City of Milpitas (PERB 1641M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MICHAEL F. LOPEZ,
Charging Party,
V.
CITY OF MILPITAS,
Respondent.
Case No. SF-CE-6-M
PERB Decision No. 16LJ.1-M
June 14, 2004
Appearances: Law Offices of Helen Jennings by Helen Jennings, Attorney, for Michael F.
Lopez; Meyers, Nave, Riback, Silver & Wilson by Laura Lee Briggs, Attorney, for City of
Milpitas.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on exceptions filed by Michael F. Lopez (Lopez) to a proposed decision (attached) of the
administrative law judge (ALJ). Lopez alleged that the City of Milpitas (City) violated the
Meyers-Milias-Brown Act (MMBA)1 by retaliating against him for his protected activities.
The ALJ's proposed decision dismissed the complaint finding that Lopez failed to meet his
burden of proof.
The Board has reviewed the entire record in this matter, including the ALJ' s proposed
decision, Lopez' exceptions and the City's response. The Board finds the ALJ's findings of
fact and conclusions of law to be free of prejudicial error and adopts the proposed decision as
the decision of the Board itself.
1The MMBA is codified at Government Code section 3500, et seq.

ORDER
The unfair practice charge and complaint in Case No. SF-CE-6-M are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MICHAEL F, LOPEZ,
Charging Party,
V.
CITY OF MILPITAS,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-6-M
PROPOSED DECISION
(3/11/03)
Appearances: Helen Jennings, Attorney, for Michael F. Lopez; Meyers, Nave, Riback, Silver
& Wilson, by Arthur A. Hartinger and Laura Lee Briggs, Attorneys, for City of Milpitas.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
Michael F. Lopez initiated this action by filing an unfair practice charge
against the City of Milpitas (City) on July 23, 2001. Following its investigation of the
charge, the Office of the General Counsel of the Public Employment Relations Board
(PERB or Board) issued a complaint on December 20, 2001. 1 The complaint alleges
that the City retaliated against Lopez by postponing his promotion to battalion chief
because he exercised rights guaranteed by the Meyers-Milias-Brown Act (MMBA).2
By this conduct, the complaint alleges, the City violated section 35063 and PERB
1 The general counsel dismissed a portion of the charge, and there was no appeal of that
order.
2 MMBA is found at Government Code section 3500 et seq. Unless otherwise
an statutory references are to the Government Code.
3 Section 3506 reads as follows:

Regulation 32603(a).4
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under Section
3
The City filed its answer on January 22, 2002, denying the material allegations of the
complaint and asserting a number of affirmative defenses.
Settlement conferences held before a PERB agent on March 19, and April 25, 2002
failed to resolve the dispute. The undersigned conducted a formal hearing in Oakland on
September 10, and October 22, 2002. With the receipt of post-hearing briefs on February 24,
2003, the matter was submitted for decision.
FINDINGS OF FACT
Lopez is a "public employee" within the meaning of section 3501(d). The City is a
"public agency" within the meaning of section 3501(c).
The City maintains a fire department (Department) and employs its own fire fighting
force. 	The ranks in the Department's force are, in ascending order, firefighter, fire engineer,
fire captain, battalion chief, division chief, assistant chief, and fire chief. As will be discussed
below, fire lieutenants, just below the rank of fire captain, existed prior to 1998. There are also
classifications of paramedic/firefighter and paramedic/engineer. During his employment with
the City commencing in 1982, Lopez successfully promoted through the firefighter ranks. The
4 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. 	PERB Regulation 32603(a) provides it shall be an unfair practice for a public
agency to:
(a) Interfere with, intimidate, restrain, coerce or discriminate
against public employees because of their exercise of rights
guaranteed by Government Code section 3502 or by any local
rule adopted pursuant to Government Code section 3507.
2

City's firefighters up to and including the rank of captain are included within a bargaining unit
exclusively represented by the Miplitas Firefighters, IAFF Local 1699 (Union). 	The
Department's "command team" consists of the fire chief, assistant fire chief, five battalion
chiefs, fire marshal and assistant fire marshal.
protection services in the Department fall into two categories: fire suppression and
fire prevention. The firefighters engaged in fire suppression respond to emergency calls (i.e.,
fight fires, respond to medical calls, etc.). These firefighters work in 24-hour shifts, and have a
56-hour work week. 	The fire prevention personnel within the Department's Inspection
Services Division perform other services, such as inspections related to fire prevention,
hazardous materials, and building plans. These employees, who are supervised by the fire
marshal, have a regular 40-hour week. Fifty-six-hour positions accrue enhanced vacation and
sick leave benefits, the most important of which translates into a 6 percent pay increase. 	The
40-hour positions do not have enhanced benefits. However, when a 56-hour employee is
temporarily assigned to a 40-hour position, the employee retains the enhanced benefits
pursuant to a provision of the memorandum of understanding (MOU) between the City and the
Union.
Lopez became a captain in 1991. In 1997 an opportunity presented itself for Lopez to
transfer to the position of Public Education/Public Information Officer (Pub Ed/PIO), a 40-
hour position, at the captain's rank.
The Pub Ed/PIO Position and the Three-Year Commitment
The Pub Ed/PIO came about as a result of the elimination of an assistant fire chief
position in 1997. The elimination of this position was accompanied by the creation of a new
position at the fire captain level and the demotion of an incumbent assistant fire chief. 	There
3

were already
12
regular fire suppression fire captain positions. 	The Department has four
stations, with one fire captain per station crew for each
of
three shifts. Because the existing
captains were equally distributed among the four stations, former Fire
Chief
Vern Hamilton
determined that the public would best be served by utilizing the thirteenth fire captain position
as a 40-hour, public information officer with public education and fire inspection
responsibilities. 5 The creation
of
a new captain position was intended to avoid a cascade
of
downward bumping as a result
of
the demotion
of
the assistant fire chief to battalion chief.
The City's announcement
of
the reduction in force was followed
by
negotiations
between the Union and City regarding selection procedures and terms and conditions
of
the
new fire captain position. The parties' agreement led to the signing
of
a side letter dated
March 1
7,
1997. The parties agreed that the Pub Ed/PIO position would be a separate
classification with the official title
of
Fire Captain/Public Information Officer. This was to be
a 40-hour position in the Inspection Services Division, reporting to the fire marshal. The
parties agreed that the Pub Ed/PIO would have primary program management responsibilities
for the Department's public education program, serve as the Department's primary public
information officer, and conduct fire inspections. Key for purposes
of
this case was the
following provision in the agreement:
The appointment to this position shall be for a minimum
of
three
years, including one year
of
probation. Incumbents may not
promote or transfer within that three year minimum commitment
period.
5 The background information regarding staffing configuration is taken from my earlier
decision in Lopez v. Milpitas Firefighters, IAFF Local 1699 (Case No. SF-CO-9-M), which
was entered into evidence in this case.
4

