City of Modesto (PERB 2022M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY EMPLOYEES'
ASSOCIATION,
Charging Party,
V.
CITY OF MODESTO,
Respondent.
Case No. SA-CE-469-M
PERB Decision No. 2022-M
May
12,
2009
Appearances: Rose Law Firm by Joseph
W.
Rose, Attorney, for Modesto City Employees'
Association; Liebert Cassidy Whitmore by Gage
C.
Dungy, Attorney, for City
of
Modesto.
Before Rystrom, Chair; Neuwald and Dowdin Calvillo, Members.
DECISION
Rose Law Firm by Joseph W. Rose, Attorney, for Modesto City Employees'
Association; Liebert Cassidy Whitmore by Gage C. Dungy, Attorney, for City of Modesto.
Before Rystrom, Chair; Neuwald and Dowdin Calvillo, Members.
DECISION
RYSTROM, Chair: 	This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Modesto City Employees' Association (Association) to
the proposed decision
of
an administrative law judge (ALJ) (attached). The amended unfair
practice charge filed by the Association alleged that the City
of
Modesto (City) violated
Meyers-Milias-Brown Act (MMBA)1 sections 3502, 3503 and 3509(b), as well as PERB
Regulation 32603 (a) and (b
)2
by: 	(
1)
refusing the request
of
an Association member, Herb
Neuman (Neuman), for representation during two meetings he was required to attend with his
supervisors; and (2) discriminating against Neuman for requesting union representation at a
third meeting by failing to complete an investigation
of
a hostile work environment complaint
filed by Neuman.
1 The MMBA is codified at Government Code section 3 500 et seq.	The MMBA is codified at Government Code section 3500 et seq.
2 PERB regulations are codified at the California Code of Regulations, title 8,
section 31001 et seq.
MODESTO CITY EMPLOYEES'
ASSOCIATION,
Charging Party, 	Case No. SA-CE-469-M
V. 	PERB Decision No. 2022-M
CITY OF MODESTO, 	May 12, 2009
Respondent.
Appearances:
RYSTROM, Chair: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Modesto City Employees' Association (Association) to
the proposed decision of an administrative law judge (ALJ) (attached). The amended unfair
practice charge filed by the Association alleged that the City of Modesto (City) violated
Meyers-Milias-Brown Act (MMBA)" sections 3502, 3503 and 3509(b), as well as PERB
Regulation 32603(a) and (b)" by: (1) refusing the request of an Association member, Herb
Neuman (Neuman), for representation during two meetings he was required to attend with his
supervisors; and (2) discriminating against Neuman for requesting union representation at a
third meeting by failing to complete an investigation of a hostile work environment complaint
filed by Neuman.
2 PERB regulations are codified at the California Code of Regulations, title 8,
section 31001 et seq.

The ALJ found that no violation occurred based on the City's denial of the requests for
representation because the meetings which Neuman was required to attend without union
representation were not investigatory interviews giving rise to representation rights. No
discrimination by the City against Neuman was found by the ALJ based on her conclusion that
no adverse action had taken place against Neuman because of his request for union
representation.
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charge, the complaint, the post-hearing briefs and the proposed
decision, as well as the Association's exceptions and the City's response to the exceptions.
Based on this review, we affirm the dismissal of the unfair practice charge.
We find that all but one of the Association's exceptions were also raised before the ALJ
and are addressed in the ALJ's well-reasoned proposed decision which correctly determines
the facts and applies the law. On this basis, we adopt the ALJ's proposed decision as that of
the Board itself. We add to this decision our discussion below which addresses the one
exception not presented to the ALJ in the Association's closing brief. The Association also
requests to present oral argument based on its exceptions without providing further reasons.
We deny this request on the basis that oral argument in this case is unnecessary.3
DISCUSSION
It its exceptions to the ALJ's proposed decision, the Association contends that the ALJ
erred in denying its motion at the hearing to amend the complaint to conform to the proof that
The Board has historically denied oral argument when an adequate record has been
prepared, the parties have had ample opportunity to present briefs, have availed themselves of
that opportunity, and the issues before the Board are sufficiently clear to make oral argument
unnecessary. 	(Antelope Valley Health Care District (2006) PERB Decision No. 1816-M;
Modesto City Employees' Association (2008) PERB Decision No. 1994-M.)
2
The ALJ found that no violation occurred based on the City's denial of the requests for
representation because the meetings which Neuman was required to attend without union
representation were not investigatory interviews giving rise to representation rights. No
discrimination by the City against Neuman was found by the ALJ based on her conclusion that
no adverse action had taken place against Neuman because of his request for union
representation.
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charge, the complaint, the post-hearing briefs and the proposed
decision, as well as the Association's exceptions and the City's response to the exceptions.
Based on this review, we affirm the dismissal of the unfair practice charge.
We find that all but one of the Association's exceptions were also raised before the ALJ
and are addressed in the ALJ's well-reasoned proposed decision which correctly determines
the facts and applies the law. On this basis, we adopt the ALJ's proposed decision as that of
the Board itself. We add to this decision our discussion below which addresses the one
exception not presented to the ALJ in the Association's closing brief. The Association also
requests to present oral argument based on its exceptions without providing further reasons.
We deny this request on the basis that oral argument in this case is unnecessary.'
DISCUSSION
It its exceptions to the ALJ's proposed decision, the Association contends that the ALJ
erred in denying its motion at the hearing to amend the complaint to conform to the proof that
3
The Board has historically denied oral argument when an adequate record has been
prepared, the parties have had ample opportunity to present briefs, have availed themselves of
that opportunity, and the issues before the Board are sufficiently clear to make oral argument
unnecessary. (Antelope Valley Health Care District (2006) PERB Decision No. 1816-M;
Modesto City Employees' Association (2008) PERB Decision No. 1994-M.)
2

Neuman's supervisor discriminated against him by removing him from a specific position
which caused Neuman a $200 to $300 loss in wages every three to four weeks.4
The complaint alleged, in pertinent part: "On or about March 22, 2007, Respondent,
acting through its agent, Janice Stewart, took adverse action against Neuman by failing to
complete the investigation
of
the complaint [
of
a hostile work environment]." This is the only
adverse action alleged in the complaint. The Association's motion to amend would have added
a charge
of
discrimination based on an adverse action occurring in August 2007 taken by
another person, Neuman' s immediate supervisor.
The testimony on which the Association relies in claiming that the ALJ improperly
denied its motion to amend occurred towards the end
of
the second and final day
of
the
hearing. 	The Association's attorney, Joseph W. Rose (Rose), attempted to put on evidence
of
a
conversation between Neuman and his supervisor, Kahazzo Maksoud (Maksoud), which took
place in August 2007. The City's attorney objected to the question on the basis that it was
outside the scope
of
the complaint which involved an adverse action which allegedly occurred
on March 22, 2007. Noting that the alleged adverse action took place long before August
2007, the ALJ asked for an offer
of
proof. Rose responded that the August 2007 testimony
was relevant because, as Neuman would explain after learning ofNeuman's hostile work place
complaint, not only was it not processed by City representative Janice Stewart, but Maksoud
also retaliated against Neuman. The ALJ responded that the adverse action in the complaint
was not by Maksoud and that it consisted
of
the City's failing to complete the investigation
of
Neuman's hostile work environment complaint. Rose responded that he wanted to offer
The Association also argues that the ALJ erroneously failed to find that this removal
imposed an adverse action against Neuman. Because we find that this issue was not before the
AL1, we do not address whether said removal constitutes an adverse action for purposes of
finding the City discriminated against Neuman.
3
Neuman's supervisor discriminated against him by removing him from a specific position
which caused Neuman a $200 to $300 loss in wages every three to four weeks.*
The complaint alleged, in pertinent part: "On or about March 22, 2007, Respondent,
acting through its agent, Janice Stewart, took adverse action against Neuman by failing to
complete the investigation of the complaint [of a hostile work environment]." This is the only
adverse action alleged in the complaint. The Association's motion to amend would have added
a charge of discrimination based on an adverse action occurring in August 2007 taken by
another person, Neuman's immediate supervisor.
The testimony on which the Association relies in claiming that the ALJ improperly
denied its motion to amend occurred towards the end of the second and final day of the
hearing. The Association's attorney, Joseph W. Rose (Rose), attempted to put on evidence of a
conversation between Neuman and his supervisor, Kahazzo Maksoud (Maksoud), which took
place in August 2007. The City's attorney objected to the question on the basis that it was
outside the scope of the complaint which involved an adverse action which allegedly occurred
on March 22, 2007. Noting that the alleged adverse action took place long before August
2007, the ALJ asked for an offer of proof. Rose responded that the August 2007 testimony
was relevant because, as Neuman would explain after learning of Neuman's hostile work place
complaint, not only was it not processed by City representative Janice Stewart, but Maksoud
also retaliated against Neuman. The ALJ responded that the adverse action in the complaint
was not by Maksoud and that it consisted of the City's failing to complete the investigation of
Neuman's hostile work environment complaint. Rose responded that he wanted to offer
The Association also argues that the ALJ erroneously failed to find that this removal
imposed an adverse action against Neuman. Because we find that this issue was not before the
ALJ, we do not address whether said removal constitutes an adverse action for purposes of
finding the City discriminated against Neuman.

