State of California (Department of Corrections and Rehabilitation) (PERB 2118S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS & REHABILITATION),
Respondent.
Case No. SA-CE-1671-S
PERB Decision No. 2118-S
June 15, 2010
Appearances: 	Suzanne L. Branine, Staff Counsel, for California Correctional Peace Officers
Association; Paul M. Starkey, Labor Relations Counsel, for State of California (Department of
Corrections & Rehabilitation).
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
McKEAG, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the California Correctional Peace Officers Association
(CCPOA) of a Board agent's dismissal of its unfair practice charge. The charge alleged that
the State of California (Department of Corrections and Rehabilitation) (CDCR or State)
violated the Ralph C. Dills Act (Dills Act)1 by retaliating against an employee and by
interfering with employee rights. The Board agent dismissed the charge for failure to state a
prima facie case.
The Dills Act is codified at Government Code section 3 512 et seq. Section 3 519
states, in relevant part, that it is unlawful for the state to:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.

The Board has reviewed the dismissal and the record in light of CCPOA' s appeal, the
State's response to the appeal,2 and the relevant law. Based on this review, the Board affirms
the dismissal of the unfair practice charge.
BACKGROUND
CCPOA is the exclusive representative of State Bargaining Unit 6 employees.
Oak Smith (Smith) is employed by CDCR as a Correctional Counselor (CCI) at the Kern
Valley State Prison (KVSP). Since 2005, Smith has served as CCPOA's chief job steward at
KVSP.
Smith has filed approximately 18 grievances on behalf of unit members at KVSP. 	Six
of the grievances were filed between November 2007 and January 2008. Smith discussed these
six grievances with his Supervisor, J.L. Garcia (Garcia), at the informal level of the grievance
procedure.
Smith has also filed 13 information requests with KVSP management, as well as
numerous memos with KVSP management, CDCR headquarters and other State managers
regarding working conditions at KVSP. 	Seven of the information requests were submitted
between October 2007 and February 5, 2008. Many of the information requests were first
made informally to Garcia before written requests were submitted.
2 The Department of Personnel Administration (DPA) contends the charge was filed
against the wrong respondent and should be dismissed on that basis. CCPOA listed DP A as
the party against which the charge was filed, rather than CDCR. The Board agent identified
CDCR as the respondent in the case caption consistent with information contained in the
statement of the charge. DPA was served with a copy of the charge and has shown no
prejudice as a result of the failur~ to identify the specific department alleged to have committed
an unfair practice on the face of the charge form. 	Therefore, CCPOA's failure to name CDCR
as the respondent in this case is not sufficient, standing alone, to warrant dismissal of the
charge. (State of California (Department of Corrections and Rehabilitation) (2010) PERB
Decision No. 2108-S.)
2

Smith submitted written requests for overtime to Garcia on April 26, May 2, and
December 26, 2007, regarding his own workload.
The charge states that on an unspecified date, "Garcia remarked to Smith 'You are
bringing your CCPOA issues to work."'
On February 7, 2008, Smith received his annual performance evaluation from Garcia.
In every performance category, Smith was rated as either meeting or exceeding performance
standards. Comments were included on the evaluation form under most categories, including
the following:
QUANTITY OF WORK
Oak, maintains his caseload with minimum supervision.
Mr. Smith is reluctant to do anything he perceives as 'special
assignments' without the use of overtime to accomplish
operational needs.
WORK HABITS
Oak, recently required written instructions from the Warden to
complete his assignments. To Oaks [sic] credit he has been
punctual when reporting to work.
RELATIONSHIPS WITH PEOPLE
I have found it necessary to speak with Oak with regard to his
comments. On occasion, I find his demeanor obstinate and
remarks flippant.
On February 27, 2008, Smith filed a second-level grievance challenging these
comments on his performance evaluation. CDCR denied the grievance on March 18, 2008.
The charge further alleges that, "Smith was treated differently from other CCis who
received performance evaluations." The charge names three other employees who were not
union activists, who received performance evaluations that did not contain negative comments.
3

