State of California (Department of Corrections) (PERB 1723S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALDO LUCKETTA,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS),
Respondent.
Case No. SA-CE-1434-S
PERB Decision No. 	1723-S
December 	13, 	2004
Appearances: Law Office of Steven B. Bassoffby Steven B. Bassoff, Attorney, for Aldo
Lucketta; State of California (Department of Personnel Administration) by Gail T. Onodera,
Labor Relations Counsel, for State of California (Department of Corrections).
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Aldo Lucketta (Lucketta) of a Board agent's dismissal
( attached) of his unfair practice charge. The charge alleged that the State of California
(Department of Corrections) (Corrections) violated the Ralph C. Dills Act (Dills Act) 1 by
discriminating against Lucketta because of his protected activity.
The Board has reviewed the entire record in this case including, the original and
amended unfair practice charge, the appeal by Lucketta and response from Corrections. The
Board finds the warning and dismissal letters of the Board agent to be free of prejudicial error
and adopts them as the decision of the Board itself, subject to the discussion below.
1The Dills Act is codified at Government Code section 3512, et seq.

DISCUSSION
Lucke_tta is an officer in the California Association of Psychiatric Technicians. He is
the vice president and job steward at California State Prison-Corcoran. On December 23,
2003, supervising nurse Belinda Haven (Haven) posted a memo to all psych techs regarding
medicine management. The instruction with it was that it was to be read by all psych techs and
then signed to show who had read it so Haven could confirm all psych techs had the
information. Following the posting, Lucketta sent out two memos to Haven related to concerns
over the medication changes. Those memos were dated December 24 and December 26, 2003.
The December 24 Lucketta memo stated the psych techs would not sign the memo until
all psych techs had "been advised how to operate their clinic" and "all disciplines have been
fully notified." On January 14, 2004, Haven issued a letter of instruction (LOI) to Lucketta.
The LOI criticized Lucketta for instructing staff not to sign the medical management memo
and also for not properly following sick leave policy. The later was related to Lucketta
instructing psych techs to call him or the EOP clinic to report in sick rather than calling a
supervisor as stated in written policy.
To demonstrate a violation of Dills Act section 3519(a), the charging party must show
that: 	(1) the employee exercised rights under the Dills Act; (2) the employer had knowledge of
the exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
2

PERB Decision No. 264 (North Sacramento)), it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more of the following additional factors must also be present: (1) the employer's disparate
treatment of the employee (State of California (Department of Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104); (3) the employer's inconsistent or contradictory justifications for its actions (State of
California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the
employer's cursory investigation of the employee's misconduct; (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; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento.)
Evidence of adverse action is also required to support a claim of discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) In determining whether such evidence is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Ibid.) In a later
decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; fn. omitted.]
3

Lucketta has failed to state a prima facie case because he has not met the requirements
of the Novato test. There was no adverse action by the employer related to protected activity.
The LOI did not discipline Lucketta for protected activity but rather addressed Lucketta telling
the psych techs to go against written policy and act in a manner inconsistent with management
directives. Telling employees to violate management directives is not protected activity.
ORDER
The unfair practice charge in Case No. SA-CE-1434-S is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Whitehead and Neima joined in this Decision.
4

STATE OF CALIFORNIA 	rPUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
October 21, 2004
Steven B. Bassoff, Consultant
Ken Murch, Consultant
California Association of Psychiatric Technicians
2000 0 Street, Suite 250
Sacramento, CA 95818
Re: 	Aldo Lucketta v. State of California (Department of Corrections)
Unfair Practice Charge No. SA-CE-1434-S
DISMISSAL LETTER
Dear Mr. Bassoff and Mr. Murch:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 10, 2004. Aldo Lucketta alleges that the State of California
(Department of Corrections) violated the Ralph C. Dills Act (Dills Act)1 by taking an illegal
reprisal against a union officer.
I indicated to you in my attached letter dated October 13, 2004, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correctthe deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to October 20, the charge would be dismissed.
I received your amended charge on October 19, 2004. In that amended charge you continue to
contend that Lucketta received a Letter oflnstruction because of his protected activities.
Specifically, you reference Lucketta's two memoes to supervisor Haven regarding concerns
over a change in medication policy as protected activity.
As discussed in my previous letter, the reprimand received by Lucketta criticizes him for
instructing staff not to sign the management directive regarding medications and for failure to
follow the sick leave policy.
You state in your amended charge that "one basis for the letter [reprimand] was that staff never
signed the memo in question, blaming Lucketta for this failure and contending that he was
insubordinate and willfully disobedient in instructing staff not to sign the memo." You state
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-1434-S
October 21, 2004
Page 2
that the "charge he was responsible for staff not signing the memo is untrue" and attach a page
of paper containing five signatures, with remarks (including two "Signed under protest!")
dated December 2003. You state that this exhibit "shows that the affected psychiatric
technicians signed the memo, and that management was aware of that fact well before the letter
was issued on January 14 th ." In fact, the signatures are not attached to any writing nor do you
provide facts regarding this document being presented to management. Nor is it clear what
percentage of affected employees are represented by these signatures.
However, assuming these signatures were attached to the medical directive in question and
submitted to management prior to the reprimand of January 14 th, your charge remains
deficient.
The Letter of Instruction clearly reprimands Lucketta for instructing staff not to initial the
medical directive. There is a statement in the employer's factual description of the events of
December 13, 2003, that "The staff never did initial the memo due to your directions." 2 The
memo later states, "Your act of instructing staff to not initial the memo, acknowledging that
they read it, was an act of insubordination and willful disobedience (DOM 330305.2.15) which
will not be tolerated."
You also contend, "The charge by management that Lucketta made a mistake about
notification [on January 12] concerning psychiatric technician Hance is false". Rather, on
January 12 Lucketta asked supervisor Howell whether Hance called in that day; he did not tell
Howell that Hance had called in on Monday January 12 th. The Letter oflnstruction, in part,
states,
On Monday January 12, 2004 you called the Lead RN S. Howell
to inform her that LPT Hance had called in sick today. When I
called you to inquire as to why you had been notified of her sick
call. You [sic] informed me that you had told all of the LPTs to
call you or the EOP clinic if they were calling in sick. When I
asked why you had instructed them to do this you replied, "Well
then they don't have to bother you".
In reality, Hance called in sick on Sunday January 11, 2004, not
on Monday as you stated. This could have caused much
confusion had I not realized your mistake this morning.
That the above fact cited by the employer in the reprimand was incorrect does not change the
criticism contained therein regarding sick call procedure. That criticism was that Lucketta
"told all of the LPTs to call you or the EOP clinic if they were calling in sick" while "Our
written policy and procedure does not state that LPTS are to call the EOP clinic. The LPTs
have been given a supervisor schedule and phone numbers. They have been instructed to call
2 The five signatures you provided are dated December 24 and December 26.