additional proof and that after such proof he would make a motion to amend the complaint to
conform to proof. The ALJ ruled that he could not offer additional testimony and then move to
amend the complaint because that would deprive the City of due process. Rose asserted
"Okay."
However, later in the hearing, Rose asked Neuman on redirect examination what duties
he was removed from in August 2007. This question was again objected to by the City on the
basis of relevance. The ALJ allowed this inquiry to be made based on related cross
examination questions. Neuman then testified that he was removed from the nutrient bench by
Maksoud, which had a financial impact on Neuman because of loss of overtime pay. 5 Rose did
not make any motion after this testimony to amend the complaint to add discrimination
allegations based on the additional adverse action by Maksoud in removing Neuman from the
nutrient bench. 6
In a footnote in her proposed decision after discussing Neuman's claims of informal
discipline in August 2007, the ALJ held: 	"[The Association's] motion to amend the complaint
to include this allegation was denied on due process grounds as outside the allegations of the
June 8, 2007 complaint."
PERB Regulation 32648 provides that the charging party may move to amend the
complaint by oral motion on the record and that, in ruling on such a motion, the ALJ should
5 Neuman went on to testify that Maksoud explained to him that he had a failure of
filters which was being monitored and Neuman had contaminated it, and for that reason she
was taking his duties away. According to Neuman, Maksoud would not allow him to show
proof "of it" and that she also said to him that he was too cheap to hire a lawyer against "John
and Robert" and that now he is going after her.
6 Additionally,	dditionally, the Association made no contentions in its post-hearing brief regarding	the Association made no contentions in its post-hearing brief regarding
the testimony about the August 2007 removal of Neuman being an additional adverse action or	the testimony about the August 2007 removal of Neuman being an additional adverse action or
that	that it had made a motion to amend the complaint to this effect which had been improperly	it had made a motion to amend the complaint to this effect which had been improperly
denied.	denied.
additional proof and that after such proof he would make a motion to amend the complaint to
conform to proof. The ALJ ruled that he could not offer additional testimony and then move to
amend the complaint because that would deprive the City of due process. Rose asserted
"Okay."
However, later in the hearing, Rose asked Neuman on redirect examination what duties
he was removed from in August 2007. This question was again objected to by the City on the
basis of relevance. The ALJ allowed this inquiry to be made based on related cross-
examination questions. Neuman then testified that he was removed from the nutrient bench by
Maksoud, which had a financial impact on Neuman because of loss of overtime pay." Rose did
not make any motion after this testimony to amend the complaint to add discrimination
allegations based on the additional adverse action by Maksoud in removing Neuman from the
nutrient bench.
In a footnote in her proposed decision after discussing Neuman's claims of informal
discipline in August 2007, the ALJ held: "[The Association's] motion to amend the complaint
to include this allegation was denied on due process grounds as outside the allegations of the
June 8, 2007 complaint."
PERB Regulation 32648 provides that the charging party may move to amend the
complaint by oral motion on the record and that, in ruling on such a motion, the ALJ should
Neuman went on to testify that Maksoud explained to him that he had a failure of
filters which was being monitored and Neuman had contaminated it, and for that reason she
was taking his duties away. According to Neuman, Maksoud would not allow him to show
proof "of it" and that she also said to him that he was too cheap to hire a lawyer against "John
and Robert" and that now he is going after her.
A

consider prejudice to the respondent, among other factors. 7 In this case, the ALJ found that to
grant the Association's request to amend would be prejudicial to the City because it would beI
denied its due process rights. 	Under the circumstances
of
this case, we agree.
consider prejudice to the respondent, among other factors. ' In this case, the ALJ found that to
grant the Association's request to amend would be prejudicial to the City because it would be
denied its due process rights. Under the circumstances of this case, we agree.
The Association's amendment would have in effect resulted in a very late, new charge
of
discrimination. 	Although the protected activity and employers' knowledge
ofNeuman's
exercise
of
his rights
of
requesting union representation would be the same
as
the
discrimination charge in the complaint, the new discrimination charge would be based on
totally different alleged facts regarding what adverse action had occurred and the requisite
nexus factors linking the new adverse action to the protected activity. The lateness
of
the
motion to amend is another compelling factor in finding that the City would have been
prejudiced. As stated above, the Association waited until late in the second day
of
a two-day
hearing to make an attempt to adduce the new adverse action evidence and make the request to
amend the complaint.
A similar conclusion results when this case is analyzed under PERB's well-established
test for an unalleged violation. PERB has consistently held that an unalleged violation can
only be considered when: 	"(1) adequate notice and opportunity to defend has been provided
the respondent; (2) the acts are intimately related to the subject matter
of
the complaint and are
part
of
the same course of conduct; (3) the unalleged violation has been fully litigated; and
(4) the parties have had the opportunity to examine and be cross-examined on this issue."
7 PERB Regulation 32648 provides:	PERB Regulation 32648 provides:
During hearing, the charging party may move to amend the
complaint by amending the charge in writing, or by oral motion
on the record.
	If
the Board agent determines that amendment ofthe charge and complaint is appropriate, the Board agent shall
permit an amendment. In determining the appropriateness of the
amendment, the Board agent shall consider, among other factors,
the possibility of prejudice to the respondent.
5
The Association's amendment would have in effect resulted in a very late, new charge
of discrimination. Although the protected activity and employers' knowledge of Neuman's
exercise of his rights of requesting union representation would be the same as the
discrimination charge in the complaint, the new discrimination charge would be based on
totally different alleged facts regarding what adverse action had occurred and the requisite
nexus factors linking the new adverse action to the protected activity. The lateness of the
motion to amend is another compelling factor in finding that the City would have been
prejudiced. As stated above, the Association waited until late in the second day of a two-day
hearing to make an attempt to adduce the new adverse action evidence and make the request to
amend the complaint.
A similar conclusion results when this case is analyzed under PERB's well-established
test for an unalleged violation. PERB has consistently held that an unalleged violation can
only be considered when: "(1) adequate notice and opportunity to defend has been provided
the respondent; (2) the acts are intimately related to the subject matter of the complaint and are
part of the same course of conduct; (3) the unalleged violation has been fully litigated; and
(4) the parties have had the opportunity to examine and be cross-examined on this issue."
During hearing, the charging party may move to amend the
complaint by amending the charge in writing, or by oral motion
on the record. If the Board agent determines that amendment of
the charge and complaint is appropriate, the Board agent shall
permit an amendment. In determining the appropriateness of the
amendment, the Board agent shall consider, among other factors,
the possibility of prejudice to the respondent.
5

(Fresno County Superior Court (2008) PERB Decision No. 1942-C.) In this case we need not
go
beyond the first criteria in that, given the lateness
of
the Association's request to amend, the
City would not have had adequate notice or an opportunity to fully defend against the
additional discrimination charge.
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-469-M are
hereby DISMISSED WITHOUT LEA VE TO AMEND.
Members Neuwald and Dowdin Calvillo joined in this Decision.
6
(Fresno County Superior Court (2008) PERB Decision No. 1942-C.) In this case we need not
go beyond the first criteria in that, given the lateness of the Association's request to amend, the
City would not have had adequate notice or an opportunity to fully defend against the
additional discrimination charge.
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-469-M are
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Neuwald and Dowdin Calvillo joined in this Decision.
6