There are currently two other fire department positions with minimum time
commitments: hazardous materials inspectors, with a five-year commitment, and paramedics,
with either a two- or five-year commitment. The MOU does allow for an early escape
by
paramedics, but only with six months written notice and a requirement for reimbursement
of
one month's salary and City-incurred training costs up to $4,500. The MOU also has specific
restrictions on promotions
of
paramedics seeking to promote into specified positions. 	The
Union recently requested a waiver
of
the commitment for paramedics seeking to promote out
of
their position to a captain's position. The City refused.
Selection
of
the First Pub Ed/PIO Captain
Hamilton was successful in obtaining the right to select the first Pub Ed/PIO officer "at
his discretion," without regard to civil service rules, in exchange for the promise that any
subsequent officer would be chosen through competitive examination.6
Shortly after the side letter was executed, Lopez applied for the position. But Hamilton
selected Jack Eggleston, on the basis
of
his higher seniority. On March 26, 1997, Lopez
e-mailed Hamilton to object to the selection on the basis
of
seniority rather than by competitive
examination because it violated the City's affirmative action guidelines and because the
seniority bid process was biased against minorities. Lopez claims Native American heritage.
responded by explaining that a competitive, promotional examination process was
6 The side letter provided in pertinent part:
Appointment to the position will initially be from among
incumbent Fire Captains at the discretion of the Fire Chief.
Subsequent vacancies shall be filled by a promotional process. In
the event there are no sufficient qualified candidates from within
the Department to fill such vacancies, an open recruitment
OCCUL
5

rejected because it would have opened up the possibility of the installation of a non-incumbent
captain and the demotion of the most junior incumbent captain; and the original purpose of the
negotiated agreement was to avoid the domino-effect bumping. This was not Lopez's first
work-related complaint; he had filed complaints on numerous work-related matters predating
this issue. 	There is no evidence that Hamilton considered a competitive examination limited
to incumbent captains to accommodate Lopez's interest. But this assumes such a possibility
under the City's civil service rules and there was no evidence presented by Lopez on that
point.8
On June 12, 1998, Lopez filed a civil complaint in Santa Clara County Superior Court
against the City alleging racial discrimination based on the selection of Eggleston over himself.
The Union was also a defendant as to claims of racial discrimination and breach of the duty of
fair representation. 	On March 8, 2000, the trial court granted the defendants' motion for
summary judgment. The judgment was upheld on appeal in an unpublished decision issued by
the Court of Appeal, Sixth Appellate District, on February 14, 2002.
Eggleston remained in the position until April or May 1998, when he took an early
retirement. 	The vacancy created by Eggleston's retirement was not immediately filled. 	For a
short period of time, the duties of the position were temporarily assigned to a fire lieutenant
before a formal recruitment was undertaken.
For reasons never explained, the City delayed in developing formal job specifications
for the Pub Ed/PIO position until March 2000. When they were adopted, the position was
7 Many of these involved claims of race discrimination. The City began to keep a log
of Lopez's complaints in 1992, but Lopez acknowledged complaints prior to that year.
8 The City's personnel rules and regulations provides for recruitment by one of two
and open.
6

confirmed to be a 40-hour per week position, accruing 40-hour benefits "per IAFF MOU,"
and having a three-year minimum commitment.
The 1998 Side Letter Relating to the Upgrading of Lieutenants
In approximately September 1998, the City announced the Pub Ed/PIO vacancy, to be
filled by competitive examination. There were four candidates, including Lopez. Lopez was
the only one at the captain's level. Lopez was selected and began service on October 11, 1998.
In the meantime, Jeffrey Lee, a Union shift representative, with 22 years of seniority
currently, and Ralph Moss, the current Union president with 20 years of seniority, were
involved in the negotiations of a September 1998 side letter concerning the upgrade of the
Department's five lieutenant positions to fire captain positions.9 Among the various
provisions, several are pertinent here. As to the Pub Ed/PIO position, paragraph 5 stated:
As a result of prior agreement, the position of Fire Captain/Public
Education officer is not subject to the bid process until the
incumbent vacates the position. In the event that the position
becomes vacant, it will be a third 40-hour week position to be
filled from among incumbent personnel. ...
Paragraph 9 stated:
While temporarily assigned to 40-hour week administrative
positions, Fire Captains shall be entitled to the terms and
conditions of MOU section 38.01. For purposes of section 38.01,
temporary assignment shall be of a single bid cycle duration, or
less. [ 10]
9 Lee explained that the Milpitas lieutenant position was unique in the Bay Area and the
upgrade was to achieve pay comparability.
10 Section 38.01 of the MOU provides in part:
40-hour workweek: Shift employees temporarily assigned to a
40-hour workweek shall maintain the same benefits (leave
accrual and holiday pay) as those individuals assigned to 24-hour
shifts subject to the following conditions: ...
7

Paragraph 10 stated that the fire chief had sole discretion to assign the new captains to the 40-
hour administrative assignments "to be filled until the next regular bid occurs." The side letter
was formally adopted by the city council on September 1, 1998, and memorialized in a written
resolution.
Lopez's Complaints While Serving in the Pub Ed/PIO Position
When Lopez was selected for the Pub Ed/PIO position, he was expecting a pay
increase, but his pay was in fact lowered, as a result of the loss of the 56-hour accruals. 11
Lopez claims that he was the only captain not receiving 56-hour benefits, while three other
captains in the Inspection Services Division, Captains Jeffrey Maxwell, Americo Silvi and
Michael Wells, were. 	Lopez did not establish precisely when these captains received the
higher accruals, but it appears this was after the 1998 side letter. Lopez identified Maxwell as
the training officer. Lopez also had been informed by Eggleston that he had been receiving 56-
hour benefits when he served as the Pub Ed/PIO captain. Lopez testified that he only
"believed" Silvi was receiving 56-hour accruals.
Prior to the creation of the Pub Ed/PIO position, two of the Department's five
lieutenants rotated into 40-hour, non-fire-suppression positions for an 18-month period to deal
with public education and safety inspections. While on this administrative rotation, the
lieutenants accrued the enhanced benefits attendant to the 56-hour positions because they were
to be temporarily assigned from fire suppression positions. All 56-hour personnel,
including those on administrative rotation, were entitled to bid on station and company
assignments at the end of the three-year bid cycle.
11 It was not made clear why a lateral transfer would have been accompanied by a pay
8

