City and County of San Francisco (PERB 1664M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 790,

Charging Party, Case No. SF-CE-22-M

Vv. PERB Decision No. 1664-M

CITY & COUNTY OF SAN FRANCISCO, July 27, 2004

Respondent.

Appearances: Van Bourg, Weinberg, Roger & Rosenfeld by Vincent A. Harrington, Jr.,
Attorney, for Service Employees International Union, Local 790; Office of the City Attorney
by Philip A. Ginsburg, Deputy City Attorney, for City & County of San Francisco.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Service Employees International Union (SEIU), Local 790
(Local 790) of a Board agent’s partial dismissal (attached). The unfair practice charge alleged
that the City and County of San Francisco (City) violated the Meyers-Milias-Brown Act
(MMBA)' by discriminating and retaliating against Sin Yee Poon (Poon), job steward and
Local 790 chapter president, for protected activities, interfering with Poon and other
employees’ protected rights, and unilaterally changing terms and conditions of employment
without providing prior notice or opportunity to bargain to Local 790. Local 790 alleged that

this conduct constituted a violation of MMBA sections 3502, 3502, 3504, 3504.5, 3505 and

3506.

'MMBA is codified at Government Code section 3500, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

After review of the record, including the unfair practice charge, the City's response, the
Board agent's warning and dismissal letter, Local 790's appeal and the City's response to
Local 790's appeal, the Board finds the Board agent's warning and dismissal letters to be free
of prejudicial error and adopts the Board agent's partial dismissal as a decision of the Board
itself consistent with the discussion below.
BACKGROUND
On January 7, 2002, Local 790 filed its charge. The City asserted that PERB lacked
jurisdiction over the charge since all allegations occurred before July 1, 2001. 	In response, by
letter dated September 20, 2002, the Board agent asserted the Board's jurisdiction over the
charge. The Board agent issued a partial warning letter on September 3, 2002, and since
Local 790 did not file an amended charge, issued a partial dismissal on September 20, 2002.
According to the charge, Poon is employed by the City as an 1822 Administrative
Analyst with the Department of Health Services (DHS). Poon also serves as the Local 790
DHS chapter president and as a job steward. During November and December 2000, Poon
took union leave to participate in representation activities.
In February 2001, DHS Executive Director, Trent Rhorer (Rhorer) called a meeting of
management staff involved in monitoring a DHS contract with the OMI Family Resource
Center. Poon was the only person involved in the project who was not informed of the time
and location of the meeting. On February 20, 2001, Poon sent an e-mail message protesting
her exclusion from the meeting. On February 26, 2001, Poon's Supervisor, Robin Love
(Love), sent Poon an e-mail message instructing her to "cease all correspondence" concerning
the OMI Family Resource issue. Poon was further informed that all of her correspondence to
outside agencies and management was to be reviewed by Love prior to being sent. Love also
indicated that she would meet with Poon on February 28 to discuss her concerns. After the
2

February 28, meeting, Love modified her original directive to allow Poon to initiate
conversations and e-mails regarding her assigned tasks.
In late February or early March 2001, Love suspended various staff meetings. 	Love
also asked employees to e-mail their schedules, rather than verbally provide the information.
Poon was directed to submit a weekly schedule which included her schedule of union
appointments. The charge also states that Love placed restrictions on granting union release
time to Poon.
On March 30, 2001, Poon and Local 790 Field Representative, Faye Roe (Roe)
approached Love seeking to schedule a meeting to discuss the suspension of staff meetings and
restrictions on union release time. Love indicated to Roe that it was not a good time to discuss
these matters and asked that they schedule a meeting at a later date. Roe insisted that Love
schedule a meeting at that time. Love became extremely agitated and would not discuss a
meeting. Later the same day, Love took a medical leave of absence of unknown duration. The
charge alleges that thereafter Love effectively cut off communication with Poon.
During February, March and April 2001, the City refused to send its responses to
grievances filed by Poon on behalf of Local 790 to Poon' s work site address. Instead, the
City's grievance responses were sent to Local 790's official mailing address at 1390 Market
Street. The charge alleges that this action "has created timeliness issues, confusion and
uncertainty with respect to the status and processing of numerous grievances initiated by
Poon."
This issue has previously arisen between the parties. On June 26, 2000, DHS
Departmental Personnel Officer, Eugene Freeman sent a letter to SEIU Field Representative,
Daz Lamparas which stated, in part:
3