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY EMPLOYEES ASSOCIATION,
Charging Party,
V.
CITY OF MODESTO,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-469-M
PROPOSED DECISION
(June 5, 2008)
Appearances: Joseph
W.
Rose, Esq., Rose Law Firm, P.C., for Modesto City Employees
Association; Liebert Cassidy Whitmore, by Gage Dungy, Esq., for City
of
Modesto.
Before Christine A. Bologna, Administrative Law Judge.
PROCEDURAL HISTORY
Appearances
PROCEDURAL HISTORY
This case alleges denial
of
the right to be represented during two investigatory
interviews
of
an employee, and discrimination/retaliation against the employee for requesting
representation at a third interview. The employer denies commission
of
any unfair practices,
and contends that no right to representation attached at any
of
the meetings.
On March 27, 2007, the Modesto City Employees Association (MCEA, Association, or
Union) filed an unfair practice charge (UPC or charge) against the City
of
Modesto (City or
Employer). 	On May 17, MCEA filed a first amended charge. On June
8,
1 the PERB General
Counsel's Office issued an unfair practice complaint (complaint) alleging that a bargaining
unit employee requested union representation during two meetings he was required to attend
with supervisors but representation was denied, and discrimination against the employee when
the City failed to complete the investigation of his hostile work environment complaint after he
Also on June 8, the Public Employment Relations Board (PERB or Board) General
Counsel's Office issued a Notice of Partial Dismissal, based on an April 23 Warning Letter,
that the alleged denial of the employee's right to be represented at a March 22 meeting did not
state a prima facie case.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY EMPLOYEES ASSOCIATION,
UNFAIR PRACTICE
Charging Party, 	CASE NO. SA-CE-469-M
V . 	PROPOSED DECISION
(June 5, 2008)
CITY OF MODESTO,
Respondent.
: Joseph W. Rose, Esq., Rose Law Firm, P.C., for Modesto City Employees
Association; Liebert Cassidy Whitmore, by Gage Dungy, Esq., for City of Modesto.
Before Christine A. Bologna, Administrative Law Judge.
This case alleges denial of the right to be represented during two investigatory
interviews of an employee, and discrimination/retaliation against the employee for requesting
representation at a third interview. The employer denies commission of any unfair practices,
and contends that no right to representation attached at any of the meetings.
On March 27, 2007, the Modesto City Employees Association (MCEA, Association, or
Union) filed an unfair practice charge (UPC or charge) against the City of Modesto (City or
Employer). On May 17, MCEA filed a first amended charge. On June 8,' the PERB General
Counsel's Office issued an unfair practice complaint (complaint) alleging that a bargaining
unit employee requested union representation during two meetings he was required to attend
with supervisors but representation was denied, and discrimination against the employee when
the City failed to complete the investigation of his hostile work environment complaint after he
Also on June 8, the Public Employment Relations Board (PERB or Board) General
Counsel's Office issued a Notice of Partial Dismissal, based on an April 23 Warning Letter,
that the alleged denial of the employee's right to be represented at a March 22 meeting did not
state a prima facie case.

requested representation during that interview.2 The complaint further alleged that the City's
conduct violated Government Code sections 3502, 3503, and 3509(b)
of
the Meyers-Milias
Brown Act (MMBA), and PERB regulation 32603(a) and (b).3
On June 27, 2007, the City answered the complaint, denying all substantive allegations
and asserting affirmative defenses. 	On August 24, an informal settlement conference was
conducted but the dispute was not resolved.
On January 8 and 9, 2008, formal hearing was held in Sacramento. On March 24, the
case was submitted for decision following receipt
of
the parties' post-hearing briefs.
FINDINGS OF FACT
Jurisdiction
FINDINGS OF FACT
Jurisdiction
The City admits that it is a public agency within the meaning
of
Government Code
section 3501(c)
of
MMBA and PERB regulation 32016(a). The City also admits that MCEA is
an exclusive representative
of
an appropriate bargaining unit
of
employees within the meaning
of
PERB regulation 32016(b), and Herb Neuman (Neuman) is a public employee within the
meaning ofMMBA section 350l(d).
Background	Background
MCEA is the exclusive representative for the Miscellaneous unit
of
approximately 440
employees, the largest bargaining unit in the City. Tom McCarthy (McCarthy) has been
President
of
the Association since January 1, 2006. McCarthy is a Waste Water Collection
The complaint also alleged derivative violations of denial of the Association's rights to
represent employees, and the employee's right to be represented by MCEA.
Unless otherwise indicated, ali references are to the Government Code. The MMBA is
codified at Government Code sections 3500 et seq. PERB regulations are codified at
California Code of Regulations, title 8, sections 31001 et seq.
2
requested representation during that interview." The complaint further alleged that the City's
conduct violated Government Code sections 3502, 3503, and 3509(b) of the Meyers-Milias-
Brown Act (MMBA), and PERB regulation 32603(a) and (b).'
On June 27, 2007, the City answered the complaint, denying all substantive allegations
and asserting affirmative defenses. On August 24, an informal settlement conference was
conducted but the dispute was not resolved.
On January 8 and 9, 2008, formal hearing was held in Sacramento. On March 24, the
case was submitted for decision following receipt of the parties' post-hearing briefs.
The City admits that it is a public agency within the meaning of Government Code
section 3501(c) of MMBA and PERB regulation 32016(a). The City also admits that MCEA is
an exclusive representative of an appropriate bargaining unit of employees within the meaning
of PERB regulation 32016(b), and Herb Neuman (Neuman) is a public employee within the
meaning of MMBA section 3501(d).
MCEA is the exclusive representative for the Miscellaneous unit of approximately 440
employees, the largest bargaining unit in the City. Tom Mccarthy (Mccarthy) has been
President of the Association since January 1, 2006. Mccarthy is a Waste Water Collection
"The complaint also alleged derivative violations of denial of the Association's rights to
represent employees, and the employee's right to be represented by MCEA.
3
`Unless otherwise indicated, all references are to the Government Code. The MMBA is
codified at Government Code sections 3500 et seq. PERB regulations are codified at
California Code of Regulations, title 8, sections 31001 et seq.
2

Systems Operator in the City's Public Works Department (Department), Waste Water
Division. Robert Phibbs (Phibbs) is the former attorney for the Union.
Neuman is a Laboratory Analyst II in the Waste Water Division
of
the Department.
Neuman has worked for the City for 29-plus years and is a member
of
MCEA. Neuman's
direct supervisor was Laboratory Supervisor Khazzo (Kay) Maksoud (Maksoud) until she
retired in October 2007. Maksoud and Neuman worked together for
23
years, and Maksoud
supervised Neuman and eight other employees for seven years. Neuman's second line
supervisor was Dan Wilkowsky (Wilkowsky), Deputy Director
of
the Department, Waste
Water Division, from February 2006 to April 2007.
Janice Stewart (Stewart) has been an hourly employee in the Administrative Services
Division
of
the Department since June 2006. 	Stewart retired in April 2006 as the Deputy
Personnel Director for the City. Stewart reports to Gail Wax (Wax), Department
Administrative Services Officer.
Janice Stewart (Stewart) has been an hourly employee in the Administrative Services
Division of the Department since June 2006. Stewart retired in April 2006 as the Deputy
Personnel Director for the City. Stewart reports to Gail Wax (Wax), Department
Administrative Services Officer.
Barbara Santos (Santos) succeeded Stewart as the City's Deputy Personnel Director in
May 2006. Dawn Perez (Perez) is the Equal Employment Opportunity (EEO) Analyst for the
City, and a paralegal in the City Attorney's Office. Perez investigates employee complaints
of
harassment or discrimination under Title VII
of
the Civil Rights Act (42 U.S.C. sections 2000
et seq.) and the City's policy prohibiting harassment or discrimination.
March 22, 2007 Request for Representation
3
Systems Operator in the City's Public Works Department (Department), Waste Water
Division. Robert Phibbs (Phibbs) is the former attorney for the Union.
Neuman is a Laboratory Analyst II in the Waste Water Division of the Department.
Neuman has worked for the City for 29-plus years and is a member of MCEA. Neuman's
direct supervisor was Laboratory Supervisor Khazzo (Kay) Maksoud (Maksoud) until she
retired in October 2007. Maksoud and Neuman worked together for 23 years, and Maksoud
supervised Neuman and eight other employees for seven years. Neuman's second line
supervisor was Dan Wilkowsky (Wilkowsky), Deputy Director of the Department, Waste
Water Division, from February 2006 to April 2007.
Barbara Santos (Santos) succeeded Stewart as the City's Deputy Personnel Director in
May 2006. Dawn Perez (Perez) is the Equal Employment Opportunity (EEO) Analyst for the
City, and a paralegal in the City Attorney's Office. Perez investigates employee complaints of
harassment or discrimination under Title VII of the Civil Rights Act (42 U.S.C. sections 2000
et seq.) and the City's policy prohibiting harassment or discrimination.
March 22, 2007 Request for Representation
On January 26, 2007, Neuman filed a complaint of harassment or discrimination against
Maksoud, alleging a hostile work environment since December 7, 2006 due to preferential
treatment of a coworker. The complaint attached an electronic mail message (e-mail) and
listed the names of two witnesses, but did not include the protected category/status/activity
3
On January 26, 2007, Neuman filed a complaint of harassment or discrimination against
Maksoud, alleging a hostile work environment since December 7, 2006 due to preferential
treatment of a coworker. The complaint attached an electronic mail message (e-mail) and
listed the names of two witnesses, but did not include the protected category/status/activity

