Trustees of the California State University (Sonoma) (PERB 1755H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SONOMA),
Respondent.
Case No. SF-CE-716-H
PERB Decision No. 	1755-H
March 	1, 	2005
Appearance: 	Susan Kizziee, Labor Relations Representative, for California State Employees
Association.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the California State Employees Association (CSEA) of a Board agent's
dismissal of its unfair practice charge. 	The unfair practice charge alleged that the Trustees of
the California State University (Sonoma) (CSU) violated the Higher Education Employer-
Employee Relations Act (HEERA)1 by discriminating against VaLinda Kyrias (Kyrias) for her
protected activities.
The Board has reviewed the entire record in this matter, including the original and amended
unfair practice charge, the warning and dismissal letters, and CSEA's appeal. As discussed
below, the Board partially adopts the dismissal and remands the remainder of the charge to the
General Counsel's office for issuance of a complaint.
HEERA is codified at Government Code section 3560, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
Kyrias is employed by CSU as an administrative coordinator in the School of Social
Sciences (School) and is CSEA's chief job steward. CSU and CSEA are parties to a collective
bargaining agreement that expires on June 30, 2005.
The School employs several administrative coordinators, including Kyrias and Cookie
Galvan (Galvan). Galvan is a probationary employee. Jane Wright (Wright) is a supervisor in
the School. The School also employs Connie Lewsadder (Lewsadder), assistant to the Dean,
and Erica Wilcher (Wilcher), operations analyst. Lewsadder and Wilcher work in the Dean's
office.
Kyrias' Alleged Statements to Wilcher
In April 20042, one of the employees in the School received a negative probationary
evaluation. 	The evaluation noted that the employee required more supervision than expected.
The employee apparently filed a grievance over the evaluation. Although Kyrias was not the
job steward representing this employee, she was privy to information disclosed during the
grievance process. According to Kyrias, the information disclosed was that other rank and file
employees had reported this particular employee's deficiencies to management.
Kyrias came to the conclusion that Wilcher was the one reporting to management.
According to documents in the record, Kyrias approached Wilcher on April 9 and accused
her of doing the Dean's office "dirty work." It was also alleged that Kyrias told
Stephanie Wilkinson that Wilcher was a "danger to employees" and that Wilcher would "set
them up to fail." Wilcher reported these comments to Wright. Although Kyrias does not
All further dates are in 2004, unless otherwise noted.
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specifically deny making these statements, in her amended charge she asserts that the alleged
statements attributed to her are "nothing but office gossip" spread by Wilcher.
Kyrias' Alleged Statements to Galvan
The record contains copies of letters Galvan and others submitted to management
complaining about Kyrias. According to those letters, Kyrias visited Galvan's office on May 4
and warned Galvan not to trust the administrative staff in the Dean's office and not to ask them
for help because they were logging all information and would use it against Galvan in the
probationary evaluation. 	Later that day Kyrias telephoned Galvan two additional times to
reiterate her earlier comments about not trusting the Dean's office administrative staff and not
asking for assistance from other administrative personnel.
In the amended charge, Kyrias admits that she paid a social visit to Galvan on May 4.
During the course of a casual conversation, Galvan mentioned that she had often gone to the
Dean's office for help. Kyrias asserts that in response, she told Galvan, "to be cautious about
how much help she asked for from the Dean's office because it could end up in her
probationary evaluation." Kyrias asserts that her warning to Galvan was based on facts
gathered from a grievance involving another employee's probationary evaluation (discussed
above). Kyrias further asserts that Galvan had approached her in the past over Galvan's
probationary evaluation and that Kyrias had no reason to believe that Galvan would be
offended over her comments.
On May 5, Galvan met with Wright concerning Kyrias' statements. Galvan was in
tears when she recounted Kyrias' statements. 	She informed Wright that she was worried about
retaining her job given Kyrias' statements, and that she did not wish to be involved in "this
high school behavior". After this meeting with Wright, Galvan and Wilcher went to lunch
w	3