In December 1998, Lopez claimed that the Pub Ed/PIO position was a temporary,
biddable position, based on language of the 1997 side letter, and therefore he was entitled to
56-hour accruals. 	Lopez relied on the fact that the normal bid-cycle was three years and the
1997 side letter reference to the Pub Ed/PIO position's three-year commitment coincided with
this time period. He also relied on the side letter's use of the word "transfer"(" ... incumbents
may not promote or transfer. .. ") because he assumed such a term logically applied only to
biddable positions. At the time, then-City Human Resources Director Julie Yuan-Miu, advised
Lopez that the 1997 side letter did not establish the position as a temporary, biddable position.
The City's position was that the Pub Ed/PIO position was a permanent position and thus
separate from the bidding process. 	Yuan-Miu asserted that the term "transfer" from the
paragraph setting forth the three-year commitment did not refer to a rotational bid transfer.
She noted that the agreement stated that subsequent vacancies would be "filled by a
promotional process," which would have been inconsistent with replacementby bid. Lastly,
Yuan-Miu noted that the 1997 side letter described the position as a 40-hour position reporting
to the fire marshal and that other 40-hour positions under the fire marshal do not receive 56-
hour benefits.12
12 The side letter provided:
(2) 	The position will be assigned a 40 hour week in the
Inspection Services Division of the Fire Department.
Compensation for the position shall be Regular Fire
Captain wages (firefighter+ 22%) and the incumbent shaU
maintain EMT-D certification and shall be entitled to EMT-D
9

specialty pay. Other benefits are as defined in the current MOU
for forty-hour week employees. [Emphasis added.]
Later, Lopez raised this issue under a theory ofracial discrimination. 	On February 3,
1999, Lopez filed a complaint with the Department of Fair Employment and Housing (DFEH),
claiming that his pay reduction was racially discriminatory and retaliatory. 	In the course of the
DFEH investigation, the City produced Eggleston's personnel action form showing his pay
rate. Lopez claims that the form proved that the City was discriminating against him.
Eggleston's form, dated January 5, 1998, does show that the City paid him more than Lopez,
but it does not demonstrate that Eggleston was receiving 56-hour accruals. The January 5,
1998, form shows that Eggleston was paid at the rate of $6,835.53 monthly, but this was due to
his new position being designated a fire inspector rather than a fire captain. Lopez was paid at
the rate of $6,767.85 monthly, or $67.68 less than Eggleston. The same form shows that the
City ordered Eggleston's accruals be at the 40-hour week rate. DFEH later provided Lopez
with a second Eggleston personnel action form dated January 12, 1998, indicating that
Eggleston's pay rate was corrected to the $6,767.85 rate. Both forms showed an "effective"
date of January 1, 1998, approximately seven months after Eggleston assumed the position.
The DFEH complaint was dismissed for lack of evidence.
Nevertheless, current Fire Chief William Weisgerber acknowledged that Eggleston did
receive 56-hour accruals for a period of time due to an administrative oversight before the error
was corrected. As previously noted, Lopez testified that at some unspecified time, Eggleston
informed him that he was receiving 56-hour benefits. Lopez did not testify over what period of
time Eggleston claimed he received 56-hour benefits. I find that Eggleston received 56-hour
benefits for at most eight months (i.e., from his selection until the January 1998 personnel

form). 	Lopez testified that Eggleston received 56-hour accruals for 33 months, without citing
the source of that information. 13
As to Wells, the City produced a settlement agreement indicating that he had sued the
City for racial discrimination and had been awarded a reassignment from a 56-hour fire
suppression position to a position in fire prevention with 56-hour benefits. 	This award was in
exchange for a compromise and release by Wells of his legal claims. 14 I find that Wells did not
receive such benefits due to any custom or practice of the Department.
Maxwell was one of the converted lieutenants who was in the Inspection Services
Division training officer position. That was position was identified as a 40-hour position with
56-hour benefits pursuant to the 1998 side letter and section 38.01 of the MOU.
No substantial evidence was provided establishing that Silvi received 56-hour accruals.
If Silvi informed Lopez of this, it would constitute uncorroborated hearsay.15
On April 3, 2000, Lopez filed an internal race discrimination complaint with the City
based on the higher pay rate received by Eggleston revealed in the first personnel action form.
By letter dated June 28, 2000, City Manager Thomas Wilson, in affirming the human resource
director's decision to reject the grievance, asserted that Eggleston's salary was an error that
13 At one point, Lopez testified that Eggleston began his position near the endof May
1996, which is incorrect because the position was not created until March 1997. Assuming
Lopez claims that Eggleston was earning the enhanced benefits from March 1997, even this
does not lead to 33 months because Eggleston left the position in the summer of 1998.
14 The City requested that the document be viewed in-camera and not disclosed to the
charging party on grounds of privacy of employee records. 	This request was granted.
15 The City also presented a matrix of employees as of a later point in time, July 2001,
showing only two employees Captains Tsudama and Shattock working 40-hour weeks and
receiving 56-hour benefits. 	Both of these were working temporary assignments within the
meaning of the MOU.
11

was corrected within days after the first transaction form. 	Wilson provided Lopez with a copy
of Eggleston's January 12, 1998, personnel action form, showing the correction.
In November 2000, Lopez took issue with the City's intention to change the flex-
scheduling of work hours. 	Lopez applied for the Pub Ed/PIO position in part because he could
have a work week consisting of four, ten-hour days. Forty-hour personnel in the Fire
Inspection Services Division had been afforded the "4/1 O" schedule. These personnel were
responsible for building and plan inspections, and needed to be available to the public (i.e.,
building contractors and construction companies) in order to review architectural plans. 	When
the City decided to eliminate the 4/10 option and offer only a "9/80" schedule (nine days,
80 hours every two weeks), Lopez complained and then grieved the change. The change was
prompted by city council members, the city manager, and the fire chief, who had received
complaints from the public using the Fire Inspection Services Division that the services were
often unavailable on Mondays and Fridays due to the 4/10 schedule. In addition, the fire
prevention office often lacked coverage when employees were sick or on vacation. The City
proposed the change to the Union in the 2001-2005 MOU negotiations.16 The agreement was
memorialized in a side letter to the 2001-2005 MOU.
Lopez's grievance was rejected at all levels, including at the third level by Wilson on
February 5, 2001. 	Specifically, Wilson rejected Lopez's argument that the Labor Code
prohibited 	change. In his response, Wilson also noted "extensive correspondence"
indicating that Lopez had previously raised the 9/80 issue and had been rejected, and warned
16 The background information regarding the impetus for the change is taken from my
Lopez v. Milpitas Firefighters, IAFF Local 1699 (Case No. SF
12

that the current grievance could be considered frivolous and an "abuse of a City administrative
process" in violation of a provision in the MOU.
In the course of pursuing the 9/80 issue, Lopez met with Weisgerber on December 18,
2000. In a follow-up e-mail on January 2, 2001, Lopez reminded Weisgerber of the fire chief's
statement that the 1998 side letter "superseded" the 1997 side letter. Lopez also asked
Weisgerber ifhe was bound by a three-year commitment in the Pub Ed/PIO position. As to the
supersession issue, Weisgereber responded that he thought he was simply conveying his view
that new MOU provision as to the 9/80 schedule would now cover all 40-hour positions
previously identified. As to the three-year commitment, Weisgerber indicated he intended to
hold Lopez to it. Weisgerber noted that the three-year commitment was included in the March
2000 Pub Ed/PIO job description. In a follow-up e-mail, Weisgerber cited both the 1997 side
letter agreement and the March 2000 job description.
Lopez filed a grievance on January 18, 2001, challenging Weisgerber' s statement of
intention to hold him to the three-year commitment. Fire Marshal Patricia Joki rejected the
grievance on February 1, 2001, agreeing with Weisgerber. Weisgerber received the grievance
at the second level and rejected it in a memorandum dated February 20, 2001, in which he
reiterated his earlier position. With regard to the three-year commitment he wrote:
Your 3-year commitment does not preclude you from competing
in promotional opportunities for which you are qualified. If you
successfully compete for a promotion and are placed on an
eligibility list, you could be considered for promotion upon
fulfillment of your minimum commitment.
Lopez appealed to Wilson. Wilson rejected the grievance on March 14, 2001, adopting
Weisgerber' s rationale.
13