claimed as the basis
of
harassment or discrimination.4 On February
9,
Perez sent Neuman
written Notice
of
Confidential Administrative Investigation (Notice) into his complaint,
scheduling an interview at 10:00 a.m. on February 20 in the City Attorney's Office.
In preparing for the interview, Perez discovered that Neuman's complaint failed to
allege harassment or discrimination based on a protected category. On February 13, 2007,
Perez sent a confidential memorandum (memo) to Stewart, including Neuman's complaint and
the Notice
of
interview on February 20, and referring the complaint
to
the Department to
investigate. 5
On March 6, 2007, Neuman sent an e-mail to Perez inquiring about the status
of
the
"hostile environment grievance." Perez forwarded the e-mail to Stewart, asking who should
respond to Neuman. 	Stewart replied that she would contact Neuman. 	Stewart called Neuman
and scheduled an interview to discuss his complaint on March 22 at the Department satellite
office where she and Wax worked.
Prior to March 22, 2007, Neuman approached McCarthy at a Union meeting and asked
McCarthy to accompany him to the interview. McCarthy agreed.
On March 22, 2007, before the interview, Neuman called Wax and advised that
McCarthy would be his Union representative at the interview. Wax informed Stewart. 	Stewart
On March 22, 2007, before the interview, Neuman called Wax and advised that
Mccarthy would be his Union representative at the interview. Wax informed Stewart. Stewart
TThe protected categories on the City's harassment or discrimination complaint form
are: race/color; ancestry; religion/creed; sex; national origin; marital status; age;
mental/physical/perceived disability; medical/pregnancy related condition; sexual orientation;
political/affiliation belief; and other. Neuman's complaint did not mark any
of
these criteria,
and left the entire section blank.
5Perez' memo advised Stewart that Neuman's interview would have to be changed, and
inquired whether she should inform Neuman that the Department was now handling his
complaint, or Stewart would contact him. Before sending the Notice of interview, Perez spoke
with Neuman once by telephone, asking
if
he notified his supervisor about the complaint;
Neuman responded no. Neither Perez nor Stewart notified Neuman that his complaint had
been transferred to the Department and the interview rescheduled before February 20. 	That
day, Neuman appeared for the interview at the City Attorney's Office but Perez was not there.
4
claimed as the basis of harassment or discrimination." On February 9, Perez sent Neuman
written Notice of Confidential Administrative Investigation (Notice) into his complaint,
scheduling an interview at 10:00 a.m. on February 20 in the City Attorney's Office.
In preparing for the interview, Perez discovered that Neuman's complaint failed to
allege harassment or discrimination based on a protected category. On February 13, 2007,
Perez sent a confidential memorandum (memo) to Stewart, including Neuman's complaint and
the Notice of interview on February 20, and referring the complaint to the Department to
investigate.
On March 6, 2007, Neuman sent an e-mail to Perez inquiring about the status of the
"hostile environment grievance." Perez forwarded the e-mail to Stewart, asking who should
respond to Neuman. Stewart replied that she would contact Neuman. Stewart called Neuman
and scheduled an interview to discuss his complaint on March 22 at the Department satellite
office where she and Wax worked.
Prior to March 22, 2007, Neuman approached Mccarthy at a Union meeting and asked
Mccarthy to accompany him to the interview. Mccarthy agreed.
he protected categories on the City's harassment or discrimination complaint form
are: race/color; ancestry; religion/creed; sex; national origin; marital status; age;
mental/physical/perceived disability; medical/pregnancy related condition; sexual orientation;
political/affiliation belief; and other. Neuman's complaint did not mark any of these criteria,
and left the entire section blank.
"Perez' memo advised Stewart that Neuman's interview would have to be changed, and
inquired whether she should inform Neuman that the Department was now handling his
complaint, or Stewart would contact him. Before sending the Notice of interview, Perez spoke
with Neuman once by telephone, asking if he notified his supervisor about the complaint;
Neuman responded no. Neither Perez nor Stewart notified Neuman that his complaint had
been transferred to the Department and the interview rescheduled before February 20. That
day, Neuman appeared for the interview at the City Attorney's Office but Perez was not there.

called Perez and left a voice-mail message. 	Stewart and Wax spoke with Santos. The three
agreed that Neuman was not entitled to representation because the interview would only
address his hostile work environment complaint against his supervisor, and no possible
disciplinary action could result.6 Stewart then escorted Neuman and McCarthy into the
interview room to meet with her and Wax.
Neuman requested that McCarthy be allowed in the interview as his Association
representative. Stewart denied the request, stating that the purpose
of
the "complaint intake"
interview was to assist Neuman in resolving his workplace concerns. 	Stewart further asserted
that no possible discipline could result from the interview7 unless Neuman were to lie, and
such a determination would involve a separate administrative investigation where
representation would be granted. 	Stewart had confirmed the practice to deny representation to
complainants with the City Personnel Department, and it was based on a desire to maintain
confidentiality.
Stewart suggested several alternatives. Because the Department would tape-record the
interview, and Neuman planned to tape-record the meeting, Neuman would have a record and
the Department would provide him a transcript so nothing ·would be misinterpreted. McCarthy
could remain outside the interview room so Neuman could consult with him.
If
Neuman
somehow mentioned any wrongdoing, Stewart would stop the interview and allow
representation. McCarthy responded that Neuman was concerned that he would get in trouble
and wanted representation.
6Perez later called Stewart and agreed with the conclusion to deny representation.	'Perez later called Stewart and agreed with the conclusion to deny representation.
7Neuman admitted that he was told that he was not the subject of the interview, and he
did not believe he was the subject of any investigation on March 22. McCarthy testified that
Stewart assured Neuman that discipline would not result from the meeting.
5
called Perez and left a voice-mail message. Stewart and Wax spoke with Santos. The three
agreed that Neuman was not entitled to representation because the interview would only
address his hostile work environment complaint against his supervisor, and no possible
disciplinary action could result." Stewart then escorted Neuman and Mccarthy into the
interview room to meet with her and Wax.
Neuman requested that Mccarthy be allowed in the interview as his Association
representative. Stewart denied the request, stating that the purpose of the "complaint intake"
interview was to assist Neuman in resolving his workplace concerns. Stewart further asserted
that no possible discipline could result from the interview' unless Neuman were to lie, and
such a determination would involve a separate administrative investigation where
representation would be granted. Stewart had confirmed the practice to deny representation to
complainants with the City Personnel Department, and it was based on a desire to maintain
confidentiality.
Stewart suggested several alternatives. Because the Department would tape-record the
interview, and Neuman planned to tape-record the meeting, Neuman would have a record and
the Department would provide him a transcript so nothing would be misinterpreted. Mccarthy
could remain outside the interview room so Neuman could consult with him. If Neuman
somehow mentioned any wrongdoing, Stewart would stop the interview and allow
representation. Mccarthy responded that Neuman was concerned that he would get in trouble
and wanted representation.
"Neuman admitted that he was told that he was not the subject of the interview, and he
did not believe he was the subject of any investigation on March 22. McCarthy testified that
Stewart assured Neuman that discipline would not result from the meeting.

Neuman
and McCarthy left the room to consult. Neuman told McCarthy that
he
was
afraid he would get in trouble, he was nervous he would say something, and he wanted
someone on his side. 	They returned, and McCarthy expressed
Neuman's
concerns to Stewart
and Wax. Neuman also told Stewart he was afraid
of
discipline for complaining about his
supervisor. 	McCarthy insisted on remaining in the room.
Neuman would not proceed with the interview without McCarthy as his Union
representative, and Stewart and Wax would not deviate from their understanding that the City's
practice did not allow representation to harassment or discrimination complainants or
witnesses in administrative investigations.8 The meeting was cancelled.9 Neuman and
McCarthy left.
On March 28, 2007, Perez sent a letter to Neuman advising that his complaint
of
harassment or discrimination and allegations
of
hostile work environment did not fall "within
the purview
of
Title VII." The City took his complaint "very seriously," and therefore
forwarded it to Stewart in the Department to reschedule the administrative interview. Perez
"apologized for any confusion" caused by the transfer
of
the complaint.
On April 5, 2007, Stewart sent a memo to Neuman summarizing the March 22
interview. 	Stewart advised that no further action could be takenon Neuman's complaint
of
harassment or discrimination until he provided additional information. 	Stewart offeredto meet
8Stewart claimed there was an agreement with Phibbs that witnesses in administrative
investigations into discipline, and complainants in harassment or discrimination cases were not
entitled to Union representation. 	Phibbs denied any such agreement, as did McCarthy. Phibbs
cited six to eight instances where City employees were witnesses to and subjects
of
administrative investigations, and were represented by him as the Association's representative.
The employees had concluded their investigatory interviews with representation, then were
questioned as witnesses with representation. 	In one case, a complainant was representedby
Phibbs in an interview, without a pending administrative/disciplinary investigation.
Stewart claimed there was an agreement with Phibbs that witnesses in administrative
investigations into discipline, and complainants in harassment or discrimination cases were not
entitled to Union representation. Phibbs denied any such agreement, as did Mccarthy. Phibbs
cited six to eight instances where City employees were witnesses to and subjects of
administrative investigations, and were represented by him as the Association's representative.
The employees had concluded their investigatory interviews with representation, then were
questioned as witnesses with representation. In one case, a complainant was represented by
Phibbs in an interview, without a pending administrative/disciplinary investigation.
9See footnote 1, ante, p. 1.
6
Neuman and Mccarthy left the room to consult. Neuman told Mccarthy that he was
afraid he would get in trouble, he was nervous he would say something, and he wanted
someone on his side. They returned, and Mccarthy expressed Neuman's concerns to Stewart
and Wax. Neuman also told Stewart he was afraid of discipline for complaining about his
supervisor. Mccarthy insisted on remaining in the room.
Neuman would not proceed with the interview without Mccarthy as his Union
representative, and Stewart and Wax would not deviate from their understanding that the City's
practice did not allow representation to harassment or discrimination complainants or
witnesses in administrative investigations." The meeting was cancelled." Neuman and
Mccarthy left.
On March 28, 2007, Perez sent a letter to Neuman advising that his complaint of
harassment or discrimination and allegations of hostile work environment did not fall "within
the purview of Title VII." The City took his complaint "very seriously," and therefore
forwarded it to Stewart in the Department to reschedule the administrative interview. Perez
"apologized for any confusion" caused by the transfer of the complaint.
On April 5, 2007, Stewart sent a memo to Neuman summarizing the March 22
interview. Stewart advised that no further action could be taken on Neuman's complaint of
harassment or discrimination until he provided additional information. Stewart offered to meet
"See footnote 1, ante, p. 1.
6