Since February 2008, "Smith has protested and discussed with the Warden a new policy
that has frequent workload impacts for all CCis."
On August 13, 2008, while again discussing his concerns regarding the policy with his
Captain, the Captain told Smith he needed to "let it go." Smith informed the Captain that he
had filed a grievance over the policy, but stated that the grievance process was broken and he
needed to use every avenue open to him. The Captain replied that he was not going to argue
about the issue any more and that Smith needed to "get over it." The Captain also referred
Smith to the employee assistance program (EAP).3
Smith returned to the Captain's office an hour later to pick up his EAP referral. 	Smith
and the Captain resumed their discussion over the policy. The charge alleges, "The Captain
said he felt Smith brought his CCPOA issues to work with him and that it had a negative
impact on his work and attitude. Smith and his CCPOA Representative, KVSP Chapter
President Marques Jones asked several times, what Smith's CCPOA activities had to do with
an EAP referral."
DISCUSSION
On appeal, CCPOA asserts the Board agent erred in dismissing the allegations that
CDCR retaliated against Smith for engaging in protected activity when it issued him a negative
evaluation, and retaliated against him and interfered with his rights under the Dills Act when
he was given an EAP referral.
3 EAP is a benefit provided to employees by the State. EAP provides services intended
to help employees and their dependents with personal problems that might adversely impact
their work performance, health or well-being. Participation in EAP is voluntary and all
services provided are confidential.
4

Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in
violation of the Dills Act section 3519(a), a charging party must show that: (1) the employee
exercised rights under the Dills Act; (2) the employer had knowledge of the exercise of those
rights; (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); Carlsbad Unified School District (1979) PERB Decision
No. 89 (Carlsbad).) 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.) Thus, the appropriate
test is not whether the employee feels that the employer's action is 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) PERB Decision No. 864; emphasis added;
fn. omitted.)
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)), 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 additional factors must also be present: (1) the employer's
disparate treatment of the employee (State of California (Department of Transportation)
(1984) PERB Decision No. 459-S); (2) the employer's departure from established procedures
5

and standards when dealing with the employee (Santa Clara Unffied School District (1979)
PERB Decision No. 104); (3) the employer's inconsistent or contradictory justifications for its
actions (State of California (Department of Parks and Recreation) (1983) PERB Decision
No. 328-S); (4) the employer's cursory investigation of the employee's misconduct (City of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003)
PERB Decision No. 1560); (5) the employer's failure to offer the employee justification at the
time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the
offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive (North Sacramento; Novato).
Performance Evaluation
The charge alleges Smith engaged in protected activity when he filed information
requests and memos with management regarding "working conditions." There are no facts,
however, that describe the content of the requests Or memos. The charge does not demonstrate
that these documents addressed union matters, or whether Smith was conveying personal
concerns. Therefore, the charge does not establish that Smith engaged in protected activity
when he submitted these documents to management.
The charge also contends that Smith engaged in protected activity when he requested
authorization to work overtime. Some communication taken on behalf of unit employees may
be considered protected activity. However, when an employee's communication with the
employer is for his/her own benefit, the conduct is not protected. (Los Angeles Unified School
6

District (2003) PERB Decision No. 1552; Oakdale Union Elementary School District (1998)
PERB Decision No. 1246.) Here, Smith sought authorization for overtime regarding his own
workload. Accordingly, this conduct does not demonstrate protected activity.
The charge does establish protected activity when Smith, while acting as a job steward,
filed grievances on behalf of unit employees. (Healdsburg Union High School District ( 1997)
PERB Decision No. 1185; Klamath-Trinity Joint Unified School District (2005) PERB
Decision No. 1778.) Garcia, who prepared Smith's February 2008 evaluation, was aware of
this activity when Smith informally discussed the most recent grievances with him. Thus,
CCPOA established the first and second elements of a prima facie case for unlawful retaliation.
With regard to the third element, a negative performance evaluation has been held to
constitute an adverse action. (State of California (Department of Youth Authority) (2000)
PERB Decision No. 1403-S; California State University, Long Beach (1987) PERB Decision
No. 641-H; Woodland Joint Unified School District (1987) PERB Decision No. 628.) In this
case, Smith's evaluation indicated that he met or exceeded performance standards. In other
words, Smith received a positive performance review. It is noteworthy that the evaluation
contained written comments and constructive criticism that suggested some minor performance
issues. However, we find these statements were insufficient to transform an otherwise positive
performance evaluation into an adverse action. Thus, under the objective test, the evaluation
issued to Smith does not constitute an adverse action. 4
To establish the final element, unlawful motive, the charge must allege facts that
demonstrate a nexus or connection between the protected activity and the adverse action. The
4 Member Wesley finds the comments on Smith's performance evaluation constitute an
adverse action. Where negative comments on an evaluation may reasonably be considered to
have an adverse impact on terms and conditions of employment, such as future employment
opportunities, Member Wesley would find such action is adverse under the Dills Act.
7