together. During lunch Galvan informed Wilcher about the "vicious and malicious" statements
that Kyrias had made about Wilcher.
Reprimand of Kyrias
On May 13, Wright and Elaine Ledder, Dean of the School, called Kyrias into a
meeting to hand her a written reprimand. 	The reprimand stated, in relevant part:
In the past few weeks, it was reported that you approached
several staff members in the School of Social Sciences and told
them something approximating 'not to trust the Dean's Office'
and that they should not ask the Dean's office personnel for
assistance because 'the Dean's office logs everything down and
will use it against you in your performance evaluation.' 	An
employee indicated that, in their mind, your comments were a
vicious and malicious portrayal of the personnel who work in the
School of Social Sciences Dean's Office.
As an employee of this institution, you are expected to conduct
yourself in a professional manner at all times, which includes
being cooperative. Furthermore, your job description requires
that you establish cooperative working relationships with faculty
and staff and demonstrate excellent interpersonal skills and a
strong customer-service orientation. 	Your divisive and
inappropriate behavior over the past few weeks is adversely
affecting the efficiency of the school, staff morale, and is counter
productive to the goals of this University. Additionally, your
conduct impairs the ability for our employees to have effective
interaction or working relationships with other employees,
thereby negatively impacting the success and function of the
school. 	[Emphasis added.]
The reprimand also accused Kyrias of telling Wright in a May 7 meeting that Kyrias
"did not trust anyone in the Dean's office, which includes Elaine Ledder, Connie Lewsadder,
Erica Wilcher, and myself (Jane Wright)." In her amended charge, Kyrias denies the May 7
statement attributed to her by Wright.
. . . . . . . . . . . .
A4

Information Request
CSEA also alleges that CSU failed to provide documents in response to an information
request. 	After receiving her reprimand, Kyrias demanded her personnel file, which CSU
provided. Kyrias then demanded additional reference material and evaluations which she
believed CSU possessed. 	CSU responded that no such documents existed.
DISCUSSION
Discrimination
CSEA's primary allegation is that CSU discriminated against Kyrias for her protected
speech. 	To demonstrate unlawful discriminatory conduct in violation of HEERA
section 3571 (a), the charging party must show that: (1) the employee exercised rights under
HEERA; (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; Carlsbad Unified
School District (1979) PERB Decision No. 89.)
It is undisputed that CSU reprimanded Kyrias for statements she made to Galvan and
similar statements made to others.3 The primary issue then is whether those statements are
protected under HEERA. 	For purposes of establishing a prima facie case, the Board finds that
they are protected.
The Board notes that the reprimand does not appear to be based on the statements
Kyrias made to Wilcher. 	Those statements were arguably made to respond to Wilcher for
communicating with management about another employee. Because the reprimand does not
appear to be based on these statements, it is not necessary to address whether they are
protected as part of this decision. To the extent this issue is raised at hearing, it can be
addressed by the administrative law judge (ALJ).
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HEERA protects a wide-range of employee speech. PERB has found that employee
criticism of a supervisor on employment-related subjects is protected when its purpose is to
advance the employees' interests in working conditions. (Regents of the University of
California (1984) PERB Decision No. 449-H (adopting ALJ's proposed dec. at p. 143).) This
protection extends to speech that is uncomplimentary to the employer; and even to speech
containing inaccuracies and exaggerations. 	(Pomona Unified School District (2000) PERB
Decision No. 1375; State of California (Department of Transportation) (1983) PERB Decision
No. 304-S.) It is only when the speech is "opprobrious, flagrant, insulting, defamatory,
insubordinate, or fraught with malice" as to cause "substantial disruption" or "material
interference" that it loses its protection. 	(Rancho Santiago Community College District (1986)
PERB Decision No. 602 (Rancho Santiago).) As the Board stated in San Ramon Valley
Unified School District (1982) PERB Decision No. 230:
[T]he danger of the exclusive representative being bypassed in
negotiations was not serious enough to warrant the curtailment of
any citizen's speech, irrespective of his employment status or
content of his speech. 	[Quoting from City of Madison v.
Wisconsin Employment Relations Commission (1976) 429
U.S. 167 [93 LRRM 2970], at pp. 14-15.]
In this case there is a factual dispute over what was said. Where there is a material
factual dispute at this stage of the proceedings, the charging party's allegations must be
accepted as true. (Golden Plains Unified School District (2002) PERB Decision No. 1489.)
Accordingly, the Board must accept Kyrias' assertion that she only told Galvan "to be cautious
about how much help she asked for from the Dean's office because it could end up in her
probationary evaluation."
There is little dispute that Kyrias' statements involved working conditions. The
statements were made in response to Galvan's comments regarding her frequent visits to the
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Dean's office for help, and concerns over her probationary evaluation. 	Thus, Kyrias'
statements are presumptively entitled to protection. This is especially true given Kyrias'
position as chief job steward with its incumbent responsibilities. Thus, the sole remaining
issue is whether her statements were so malicious or defamatory that they lost their protection.
When compared to the facts in the cases cited above, the Board finds that Kyrias' statements
did not lose their protection. For example, Rancho Santiago involved an employee who
accused various supervisors of criminal activities and referred to them as "vindictive sadists,"
among other choice terms. In contrast, Kyrias simply told Galvan to be cautious of how much
help she asked of the Dean's office. For purposes of establishing a prima facie case, the Board
finds that Kyrias' statements were protected under HEERA. Accordingly, that portion of the
dismissal is reversed and remanded to the General Counsel's office for issuance of a
complaint.
Information Request
CSEA also alleges that CSU failed to provide necessary and relevant information in
response to a request. According to the charge, CSEA requested a copy of Kyrias' personnel
file which CSU provided. 	CSEA then requested additional reference material and evaluations
regarding Kyrias. 	CSU responded that it did not possess these documents. 	CSEA has
provided no facts suggesting that CSU was not being truthful. 	There is no allegation that even
CSEA believes such documents exist. Accordingly, CSEA has failed to demonstrate that CSU
failed to provide necessary and relevant information and that portion of the dismissal is
affirmed.
7