with Neuman and Wax, or "just one
of
us," to process and resolve his complaint
of
hostile
work environment against his supervisor.
April 3, 2007 Request for Representation	April 3. 2007 Request for Representation
On April 2, 2007, Stewart sent an e-mail
to
various Department employees requesting
information about an alleged nitrate sample error by Neuman so she could schedule interviews;
a copy
of
the e-mail was sent to Wilkowsky and Wax.
Also on April 2, 2007, Wilkowsky sent an e-mail to Santos asking when an employee is
entitled to representation because there are a lot
of
missed meetings when employee
representatives are turned away, citing Neuman's harassment claim denied by Legal and sent
to Personnel where Neuman showed up with McCarthy. Santos responded that she was aware
ofNeuman's situation and was dealing with the PERB charge.
Wilkowsky thereafter sent an e-mail to Wax, inquiring
if
someone could do some
follow-up soon based on denial ofNeuman's harassment claim, sending it to Person..'lel for
resolution, Neuman's refusal to meet without representation, and now the PERB filing.
Wilkowsky also advised Wax that he and Maksoud would have a "formal coaching session"
with Neuman for leaving work without notification and not being responsive to supervision,
but the nitrate issue would not be discussed because it was a separate investigation.
Wilkowsky thereafter sent an e-mail to Wax, inquiring if someone could do some
follow-up soon based on denial of Neuman's harassment claim, sending it to Personnel for
resolution, Neuman's refusal to meet without representation, and now the PERB filing.
Wilkowsky also advised Wax that he and Maksoud would have a "formal coaching session"
with Neuman for leaving work without notification and not being responsive to supervision,
but the nitrate issue would not be discussed because it was a separate investigation.
Wax responded to Wilkowsky that Neuman's harassment claim was not denied by the
City Attorney's Office, but was determined not to be based on Title VII criteria. As a result, it
was referred to the Department for investigation. Had Neuman shared his concerns with
Stewart last week, Stewart would have met with Wilkowsky. Wilkowsky then could have
directed an investigation of Maksoud, handled it himself, or dismissed the claim as unfounded.
Because Neuman was not willing to discuss his complaint without McCarthy as his
representative, the Department could not do anything unless Neuman submitted his concerns
7
with Neuman and Wax, or "just one of us," to process and resolve his complaint of hostile
work environment against his supervisor.
On April 2, 2007, Stewart sent an e-mail to various Department employees requesting
information about an alleged nitrate sample error by Neuman so she could schedule interviews;
a copy of the e-mail was sent to Wilkowsky and Wax.
Also on April 2, 2007, Wilkowsky sent an e-mail to Santos asking when an employee is
entitled to representation because there are a lot of missed meetings when employee
representatives are turned away, citing Neuman's harassment claim denied by Legal and sent
to Personnel where Neuman showed up with Mccarthy. Santos responded that she was aware
of Neuman's situation and was dealing with the PERB charge.
Wax responded to Wilkowsky that Neuman's harassment claim was not denied by the
City Attorney's Office, but was determined not to be based on Title VII criteria. As a result, it
was referred to the Department for investigation. Had Neuman shared his concerns with
Stewart last week, Stewart would have met with Wilkowsky. Wilkowsky then could have
directed an investigation of Maksoud, handled it himself, or dismissed the claim as unfounded.
Because Neuman was not willing to discuss his complaint without Mccarthy as his
representative, the Department could not do anything unless Neuman submitted his concerns
7

on his own without representation, or the City changed its practice and allowed representation.
Wax was unsure what the practice was where "complainants choose not to talk to us."
Wilkowsky replied, "Good call. Our employees can't make their own rules."
On April 3, 2007, Wilkowsky required Neuman to attend a meeting in his office with
Maksoud. Neuman requested a MCEA representative during the meeting. Wilkowsky and/or
Maksoud denied the request for representation because the meeting was a "coaching session."
10
Neuman was further informed that he would not be subject to discipline as a result
of
his
participation in the meeting.
11
The meeting continued for about an hour. The supervisors
discussed their expectations for Neuman to respond to supervision and provide advance notice
before leaving work. Neuman received no discipline
as
a result
of
this coaching session.
April 25, 2007 Request for Representation	April 25. 2007 Request for Representation
On April 25, 2007, Maksoud required Neuman to attend another coaching session on
work performance. Neuman requested representation, reading from a preprinted card stating,
"If
this discussion could lead to
...
adverse effect on my employment, I
...
request my Union
representative be present during the meeting." Maksoud denied representation, assuring
Neuman it was a coaching session and he did not face discipline. The meeting continued and
10
MCEA-represented employees are required to attend coaching sessions with their
supervisors at least four times a year to discuss and improve their work performance.
Administrative investigations into discipline are not conducted by supervisors but are carried
out by Department Administrative Services Officers, City Employee Relations Specialists, or
outside investigators under contract. 	There is written advance notice
of
an administrative
investigatory interview, which advises the employee of the right to representation at it.
Neuman acknowledged his past participation in coaching sessions.
llWilkowsky did not recall
if
Neuman requested representation at the meeting.
Maksoud and Neuman testified that he did request representation. Maksoud stated that she and
Wilkowsky assured Neuman "about 20 times" that the meeting was a routine coaching session
and discipline would not come from it.
8
on his own without representation, or the City changed its practice and allowed representation.
Wax was unsure what the practice was where "complainants choose not to talk to us."
Wilkowsky replied, "Good call. Our employees can't make their own rules."
On April 3, 2007, Wilkowsky required Neuman to attend a meeting in his office with
Maksoud. Neuman requested a MCEA representative during the meeting. Wilkowsky and/or
Maksoud denied the request for representation because the meeting was a "coaching session."
Neuman was further informed that he would not be subject to discipline as a result of his
participation in the meeting." The meeting continued for about an hour. The supervisors
discussed their expectations for Neuman to respond to supervision and provide advance notice
before leaving work. Neuman received no discipline as a result of this coaching session.
On April 25, 2007, Maksoud required Neuman to attend another coaching session on
work performance. Neuman requested representation, reading from a preprinted card stating,
"If this discussion could lead to . . . adverse effect on my employment, I . . . request my Union
representative be present during the meeting." Maksoud denied representation, assuring
Neuman it was a coaching session and he did not face discipline. The meeting continued and
"MCEA-represented employees are required to attend coaching sessions with their
supervisors at least four times a year to discuss and improve their work performance.
Administrative investigations into discipline are not conducted by supervisors but are carried
out by Department Administrative Services Officers, City Employee Relations Specialists, or
outside investigators under contract. There is written advance notice of an administrative
Investigatory interview, which advises the employee of the right to representation at it.
Neuman acknowledged his past participation in coaching sessions.
"Wilkowsky did not recall if Neuman requested representation at the meeting.
Maksoud and Neuman testified that he did request representation. Maksoud stated that she and
Wilkowsky assured Neuman "about 20 times" that the meeting was a routine coaching session
and discipline would not come from it.