Lopez also complained to management about former Union President Dan Getreu being
allowed to sleep at the firehouse during his off hours, while Lopez was on duty. 	Lopez
objected because Getreu often came to the firehouse intoxicated and on occasion would try to
discuss situations at other fire houses with him. 	Lopez objected to this. 	Lopez felt that the
City owed him a "hostile-free" work environment. Lopez also had "issues" with Getreu
related to his civil suit against the Union. Five or six complaints by Lopez did not result in any
remedial action. 	Sometime later, in late 2001 or 2002, following additional complaints by
others, but after Lopez left for the Pub Ed/PIO position, the policy on off-duty sleeping in the
firehouse was changed. 	Now prior approval of the firehouse captain is required.
Promotion to Battalion Chief and Further Acts of Alleged Disparate Treatment
Lopez applied for the battalion chief position on three occasions before succeeding in
promoting. 	On the first two occasions he achieved a qualifying score on the examination, but
was not selected. After taking the second examination in 1999, Lopez informed human
resources that he had discovered a discrepancy in the score given to one question. 	Lopez
claims the City did not respond. 	Human Resources Director Cherie Rosenquist testified that
Lopez sought review of the examiners' testing notes, which she could not provide according to
policy. 	Her office informed Lopez that he was only permitted to review his own submitted
materials. Lopez offered no rebuttal to this point, and he offered no evidence substantiating
s 	scoring error. I find that the City did not fail to respond as Lopez asserts, but
at worst failed only to respond with the answer desired by Lopez.
Lopez was the most senior employee competing in the 1999 examination. He believes
seniority afforded him no benefit in the examination, in contrast to when Eggleston was chosen
14

on the basis of seniority. 	But there is no evidence that seniority should have been a factor in
this competitive examination.
In early 2000, after his second battalion chief examination, Lopez requested the
opportunity to participate in the City's acting battalion chief program. 	This program allowed
eligible firefighters to serve in the capacity of a battalion chief in order to gain out-of-class
work experience. According to Lopez, the program had been very informal in the past,with
the prerequisite being only limited on-the-job training. However, when Lopez applied, in
December 1999, Weisgerber informed him that he would have to complete a formal training
regimen before being allowed to participate.
Weisgerber testified that due to increased technical knowledge requirements for the
position, he directed his staff to develop the formalized training program. Lopez was the first
applicant subject to the new program.
Lopez felt this was unfair because the previous program hadbeen so casual and because
he had passed the battalion chief eligibility test on two occasions. To him the timing was
suspicious. 	Then, too, development of the formal training program encountered unexplained
delays. 	Eventually Weisgerber directed the assistant fire chief to start Lopez on whatever
training was at hand, including the informal aspects. 	Weisgerber testified that one reason for
the delay in getting Lopez into the program was that acting battalion chiefs are assigned to a
platoon and assume the acting position only when there is minimum staffing so as not to cause
overtime. 	Lopez was in the Inspection Services Division on a 40-hour schedule.
The formal training program was not ready to be implemented until June 2001. 	Lopez
testified without contradiction that the training program required knowledge not demandedby
the battalion chief competitive examination.
15

One of the components of the training was the Incident Command System (ICS) "400"
certification program. Lopez requested the ICS 400 course, but he was initially denied
permission to take the course. He complained about it. 	Weisgerber testified that he never
refused Lopez the right to attend the class, but only ordered that it be postponed due to Lopez's
conflicting schedule as a 40-hour employee. 	Only one firefighter, Kevin Taylor, has
completed the full training program since its installation, and several have dropped out. 	The
reasons for this are not in evidence. Weisgerber never told Lopez that he could not be an
acting battalion chief because of any hardship on the Department. Lopez never served as an
acting battalion chief. The Department did allow Lopez to serve as an acting fire marshal at
the battalion chief level.
During this time, Lopez also took the examination for the position of fire marshal. He
scored third but was not offered an interview. Lopez claims that the top three qualifying
candidates are always offered an interview, but cited nothing specifically to substantiate that
claim. 	According to Weisgerber, under the City's "rule of the list," Weisgerber as appointing
officer is entitled to interview and select any one of the qualified candidates, regardless of their
actual ranking. The individual chosen for the fire marshal position had less seniority than
Lopez. 	Lopez suggested that that individual also had lesser credentials for fire suppression
work, but that the Department authorized fire suppression duties for the position after the
was installed.
In 2001, there was a recruitment to fill a battalion chief position through internal
promotion. There were four applicants, including Lopez. All four achieved qualifying scores
on the examination. Lopez was ranked second on the list. On May 11, 2001, Weisgerber
announced that he was promoting Captains Silvi and Lopez to the level of battalion chief. The
16

announcement indicated that the Silvi's appointment was effective on
May
20, 2001
and
Lopez's on October 21, 2001. Silvi had
13
years
of
seniority compared to Lopez's 19. Lopez
complains that in the event
of
a reduction in force, he loses out to Silvi, though they
were
selected on the same day and Lopez's greater overall seniority would result in a tie-breaker in
his favor had his appointment not been delayed by five months as a result
of
the three-year
commitment.
Around the time
of
Lopez's selection for battalion chief, Weisgerber consulted with
Rosenquist regarding whether to hold Lopez to the three-year commitment. Rosenquist
advised Weisgerber that he should.
On July 5, 2001, Lopez wrote to Weisgerber demanding that he
be
released from his
three-year commitment, citing the invalidity
of
the 1997 side letter due to lack
of
proper city
council approval. 	Lopez bases this claim on the fact that there was no written resolution issued
by
the city council reflecting approval
of
the side letter, and section 15 .13
of
the City's
personnel rules and regulations provide:
If
Agreement is reached by representatives
of
the City and a
recognized employee organization, they shall jointly prepare a
written memorandum
of
such understanding, which shall not be
binding, and present it to the City Council for determination.[1 7]
I reject this argument. Section 15 .13 does not state that the city council must issue a written
resolution, only that the parties must memorialize their agreement in writing and present it to
17
Lopez also relies on the fact that, in contrast, the 1998 side letter regarding the
conversion
of
lieutenants to captains was adopted by a written resolution and on the fact that
the Pub Ed/PIO position was not identified specifically as a position in subsequent MOUs.
Neither
of
these arguments is persuasive as to the claim that the 1997 side letter was invalid.
The Union officers assumed that the 1997 agreement was binding and were never led to
believe otherwise.
17

