Lake County Superior Court (PERB 1782C)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EVA M. KEISER,
Charging Party,
v.
LAKE COUNTY SUPERIOR COURT,
Respondent.
Case No. SF-CE-1-C
PERB Decision No. 	1782-C
November 	1, 	2005
Appearance: 	Eva M. Keiser, on her own behalf.
Before Whitehead, McKeag and Neuwald, Members.
DECISION
McKEAG, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Eva M. Keiser (Keiser) of a Board agent's dismissal of her
unfair practice charge. 	The charge alleged that the Lake County Superior Court (Superior
Court) violated the Trial Court Employment Protection and Governance Act (Trial Court Act)1
by discriminating against her and violating her due process rights. Keiser alleged that this
conduct constituted a violation of sections 71631, 71635.1 and 71636(c) of the Trial Court Act.
We have reviewed the entire record in this matter, including the unfair practice charge,
the amended unfair practice charge, the Superior Court's position statement, the Board agent's
warning and dismissal letters, and Keiser's appeal. We conclude that the Board agent's
I 	The Trial Court Act is codified at Government Code section 71600, et seq. Unless
otherwise indicated, all statutory references herein are to the Government Code.

dismissal letter (attached) is free from prejudicial error and, subject to the discussion set forth
below, adopt it as a decision of the Board itself.2
BACKGROUND
In May 2004, Keiser received a notice of termination from her Lead Judicial Secretary
position with the Superior Court. 	The notice, which outlined over one-hundred instances of
work-related neglect, was sustained by the Superior Court on July 28, 2004. In response to her
termination, Keiser filed the instant unfair practice charge alleging, among other things, that
she was denied procedural due process under Article 5 of the Trial Court Act. Specifically,
Keiser alleged that she was (1) denied union representation; 3 (2) placed on administrative leave
before an informal hearing; (3) denied discovery; (4) required to submit a second answer to the
Superior Court's notice of intent to terminate; (5) terminated for unsatisfactory performance;
(6) not given the adopted procedure regarding the selection of an impartial hearing officer; and
(7) denied an evidentiary due process hearing at the pre-deprivation stage of the disciplinary
process. Additionally, Keiser alleged that her unit placement as a confidential employee also
denied her rights under Article 5.
Although the dismissal letter references the attached warning letter, this decision only
incorporates the dismissal letter.
3This allegation appears to encompass two different charges. First, Keiser contends
that she was denied union representation when the Superior Court failed to recognize the Lake
County Employee Organization (LCEO) as her exclusive representative. 	Second, Keiser
appears to contend that the Superior Court's failure to provide adequate notice regarding her
status with LCEO deprived her of her right to representation. Neither allegation is properly
characterized as a procedural due process violation under Article 5 (Employment Protection
System). Rather, these allegations, which are adequately addressed in the Board agent's
dismissal letter, are more appropriately characterized as violations under Article 3 (Labor
Relations).
22

DISCUSSION
Denial of Due Process
Article 5 (Employment Protection System) of the Trial Court Act governs the discipline
and layoffs of court employees. At the heart of her complaint, Keiser argues that the Superior
Court's alleged violations of Article 5 denied her procedural due process.
There is no provision in Article 5 granting the Board jurisdiction over due process
violations in connection with the disciplinary actions taken by the trial courts. Rather,
Section 71655(a) provides that challenges to a disciplinary decision by a trial court are
conducted pursuant to a petition for writ of mandate under Code of Civil Procedure
section 1094.5. In addition, Section 71655(b) provides:
The denial of due process or the imposition of a disciplinary
decision that by law requires a due process hearing without
holding the required hearing may be challenged by a petition for
a writ of mandate. 	[Emphasis added.]
Based on the clear language of Section 71655, the courts, and not the Board, are vested
with the power to review alleged due process violations in connection with disciplinary
decisions. Thus, since the Board lacks jurisdiction over Keiser's alleged procedural due
process violations under Article 5, these allegations must be dismissed.
This jurisdictional ruling is expressly limited to procedural due process violations under
Article 5 of the Trial Court Act. In its response to the charge, the Superior Court argued that
the Board's jurisdiction over the Trial Court Act is limited to Article 3. In light of this ruling,
however, that issue is not squarely before the Board. 	Since the Board does not issue advisory
opinions (Santa Clarita Community College District (College of the Canyons) (2003) PERB
Decision No. 1506, pp. 27-28), the issue regarding the Board's jurisdiction, if any, over the
remaining provisions of Article 5 need not be decided at this time.
W
	3

Unit Placement
In 1999, the County of Lake added provisions to the County Code separating Superior
Court employees into three different employee units, one of which was entitled "Court
Employees, Confidential." This unit was comprised of two classifications: 	Judicial Secretary
and Lead Judicial Secretary.
In her appeal, Keiser disputes the propriety of her designation as a confidential
employee. However, Keiser was hired as a Judicial Secretary in 2000 and was aware that her
current position was within the confidential bargaining unit at that time.
Section 71639.l(c) provides that the Board "shall not issue a complaint in respect to
any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." In the instant case, the original charge was filed on August 30, 2004.
Since Keiser was aware of her unit placement as a confidential employee in 2000, this
allegation was not timely filed and must be dismissed.
ORDER
The unfair practice charge in Case No. SF-CE-1-C is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Members Whitehead and Neuwald joined in this Decision.
44