proper laboratory techniques were discussed. Neuman was not disciplined as a result
of
this
h. 	• 	12
coac mg sess10n.
ISSUES
proper laboratory techniques were discussed. Neuman was not disciplined as a result of this
coaching session.
ISSUES
1.
Did the City deny Neuman the right to representation during investigatory
interviews on March 22, April
3,
and April 25, 2007?
2. Did the City discriminate against Neuman by failing to complete the investigation
of
his hostile work environment complaint after he asserted the right to representation on
March 22, 2007?
CONCLUSIONS OF LAW
Right to Union Representation
CONCLUSIONS OF LAW
Right to Union Representation
An employee required to attend an investigatory interview with the employer is entitled
to union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. 	(Social Workers' Union, Local 535
v.
Alameda County Welfare
Department (1974)
11
Cal.3d 382; Civil Service Association
v.
City and County
of
San
Francisco (1978) 22 Cal.3d 552.) PERB adopted the Weingarten
13
rule in Rio Hondo
Community College District (1982) PERB Decision No. 260. In order to establish a violation
of
this right, the charging party must demonstrate: 	(a) the employee requested representation,
(b) for an investigatory meeting, ( c) which the employee reasonably believed might result in
"NNeuman was interviewed during the administrative/disciplinary investigation into the
nitrate sampling error in April 2007. He was afforded Union representation during the
interview, and was not disciplined for the error. Neuman contended that he was "informally
disciplined" in August 2007 when his job duties were changed and he was removed from
working on a particular machine, losing overtime opportunities. MCEA's motion to amend the
complaint to include this allegation was denied on due process grounds as outside the
allegations of the June 8, 2007 complaint.
13
1n National Labor Relations Board (NLRB) v. Weingarten (1975) 420 U.S. 251
(Weingarten), the Court granted employees the right to representation during disciplinary
interviews.
9
1. Did the City deny Neuman the right to representation during investigatory
interviews on March 22, April 3, and April 25, 2007?
2. Did the City discriminate against Neuman by failing to complete the investigation of
his hostile work environment complaint after he asserted the right to representation on
March 22, 2007?
An employee required to attend an investigatory interview with the employer is entitled
to union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. (Social Workers' Union, Local 535 v. Alameda County Welfare
Department (1974) 11 Cal.3d 382; Civil Service Association v. City and County of San
Francisco (1978) 22 Cal.3d 552.) PERB adopted the Weingarten" rule in Rio Hondo
Community College District (1982) PERB Decision No. 260. In order to establish a violation
of this right, the charging party must demonstrate: (a) the employee requested representation,
(b) for an investigatory meeting, (c) which the employee reasonably believed might result in
euman was interviewed during the administrative/disciplinary investigation into the
nitrate sampling error in April 2007. He was afforded Union representation during the
interview, and was not disciplined for the error. Neuman contended that he was "informally
disciplined" in August 2007 when his job duties were changed and he was removed from
working on a particular machine, losing overtime opportunities. MCEA's motion to amend the
complaint to include this allegation was denied on due process grounds as outside the
allegations of the June 8, 2007 complaint.
In National Labor Relations Board (NLRB) v. Weingarten (1975) 420 U.S. 251
(Weingarten), the Court granted employees the right to representation during disciplinary
interviews.

disciplinary action; and (d) the employer denied the request. (Redwoods Community College
District v. Public Emplovment Relations Board (1984) 159 Cal.App.3d 617 (Redwoods);
Fremont Union High School District (1983) PERB Decision No. 301; State of California
(Department of Forestry (1988) PERB Decision No. 690-S; State of California (Department of
Parks and Recreation (1990) PERB Decision Nos. 810-S and 810a-S.)
In Rio Hondo Community College District, supra, the Board cited with approval
Baton Rouge Water Works Company (1979) 246 NLRB 995, [103 LRRM 1056] which
provided:
the right to representation applies to a disciplinary interview,
whether labeled as investigatory or not, so long as the interview
in question is not merely for the purpose of informing the
employee that he or she is being disciplined. 14 However, the
right to representation attaches where the employer's conduct
goes beyond this purpose, and either ( 1) seeks facts or evidence
in support of the disciplinary action, (2) attempts to have the
employee "admit his alleged wrongdoing or sign a statement to
that effect," or (3) seeks to have the employee "sign statements
relating to such [other] matters as workmen's compensation ....
See Morris, The Developing Labor Law, 2d ed., pp. 152-153.
In approving the Weingarten rule, the U.S. Supreme Court noted with approval that the
NLRB would not apply it to "such run-of-the-mill shop-floor conversations as, for example,
the giving of instructions or training or needed corrections of work techniques." 	Weingarten,
supra, 420 U.S. 251, quoting Quality Manufacturing Co. (1972) 195 NLRB 197, 199 [79
LRRM 1269, 1271].
A right to union representation may be held to exist, in the absence of an objectively
reasonable fear of discipline, only under "highly unusual circumstances." (Redwoods, supra,
159 Cal.App.3d 617.) The finding of "highly unusual circumstances" in the Redwoods case
was based on the requirement that the employee attend a meeting which she no longer sought
14Regents of the University of California (1993) PERB Decision No. 998-H.
disciplinary action; and (d) the employer denied the request. (Redwoods Community College
District v. Public Employment Relations Board (1984) 159 Cal.App.3d 617 (Redwoods);
Fremont Union High School District (1983) PERB Decision No. 301; State of California
(Department of Forestry (1988) PERB Decision No. 690-S; State of California (Department of
Parks and Recreation (1990) PERB Decision Nos. 810-S and 810a-S.)
In Rio Hondo Community College District, supra, the Board cited with approval
Baton Rouge Water Works Company (1979) 246 NLRB 995, [103 LRRM 1056] which
provided:
the right to representation applies to a disciplinary interview,
whether labeled as investigatory or not, so long as the interview
in question is not merely for the purpose of informing the
employee that he or she is being disciplined." However, the
right to representation attaches where the employer's conduct
goes beyond this purpose, and either (1) seeks facts or evidence
in support of the disciplinary action, (2) attempts to have the
employee "admit his alleged wrongdoing or sign a statement to
that effect," or (3) seeks to have the employee "sign statements
relating to such [other] matters as workmen's compensation . . ..
See Morris, The Developing Labor Law, 2d ed., pp. 152-153.
In approving the Weingarten rule, the U.S. Supreme Court noted with approval that the
NLRB would not apply it to "such run-of-the-mill shop-floor conversations as, for example,
the giving of instructions or training or needed corrections of work techniques." Weingarten,
supra, 420 U.S. 251, quoting Quality Manufacturing Co. (1972) 195 NLRB 197, 199 [79
LRRM 1269, 1271].
A right to union representation may be held to exist, in the absence of an objectively
reasonable fear of discipline, only under "highly unusual circumstances." (Redwoods, supra,
159 Cal.App.3d 617.) The finding of "highly unusual circumstances" in the Redwoods case
was based on the requirement that the employee attend a meeting which she no longer sought
4Regents of the University of California (1993) PERB Decision No. 998-H.
10

over	over her appeal	her appeal
of	of a negative performance rating; the fact that the interview was investigatory	a negative performance rating; the fact that the interview was investigatory
and formal; the interview was held by a high-ranking official of the employer; and the hostile	and formal; the interview was held by a high-ranking official
of
the employer; and the hostile
attitude of the official toward the employee. (Ibid.)	attitude
of
the official toward the employee. (Ibid.)
In California State University, Long Beach (1991) PERB Decision No. 893-H, PERB
incorporated the rationale
of
Roadway Express, Inc. (1979) 246 NLRB 1127 [103 LRRM
1050], where the NLRB observed that once an employee makes a valid request for union
representation, the employer has a choice
of
one
of
three options: (1) grant the request; (2)
dispense with or discontinue the interview;
15
or (3) offer the employee the choice
of
continuing
the interview unaccompanied by a union representative or
of
having no interview at all, and
thereby dispensing with any benefits which the interview might have conferred on the
employee. The employer, however, may not continue the interview without granting the
requested union representation unless the employee "voluntarily agrees to remain
unrepresented after having been presented by the employer with the choices" described above,
or "is otherwise made aware
of
these choices." (U.S. Postal Service (1979) 241 NLRB 141
[100 LRRM 1520].)
Where an employee requests representation which is denied, and assurances are made
that no discipline will result, the employer may not subsequently discipline the employee based
on statements made during the investigatory interview. 	(Lake Elsinore Unified School District
(2004) PERB Decision No. 1648.)
The testimony
of
MCEA President McCarthy sets forth the union's view of the right to
representation.
15
The Weingarten rule requiring representation is inapplicable if no meeting or
interview takes place. 	(Placer Hiils Union School District (1984) PERB Decision No. 377; San
Bernardino City Unified School District (1998) PERB Decision No. 1270; Los Angeles County
Office of Education (1999) PERB Decision No. 1360.)
11
In California State University, Long Beach (1991) PERB Decision No. 893-H, PERB
incorporated the rationale of Roadway Express, Inc. (1979) 246 NLRB 1127 [103 LRRM
1050], where the NLRB observed that once an employee makes a valid request for union
representation, the employer has a choice of one of three options: (1) grant the request; (2)
dispense with or discontinue the interview;" or (3) offer the employee the choice of continuing
the interview unaccompanied by a union representative or of having no interview at all, and
thereby dispensing with any benefits which the interview might have conferred on the
employee. The employer, however, may not continue the interview without granting the
requested union representation unless the employee "voluntarily agrees to remain
unrepresented after having been presented by the employer with the choices" described above,
or "is otherwise made aware of these choices." (U.S. Postal Service (1979) 241 NLRB 141
[100 LRRM 1520].)
Where an employee requests representation which is denied, and assurances are made
that no discipline will result, the employer may not subsequently discipline the employee based
on statements made during the investigatory interview. (Lake Elsinore Unified School District
(2004) PERB Decision No. 1648.)
The testimony of MCEA President Mccarthy sets forth the union's view of the right to
representation.
The Weingarten rule requiring representation is inapplicable if no meeting or
interview takes place. (Placer Hills Union School District (1984) PERB Decision No. 377; San
Bernardino City Unified School District (1998) PERB Decision No. 1270; Los Angeles County
Office of Education (1999) PERB Decision No. 1360.)
11