the city council for approval.
18
According to the uncontradicted testimony
of
Hamilton, who
signed the side letter for the City, he met with the city council about the agreement and
obtained their approval for it after a vote in closed session.
19
The city council's March 18,
1997, minutes reflect announcement
of
the adoption
of
the agreement regarding
"implementation 	a new fire captain position."20
Lopez claims that the agreement can be interpreted to allow escape from the three-year
commitment through promotion based on statements allegedly made by Hamilton and others,
to that effect. Lopez testified that Hamilton told him this in a conversation they had, but he
conceded his recollection
of
that conversation was "fairly fuzzy" and that the conversation
itself was "general and vague." Lopez was more clear in recalling Hamilton's deposition
testimony to that effect, and the deposition testimony admitted into evidence provides support
for Lopez's claim. Although acknowledging his deposition testimony in Lopez's civil suit
18
Section 15.13 is a reiteration
of
the requirement
of
MMBA section 3505.1.
19 Rosenquist, in response to a request by Lopez, investigated whether a formal
resolution had issued and found it was not. The city clerk was unable to confirm from city
records that the side letter had been adopted with a resolution.
20 The City argues that Lopez's attack
of
the three-year commitment based on the
invalidity
of
the 1997 side letter challenges his credibility because he earlier relied on that
three-year commitment in arguing that his position conformed to the definition
of
a temporary
assignment for purposes
of
claiming 56-hour accrual rates. 	Lopez's rebuttal was that his
position changed in light
of
subsequent events: his discovery that no formal city council
resolution accompanied the 1997 side letter and Weisgerber' s statement which he construed as
establishing that the 1998 side letter superseded the 1997 side letter. Lopez viewed the
Department to be the revisionist historian, changing the interpretation
of
rules only when
convenient to disadvantage him. For example, Lopez took issue with the 9/80 change because
of the lack
of
mutuality of obligation (the City demanded a three-year commitment from him
while not adhering to the past practice of the 4/10 schedule) and relying on seniority (for
Eggleston) only when it was to another's advantage. He testified: "[W]hatever appears to
benefit them, that's the rule that is always going to be in force." I find that Lopez held these
good faith, regardless of their merit.

which might be construed in that fashion, Hamilton denied that that was his interpretation of
the agreement. 21 Hamilton also denied that he ever told Lopez that one way to leave the
position prematurely was through promotion. Lopez admitted that he knows of no one ever
released from a minimum commitment early.22 I find Hamilton's explanations are credible.
Hamilton testified confidently and without hesitation. In addition, there was no writing, City
21 The June 15, 1999, deposition testimony was as follows:
Q [Counsel for Lopez] 	Okay. Also we talked about your
understanding of the public information officer position being a
minimum three years commitment. 	And we also talked about
what that meant to you.
And if I understood that, that meant that the person would either
have to be promoted, they'd have to retire or leave the fire
department in order to leave that position, is that correct? Is that
a correct
A [Hamilton] 	Those would be included in the list of
reasons that they might be able to vacate the position.
Q 	Anything else?
A 	Sure. 	They could - illness, they could be - there could be
some kind of a special catastrophic event happen to them that
would preclude them from continuing. The City Council could -
at the succeeding budget session could eliminate the position out
of the budget. 	Certainly that wouldn't have been a foreign
expenence.
So there's any number of things that could cause that to occur.
Those would be ones that one would likely anticipate.
As to the also-cited May 14, 1999, deposition testimony of Hamilton, I accept Hamilton's
explanation of that testimony regarding promoting out of the position to reflect the Union's
position, not his interpretation of the side letter as executed.
22 Lopez asserted that Jim Shattock, listed as a fire prevention inspector, had a 24-
'"V"'" maximum commitment, which was extended. Since there was no evidence for the
rationale for maximum commitments, I have no reason to conclude that situation to be
analogous to minimum commitments.
19

practice,
or
other witness confirming the interpretation that a promotion was one means
of
escape, and such an interpretation contradicts the express language
of
the side letter
("incumbents may not promote or transfer.
..
").
Lopez claims that Getreu, who was Union president at the time
of
the 1997 side letter,
and Ralph Moss, the current Union president, also told him thathe could promote out
of
the
position. 	Getreu's statement was really a question: "Why do you need to wait?" Since this
was uncorroborated hearsay, it cannot accepted as to the truth
of
the matter asserted (by
implication), namely, that the commitment was unenforceable.23 Moss testified credibly that
he never told Lopez that the three-year commitment was unenforceable. He acknowledged
having a brief, informal conversation with Lopez in which he asked Lopez
why he was not
moving into the new position. Lopez told him
of
the three-year commitment. 	Moss later went
unsolicited to Weisgerber to ask
if
Lopez needed to be held back. 	Weisgerber responded that
he was going to hold Lopez to the commitment. Lee and Moss both credibly testified that it
was never the Union's belief that the 1998 side letter superseded the 1997 side letter as to the
Pub Ed/PIO position's three-year commitment. Again, Lopez reaches in attempting to draw an
inference where one is not justified.
Hamilton and Weisgerber testified that the reason for the three-year commitment was
for the City to obtain a return on the training invested in the incumbent. 	This training included
skills that a fire-suppression fire captain would not typically develop, including
technical data pertinent to fire prevention, public speaking skills, and the ability to develop
23
I do not believe that the mental state hearsay exception under Evidence Code section
1251 would allow admission of this statement for the limited purpose of showing Getreu's
mere 	or opinion that the provision was invalid. Belief, and assertion of fact are one in
instance.
20

information presentations to the public. 	Dissemination
of
public information required special
skills for speaking to the press and citizens
of
all ages from children to seniors. Weisgerber
emphasized the acquired on-the-job experience developed by this specialist as being even more
valuable than the resources actually spent on front-end training.
Lopez filed the instant unfair practice charge on July 23, 2001. 	Lopez contends that it
was Weisgerber who harbored the unlawful animus toward him and was responsible for
delaying his promotion. 	Weisgerber denied that he was motivated to retaliate against Lopez
for his protected activities and that he simply adhered to the terms
of
the side letter agreement.
He noted two recommendations he made which resulted in special public commendations
being issued to Lopez. 	Weisgerber also graded Lopez highly in a performance evaluation for
the period
of
October 12, 1998 through March 17, 2000. At the hearing, Weisgerber described
Lopez as a "good employee" and "thorough" employee, who also filed a lot
of
complaints.
ISSUE
Did the City retaliate against Lopez because
of
his protected activities when it delayed
his promotion to battalion chief?
CONCLUSIONS OF LAW
The complaint in this case alleges that the City delayed Lopez's promotion to battalion
chief "because of" his exercise
of
activities that were protected under the MMBA. 	Section
3506
of
the MMBA and PERB Regulation 32603(a) prohibit such conduct. To establish a
prima facie case
of
discrimination under these provisions, the charging party must show that:
(1) the employee exercised rights under MMBA; (2) the public agency had knowledge
of
the
exercise
of
those rights; and (3) the public agency discriminated, or threatened to discriminate.
because of the exercise of those rights. (Campbell Municipal Employees Assn. v. City
of
21