SA-CE-1434-S
October 21, 2004
Page 3
( 	(
the supervisor on duty or the supervisor on call." Later, Lucketta is directed, "You are to
follow the sick call Policy and Procedure."
In sum, the letter of reprimand criticizes Lucketta for instructing employees not to initial the
the medical directive and for advising employees to call him or EOP when sick rather than
following sick call policy and procedure. You allege that this reprimand was issued as a
reprisal for the protected activities of Lucketta. As stated in my prior letter, improper motive is
not demonstrated on the face of the document. Nor have you provided other facts which
demonstrate that the employer was improperly motivated to issue the document.
Your amended unfair practice charge does not provide the additional facts necessary to
demonstrate a prima facie case. Therefore, I am dismissing the charge based on the facts and
reasons contained here and in my October 13 letter.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on 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.
(Regulations 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).)
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1434-S
October 21, 2004
Page 4
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.)
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~~(_~~
Bernard McMonigle
Regional Attorney
•~
;t
Attachment
cc: Gail T. Onodera

STATE OF CALIFORNIA 	( 	==============='<
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
October 13, 2004
Ken Murch, Consultant
California Association of Psychiatric Technicians
2000 0 Street
Sacramento, CA 95818
Re: 	Aldo Lucketta v. State of California (Department of Corrections)J
Unfair Practice Charge No. SA-CE-1434-S
WARNING LETTER
Dear Mr. Murch:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 10, 2004. The Aldo Lucketta alleges that the State of
California (Department of Corrections) violated the Ralph C. Dills Act (Dills Act)1 by taking
an illegal reprisal against a union officer.
On December 23, 2003, Supervising Nurse Belinda Haven posted a memo regarding medicine
management which she instructed to be read by all Psych Techs who dispense medications.
Aldo Lucketta is a CAPT Vice President and job steward at CSP-Corcoran. On December 24
and December 26, Lucketta sent memorandums to Haven addressing concerns about the
medication changes. The December 24 memo states in part that once all Psych Techs have
been "advised how to operate their clinic" and "all disciplines have been fully notified" they
will sign the 12/23 memo posted by Haven.
On January 14, 2004, Lucketta was issued a Letter oflnstruction by Haven. The LOI criticized
Lucketta for instructing staff not to sign the medical management memo. The document also
chastised Lucketta for not properly following sick leave policy by instructing Psych Techs to
call him (or the EOP clinic) rather than a supervisor.
To demonstrate a violation of Dills Act section 3519(a), the charging party must show that:
(1) the employee exercised rights under the Dills Act; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. (Novato Unified School District (1982)
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-1434-S
October 13, 2004
Page 2
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (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; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test
and will nof rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
, found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
The Letter of Instruction addressed Lucketta instructing other Psych Techs to act in a manner
inconsistent with management directives. On its face, the document does not discipline
Lucketta for protected union activity. Rather, it appears that Lucketta was advising other
employees to ignore management directives regarding medical management and sick leave; I
am aware of no caselaw which makes such activity protected under the Dills Act. You have
provided no other facts that demonstrate that the employer was improperly motivated when it
issued the LOI.
For these reasons the charge, as presently written, does 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

SA-CE-1434-S
October 13, 2004
Page 3
(
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
corner of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before October 20, 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Bernard McMonigle
Regional Attorney
BMC