kroopkin
is
employed by the County
as
a Human Services Specialist. The County's
Human Services Specialists belong to a bargaining unit exclusively represented by Local 221.
Mr. Kroopkin
is
both a union steward and member
of
Local 221
's
negotiation team.
On
August 21, 2007, Local 221 President Sharon-Frances Moore informed Local 221
's
Executive Board that Mr. Kroopkin was going to "sue the Union." The following day, Local
221 member Linda Corea questioned Mr. Kroopkin about President Moore's accusation.
"Feelings were strong and voices were raised. No threats were made and nothing was done or
said which could have possibly been construed as a threat." However, County Manager Kim
Medeiros heard Mr. Kroopkin and Ms. Corea speaking with raised voices and intervened. Ms.
Medeiros informed Mr. Kroopkin and Ms. Corea that "she would riot tolerate this situation."
Mr. Kroopkin responded by informing Ms. Medeiros that "this was a discussion between
Union members, on Union time, on Union property, and that she had no authority." Ms.
Medeiros left without incident.
In a letter dated August 23, 2007, the County sent President Moore a letter that states in
relevant part:
As a result
of
the incident involving SEID Steward, Monty
Kroopkin, members
of
the management feel threatened and have
requested that Labor Relations suspend the E & E
Labor/Management Meeting. This meeting is a valuable source
of
information for both SEID and the County; however, employee
safety is the County's number one priority. At this time the E &
E Labor/Management Meeting will be suspended indefinitely.
The above-titled charge states in relevant part:
Mr. Kroopkin received a copy of this letter about September 1,
2007. The Labor Relations letter goes beyond accusing Mr.
Kroopkin of a making [sic] a threat of violence. It claims there
was a threat, considers it proven, and implements the
punishment-suspension of the meetings if Mr. Kroopkin attends.
2 Please contact me immediately if Mr. Kroopkin wants allegations 1- 7 analyzed.
Otherwise, allegations 1- 7 will be dismissed.

LA-CE-434-M
November 20, 2008
Page 3
By stressing the importance
of
the Meeting, but stating it would
be suspended because of
Mr.
Kroopkin, the County pressured
[Local 221]
to
exclude him if it wanted to continue the meeting.
Given the history
of
actions taken against Mr. Kroopkin, it
appears obvious its goal was to retaliate against Mr. Kroopkin,
and to dictate to [Local 221] who could attend meetings and
bargain on behalf
of
the members.
Labor Relations issued a second letter on September 24, 2007,
again claiming Mr. Kroopkin had caused "safety concerns," but
those were "alleviated" because he would no longer attend the
meetings.
Mr. Kroopkin grieved these issues and, at each step, was advised
they were not grieveable. For example, on October 23, 2007, the
County refused to rule, claiming, "The subject matter
of
your
grievance
is
not grievable."
Discussion
1.
	Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in violation
of
Government Code section 3506 and PERB Regulation 32603(a),3 the charging party must
show that: (1) the employee exercised rights under MMBA; (2) the employer had knowledge
of the exercise of those rights; (3) the employer took adverse action against the employee; and
(4) the employer took the action because
of
the exercise of those rights. 	(Novato Unified
School District (1982) PERB Decision No. 210 (Novato); Campbell Municipal Employees
Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 (Campbell); San Leandro Police
Officers Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553 (San Leandro).) In
determining whether evidence of adverse action is established, the Board uses an objective test
and will not rely upon the subjective reactions of the employee. 	(Palo Verde Unified School
District (1988) PERB Decision No. 689.) In a later decision, the Board further explained that:
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.
3 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-434-M
November 20, 2008
Page4
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
Here, the County sent the August
23
letter to the president
of
Mr. Kroopkin's union. The
August 23 letter complains
of
Mr. Kroopkin' s conduct at a past Labor/Management Meeting
and advises the president of Mr. Kroopkin' s union that the County was suspending further
Labor/Management Meetings because Mr. Kroopkin' s presence at the meetings caused
management to fear for their safety. While the August 23 letter may have affected Mr.
Kroopkin' s relationship with Local 221 and his relationship with the County
as
a union
representative, the current record is devoid
of
any evidence that the August 23 letter adversely
affected Mr. Kroopkin's employment. Consequently, Mr. Kroopkin has not established that a
reasonable employee would consider the County's actions to have an adverse impact on his or
her employment. (Newark Unified School District, supra, PERB Decision No. 864.)
Accordingly, this allegation must be dismissed.
2. 	Standing
The Board has previously held that both employers and employee organizations have the right
to select those individuals who will represent them in negotiations without interference from
the other party. (Savanna School District (1982) PERB Decision No. 276; Westminster School
District (1982) PERB Decision No. 277
.)
	Individual employees do not have standing to allege
violations of sections
of
the Government Code that protect the collective bargaining rights
ofemployee organizations. (State of California (Department of Corrections) (1993) PERB
Decision No. 972-S.4)
The present charge was filed by Mr. Kroopkin as an individual employee. Consequently, Mr.
Kroopkin does not have standing to allege that the County's conduct violates Local 221
's
right
to select its representatives.
3. 	Refusing to Process Mr. Kroopkin's Grievance
The test for whether a respondent has interfered with the rights of employees under the MMBA
does not require that unlawful motive be established; only that at least slight harm to employee
rights results from the conduct. The courts have described the standard as follows:
All [a charging party] must prove to establish an interference
violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
4 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

LA-CE-434-M
November 20, 2008
Page 5
exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons.
(Public Employees Association of Tulare County, Inc. v. Board of Supervisors
of Tulare County (1985) 167 Cal.App.3d 797, 807.)
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 District (1991) PERE Decision No. 873.)
Mr. Kroopkin alleges that his grievance regarding the County's decision to disband
Labor/Management Meetings was unlawfully denied. However, Mr. Kroopkin has not
provided a copy of Local 221 's memorandum of understanding (MOU) with the County.
Consequently, Mr. Kroopkin has not established that his grievance alleges a violation of the
MOU. Thus, Mr. Kroopkin has not demonstrated that the County has interfered with his
rights.
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 Second Amended Charge, contain
all the facts and allegations Mr. Kroopkin 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. If an amended charge or
withdrawal is not received from Mr. Kroopkin before December 1, 2008, the charge shall be
dismissed. Questions concerning this matter should be directed to me at the above telephone
number.
Sincerely,
Sean McKee
Regional Attorney
SM