Q. 	So as president of MCEA, did you consider there to be
any agreement between MCEA and the City on March 22, 2007
that a complainant was not entitled to a Representative?
Q. So as president of MCEA, did you consider there to be
any agreement between MCEA and the City on March 22, 2007
that a complainant was not entitled to a Representative?
A. 	Absolutely not, and that is not my point of view. It never
has been and never will be. If an employee feels that they're in
jeopardy of being in trouble in an investigative interview, they
are entitled to representation.
Q. 	And the same question, not as to a complainant but as to a
witness.
A. 	The same thing. If a person is called in as a witness, they
are entitled to representation. You never know what somebody's
going to say in an investigative interview. If they feel there's a
chance they can say something that might get them in trouble,
they should have representation. And they should be allowed it.
MCEA's expansive interpretation of an employee's right to representation is not established
case law, however. It eliminates the "reasonableness" of the employee's belief that discipline
may result from the meeting in favor of personal subjective feelings and speculative
unsolicited comments. Moreover, in State of California (Department of California Highway
Patrol) (1997) PERB Decision No. 1210-S (St. of Cal. (CHP), PERB found that the right to
representation does not attach in an investigatory meeting regarding another employee's
conduct, where the employee questioned was a witness to the incident.
March 22, 2007 Interview	March 22, 2007 Interview
It is undisputed that at the beginning of the March 22, 2007 interview, Neuman
requested Union representation by McCarthy, and Stewart (and Wax), on behalf of the City,
denied the request.
12
This interview followed Neuman's filing of a hostile work environment complaint of
harassment or discrimination against his supervisor. Neuman was informed that no possibility
of discipline would come from the interview because he was the complainant who initiated the
investigation, rather than being the subject of the investigation. Thus, any "reasonableness" of
A. 	Absolutely not, and that is not my point of view. It never
has been and never will be. If an employee feels that they're in
jeopardy of being in trouble in an investigative interview, they
are entitled to representation.
Q. 	And the same question, not as to a complainant but as to a
witness.
A. 	The same thing. If a person is called in as a witness, they
are entitled to representation. You never know what somebody's
going to say in an investigative interview. If they feel there's a
chance they can say something that might get them in trouble,
they should have representation. And they should be allowed it.
MCEA's expansive interpretation of an employee's right to representation is not established
case law, however. It eliminates the "reasonableness" of the employee's belief that discipline
may result from the meeting in favor of personal subjective feelings and speculative
unsolicited comments. Moreover, in State of California (Department of California Highway
Patrol) (1997) PERB Decision No. 1210-S (St. of Cal. (CHP), PERB found that the right to
representation does not attach in an investigatory meeting regarding another employee's
conduct, where the employee questioned was a witness to the incident.
It is undisputed that at the beginning of the March 22, 2007 interview, Neuman
requested Union representation by Mccarthy, and Stewart (and Wax), on behalf of the City,
denied the request.
This interview followed Neuman's filing of a hostile work environment complaint of
harassment or discrimination against his supervisor. Neuman was informed that no possibility
of discipline would come from the interview because he was the complainant who initiated the
investigation, rather than being the subject of the investigation. Thus, any "reasonableness" of
12

Neuman's belief ended after Stewart told him (and McCarthy) that discipline would not result
from his participation in the interview.
April 3 and 25, 2007 Coaching Sessions
Neuman's belief ended after Stewart told him (and Mccarthy) that discipline would not result
from his participation in the interview.
Moreover, the meeting was not an investigatory or disciplinary interview. No inquiries
were made about anything which could result in adverse action. Neuman made no substantive
statements, given his assertion
of
the right to representation. Finally, the interview was not
conducted due to Neuman's unwillingness to proceed without Union representation, and the
City's denial
of
representation during it.
April 3 and 25, 2007 Coaching Sessions
It is uncontroverted that on April 3 and 25, 2007, Neuman requested representation by
an Association representative during both meetings, and Wilkowsky and/or Maksoud, as the
City's agents, denied both requests.
The coaching sessions were not investigatory or disciplinary interviews. The evidence
demonstrates a clear distinction between coaching sessions where employees are given work
performance direction by their supervisors, and administrative investigations conducted
by
personnel or labor relations specialists or investigators outside the employee's chain
of
command where the right to representation is afforded. Neuman admitted participating in both
settings and acknowledged the difference between them. Finally, any "reasonableness"
of
Neuman's belief ended after he was repeatedly told by his supervisors that discipline would
not result from the coaching sessions.
Discrimination/Retaliation	Discrimination/Retaliation
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
13
Moreover, the meeting was not an investigatory or disciplinary interview. No inquiries
were made about anything which could result in adverse action. Neuman made no substantive
statements, given his assertion of the right to representation. Finally, the interview was not
conducted due to Neuman's unwillingness to proceed without Union representation, and the
City's denial of representation during it.
It is uncontroverted that on April 3 and 25, 2007, Neuman requested representation by
an Association representative during both meetings, and Wilkowsky and/or Maksoud, as the
City's agents, denied both requests.
The coaching sessions were not investigatory or disciplinary interviews. The evidence
demonstrates a clear distinction between coaching sessions where employees are given work
performance direction by their supervisors, and administrative investigations conducted by
personnel or labor relations specialists or investigators outside the employee's chain of
command where the right to representation is afforded. Neuman admitted participating in both
settings and acknowledged the difference between them. Finally, any "reasonableness" of
Neuman's belief ended after he was repeatedly told by his supervisors that discipline would
not result from the coaching sessions.
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
13

Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor
iliorth
Sacramento School District (1982)
PERB Decision No. 264
iliorth
Sacramento SD)), 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 must also be present: (1) the employer's disparate
treatment
of
the employee (Campbell, supra,
131
Cal.App.3d 416; State
of
California
(Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the employer's
departure from established procedures and standards when dealing with the employee (San
Leandro POA, supra, 55 Cal.App.3d 553; Santa Clara Unified School District (1979) PERB
Decision No. 104); (3) the employer's inconsistent or contradictory justifications for its actions
(San Leandro POA, supra, 55 Cal.App.3d 553; State
of
California (Department
of
Parks and
Recreation) (1983) PERB Decision No. 328-S); (4) the employer's cursory investigation
of
the
employee's misconduct (Trustees
of
the California State University (1990) PERB Decision
No. 805-H); (5) the employer's failure to offer the employee justification at the time it took
action or the offering
of
exaggerated, vague, or ambiguous reasons (McFarland Unified School
District (1990) PERB Decision No. 786); (6) employer animosity towards union activists (San
14
threatened to	threatened to discriminate, or otherwise interfered with, restrained or coerced the employee	discriminate, or otherwise interfered with, restrained
or
coerced the employee
because	because of the exercise of those rights. (Campbell Municipal Employees Association v. City	
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	
of
Campbell (1982)
131
Cal.App.3d 416 (Campbell); San Leandro Police Officers Association
v.v. City of San Leandro (1976) 55	City
of
San Leandro (1976) 55Cal.App.3d	Cal.App.3d553 (San Leandro POA); County of San Joaquin	553 (San Leandro POA); County
of
San Joaquin
(Health Care Services) (2003) PERB Decision No. 1524-M; Novato Unified School District	(Health Care Services) (2003) PERB Decision No. 1524-M; Novato Unified School District
(1982) PERB Decision No. 210; Carlsbad Unified School District (1979) PERB Decision	(1982) PERB Decision No. 210; Carlsbad Unified School District (1979) PERB Decision
No. 89.)	No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264 (North Sacramento SD)), it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more of the following nexus factors must also be present: (1) the employer's disparate
treatment of the employee (Campbell, supra, 131 Cal.App.3d 416; State of California
(Department of Transportation) (1984) PERB Decision No. 459-S); (2) the employer's
departure from established procedures and standards when dealing with the employee (San
Leandro POA, supra, 55 Cal.App.3d 553; Santa Clara Unified School District (1979) PERB
Decision No. 104); (3) the employer's inconsistent or contradictory justifications for its actions
(San Leandro POA, supra, 55 Cal.App.3d 553; State of California (Department of Parks and
Recreation) (1983) PERB Decision No. 328-S); (4) the employer's cursory investigation of the
employee's misconduct (Trustees of the California State University (1990) PERB Decision
No. 805-H); (5) the employer's failure to offer the employee justification at the time it took
action or the offering of exaggerated, vague, or ambiguous reasons (Mcfarland Unified School
District (1990) PERB Decision No. 786); (6) employer animosity towards union activists (San
14

