Inlandboatmen's Union of the Pacific (O'Keefe) (PERB 2199M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DERRICK C. O'KEEFE,
Charging Party,
v.
INLANDBOATMEN'S UNION OF THE
PACIFIC,
Respondent.
Case No. SF-CO-228-M
PERB Decision No. 2199-M
August 29, 2011
Appearance: Derrick C. O'Keefe, on his own behalf.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Derrick C. O'Keefe (O'Keefe) of a Board agent's dismissal
(attached) of O'Keefe's unfair practice charge. The charge alleges that the Inlandboatmen's
Union of the Pacific (IBU) violated the Meyers-Milias-Brown Act (MMBA) 1 by retaliating
against O'Keefe for having filed prior unfair practice charges with PERB against IBU and the
employer, Golden Gate Bridge Highway and Transportation District (District), and for having
assisted a co-worker, Willard Park, with his PERB charge against the District. The charge
alleges that this conduct violated MMBA sections 3502, 3502.1 and 3506, and PERB
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

Regulation 32603.2 The Board agent dismissed the charge, finding that it failed to state a
prima facie case.
The Board has reviewed O'Keefe's appeal, the warning and dismissal letters and the
entire record in light
of
the relevant law. Based on this review, we find the Board agent's
warning and dismissal letters to be well-reasoned, free
of
prejudicial error and in accordance
with applicable law. Accordingly, the Board adopts the warning and dismissal letters as the
decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SF-CO-228-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
2 In addition, the charge alleges violations of PERB Regulations 99563.S(B) and 99563,
which do not exist. (PERB regs. are codified at Cal. Code Regs., title 8, sec. 31001 et seq.)
These appear to be sections of the Los Angeles County Metropolitan Transportation Authority
Transit Employer-Employee Relations Act (codified at sec. 99560 et seq.), a statutory scheme
not applicable here.
2

ST A TE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8387
Fax: (916) 327-6377
July 15, 2010
Derrick O'Keefe
1400 Technology Lane #905
Petaluma, CA 94954
Re: 	DerrickC. 0 'Keefe v. Inlandboatmen 's Union of the Pacific
Unfair Practice Charge No. SF-CO-228-M
DISMISSAL LETTER
Dear Mr. O'Keefe:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 25, 2010. Derrick C. O'Keefe (O'Keefe or Charging Party)
alleges that the Inlandboatmen's Union of the Pacific (IBU, Union or Respondent) violated
sections 3502, 3502.1 and 3506 of the Meyers-Milias-Brown Act (MMBA or Act)1 and PERB
Regulation 32603 by retaliating against him for filing earlier charges with PERB and for filing
a grievance in December 2009 against his employer, Golden Gate Bridge Highway and
Transportation District (District).2
Charging Party was informed in the attached Warning Letter dated June 29, 2010, that the
above-referenced charge did not state a prima facie case. You were advised that, if there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to July 12, 2010, the charge would be
dismissed.
On July 14, 2010 PERB received an amended charge postmarked on July 12, 2010. In the
Warning Letter, I pointed out problems with Mr. O'Keefe's theory that IBU had retaliated
against him on January 12, 2010 when IBU's Executive Committee voted not to pursue his
December 21, 2009 grievance and voted to send Mr. O'Keefe a letter of reprimand for his
addressing Ms. Secchitano as Mrs. Secchitano. In the First Amended Charge Mr. O'Keefe
states:
1 The MMBA is codified at Government Code section 3500 et seq. 	PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 In addition the charge alleges violations of Regulations 99563.8(B) and 99563, which
are not PERB Regulations and therefore, will not be addressed here. PERB has repeatedly
held that it has no jurisdiction to enforce rights contained in other statutes such as the
Education Code. (Barstow Unified School District (1997) PERB Decision No 1138b.) These
allegations were not explained in the First Amended Charge.