Campbell (1982) 131 Cal.App.3d 416 [182 Cal.Rptr. 461]; San Leandro Police Officers Assn.
v. City of San Leandro (1976) 55 Cal.App.3d 553 [127 Cal.Rptr. 856].)
To prove this violation, Lopez bears the initial burden of showing evidence that he
engaged in protected activity, that the City knew of the activity, and that the protected activity
was a "motivating factor" in its decision to postpone his promotion. (California State
University, Hayward (1991) PERB Decision No. 869-H; Novato Unified School District
(1982) PERB Decision No. 210.) 	Motivation maybe proven by either direct or circumstantial
evidence, or a combination of both. 	(Carlsbad Unified School District (1979) PERB Decision
No. 89.) The charging party may rely on such circumstantial evidence as a departure from
standard procedures (Campbell Municipal Employees Assn. v. City of Campbell, supra, 131
Cal.App.3d 416, 424), disparate treatment of those engaged in protected activity (San Leandro
Police Officers Assn. v. City of San Leandro, supra, 55 Cal.App.3d 553, 557-558; Los Angeles
County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683,688 [214
Cal.Rptr. 350]), inadequate justification given for the retaliatory act (Campbell Municipal
Employees Assn. v. City of Campbell, supra, 131 Cal.App.3d 416,424), the closeness in time
of the retaliatory act to the protected activity (Santa Clara Unified School District (1985)
PERB Decision No. 500), inadequate investigation prior to the retaliatory act (State of
California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S), and
activists (Marin Community College District (1980) PERB Decision
No. 145).
Once protected activity is established to be a motivating factor, the burden shifts to the
respondent to demonstrate that it would have taken the same action even in the absence of the
protected conduct. (Novato Unified School District, supra, PERB Decision No. 21 O; see
22

Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 730
[175 Cal.Rptr. 626].)
Lopez has established that he engaged in protected activity. By his own count, he filed
comp faints concerning at least 17 different matters over a period of approximately 20 years of
employment with the City. 24 These complaints include, but are not limited to, those about the
denial of 56-hour accruals in the Pub Ed/PIO position, Eggleston's higher pay rate revealed in
the personnel action form, the 9/80 schedule change, Getreu's harassment of him, and the
alleged scoring error in the battalion chief examination. 	Weisgerber admitted he was aware of
these complaints. The disputed issue is whether Weisgerber' s decision to enforce the three-
year requirement was motivated as a response to Lopez's protected activity.
Lopez contends that the City has engaged in a pattern of disparate treatment against
him, as evidenced by denying him 56-hour benefits in the Pub Ed/PIO position, disregarding
the past practice regarding the 4/10 schedule, threatening him with discipline for filing
grievances, instituting the formal acting battalion chief training program just when he showed
interest, holding him to the three-year commitment when it no longer applied to him,
disregarding seniority when it was to his benefit, and rejecting other legitimate complaints of
his, including demands to have pay discrepancies rectified.
24 The City's list of complaints by Lopez beginning in 1992 showed 38. At the hearing,
Lopez disputed that figure, but offered no specific rebuttal to the list. In his post-hearing
briefing, he acknowledged complaints involving 17 matters, over 20 not 10 years. 	I note that
PERB has held that complaints with anti-discrimination agencies are not protected activity
under PERB 's jurisdiction. (See Regents of the University of California (1987) PERB
Decision No. 615-H [also assuming, without deciding, that a discrimination complaint filed
with employer's internal process is protected].) Some of Lopez's race discrimination
~u,,..,uMu,u were internal. I am not required to reach this issue here because of Lopez's other
protected activity based on complaints other than ones involving racial
23

The City contends that the 1997 side letter was clear and unambiguous in granting it the
right to obtain the benefits of the three-year commitment from each incumbent in the Pub
Ed/PIO position and that the 1997 side letter remained valid and binding throughout the period
time relevant here. 	In addition, the City contends that Lopez's other claims of disparate
treatment fail to raise an inference of unlawful intent.
Denial of 56-hour Benefits
Lopez claimed in his testimony that he was the only fire captain not to have received
56-hour benefits while working a 40-hour position in the Inspection Services Division. He
cites Eggleston, Maxwell, Wells and Silvi as those who received 56-hour benefits. I find there
is insufficient evidence that the City consciously departed from its established procedure with
respect to affording these captains 56-hour benefits, or was otherwise lacking in justification
for granting them.
Eggleston received 56-hour benefits briefly through an administrative oversight. When
it was brought to the City's attention, his benefits were changed to conform to that established
for the Pub Ed/PIO position. 	Lopez claims that even if the error was corrected, the corrective
action was only taken after Eggleston had begun negotiating for his retirement and thus had no
adverse financial impact on him. 	Lopez claims this is evidence of disparate treatment.25 I do
not find this to be the case. 	The fact is that the City corrected the error, a matter separate from
s motivations 	leaving the Department
5 Lopez also filed a grievance against the City for loss of holiday in-lieu pay, which
applies to employees working 24-hour shifts and not the 40-hour personnel. Both of
personnel action forms show that the City had ordered this benefit deleted.
24

Maxwell served in the training officer position under the fire marshal as one of the
rotating assignments. 	Under the MOU and the 1998 side letter, that position is identified as a
40-hour position with 56-hour benefits.
Wells was awarded 56-hour benefits as a result of the settlement of his racial
discrimination lawsuit. His treatment is not evidence of a practice of providing 56-hour
benefits to regular 40-hour positions.
There was insufficient evidence to establish that Silvi received 56-hour benefits.
The City's most recent roster suggests that it has maintained a consistent practice
thereafter with respect to awarding 56-hour benefits.26
The 1997 side letter is also clear evidence that the City and Union agreed to establish a
position that would not be entitled to 56-hour benefits. Paragraph 9 of the agreement states
that apart from base wages, the position's "[ o ]ther benefits are as defined in the current MOU
for forty-hour week employees." This was later confirmed in the formal job specifications in
March 2000.
Significantly, there was no deception on the City's part. 	Lopez offered no evidence
that he inquired as to the terms of the position before he accepted the position and was
somehow misled by the City. The 56-hour benefits for firefighters were due to the
inconvenience of the 56-hour shift. The permanent 40-hour shifts had offsetting benefits of
their own.
Change From the 4/10 Schedule
In addition to his perception that the City selectively changed the policy on 56-hour
benefits for the Pub Ed/PIO position when he assumed it, Lopez also appears to contend that
26 This evidence is only corroborative as it was presented as hearsay.
25

the change from the 4/10 schedule was aimed at depriving him of a legitimate expectation with
respect to the position. In addition, in the course of challenging this action, Lopez claims he
was threatened for engaging in protected activity.
The evidence does not support the claim that the 4/10 schedule change was part of a
pattern of disparate treatment of Lopez. There is no evidence that the City targeted the change
so as to adversely affect only Lopez, as opposed to implementing a schedule demanded by the
City's constituencies.
In connection with this issue, Lopez claims that the city manager threatened him with
discipline, citing Wilson's February 5, 2001, grievance response warning about a possible
"abuse of a City administrative process." I do not find this to be evidence of unlawful animus.
The warning was limited to one instance of an alleged repeat filing of a grievance. 	Wilson's
response was not unreasonable under the circumstances. Also it did not refer to Lopez's high
frequency of complaints in general. And according to the City's log of Lopez's complaints,
Lopez had filed repetitive complaints on other occasions.
The Acting Battalion Chief Program
Lopez claims that the timing of the implementation of the acting battalion chief
program was suspicious. Weisgerber explained that the timing of the implementation had to
do with increased requirements for technical knowledge associated with the position, but he
was not particularly specific in this regard. In his view, the timing was purely coincidental.
Lopez countered that the requirements for the program were higher than those demanded by
the qualifying examination. Weisgerber did not attempt to rebut this point.
However, Weisgerber did instruct his staff to allow Lopez to begin whatever informal
-~,,~ ... ,-, was available, despite the delay in developing the formal training program. He
26