Evidence
of
adverse action is also required to support a claim
of
discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689 (ealo Verde).) In determining whether such evidence is established, the
Board uses an objective test and will not rely upon the subjective reactions
of
the employee.
(Ibid.) in 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. 	[Emphasis added; footnote omitted.]
illewark Unified School District (1991) PERB Decision No. 864 illewark).)
Neuman's Claim
(Newark Unified School District (1991) PERB Decision No. 864 (Newark).)
Neuman's Claim
It is undisputed that on March 22, 2007, Neuman asserted his right to representation by
McCarthy during the interview into his harassment or discrimination complaint alleging a
hostile work environment. 	It is uncontroverted that Stewart (and Wax), as agents
of
the City,
knew about this activity. MCEA failed to meet its burden
of
proving that the City took adverse
15
Leandro POA, supra,	Leandro POA, supra, 55 Cal.App.3d 553; Los Angeles County Employees Association v.	
55
Cal.App.3d 553; Los Angeles County Employees Association v.
County of Los Angeles (1985) 168 Cal.App.3d 683; Cupertino Union Elementary School	County
of
Los Angeles (1985) 168 Cal.App.3d 683; Cupertino Union Elementary School
District (1986) PERB Decision No. 572); or (7) any other facts which might demonstrate the	District (1986) PERB Decision No. 572); or (7) any other facts which might demonstrate the
employer's unlawful motive. (Novato, supra, PERB Decision No. 210; North Sacramento SD,	employer's unlawful motive. illovato, supra, PERB Decision No. 210; North Sacramento SD,
supra, PERBsupra, PERB Decision No. 264).Decision No. 264).
Evidence of adverse action is also required to support a claim of discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689 (Palo Verde).) In determining whether such evidence is established, the
Board uses an objective test and will not rely upon the subjective reactions of the employee.
(Ibid.) in 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. [Emphasis added; footnote omitted.]
It is undisputed that on March 22, 2007, Neuman asserted his right to representation by
Mccarthy during the interview into his harassment or discrimination complaint alleging a
hostile work environment. It is uncontroverted that Stewart (and Wax), as agents of the City,
knew about this activity. MCEA failed to meet its burden of proving that the City took adverse
15

action against Neuman by failing to investigate his complaint because of his protected activity
in requesting Union representation, 16 however.
First, there was no evidence of any impact on Neuman's employment with the City,
much less any adverse impact, as a result of his invocation of the right to representation.17
Neuman was to be interviewed as a complainant against his supervisor, similar to the witness
questioned in St. of Cal. (CHP). (St. of Cal. (CHP), supra, PERB Decision No. 1210-S.)
Stewart offered options to Neuman on March 22, 2007, but he rejected them. 	Stewart
subsequently reiterated the Department's willingness to meet with Neuman to investigate and
resolve his complaint, but he did not respond. The Department was in unchartered territory
where "complainants choose not to talk to us." It is difficult to understand how the City could
complete its investigation of the complaint18 without obtaining further details from Neuman,
16The City contends that Neuman's request for representation is not protected activity
because he was not entitled to Union representation at his complainant interview. In
Simi Valley Unified School District (2004) PERB Decision No. 1714 (Simi Valley), the Board
rejected this argument, stating:
The Association argues that the request itself is protected conduct
notwithstanding whether he was entitled to representation under
the circumstances in this case. The District agrees with the
proposed decision that the April request was not protected
because Bishop was not entitled to representation under the
circumstances. 	The District appears to confuse Weingarten rights
with the protected nature of the request for representation itself.
17In Simi Valley, the proposed decision concluded that the cancellation of a meeting
between the employee and his supervisor was not adverse action, relying on Palo Verde and
Newark. 	In reversing the proposed decision and finding discrimination against the employee,
the Board declined "to speculate" whether the cancelled meeting comprised adverse action.
(Simi Valley, supra, PERB Decision No. 1714.)
18The processing ofNeuman's complaint by the City's EEO Office, resulting in its
transfer to the Department, could have been handled much more effectively and with greater
notice to Neuman. 	PERB does not have jurisdiction over the City's policy and procedures
against harassment or discrimination except as these constitute unfair practices, however.
There is no evidence that the City EEO Office investigated the harassment or discrimination
complaints of other employees who did not state a protected category on the complaint form.
16
action against Neuman by failing to investigate his complaint because of his protected activity
in requesting Union representation, " however.
First, there was no evidence of any impact on Neuman's employment with the City,
much less any adverse impact, as a result of his invocation of the right to representation."
Neuman was to be interviewed as a complainant against his supervisor, similar to the witness
questioned in St. of Cal. (CHP). (St. of Cal. (CHP), supra, PERB Decision No. 1210-S.)
Stewart offered options to Neuman on March 22, 2007, but he rejected them. Stewart
subsequently reiterated the Department's willingness to meet with Neuman to investigate and
resolve his complaint, but he did not respond. The Department was in unchartered territory
where "complainants choose not to talk to us." It is difficult to understand how the City could
complete its investigation of the complaint" without obtaining further details from Neuman,
"The City contends that Neuman's request for representation is not protected activity
because he was not entitled to Union representation at his complainant interview. In
Simi Valley Unified School District (2004) PERB Decision No. 1714 (Simi Valley), the Board
rejected this argument, stating:
The Association argues that the request itself is protected conduct
notwithstanding whether he was entitled to representation under
the circumstances in this case. The District agrees with the
proposed decision that the April request was not protected
because Bishop was not entitled to representation under the
circumstances. The District appears to confuse Weingarten rights
with the protected nature of the request for representation itself.
"In Simi Valley, the proposed decision concluded that the cancellation of a meeting
between the employee and his supervisor was not adverse action, relying on Palo Verde and
Newark. In reversing the proposed decision and finding discrimination against the employee,
the Board declined "to speculate" whether the cancelled meeting comprised adverse action.
(Simi Valley, supra, PERB Decision No. 1714.)
"The processing of Neuman's complaint by the City's EEO Office, resulting in its
transfer to the Department, could have been handled much more effectively and with greater
notice to Neuman. PERB does not have jurisdiction over the City's policy and procedures
against harassment or discrimination except as these constitute unfair practices, however.
There is no evidence that the City EEO Office investigated the harassment or discrimination
complaints of other employees who did not state a protected category on the complaint form.
16

the initiating party-complainant, who refused to provide them without representation. In
essence, Neuman created the alleged "adverse action"
of
the City's failure to complete its
investigation
of
his harassment or discrimination complaint when he refused to discuss it
without representation.
Because the element
of
"adverse action"
is
absent, there is no concomitant "nexus"
between it and any exercise
of
protected activity by Neuman.
PROPOSED ORDER	PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions oflaw, and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SA-CE-469-M,
Modesto City Employees Association
v.
City
of
Modesto, are hereby DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code
sec. 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
17
the initiating party-complainant, who refused to provide them without representation. In
essence, Neuman created the alleged "adverse action" of the City's failure to complete its
investigation of his harassment or discrimination complaint when he refused to discuss it
without representation.
Because the element of "adverse action" is absent, there is no concomitant "nexus"
between it and any exercise of protected activity by Neuman.
Based upon the foregoing findings of fact and conclusions of law, and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SA-CE-469-M,
Modesto City Employees Association v. City of Modesto, are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code
sec. 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
17

which meets the requirements
of
California Code
of
Regulations, title
8,
section 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,
sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
18
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit.
8,
secs. 32300, 32305,
32140, and 32135(c).)
Christine A. Bologna
Administrative Law Judge
which meets the requirements of California Code of Regulations, title 8, section 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, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Christine A. Bologna
Administrative Law Judge
18