SF-CO-228-M
July 15, 2010
Page 2
Apparently, I was not clear enough in the Unfair Practice Charge
against the InlandBoatman's Union (IBU) Regional Director
Marina Secchitano. The Due Process, Manufactured Discipline,
Verbal Abuse and Denied Medical Access that I Suffered at the
hands
of
Golden Gate Bridge Highway and Transportation
District(GGBHTD)/Golden Gate Ferry(GGF) was "manufactured
and orchestrated by the IBU Regional Director Marina
Secchitano" and a direct result
of
my PERB and Willard Parks
[sic] Trails [sic], both IBU Marina Secchitano Sexual Harassment
Trail [sic] March 2010 and IBU Executive Committee Member
Sandy Ailes Sexual Harassment PERB Trail [sic] November
2009.
Mr. O'Keefe then addresses omissions or errors in the response to the charge by IBU's
counsel, Mr. Iglitzin. 	At no point does Mr. O'Keefe discuss the deficiencies I address in the
Warning Letter. The assertion that IBU acted "outside the realm
of
normal union behavior"
when it issued him a letter
of
reprimand for addressing the regional Director as Mrs., rather
than Ms., does not overcome the
flaw,
in the charge that a letter
of
reprimand from IBU does
not establish an adverse action. In Service Employees International Union Local I 000
(Hernandez) (2009) PERB Decision No. 2049-S, the Board held that it will not intervene in
disputes that involve only the internal union activities
of
an employee organization, unless
those activities substantially impact employer-employee relations. Therefore, the allegations
related to the January 12, 2010 actions taken by IBU are hereby dismissed based on the facts
and reasons set forth in the June 29, 2010 Warning Letter.
There were no facts provided relating IBU to the denial
of
medical access, therefore that
allegation is dismissed.
The original charge did not provide any information related to Mr. Park's hearing or the
allegations related to his termination. In the First Amended Charge, Mr. O'Keefe attempts to
link Mr. Park's termination from employment, allegedly for posting bulletins casting a co
worker in a negative light, and O'Keefe's being interviewed and shouted at and threatened by
District Deputy General Manager, James Swindler on January 12, 2010 for the same reasons.
(Subject matter
of
Unfair Practice Charge No. SF-CE-747-M.)
Mr. O'Keefe believes that IBU's Regional Director forwarded Swindler a copy
of
Mr. Park's
e-mail which allegedly defames a co-worker. Copies
of
the e-mails were shown to Mr.
O'Keefe when he was questioned on January 12, 2010 by Mr. Swindler. Mr. O'Keefe believes
that Ms. Secchitano set up Mr. Park and was trying to set him up by providing Mr. Swindler
with internal IBU e-mail copies. Attached to the charge are a series of exhibits which fail to
establish that Ms. Secchitano was responsible for forwarding e-mails to Mr. Swindler.
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how" of an

SF-CO-228-M
July 15, 2010
Page 3
unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
'Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.) Mr. O'Keefe has provided a
series of legal conclusions without the necessary evidence.
As I indicated in the Warning Letter, in determining whether adverse action has been taken
against an employee the test is not whether the employee found the employer's actionto he
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.) Further, the adverse action must involve actual and
not merely speculative harm. (City and County of San Francisco (SEJU Local 790) (2004)
PERB Decision No. 1664-M.) Mr. O'Keefe has not demonstrated any actual harm to his
employment status by the alleged actions taken by IBU and without that critical information,
the charge does not state a violation.
Right to Appeal
Pursuar~i to PERB Regulations,3 Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. 	(Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
3 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-228-M
July 15, 2010
Page 4
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs, tit.
8,
§ 32635, subd. (b ).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit.
8,
§ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit.
8,
§ 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days
beforc:S
the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (CaL Code Regs, tit.
8,
§ 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMIR. BOGERT
General Counsel
By~b
~Smith
Labor Relations Specialist
Attachrnent
cc: Dmitri Iglitzin

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118th Street
Sacramento,
CA
95811-4124
Telephone: (916) 327-8387
Fax: (916) 327-6377
June 29, 2010
Derrick O'Keefe
1400 Technology Lane #905
Petaluma, CA 94954
Re: 	Derrick
C.
0 'Keefe
v.
Inlandboatmen
's
Union
of
the Pacific
Unfair Practice Charge No. SF-CO-228-M
WARNING LETTER
Dear Mr. O'Keefe:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 25, 2010. Derrick
C.
O'Keefe (O'Keefe or Charging Party)
alleges that the Inlandboatmen's Union
of
the Pacific (IBU, Union or Respondent) violated
sections 3502, 3502.l and 3506
of
the Meyers-Milias-Brown Act (MMBA or Act)1 and PERB
Regulation 32603 by retaliating against him for filing earlier charges with PERB and for filing
a grievance in December 2009 against his employer, Golden Gate Bridge Highway and
Transportation District (District).2
Mr. O'Keefe is a member
of
the IBU and is employed as a deckhand by the District. Mr.
O'Keefe previously filed PERB charges against both the Union and the District. His charge
against the IBU was dismissed on Decemberl5, 2009. Mr. O'Keefe also allegedly assisted
Willard Park, a fellow deckhand, with his PERB charge against the District, which was heard
on August 26-27 and November 16, 2009.
On December 21, 2009, Mr. O'Keefe attempted to file a grievance against the District over the
way a maintenance dockhand position had been filled, alleging that the District should have
placed a current employee with the lowest seniority into the position rather than hiring a new
employee. Mr. O'Keefe was apparently not himself placed in the maintenance deckhand
position, nor would he have been placed in it
if
he had prevailed in his grievance. The District
denied the grievance because it was not submitted through IBU and was not signed by IBU's
Regional Director, Marina Secchitano.
1 The MMBA is codified at Government Code section 3500 et seq. 	PERB Regulations
are codified at California Code of Regulations, title 8, section 31001, et seq. The text
of
the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 In addition the charge alleges violations of Regulations 99563.8(B) and 99563, which
are not PERB Regulations and therefore, will not be addressed here. PERB has repeatedly
held that it has no jurisdiction to enforce rights contained in other statutes such as the
Education Code. (Barstow Unified School District (1997) PERB Decision No 1138b.)