The Department
of
Human Services has received another letter
from Sin Yee Poon, Chapter President for Local 790 at DHS,
using a DHS location as a return address on SEIU Union
stationary (See Attacned). We believe it is inappropriate for
Ms. Poon to use an address belonging to a DHS building as an
official return address for SEIU.
The Department agreed to send responses to grievances filed by
Ms. Poon to her DHS work location at 1800 Oakdale A venue, as
a convenience to her. However, we did not agree to the use
of
the
1800 Oakdale address on official Union stationary. We believe
Ms. Poon should use the San Francisco SEIU Local 790 address
on all Union stationary.
We believe it is in the best interest
of
the Department and SEIU
to maintain consistent and separate mailing addresses for all
correspondence between the two parties. Therefore, we are
requesting you to instruct Ms. Poon to remove the 1800 Oakdale
A venue address from the SEIU Local 790 letterhead.
In a letter dated July 27, 2000, DHS Employee Relations Representative,
Cynthia Hamada (Hamada) responded to Poon's request to send grievance responses to her at
her work site address. Hamada reiterated DHS 's position stated in its June 26, 2000 letter that
it would use the SEIU office address on Market Street to forward grievance responses to Poon.
DHS Employee Relations Representative, Elaine Leeming (Leeming) addressed this issue
again in an April 24, 2001 letter to Poon. Leeming referenced the two prior letters and stated
that it would continue to send grievance responses to Local 790's Market Street address in
conformance with its position that Local 790 and DHS maintain "separate and consistent
mailing addresses for all correspondence."
The charge further alleges that the City made the following unilateral changes without
notice to Local 790 or affording them the opportunity to meet and confer. 	In late March 2001,
the City formed a temporary Emergency Response Unit for a period of 90 days to cover for
employees on vacation and other leaves and asked unit members to volunteer to serve on the
Emergency Response Team. The charge alleges that this conduct violates existing seniority
4

rules and reassignment procedures. Also in late March 2001, the City relocated a number
of
work units and their respective employees to various locations without notice to Local 709 and
an opportunity to meet and confer. The City also plans to move the Adult Protective Services
Program from DHS to the jurisdiction
of
the Commission on Aging. The City has not
consulted with or informed Local 790
of
this decision, nor has the City provided Local 790
with information concerning timelines, plans for implementation or impacts on bargaining unit
employees. On April 5, 2001, Local 790 protested the City's failure to consult with and notify
Local 790
of
the changes to the Adult Protective Services Program. The charge alleges that the
City "failed and refused to respond effectively to the union protests."
On May 10, 2001, Acting Director, Janice Anderson-Santos, Family and Children's
Division, and Deputy Director, Sally Kipper (Kipper), Administration Division, sent a memo
to Poon notifying her that effective May 29, she was being involuntarily transferred from the
FPSP2 Program in the Family and Children's Division
to
the Contracts Unit in the
Administration Division. The memo stated that there was insufficient work in the FPSP
Program and that there was currently a large workload in the Contracts Division.
The charge alleges that as a personnel action, the involuntary transfer should have been
maintained as confidential. The charge alleges that non-management personnel in DHS were
informed
of
Poon's transfer before she was and also, that the relocation
of
Poon to a different
work unit was for the purpose
of
limiting and restricting Poon's accessibility as a steward and
chapter president. The charge further alleges that Love refused to schedule a meeting to
discuss Poon's involuntary transfer on any of the following days, May 16, 17, 18 or 21. 	Rhorer
refused to schedule a meeting on either May 22 or 23. Rhorer referred Local 790 to
2The acronym FPSP is not spelled out or identified in the charge.
5

Employee/Labor Relations Manager, Patricia Bums who agreed to meet with its
representatives.
Prior to August 2000, DHS had an informal Labor/Management Health and Safety
Committee. In September 2000, Kipper invited union representatives from SEID Locals 250,
535 and 790, and Local
21
and Local 39 to a meeting to discuss restructuring the committee.
In June 2001, after consulting with other departments about their health and safety committee
structures, DHS prepared an Injury and Illness Prevention Program (IIPP) which described the
composition and role
of
the DHS Health and Safety Committee. The IIPP was submitted to the
unions and comments were requested by June 19, 2001. No comments were received. At the
June 21, 2001 committee meeting, Kipper informed the group that she was going to reconvene
a meeting
of
SEID field representatives
to
finalize the committee structure and invite them to
make appointments to the committee. The charge alleges that DHS failed or refused to meet
and confer with Local 790 concerning the DHS Labor/Management Health and Safety
Committee.
Finally, on an unidentified date, DHS requested the availability
of
a job steward at a
particular location during an investigation so that those employees who requested union
representation would have the option
of
representation without delaying the investigation. The
charge alleges that the department arranged for the job steward without consulting with the
affected employees and without notifying either the employees or the steward
of
the purpose
of
the meeting. The charge alleges that this conduct interfered with the employees' right to a
representative
of
their own choosing.
The City responded that PERB lacks jurisdiction over MMBA allegations occurring
before July 1, 2001. Poon had filed a nearly identical charge with the City's Civil Service
Commission (CSC) on May 24, 2001, which has been stayed pending resolution of these
6

proceedings. All allegations involve incidents occurring up through May 2001. Although
Local 790 argues that these charges are "ongoing," the City asserts that whatever is "ongoing"
was not specifically asserted. 	(See PERB Reg. 32615(a)(5)3; Savanna School District (1982)
PERB Decision No. 276; Fielder
v.
UAL Corporation
(9
th
Cir. 2000) 218 F. 3d 973, 983
[83
Fair Empl. Prac. Cas. (BNA) 493.])
The City also asserts that the substantive charges are without merit. In its response, the
City refers to an Attachment D, which contains responses to the charge filed by Poon with the
CSC, however, some
of
these responses address issues not contained in the charge. Its
responses are simple denials that it discriminated against Poon, interfered with employee
rights, made unilateral changes without notice to Local 790 or opportunity to bargain, and
refused to meet and confer with Local 790. In some cases the City asserts that it did not refuse
to meet or confer and in others, that decisions to reorganize or relocate employees were not
subject to negotiations. With regard to the reorganization
of
Labor Management Health and
Safety Committee, the City states that it has held ongoing meetings with all unions involved
to
discuss these issues; in fact Local 790 did not attend a September 2000 meeting.
BOARD AGENT'S PARTIAL DISMISSAL
Statute
of
Limitations
Local 790 alleged that the City interfered with employee rights when it arranged for a
union steward to be available during an investigation without first consulting with Local 790 or
the employees. The Board agent found this allegation to be untimely because Local 790 did
not specify a date when the City issued this directive.
3PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
7