initial factor of timing is established as several grievances were filed shortly before Smith
received his evaluation. CCPOA contends there is also disparate treatment because other
CCis, who are not union activists, did not receive negative evaluations. But, there are no facts
to show these employees were similarly situated. The charge does not allege that any of these
employees engaged in similar conduct, such as receiving written instructions from the Warden,
engaging in obstinate behavior or making flippant remarks. Without evidence of similar
conduct, the fact that other employees did not receive negative comments on their evaluations
does not demonstrate disparate treatment. Therefore, the charge does not support a finding of
disparate treatment for the same conduct.
CCPOA further contends that union animus is demonstrated by Garcia's statement that
Smith brings his CCPOA issues to work. On its face, this statement does not demonstrate
union animus. Moreover, the charge does not describe the context in which the statement was
made or even when the statement was made. Therefore, the charge does not support a finding
of union animus. Accordingly, the charge does not establish the nexus element and the
allegation was properly dismissed for failure to establish the third and fourth elements of a
prima facie case for unlawful retaliation.
EAP Referral
As discussed above, Smith engaged in protected activity when he filed grievances
through February 2008. Smith also engaged in protected activity when he brought a union
representative to his meeting with the Captain on August 13, 2008. However, this protected
activity occurred after the Captain told Smith he would be given an EAP referral and, thus,
cannot be considered as the basis for the alleged adverse action.
8

Furthermore, the EAP referral does not constitute adverse action. Participation in the
program is voluntary and all services provided are confidential. A reasonable person would
not find that a referral to a voluntary service designed to assist employees with personal
problems would have an adverse impact on the employee's employment. Thus, it is
unnecessary to address the nexus element, and dismissal of this allegation was also proper. 5
Interference
Finally, the charge alleges that giving Smith the EAP referral interfered with his Dills
Act rights.
The test for whether an employer has interfered with the rights of employees under the
Dills Act does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. In State of California (Department of
Developmental Services) (1983) PERB Decision No. 344-S, citing Carlsbad and Service
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106, the
Board described the standard as follows:
[I]n order to establish a prima facie case of unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under [the Act].
Furthermore, the Board has held that a finding of coercion does not require evidence
that the employee actually felt threatened or intimidated or was in fact discouraged from
5 Procedurally, CCPOA contends the Board agent failed to provide a second warning
letter regarding the EAP allegation that was raised for the first time in its amended charge.
CCPOA asserts PERB Regulation 32620(d) requires a Board agent to issue further warning
letters addressing new allegations. (PERB regs. are codified at Cal. Code Regs., tit. 8,
sec. 31001 et seq.) However, the purpose of Regulation 32620(d) is to prohibit the dismissal
of a charge based on information obtained from a respondent after a warning letter has issued,
unless the information has first been communicated to the charging party. CCPOA does not
claim the Board agent relied on new facts obtained from the employer to dismiss the charge.
9

participating in protected activity. (Clovis Unified School District (1984) PERB Decision
No. 389.) However, under the above described test, a violation may only be found if the
claimed rights are provided for under the Dills Act.
The charge does not provide facts that demonstrate how referral to EAP interfered with
Smith's rights. Smith could choose to utilize the benefit or not. There is no indication of harm
or possible harm to Dills Act rights. Therefore, this allegation is also dismissed for failure to
state a prima facie case.
ORDER
The unfair practice charge in Case No. SA-CE-1671-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member Wesley joined in this Decision.