SF-CO-228-M
June 29, 2010
Page 2
On December 27, 2009, Mr. O'Keefe e-mailed Secchitano asking if the IBU was going to
pursue his grievance.
Secchitano replied that contrary to the assertion being made by Mr. O'Keefe, IBU believed that
the District had not violated any of the terms of the collective bargaining agreement in effect
between the parties. Secchitano cited the Memorandum of Understanding (MOU), which
stated "The District may assign a regular employee to the Maintenance Deckhand position but
they are not obligated to do so."
On December 31, 2009, Secchitano sent Mr. O'Keefe a letter on the same subject, reiterating
that she, in her capacity as Regional Director, was rejecting his proffered grievance on the
basis that it did not state a valid contractual claim. In accordance with IBU procedures,
Secchitano informed Mr. O'Keefe of his right to appeal her decision to the governing body of
the San Francisco Region, stating:
If you disagree, you can appeal to the Executive Committee
which will meet on Tuesday, January 12, 2010, at 9:00 AM in the
Union Office, 450 Harrison Street, San Francisco.
On January 10, 2010, Mr. O'Keefe sent an e-mail to the Regional Director stating in pertinent
part:
Once again Mrs. Regional Director, Are you going to file the
grievance or not? If you choose not to file the grievance please
explain why the Company is not obligated to adhere to the MOU?
(emphasis added)
At the January 12, 2010 meeting of the Union's Executive Committee, the Committee voted
not to pursue Mr. O'Keefe's grievance. In a letter from Secchitano to Mr. O'Keefe dated
January 14, 2010 Mr. O'Keefe was informed "[i]n accordance with the IBU Constitution, you
may appeal the decision to the Executive Council by March 15, 2010."
IBU in its response to the charge states that at the same meeting, the Executive Committee
voted to send a letter reprimanding Mr. O'Keefe for the inappropriate language in his January
10, 2010 e-mail. Mr. O'Keefe was informed of this decision in a letter by IBU Vice Chair
Robert Irminger which stated, in pertinent part:
This is to inform you that language you used in recent
communication to the Regional Director was inappropriate.
Communication with Union Officials should be conducted in a
civil and courteous manner. Please refrain from using such
unprofessional language in the future.
The letter included a copy of the IBU's Non-Discrimination and Non-Retaliation Policy that
was adopted in October 2009 for Mr. O'Keefe to review. The letter did not state that Mr.

SF-CO-228-M
June 29, 2010
Page 3
O'Keefe had violated the policy. The letter concluded: "I would hope that there are no further
incidences in the future."
Mr. O'Keefe sent an e-mail to Vice Chair Irminger asking for a clarification regarding which
communication the letter referred to. IBU responded that it was "in reference to a January 10,
2010 e-mail you sent to the Regional Director addressing her as Mrs. Regional Director. As
you know, the Regional Director is not married, so a simple Regional Director or Ms. Regional
Director would suffice."
After Mr. O'Keefe found out what comment the warning was in connection to, he sent an e
mail to Irminger apologizing for improperly referring to the Regional Director as "Mrs.
Regional Director." The Regional Director later sent Mr. O'Keefe a letter stating that his e
mail to Vice Chair Irminger was read at the February 9 executive board meeting and that it
"was appreciated."
IBU argues that the reprimand did not impact any aspect
of
Mr. O'Keefe's employment with
any employer, nor has it impacted Mr. O'Keefe's rights as a member
of
the IBU. Further IBU
argues that the reprimand did not prevent or impair the Union from continuing to advocate on
Mr. O'Keefe's behalf as the Unioh would any other member. IBU provides as an example,
only two days after IBU's executive board reprimanded Mr. O'Keefe, Secchitano sent a letter
to Z. Wayne Johnson, the District's Deputy General Manager, describing the inappropriate
treatment and denial
of
medical treatment that Mr. O'Keefe had allegedly suffered at the hands
of
Ferry Division Manager Jim Swindler on January 12, 2010, and demanding an investigation.
Mr. O'Keefe in summary
of
his allegation against IBU states "I fear for my employment and
any legal [p ]rotection under the MOU or union bylaws. I am seeking help from the PERB to
put an end to this constant harassment and the threat
of
termination."
Discussion
To demonstrate that an employer discriminated or retaliated against an employee
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; (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); San Leandro Police Officers Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553 (San Leandro).) In determining whether
evidence
of
adverse action is established, the Board uses an objective test and will not rely
upon the subjective reactions
of
the employee. (Palo Verde Unified School District (1988)
PERB Decision No. 689.) In a later decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider

SF-CO-228-M
June 29, 2010
Page 4
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
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 5'chool District (1982)
PERB Decision No. 264), 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 and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104; San Leandro,
supra, 55 Cal.App.3d 553); (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; San Leandro, supra, 55 Cal.App.3d 553); (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 School
District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
While it is clear Mr. O'Keefe engaged in protected activity which IBU was aware of, he
neither provides, nor alleges, the existence of evidence establishing either of the other required
elements for a prima facie retaliation case.
Although the "adverse impact on an employee's employment" test was first established in
cases alleging retaliation by employers, PERB uses the same test for allegations of retaliation
by employee organizations. 	(Civil Service Division, California State Employees Association
(Eisenberg) (2009) PERB Decision No. 2034-S). In determining whether adverse action has
been taken against an employee the test is not whether the employee found the employer's
action to he 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.) Further, the adverse action
must involve actual and not merely speculative harm. City and County of San Francisco
(SEIU Local 790) (2004) PERB Decision No. 1664M.)
There is no evidence in this case establishing that any of the actions taken by the IBU had an
adverse impact on Mr. O'Keefe's employment. The charge does not state that either the IBU's

SF-CO-228-M
June 29,2010
Page 5
ruling on the grievance he wished to file, nor the letter he received reprimanding him for his
communication to the Regional Director, impacted his employment.
Although PERB has found that written reprimands by employers constitute adverse actions, the
letter from IBU in this case is distinguishable. None
of
the factors that justify finding written
employer reprimands to constitute adverse actions appear here: for example, there is no threat
of
specific future discipline in the letter nor is there an indication that it is being kept in a
perso~nel file where it could form the basis for future discipline. City
of
Long Beach (2008)
PERB Decision No. 1977-M.) There is no indication that Mr. O'Keefe's employer even knew
about this reprimand before this charge was filed, nor that the District took any action against
Mr. O'Keefe as a result
of
the Union's reprimand. Mr. ()'Keefe does
not
provide any evidence
in support
of
his allegation that he was threatened with expulsion from the IBU and financial
penalty in retaliation for his protected activity, and therefore those allegations cannot provide
the basis for a retaliation charge.
Thus, there is no evidence that the warning letter sent to Mr. O'Keefe about the inappropriate
language in his e-mail to the Regional Director had an adverse impact on his employment.
There were no further sanctions against Mr. O'Keefe besides the letter, therefore, Mr.
O'Keefe's retaliation claim regarding the reprimand for improperly addressing the Regional
Director does not include the necessary element
of
an adverse employment action and will
therefore be dismissed.
Even
if
either the warning regarding inappropriate language and/or the denial
of
his grievance
are considered adverse actions having an impact on his employment, Mr. O'Keefe has not
established or alleged the necessary connection between the adverse actions and the protected
activity he engaged in.
The
proximity in timing by itself is not enough. Although the timing
of
the employee organization's adverse action in close temporal proximity to the employee's
protected conduct is an important factor, it does not, without more, demonstrate the necessary
"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 employee organization's disparate treatment
ofthe employee; (2) the employee organization's departure from established procedures and
standards when dealing with the employee; (3) the employee organization's inconsistent or
contradictory justifications for its actions; (4) the employee organization's failure to offer the
employee justification at the time it took action or the offering
of
exaggerated vague, or
ambiguous reasons; or (5) any other facts which might demonstrate the employer's unlawful
motive. (Novato, supra, PERB Decision No. 210; North Sacramento School District (1982)
PERB Decision No. 264); California State Employees Association (Carrillo) (1994) PERB
Decision No. 1199-S.)
Mr. O'Keefe has not provided or alleged any evidence of disparate treatment, departure from
established practice, or any other factor that would establish the nexus between his alleged
protected activities and those actions that would be necessary in order for him to prevail in this
proceeding.

SF-CO-228-M
June 29, 2010
Page 6
For these reasons the charge, as presently written, does not state a prima facie case.3
Ifthere
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should
beprepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand corner
of
the charge form. 	The amended charge must be
served on the Respondent's representative and the original
proof
of
service must be filed with
PERB.
	If
an amended charge or withdrawal is not filed on or before July 12, 2010,4 PERB will
dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
~~
Roger Smith
Labor Relations Specialist
RCS
3 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"adetermination that the facts as alleged in the charge state a legal cause
of
action and that the
charging party is capable
of
providing admissible evidence in support
of
the allegations.
Consequently, where the investigation results in receipt
of
conflicting allegations
of
fact or
contrary theories
of
law, fair proceedings,
if
not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
4 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)