Discrimination Claims
Local 790 alleged that the City failed to notify Poon
of
the time and location
of
the
OMI Family Resource Center management staff meeting. The Board agent found that
Poon
did not identify adverse consequences to her employment or show that she had a reasonable
expectation
of
attending the meeting. Regarding the involuntary transfer to the Contracts
Division, the Board agent determined that she was transferred due to lack
of
work. The charge
further does not identify a policy requiring confidentiality in the transfer to a new assignment
or which staff were informed
of
the reassignment.
Interference Claims
The Board agent found that the requirement that Poon submit her weekly schedule,
including
union
appointments, did not demonstrate interference since other employees were
required to submit weekly schedules. Poon also did not allege facts showing specific
restrictions on her representation activities or union release time by the City. The Board agent
further did not find interference with Poon's rights in the City's insistence on mailing
grievance responses to the Local 790's address. Local 790 did not identify any theory to
support this allegation. In addition, citing State
of
California (Department
of
Transportation)
(1994) PERB Decision No. 1049-S, the Board agent found that directing a job steward to be
available during an investigation did not demonstrate interference since employees have a right
to representation.
Unilateral Change Allegations
1.	
Emergency Response Unit. In March 2001, the City formed a temporary Emergency
Response Unit to cover for absent employees and asked for employee volunteers to serve in the
unit. The charge alleges that this violates seniority rules and reassignment procedures.
8

However, the Board agent found that the charge did not identify the specific rules and
procedures allegedly violated and so dismissed the allegation.
2. Relocation of Work Units. In March 2001, the City relocated work units and their
employees to other locations. The charge alleged that the City took the action without notice
to Local 790 or opportunity to bargain. 	The Board agent held that Local 790 did not state a
prima facie case because it did not describe the work units, identify the affected bargaining
unit employees, or how Local 790 learned of the relocations.
3. Adult Protective Services Program. In April 2001, the City planned to move this
program from DHS to the Commission on Aging. Local 790 alleged that the City did not
inform it of the planned move, negotiate impacts on unit employees, or respond effectively to
Local 790' s protests. The Board agent found that the charge does not provide any specifics
with regard to these allegations and so failed to state a prima facie case.
4. Labor/1\fanagement Health and Safety Committee. The charge alleges that the City
restructured the Health and Safety Committee without notice to Local 790 or opportunity to
bargain. However, according to the Board agent, the facts suggest otherwise, since in
September 2000 and in June 2001, the City invited union representatives to a meeting and
provided a proposal to the unions for comment, respectively. There is also no allegation that
Local 790 made a demand to bargain. The Board agent consequently dismissed this allegation.
DISCUSSION
As a preliminary matter, the City had challenged PERB's jurisdiction over this matter
because most of the events had occurred before July 1, 2001. However, the City did not appeal
the Board agent's ruling assuming jurisdiction over the charge. Therefore, we affirm the
Board agent's finding of PERB authority to adjudicate this charge. (MMBA sec. 3509; City of
Anaheim (2003) PERB Order No. Ad-321.)
9

Timeliness
This involves the allegation regarding the City's requirement that a Local 790 steward
be available to employees during an investigation. In its charge, Local 790 did not specify a
date for which the City issued this directive. Under PERB Regulation 32615(a)(5), a charge
must contain a "clear and concise statement
of
the facts and conduct alleged to constitute an
unfair practice." This means the charging party must allege the "who, what, when, where and
how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture) (I 994)
PERB Decision No. 1071-S; United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) The charge thus did not provide this information. 	Local 790 was advised
of
this fact
in the warning letter but did not file an amended charge. However, on appeal Local 790 seeks
to provide a time element to this allegation. Under PERB Regulation 32635(b ), "a charging
party may not present on appeal new charge allegations or new supporting evidence" without
good cause. Here, Local 790 has not provided facts showing good cause to add information
regarding the timing
of
this allegation. This allegation should therefore be dismissed.
Discrimination
To establish a prima facie case
of
discrimination in violation
of
MMBA section 3506
and PERB Regulation 32603(a), the charging party must show that: 	(1) the employee
exercised rights under MMBA; (2) the employer had knowledge
of
the exercise
of
those rights;
and (3) the employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained or coerced the employee because
of
the
exercise
of
those rights. (Campbell Municipal Employees Assn. v. City
of
Campbell (1982)
131 Cal.App.3d 416 [182 Cal.Rptr. 461] (Campbell); San Leandro Police Officers Assn. v.
City of San Leandro (1976) 55 Cal.App.3d 553 [127 Cal.Rptr. 856] (San Leandro).)
10