asserted that Lopez's schedule as a 40-hour employee was the cause of Lopez's inability to
complete the training for the acting battalion chief program in a more timely fashion. 	Lopez
did not attempt to rebut this point or Weisgerber's claim that he was offered the next available
ICS 400 training.
While the timing of the formal training requirements is somewhat suspicious, I find this
only marginal evidence of unlawful intent. 	Lopez was not serving in a fire suppression
position at the time he sought to participate in the acting battalion chief program. 	The City did
allow him to serve as an acting fire marshal in the Inspection Services Division, where he was
assigned, at the battalion chieflevel. Moreover, I believe that the implementation of the
formal training requirements is only material to the extent that Lopez establishes that the City
engaged in an ongoing pattern of disparate treatment, which I have not found. 	I now tum to
what I consider the most relevant issue with respect to unlawful intent: the justification for the
three-year commitment.
Enforcement of the Three-Year Commitment
Lopez admitted that he believed he was bound by the three-year commitment when he
applied for the position, and he in no way claims that the City attempted to conceal this
condition of the position. As noted above, I find that the three-year commitment was
enforceable despite the city council's failure to pass a written resolution adopting the 1997 side
letter. I have found that the city council considered the side letter and approved its adoption.
In the hearing, Lopez did contend that the 1998 side letter superseded the 1997 side
letter as to the Pub Ed/PIO position and that his position was one of the upgraded lieutenant
positions identified in the 1998 side letter. I find that the 1998 side letter cannot be read as
the already existing Pub Ed/PIO position under the theory that one of the five
27

lieutenants converted was the Pub Ed/PIO officer. The language in paragraph 5 of the 1998
side letter refers to the Pub Ed/PIO position as a distinct position established under "prior
agreement." Lopez attempts to refute this point by claiming the Pub Ed/PIO position was not
formally established at the captain's level until March 2000, with the adoption of the job
specifications. I find no evidence to substantiate the claim the formal adoption of the job
specifications was a condition precedent to the creation of the position at the captain's level.
Counsel for Lopez also noted the discrepancy in the 1998 side letter referencing the fire
captain "Public Education Officer" rather than "Public Information Officer," but I do not find
discrepancy compels Lopez's reading.
Moreover, the weight of testimony is against Lopez on this point. Weisgerber testified
that the five lieutenants included each lieutenant stationed at the three fire stations, the training
officer, and the operations officer. Lee testified that he believed the operations officer
performed public education duties, but "without the PIO component." Moss stated that oneof
the lieutenants was the "assistant to the fire marshal for public education."27 Weisgerber
testified that this position had no public education functions, at least during the time in
question. 	Lee appears to corroborate him on this point, when referencing the absence of the
"PIO" component.
More to the point, Weisgerber testified that the operations officer under the fire marshal
have public education functions under the 1995-1997 MOU, but those duties were
transferred to the Pub Ed/PIO position when that position was created as a result of the March
1997 side letter. I credit Weisgerber since he was a management employee and had
27 Moss repeated this twice before counsel for Lopez appeared to get him to agree that
the position was the "Public Education position." I do not believe Moss was conceding that
one of the positions was the Pub Ed/PIO position that Lopez filled in September 1998.
28

responsibility for knowing the details of the assignment. Weisgerber presented himself well as
a witness, and in the context in which I observed him, I judged him to be modest, patient, and
dispassionate. 	Consistent with Weisgerber, Hamilton, Lee and Moss agreed that the 1998 side
letter distinguished between the five lieutenants being converted to captain and the Pub Ed/PIO
position, already at the captain's level. Lee, who signed both the 1997 and 1998 side letters,
and Moss, who signed the 1998 side letter, testified that the 1997 side letter was not
superseded by the 1998 agreement. 28
I also make this finding despite the fact that the Pub Ed/PIO position was filled by a
lieutenant between Eggleston's retirement and Lopez's hiring, a period of not more than five
months. Weisgerber and Lee testified without contradiction that Eggleston's position was
filled temporarily while the City recruited for a permanent replacement. There was no
evidence that the lieutenant achieved this position through competitive examination, which was
stated in the 1997 side letter as the means for filling the position following the fire chief's
initial selection. Only Lopez achieved the position through competitive examination.
Seizing on language of the 1998-2000 MOU's preamble, stating that the new MOU
supersedes all "oral negotiations and prior writing in respect to the subject matter hereof,"
Lopez argues that the 1997 side letter lapsed by operation of the new MOU. Weisgerber was
28 Lopez admitted that he understood he was buying into a three-year commitment
when he first accepted the position, but claimed that he would have believed differently if he
had seen the subsequent 1998 side letter. Lopez testified that he changed his opinion regarding
the three-year commitment, sometime after April 1999 following his reading of the 1998
agreement. He based this on language from paragraph 9 defining a temporary assignment for
purposes of 56-hour accrual rates to be a "single bid cycle duration, or less." As I have found,
this section did not apply to the Pub Ed/PIO position but rather to the five newly converted
captain positions. Also to the extent Lopez may be claiming that the requirements were void
from the outset as a result of the adoption of the 1998 side letter, I find Lopez's argument
illogical because the 1998 agreement could not have had any automatic retroactive effect.
29

never questioned as to whether or not, this language affected his interpretation of the three-year
commitment. There may have been an innocent explanation. For example, the 1998-2000
MOU did not contain any language on the subject of the Pub Ed/PIO position. 	Therefore, that
"subject" was not addressed in the new MOU and would not have posed any potential conflict
with the earlier MOU. 	The 1998-2000 MOU's preamble also contains this language:
Unless otherwise specifically amended by the terms of this MOU,
any term or condition of employment previously known to and
approved by the City (and not terminated by the City) remains as
previously established.
This would have operated to preserve the terms of the 1997 agreement.
Another tack taken by Lopez is that the language of paragraph 5 of the 1998 side letter
stating that the Pub Ed/PIO position "is not subject to thebid process until the incumbent
vacates the position" establishes that once the incumbent (i.e., Eggleston) left theposition it
would be a biddable position. 	Counsel for Lopez elicited an admission from Moss that Lopez
was not the "incumbent," on the theory that the side letter preceded his appointmentby a few
weeks. I do not find this timing to be dispositive. 	Rather I find that the language is susceptible
to an interpretation that the incumbent could have been the person who would fill that position
(i.e., Lopez). Assuming the lieutenant was still temporarily filling the position, or it was
vacant, there was no incumbent at the time the 1998 side letterwas executed. 	Moreover, since
bid cycle was three years the minimum commitment language was not inconsistent.
the inquiry here is discriminatory intent, all that is needed is a basis to conclude that
Weisgerber' s interpretation of the agreements was plausible. I find that to be the case.
Lopez also contends that the City's rationale for the three-year requirement was
specious. He claims that the investment in the incumbent had already been recouped by
tenure as 	first Pub Ed/PIO officer. 	The rationale for the requirement is
30