00
ORDER
The Board partially AFFIRMS the dismissal in Case No. SF-CE-716-H and
REVERSES and REMANDS the remainder of the charge to the Office of the General Counsel
for issuance of a complaint.
Member Whitehead joined in this Decision.
Chairman Duncan's dissent begins on page 9.
8

DUNCAN, Chairman, dissenting. I respectfully dissent. As the majority points out,
under the Higher Education Employer-Employee Relations Act the charging party must show
that: (1) the employee exercised rights; (2) the employer had knowledge of the exercise of
those rights; and (3) the employer took adverse action as a result of the exercise of those rights.
Unlike the majority, I do not believe that the statements that VaLinda Kyrias (Kyrias) will
admit she made were made in the exercise of her rights.
In setting forth examples of the wide range of employee speech that is protected, the
majority gives examples of criticism of a supervisor, not applicable here, and speech that
contains inaccuracies and exaggerations.
The majority states there is a factual dispute over what was said by Kyrias. Kyrias
denies what a number of other employees have documented. 	She does, however, admit certain
statements were made to others, particularly Cookie Galvan (Galvan), while Galvan was
working.1
The majority believes that this makes Golden Plains Unified School District (2002)
PERB Decision No. 1489 (Golden Plains) applicable and thus a complaint should issue.
In Golden Plains, the Board found that the essential facts of the charge must be
accepted as true. Kyrias admits she told Galvan "to be cautious about how much help she
asked for from the Dean's office because it could end up in her probationary evaluation."
Contrary to the majority opinion that "[
is little dispute that Kyrias' statements involved
working conditions and are presumptively entitled to protection," I believe that is an inaccurate
legal conclusion.
Although Kyrias alleges that in every instance she made statements to Galvan during
Galvan's work time, she herself was on a break.
9

A legal conclusion is not an essential fact. 	Without accepting that flawed legal
conclusion, there is no prima facie case and I would therefore dismiss the charge.
10