Although the timing of the employer'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 connection or "nexus" between the adverse action in protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more of
the following nexus factors should be present: (1) the employer's disparate treatment of the
employee (Campbell, supra); (2) the employer's departure from established procedures and
standards when dealing with the employee (San Leandro, supra); (3) the employer's
inconsistent or contradictory justifications for its actions (San Leandro, supra); (4) the
employer's cursory investigation of the employee's misconduct; (5) the employer's failure to
offer the employee justification at the time it took action or the offering of exaggerated, vague,
or ambiguous reasons; or (6) employer animosity towards union activists (San Leandro, supra;
Los Angeles County Employees Assn. v. County of Los Angeles (1985) 168 Ca1.App.3d 683
[214 Cal.Rptr. 350].).
With regard to adverse action, the Court of Appeal in Campbell held that if the
employer's conduct is "inherently destrnctive" of important employee rights, proof of unlawful
intent is not required under the MMBA, even if the employer's conduct was motivated by
business considerations. (Campbell, at p. 423.) However, if the adverse effect on employee
rights is "comparatively slight," unlawful intent must be proved if the employer produces
evidence of legitimate and substantial business justifications. (Campbell, at p. 424.)
SEID Local 790 alleges that the series of incidents directed toward Poon state a prima
facie case of discrimination on the basis of protected conduct. Certainly, Poon's status as
Local 790 chapter president and union steward and her taking union leave to participate in
union activities in November and December 2000 demonstrate protected conduct. As adverse
action, Local 790 cites various incidents: Poon as the only employee assigned to management
11

of
the OMI Family Resource Center contract not invited to the Family Resource Center
management staff meeting; the email directive from Love to cease all correspondence
concerning the OMI family resource issue and Love's monitoring
of
her outside
correspondence; the directive to provide her schedule, including her union appointments, to
Love; and, Poon's involuntary transfer and the disclosure
of
her transfer to other employees
when it should have remained confidential.4 The charge has not provided sufficient
information to show that the City's conduct, particularly the involuntary transfer, comprises
adverse action. The adverse action must involve actual and not merely speculative harm. 	The
inquiry is whether a reasonable person under the same circumstances would consider the action
to have an adverse impact on the employee's employment. (Regents
of
the University
of
California (1998) PERB Decision No. 1263-H; Palo Verde Unified School District (1988)
PERB Decision No. 689; Newark Unified School District (1991) PERB Decision No. 864.)
Vv
e also find that these same allegations do not state a prima facie case
of
interference.
The test for whether a respondent has interfered with the rights
of
employees under the MMBA
does not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. The courts have described the standard as follows:
All [a charging party] must prove to establish an interference
violation
of
section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise
of
those activities, and (3) that employer's conduct was
not justified.by legitimate business reasons. 	(Public Employees
Assn. v. Board
of
Supervisors (1985) 167 Cal.App.3d 797, 807
[213 Cal.Rptr. 491].
4Local 790's allegation regarding the placement ofrestrictions on her union leave time
lack any detail about specific restrictions or when they occurred and therefore, under PERB
Regulation 32615(a)(5), is dismissed.
12

Under this test, we have established that Poon has engaged in protected conduct. Poon's
involuntary transfer interferes with the rights of Poon to perform her job steward duties and her
coworkers to be represented by Poon in that capacity. The City in its response however stated
that Poon's involuntary transfer was due to lack of work in the Family and Children's Division
FPSP Program. Local 790 was advised of this allegation in the warning letter but did not file
an amended charge to dispute this fact. Therefore, Local 790 did not meet the third prong for a
finding of interference.
Local 790 disputes the Board agent's conclusion that it is unlawful for the City to insist
upon mailing grievance responses to Local 790's address and not to Poon's work address.
Local 790 has not cited any authority to support such an allegation. We find that this conduct
also does not state a prima facie case for interference.
Unilateral Change Allegations
Local 790 asserts that it is inappropriate to cite cases under the Educational
Employment Relations Act5 (EERA) regarding whether issues are within scope. Local 790
thus argues that under the MMBA, reorganization and relocation of services are within scope
and thus the City has a duty to meet and confer with Local 790 regarding these issues.
Local 790 further disputes the Board agent's citation to Building Material & Construction
Teamster's Union v. Farrell (1986) 41 Cal. 3d 651 [224 Cal.Rptr. 688] (Farrell) in support of
her conclusion that this issue is not within scope.
In determining whether a party has violated MMBA section 3505 and PERB
Regulation 32603(c), PERB utilizes either the "per se" or "totality of the conduct" test,
depending on the specific conduct involved and the effect of such conduct on the negotiating
5EERA is codified at Government Code section 3540, et seq.
13

process. (Stockton Unified School District (1980) PERB Decision No. 143.)6 Unilateral
changes are considered "per se" violations if certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Vernon Fire Fighters v. City
of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin County Employees Assn. v. City of
Stockton (1984) 161 Cal.App.3d 813 [207 Cal.Rptr. 876]; Grant Joint Union High School
District (1982) PERB Decision No. 196.)
We agree with Local 790 that Farrell is inapposite. That case stands for the proposition
that an employer's decision to transfer work outside of the bargaining unit is a matter within
the scope of representation. However, we agree with the Board agent that with regard to the
allegations regarding the Emergency Response Unit, the relocation of work units, and the
Adult Protective Services Program, Local 790 did not provide any specifics regarding any
impacts of these changes on terms and conditions of employment and any attempts by
Local 790 to demand bargaining over the impacts.
In addition, with regard to the labor/management health and safety committee, in its
response, the City stated that in August and September 2000, it had invited the various unions
to discuss the development of the committee and that a proposed structure was ultimately
submitted to the unions for review. According to the City, Local 790 did not attend the
September 2000 meeting and did not provide feedback on the proposed committee structure.
6When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608
[116 Cal.Rptr. 507].)
14