relatively unimportant because the decision to impose it was made at the time of the 1997 side
letter, which predated Lopez's incumbency. Even so, after Lopez subsequently attained the
position, he installed several notable programs which I believe can be attributed in part to his
extended tenure in the position.29
Further, Lopez claims that Hamilton's testimony demonstrates that the fire chief
himself believed the 1997 side letter only applied to the first incumbent and that once that term
had been fulfilled, the benefits of the program would be fully realized. 	On this issue, Lopez
cites Hamilton's prior deposition testimony. However, that testimony does not support his
position. Read in context, Hamilton's testimony was only that he had conceded to the Union
the right for selections after the initial one to be based on a competitive examination with
properly promulgated job specifications.
Fundamentally, the three-year commitment was enforceable, and there being no
precedent for early release from such a commitment, Lopez is essentially complaining that
Weisgerber refused to grant him a benefit to which he had no entitlement. 	While Moss's and
Getreu's question to Lopez as to why he had not promoted immediately, suggests that they
may have believed it was at least possible for Weisgerber to waive the requirement, this is the
only evidence favoring Lopez. 	But I find that is insufficient to raise an inference of unlawful
intent. Moss and Lee credibly testified that they believed that the City was within its rights to
demand fulfillment of the three-year commitment.
2 These included the Safe Place program, smoke detector and battery distribution
program, security bar program, and Operation Strobe Light.
31

Other Possible Factors
I have also considered whether the timing of the City's decision to require fulfillment
of the three-year commitment was suspicious. While nominally present, this factor carries
very little weight because of Lopez's history of complaints dating back to 1982. The City's
record of complaints, grievances, and other actions reveals an employee whose protected
activity has been more or less continuous throughout his employment. 	Lopez himself admits
to filing complaints regarding 17 different matters over a period of approximately 20 years,
and has suggested that the City has found in his favor on some occasions.
And despite what I would consider a high number of complaints, even by Lopez's
count, Lopez has steadily promoted through the ranks. 	Even prior to the current dispute,
Weisgerber selected Lopez over three other candidates for the Pub Ed/PIO position, despite his
earlier lawsuit over Eggelston's selection. Indeed, I am struck by how relatively mild the
adverse action claimed by Lopez in this case is (a delay in the promotion of five months and
loss 	tie-break seniority with Battalion Chief Silvi) and by Weisgerber' s willingness to
appoint Lopez into one of the eight "command team" positions - in spite of Lopez's litigious
history. 	In short, if the City were motivated to retaliate for protected activity, it seems highly
unlikely that it would have been able to ignore Lopez's repeated challenges to management
and award him membership in that select group.
Lopez suggests that he has been rejected a number of times when competing 	other
vacancies in the Department, placing specific emphasis on the fire marshal position. Lopez
notes two occasions when a less senior candidate prevailed. 	There is the implication that he
was better qualified or more senior than those against whom he competed. This evidence is
too speculative and undeveloped to support an inference of unlawful intent. 	Just by
32

way
of
example, Lee and Moss, two presumably well-respected officers, have seniority
roughly equal to Lopez but have not yet reached the rank
of
battalion chief.
The City's alleged failure to address Lopez's complaint about Getreu sleeping at the
firehouse until after he left fire prevention duties is an isolated incident which viewed in
context suggests little. The underlying complaint was relatively trivial. 	There is nothing
indicating that Getreu was intentionally harassing Lopez
by
attempting to engage him in
negative gossip, or that the City unreasonably failed to find actionable harassment on Getreu's
Finally, Lopez makes a particular point in his briefing
of
asserting that he was denied
pay commensurate with Eggleston while he was the Pub Ed/PIO captain, and with Battalion
Chief Silvi, when he promoted to battalion chief. He claims that when these complaints were
brought to Weisgerber's attention, Weisgerber refused to act. I reject these claims as being
without sufficient support in the record. 	Lopez offered no affirmative testimony as to either
of
the claims that Weisgerber failed to act. 	According to documents in the case, the issue
concerning the Pub Ed/PIO position apparently was a matter discovered by the former human
resources director and brought to light while reviewing Lopez's 56-hour benefits claim. 	She
concluded that the other administrative captain positions were receiving more base pay.
point is that the correction as to his pay did not occur until more than a year later.
However, the document cited by Lopez as purporting to establish the delay, a City resolution,
was never identified as being an action to correct the pay disparity. 	Rather that resolution was
identified as evidencing the adoption
of
the job specifications for the Pub Ed/PIO position, and
nothing in the resolution indicates that it was intended to do anything more. As to the battalion
33

chiefs pay, Lopez claims he was paid $4,000 less per year than Silvi, but his record citations
do not demonstrate this to be the case.
Prima Facie Showing
The City has taken exception to the scope of evidence allowed in this case with respect
to unlawful intent, in particular, the collateral events which Lopez claims demonstrate
disparate treatment. I have attempted to balance the right of the charging party to present its
case with the right of the respondent to limit the case to relevant evidence. Notwithstanding
the wide latitude granted to Lopez, I find in the final analysis that there is insufficient evidence
to raise an inference of discriminatory or retaliatory intent.
Lopez has filed many complaints during his tenure and portrays the City as repeatedly
finding against him.30 I did not find this to be the case. I have reviewed nearly all of the
disputes highlighted by Lopez and find no evidence of an ongoing conspiracy to restrict his
protected activity. In nearly every instance, the City has had a credible explanation for the
alleged disparate treatment. 	Significantly, the City, and in particular Chief Weisgerber, has
allowed Lopez to advance over his 20-year career to the point where he is now a part of the
Department's command team, where, generally, loyalty is expected and dissent is not. 	The
only instance of disparate treatment that I find somewhat suspicious was the timing of the new
acting battalion chief training program. Nevertheless, this standing alone is insufficient to
raise an inference of unlawful intent; it was one instance not amounting to proof 	a pattern of
disparate treatment.
0 At the same time, Lopez has acknowledged, or at least implied, that the City has
found in his favor on some occasions. As was common in this case, the evidence is conflicting
rather than persuasive as to Lopez's theory of the case. Is the City finding in his favor
evidence that he raised legitimate complaints as opposed to frivolous ones, or that the City
could be unbiased in addressing those complaints?
34

The most significant inquiry in this case concerns the purported justification forthe
adverse action challenged in this case, namely, the delay of the promotion to battalion chief.
As to this matter, Lopez has failed to prove that the City has acted in amanner that is
inconsistent with the relevant agreements with the Union or deviated from past practice with
respect to the enforcement of time commitments. I find that the 1997 side letter remained a
binding agreement and there was no evidence that the City had a practiceof granting early
releases from such commitments. Accordingly, I find that Lopez has failed to demonstrate a
prima facie case for unlawful animus based on protected activity. 	Therefore, the unfair
practice charge and complaint must be dismissed.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. SF-CE-6-M, MichaelF.
Lopez v. City of Milpitas, 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 95814-4174
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
(CaL Code Regs., tit. 8, sec. 32300.)
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A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of California Code of Regulations, title 8,
section 3213 5( 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).)
Administrative Law Judge
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