Local 790 was advised of these facts in the warning letter but did not file an amended charge to
dispute them. This allegation must also be dismissed.
In light of the above, we find that Local 790 has failed to state a violation of the
MMBA.
ORDER
The partial dismissal of the unfair practice charge in Case No. SF-CE-22-M is hereby
AFFIRMED.
Chairman Duncan and Member Neima joined in this Decision.
15

STATE OF CALIFORNIA	
✓
-------------!
PUBLIC EMPLOYMENTKELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 322-3198
Fax: (916) 327-6377
September 20, 2002
Vincent A. Harrington, Jr., Attorney
Van Bourg, Weinberg, Roger & Rosenfeld
180 Grand Ave., Suite 1400
Oakland, CA 	94612
GRAY
DA
VIS, Governor
Re: 	Service Employees International Union. Local 790 v. City & County
of
San Francisco
Unfair Practice Charge No. SF-CE-22-M
PARTIAL DISMISSAL
Dear Mr. Harrington:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 7, 2002. The Service Employees International Union,
Local 790 alleges that the City & County
of
San Francisco and County
of
San Francisco
violated the Meyers-Milias-Brown Act (MMBA)1 when it discriminated against Sin
Yee
Poon,
interfered with employee rights and unilaterally changed several policies. This letter does not
address the alleged unilateral implementation
of
a policy denying union representation during
counseling meetings.
I indicated to you in the attached letter dated September 3, 2002, that certain allegations
contained in the charge did not state a prima facie case. You were advised that
if
there were
any factual inaccuracies or additional facts which would correct the deficiencies explained in
that letter, you should amend the charge. You were further advised that unless you amended
these allegations to state a prima facie case or withdrew them prior to September 16, 2002, the
allegations would be dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I amdismissing those allegations which fail to state a prima facie case based on the facts and
reasons contained in my September 3, 2002 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge byfiling an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
1 The MMBA is codified at Government Code section 3500 et seq. The text
of
the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-22-M
September 20, 2002
Page2
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 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.
(Regulations 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
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.
(Regulation 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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. (Regulation 32635(b ).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position of
each other party regarding the extension, and shall be accompanied by proof of service
of
the
request upon each party. (Regulation 32132.)

SF-CE-22-M
September 20, 2002
Page 3
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
W
Regional Attorney
Attachment
cc: Philip A. Ginsburg

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT,RELATIONS BOARD
Sacramento Regional Office
1031
I 8th Street
Sacramento, CA 95814-4174
Telephone: (916) 322-3198
Fax: (916) 327-6377
September 3, 2002
Vincent A. Harrington, Jr., Attorney
Van Bourg, Weinberg, Roger & Rosenfeld
180 Grand Ave., Suite 1400
Oakland, CA 94612
GRAY DAVIS, Governor
Re: 	Service Employees International Union, Local 790
v.
Citv and County
of
San Francisco
Unfair Practice Charge No. SF-CE-22-M
PARTIAL WARNING LETTER
Dear Mr. Harrington:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 7, 2002. The Service Employees International Union,
Local 790 alleges that the City and County
of
San Francisco violated the Meyers-Milias-
Brown Act (MMBA) 1 when it discriminated against Sin Yee Poon, interfered with employee
rights and unilaterally changed several policies. This letter does not address the alleged
unilateral implementation
of
a policy denying union representation during counseling
meetings.
On September 3, 2002, I called and left you a message indicating that I needed additional
information concerning several allegations in the charge. I indicated that I would send you a
letter which set out the factual allegations and described the deficiencies in the charge. 	I
invited you to call
if
you had questions about the warning letter.
Investigation
of
the charge revealed the following information. Sin Yee Poon is employed by
the City as an 1822 Administrative Analyst with the Department
of
Health Services. Ms. Poon
also serves as the Local 790 DHS Chapter President and is a job steward. During November
and December 2000, Ms. Poon took union leave to participate in representation activities.
In February 2001, DHS Executive Director Trent Rhorer called a meeting
of
management staff
involved in monitoring a DHS contract with OMI Family Resource Center. Ms. Poon was the
only person involved in the project who was not informed
of
the time and location
of
the
meeting.
On February 20, 2001, Ms. Poon sent an e-mail message protesting her exclusion from the
meeting.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-22-M
September 3, 2002
Page2
On February 26, 2001, Ms. Poon's supervisor, Robin Love, sent Ms. Poon an e-mail message
instructing her to "cease all correspondence" concerning the OMI Family Resource issue.
Ms. Poon was further informed that all
of
her correspondence to outside agencies and
management was to be reviewed by Ms. Love prior to being sent. Ms. Love also indicated that
she would meet with Ms. Poon on February
28
to discuss her concerns.
After the February 28, 2001 meeting, Ms. Love modified her original directive to allow
Ms. Poon to initiate conversations and e-mails regarding her assigned tasks.
In late February or early March 2001, Ms. Love suspended various staff meetings. Ms. Love
also asked employees to e-mail their schedules, rather than verbally provide the information.
Ms. Poon was directed to submit a weekly schedule which included her schedule
of
union
appointments. The charge also states that Ms. Love placed restrictions on granting union
release time to Ms. Poon.
On March 30, 2001, Ms. Poon and Local 790 Field Representative Faye Roe approached
Ms. Love seeking to schedule a meeting to discuss the suspension
of
staff meetings and
restrictions on union release time. Ms. Love indicated to Ms. Roe that it was not a good time
to discuss these matters and asked that they schedule a meeting at a later date. Ms. Roe
insisted that Ms. Love schedule a meeting at that time. Ms. Love became extremely agitated
and would not discuss a meeting. Later the same day, Ms. Love took a medical leave
of
absence
of
unknown duration. The charge alleges that thereafter Ms. Love effectively cut off
communication with Ms. Poon.
During February, March and April 2001, the City refused to send its responses to grievances
filed by Ms. Poon on behalf
of
Local 790 to her work site address. Instead, the City's
grievance responses were sent to the Union's official mailing address at 1390 Market Street.
The charge alleges that this action "has created timeliness issues, confusion and uncertainty
with respect to the status and processing
of
numerous grievances initiated by [Ms.] Poon."
This issue has previously arisen between the parties. On June 26, 2000, DHS Departmental
Personnel Officer Eugene Freeman sent a letterto SEIU Field Representative Daz Lamparas
which stated, in part:
The Department of Human Services has received another letter
from the Sin Yee Poon, Chapter President for Local 790 at DHS,
using a DHS location as a return address on SEIU Union
stationary (See Attached). We believe it is inappropriate for
Ms. Poon to use an address belonging to a DHS building as an
official return address for SEIU.
The Department agreed to send responses to grievances filed by
Ms. Poon to her DHS work location at 1800 Oakdale Avenue, as
a convenience to her. However, we did not agree to the use of the
1800 Oakdale address on official Union stationary. We believe

SF-CE-22-M
September 3, 2002
Page 3
Ms. Poon should use the San Francisco SEIU Local 790 address
on all Union stationary.
We believe it is in the best interest
of
the Department and SEIU
to maintain consistent and separate mailing addresses for all
correspondence between the two parties. Therefore, we are
requesting you to instruct Ms. Poon to remove the 1800 Oakdale
A venue address from the SEIU Local 790 letterhead.
In a letter dated July 27, 2000, DRS Employee Relations Representative Cynthia Hamada
responded to Ms. Poon's request to send grievance responses to her at her work site address.
Ms. Hamada reiterated the Department's position stated in its June 26, 2000 letter that it would
use the SEIU office address on Market Street to forward grievance responses to Ms. Poon.
DRS Employee Relations Representative Elaine Leeming addressed this issue again in an
April 24, 2001 letter to Ms. Poon. Ms. Leeming referenced the two prior letters and stated that
it would continue to send grievance responses to SEIU's Market Street address in conformance
with its position that the Union and Department maintain "separate and consistent mailing
addresses for all correspondence."
In late March 2001, the City formed a temporary Emergency Response Unit for a period
of
90
days to cover for employees on vacation and other leaves and asked unit members to volunteer
to serve on the Emergency Response Team. The charge alleges that this conduct violates
existing seniority rules and reassignment procedures.
Also in late March 2001, the City relocated a number
of
work units and their respective
employees to various locations without notice to the Union and an opportunity to meet and
confer.
The City plans to move the Adult Protective Services Program from DRS to the jurisdiction
of
the Commission on Aging. The City has not consulted with or informed Local 790
of
this
decision; nor has the City provided the Union with information concerning timelines, plans for
implementation or impacts on bargaining unit employees.
On April 5, 2001, Local 790 protested the City's failure to consult with and notify the Union
of
the changes to the Adult Protective Services Program. The charge alleges that the City "failed
and refused to respond effectively to the union protests."
On May 10, 2001, Janice Anderson-Santos, Acting Deputy Director, Family and Children's
Division, and Sally Kipper, Deputy Director, Administration Division, sent a memo to
Ms. Poon notifying her that effective May 29 she was being involuntarily transferred from the
FPSP Program in the Family and Children's Division to the Contracts Unit in the
Administration Division. The memo stated that there was insufficient work in the FPSP
Program and that there was currently a large workload in the Contracts Division.

SF-CE-22-M
September 3, 2002
Page4
The charge alleges that as a personnel action the involuntary transfer should have been
maintained
as
confidential.
The
charge aHeges that non-management personnel in DHS were
informed
of
Ms. Peon's transfer before she was. The charge also alleges that the relocation
of
Ms. Poon to a different work unit was for the purpose
of
limiting and restricting Ms. Peon's
accessibility as a steward and Chapter President.
The charge alleges that Ms. Love refused to schedule a meeting to discuss Ms. Peon's
involuntary transfer on any
of
the following days, May 16, 17,
18
or 21. Mr. Rhorer refused to
schedule a meeting on either May 22 or 23. Mr. Rhorer referred the Union to Employee/Labor
Relations Manager Patricia Burns who agreed to meet with the Union.
Prior to August 2000, DHS had an informal Labor/Management Health and Safety Committee.
In September 2000, Ms. Kipper invited union representatives from SEIU Locals 250, 535 and
790, and Local
21
and Local 39 to a meeting to discuss restructuring the committee. In June
2001, after consulting with other departments about their health and safety committee
structures, DHS prepared an Injury and Illness Prevention Program (IIPP) which described the
composition and role
of
the DHS Health and Safety Committee. The IIPP was submitted to the
unions and comments were requested by June 19, 2001. No comments were received. At the
June 21, 2001 committee meeting, Ms. Kipper informed the group that she was going to
reconvene a meeting
of
the Union field representatives to finalize the committee structure and
invite the Unions to make appointments to the committee. The charge alleges that DHS failed
or refused to meet and confer with the Union concerning the DHS Labor/Management Health
and Safety Committee.
Finally, on an unknown date, DHS requested the availability
of
a job steward at a particular
location during an investigation
so
that those employees who requested union representation
would have the option without delaying the investigation. The charge alleges that the
Department arranged for the job steward without consulting with the affected employees and
without notifying either the employees or the steward
of
the purpose
of
the meeting. The
charge alleges that this conauct interfered with the employees' right to a representative
of
their
own choosing.
With the exception
of
the allegation concerning union representation during counseling
sessions, the remaining allegations fail to state a prima facie case.
Statute
of
Limitations
As an initial matter, the allegation that the City interfered with employee rights when it
arranged for a union steward to be available to represent employees during an investigation,
does not demonstrate that it was timely filed.
Code
of
Civil Procedure section 338 prohibits PERB from issuing a complaint with respect to
any charge based upon an alleged unfair practice occurring more than three years prior to the
filing of the charge. The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. (Gavilan Joint Community College

SF-CE-22-M
September 3, 2002
Page 5
District (1996) PERB Decision No. 1177.)2 The charging party bears the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB
Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB Decision
No. 1197-S.)
The charge does not provide sufficient facts concerning this allegation including when this
conduct occurred. A charging party must allege sufficient facts to determine whether an
allegation is filed within the statute
of
limitations. This allegation fails to demonstrate that it is
timely filed.
Discrimination allegations
The charge alleges that the City discriminated against Ms. Poon because
of
her protected
activity.
To establish a prima facie case
of
discrimination in violation
of
Government Code section
3506 and PERB Regulation 32603(a), the charging party must show that: (1) the employee
exercised rights under MMBA; (2) the employer had knowledge
of
the exercise
of
those rights;
and (3) the employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained or coerced the employee because
of
the
exercise
of
those rights. (Campbell Municipal Employees Association v. City
of
Campbell
(1982) 131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Association v. City
of
San Leandro (1976) 55 Cal.App.3d 553.)
Although the timing
of
the employer'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 connection or "nexus" between the adverse action in protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or
more
of
the following nexus factors should be present: (1) the employer's disparate treatment
of
the
employee (Campbell, supra); (2) the employer's departure from established procedures and
standards when dealing with the employee (San Leandro Police Officers Association, supra.);
(3) the employer's inconsistent or contradictory justifications for its actions (San Leandro
Police Officers Association, supra.); (4) the employer's cursory investigation
of
the employee's
misconduct; (5) the employer's failure to offer the employee justification at the time it took
action or the offering
of
exaggerated, vague, or ambiguous reasons; or (6) employer animosity
towards union activists (San Leandro Police Officers Association, supra; Los Angeles County
Employees Association v. County
of
Los Angeles (1985) 168 Cal.App.3d 683.).
The charge alleges that the City took adverse action against Ms. Poon in February 2001 when
it excluded her from a meeting with management staff concerning the OMI Family Resource
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SF-CE-22-M
September 3, 2002
Page 6
Center. The charge alleges that Ms. Poon was the only person involved in the project who was
not informed
of
the time and location
of
the meeting.
This allegation fails because it does not provide facts which demonstrate adverse consequences
to Ms. Poon's employment. It is also unclear whether Ms. Poon had a reasonable expectation
to be included in a meeting
of
management staff.
On May 10, 2001, Ms. Poon was involuntarily transferred to the Contracts Division due to lack
of
work. The charge alleges that the transfer should have been maintained as confidential.
The charge does not identify the policy which provides that a transfer to a new work
assignment is a confidential personnel action, since the transfer was not the result
of
disciplinary action. Further, the charge does not provide facts describing which staff were
informed
of
the transfer and whether the information came from management representatives.
This allegation also does not demonstrate the required nexus.
Interference allegations
The charge alleges that the City interfered with employee rights when Ms. Love directed
Ms. Poon to submit a weekly schedule which included her schedule
of
union appointments;
placed restrictions on union released time; sent grievance responses to Local 790's mailing
address rather than Ms. Poon's work site; and when the City arranged for a union steward to be
available to represent employees during an investigation.
The test for whether a respondent has interfered with the rights
of
employees under the MMBA
does not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. The courts have described the standard as follows:
All [a charging party] must prove to establish an interference
violation
of
section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise
of
those activities, and (3) that employer's conduct was
not justified by legitimate business reasons. (Public Employees
Association
of
Tulare County, Inc. v. Board
of
Supervisors
of
Tulare County (1985) 167 Cal.App.3d 797, 807.
The charge alleges that Ms. Poon was required to submit a weekly schedule which included her
union appointments. Other employees were also asked to provide their weekly schedules. The
charge does not allege facts which demonstrate that this requirement interfered with her union
representation activities. Further, the charge does not describe any restrictions on union
released time imposed by the employer. Thus, these allegations do not demonstrate unlawful
interference.
The charge also alleges that the City interfered with employee rights when it continued to send
grievance responses to Local 790's office rather than to Ms. Poon's work site address.

SF-CE-22-M
September 3, 2002
Page 7
Ms. Poon complained that this caused "timeliness issues, confusion and uncertainty" with
respect to the grievances filed
by
Ms. Poon. While the receipt
of
grievance responses at
Ms. Poon's work site may facilitate a quicker union response, the charge does not explain
under what theory the Union has a right to have grievance responses delivered to the Union at
the employer's work site. Accordingly, this allegation fails to state a prima facie case.
Finally, even assuming timely filed, the allegation that the City summoned a job steward to be
available to represent employees during an investigation does not demonstrate interference
with employee rights.	
An
employee does not have a right to a particular union representative.
(State
of
California (Department
of
Transportation) (1994) PERB Decision No. 1049-S.)
Accordingly, this allegation fails to state a prima facie case and must be dismissed.
Unilateral change allegations
The charge alleges that the City unilaterally changed policies without bargaining concerning
the Emergency Response Unit; relocation
of
a number
of
work units; the realignment
of
the
Adult Protective Services Program to the Commission on Aging; and the restructuring
of
the
Labor/Management Health and Safety Committee.
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),3 PERB utilizes either the "per se" or "totality
of
the conduct" test,
depending on the specific conduct involved and the effect
of
such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143.) Unilateral
changes are considered "per se" violations
if
certain criteria are met. Those criteria are:
(l)
the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Vernon Fire Fighters v. City
of
Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin County Employees Association v. City
of
Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB
Decision No. 196.) An employer's decision to reorganize its operations and services, however,
is a managerial prerogative and thus is not a negotiable subject within the scope
of
representation. (State
of
California (Department
of
Corrections) (2000) PERB Decision
No. 1388-S; Building Material and Construction Teamster's Union v. Farrell (1986)
41
Cal.3d
651.)
In March 2001, the City formed a temporary Emergency Response Unit to cover for absent
employees and asked employees to volunteer to serve in the Unit. The charge alleges that this
conduct violates existing seniority rules and reassignment procedures. However, the charge
does not describe the existing seniority rules and reassignment procedures and how the City's
conduct in forming the temporary unit departed from these procedures. Thus, this allegation
does not demonstrate an unlawful unilateral change.
3 PERB Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SF-CE-22-M
September 3, 2002
Page 8
Also
in
March 2001, the City relocated a number
of
work units and their respective employees
to various locations. The charge alleges that the City took this action without providing
Local 790 with notice and an opportunity to bargain. The charge does not describe the work
units which were relocated, state which bargaining unit employees were affected
by
the
relocation or explain when
or
how the Union learned
of
the unit relocations. Without this
information, this allegation does not state a prima facie case.
In April 2001, the City planned to move the Adult Protective Services Program from
DHS
to
the jurisdiction
of
the Commission on Aging. The charge alleges that the City did not consult
with or inform Local 790
of
this decision, did not provide information concerning timelines,
plans for implementation or impacts on bargaining unit employees, and did not "respond
effectively'' to the
Union's
protests. The charge does not provide facts which describe the
nature
of
the Union's protests and whether the Union requested information
or
demanded to
bargain any impacts
of
the City's decision to realign the Adult Protective Services Program.
The charge also does not explain how the City failed to "effectively" respond to the Union.
Thus, this allegation does not establish an unlawful unilateral change.
Finally, the charge alleges that the City restructured the Labor/Management Health and Safety
Committee without providing Local 790 with notice and an opportunity bargain. However, the
facts do not support this allegation. In September 2000, the DHS invited union representatives
to a meeting to discuss restructuring the committee. The DHS then submitted an Injury and
Illness Prevention Program to affected unions in June 2001. After receiving this information,
the charge does not allege that the Union made a demand to bargain the proposed changes.
Accordingly, this allegation fails to demonstrate a prima facie case
of
an unlawful unilateral
change in policy.
For these reasons, as presently written the allegations discussed above do not state a prima
facie case.
	If
there are any factual inaccuracies in this letter or additional facts that would
correct the deficiencies explained above, please amend the charge. The amended charge
should be prepared on a standard PERB unfair practice charge form, clearly labeled First
Amended Charge, contain all the facts and allegations you wish to make, and be signed under
penalty
of
perjury by the charging party. The amended charge must have the case number
written on the top right hand comer
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.
Ifl
do not receive an amended charge or withdrawal from you before September 16, 2002, I
shall dismiss your charge.
	If
you have any questions, please call me at (916) 327-8385.
Sincerely,