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax:(510)622-1027	PERB
November 17, 2004
Eva M. Keiser
6335 Scotts Valley Road
Lakeport, CA 95453
Re: 	Eva M. Keiser v. Lake County Superior Court
Unfair Practice Charge No. SF-CE-1-C; First Amended Charge
DISMISSAL LETTER
Dear Ms. Keiser:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 30, 2004. Eva Keiser alleges that the Lake County
Superior Court violated the Trial Court Employees Act (TCEPGA) by discriminating against
her and by denying her due process rights.
I indicated to you in my attached letter dated October 20, 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 correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to October 27, 2004, the charge would be
dismissed. On October 25, 2004, I extended this deadline to November 8, 2004. I later
extended this deadline a second time to November 12, 2004.
On November 12, 2004, Charging Party filed a first amended charge. Although the charge
does not present any new facts, I will summarize the relevant facts and address Charging
Party's new legal theories.
The Lake County Superior Court is a trial court pursuant to Trial Court Employment Protection
and Governance Act (TCEPGA) which took effect of January 1, 2001. Prior to January 2001,
the County of Lake and the Superior Court entered into a memorandum of understanding under
which the County continued to provide all personal services to the Court until (1) Court
employees were placed in bargaining units other than existing County bargaining units; and (2)
the Court adopted a set of Personnel Rules for Court employees. A copy of the memorandum
of understanding, dated May 25, 1999, was provided with the Court's initial response to the
unfair practice charge.
With regard to Unit Determinations, Section 14-57 provides as follows regarding unit
modification:

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November 17, 2004
Page 2
57.1: Requests by employee organizations for modifications or
redefinition of established units may be considered by the
Employee Relations Officer only during the period specified in
Section 14-55 of this division....
57.2: 	The Employee Relations Officer may, on his own motion,
propose that an established unit be modified or redefined. 	The
Employee Relations Officer shall give written notice of the
proposed modification(s) to any affected employee organization
during the period specified in Section 14-55 of this division and
shall hold a consultation concerning the proposed modifications,
at which time all affected employee organizations shall be heard
if they so desire.
In August 1999, the County of Lake took the first step in separating Court employees by
adding provisions to the County Code that established three (3) bargaining units for Court
employees: 	(1) Court Employees, Non-Management; (2) Court Employees, Management; and
(3) Court Employees, Confidential. 	The last unit is defined as follows:
Comprised of all employees, who, in the course of their duties,
have access to information relating to the Court's administration
of employer-employee relations.
The Confidential bargaining unit is comprised of only two classifications; (1) Lead Judicial
Secretary; and (2) Judicial Secretary. As there are only four Superior Court judges, there are
only four employees in this unit. The County placed the Judicial Secretary positions in the
Confidential unit because of their duties, supporting the Court's four judges. As all four
judges sit on the Court's Executive Committee, which sets Court policy and makes decisions
regarding grievances, discipline and bargaining unit proposals, Judicial Secretaries are privy to
the judge's confidential communications on these matters.1
The County placed the Court Reporters in the Non-Management unit. As the Court Reporters
had been exclusively represented by the Lake County Employees Association for over a decade
they remained in the LCEA bargaining unit.2 The LCEA made no attempt to seek
representation of the Confidential employee unit, and as such, that unit remained
unrepresented.
In 2000, Charging Party applied for and received the position of Judicial Secretary. At the
time Charging Party assumed the position of Judicial Secretary, the position was included in
the Confidential bargaining unit, which remained unrepresented.
Charging Party refutes this statement arguing she was not involved in privy to
confidential information.
2 The Superior Court and the Lake County Employees' Association are parties to a
series of collective bargaining agreements, the most recent of which expired on June 30, 2003.

SF-CE-1-C
November 17, 2004
Page 3
On September 23, 2003, the Court issued Ms. Keiser a Notice of Proposed Disciplinary Action
demoting Ms. Keiser from Lead Judicial Secretary to Judicial Secretary for refusing to be
fingerprinted. Ms. Keiser appealed this disciplinary action, in the form of a grievance, to the
County's Board of Supervisors, which reversed the demotion and issued Ms. Keiser a letter of
reprimand instead. At the time of this discipline, the discipline of confidential Court
employees was governed by the County's Personnel Rules.
In January 2004, the DOJ notified the County that Ms. Keiser had been convicted of two
misdemeanors; (1) custodial child abduction and (2) passing bad checks. This information
conflicted with Ms. Keiser's job applications. On February 6, 2004, the Court issued Ms.
Keiser a Proposed Notice of Disciplinary Action. Thereafter, Ms. Keiser participated in a
Skelley hearing regarding the discipline. On February 26, 2004, the Court issued Ms. Keiser a
Notice of Termination for fraud in securing employment. 	Ms. Keiser was placed on immediate
administrative leave pending her appeal. Ms. Keiser appealed this decision, and a hearing was
held before the County's Board of Supervisors. Ms. Keiser asserted during her appeal that she
believed both misdemeanors to be cleared from her record and that she had been a good
employee. Ms. Keiser did not allege discrimination at any point during the terminations
hearings. Among the papers presented to the Board of Supervisors by the County was Ms.
Reiser's application for a concealed weapons permit which indicted she had been convicted of
one misdemeanor.
On April 1, 2004, the Court issued a resolution pertaining to Court employees. This resolution
noted that while the Court had adopted the County's Personnel Rules, recent passage of the
Trial Court Act required the Court to alter the grievance and discipline policies for regular
Court employees.3 As such, the Court issued its own ordinances pertaining to confidential and
management employees as well as regular Court employees, noting that ordinance applying to
regular Court employees were subject to the meet and confer requirement. 	Ordinance 1350,
issued on that date, pertained to discipline for confidential and management employees.
Ordinance 1350 provides for a disciplinary hearing before the Court Executive Committee,
whose decision is not subject to appeal.
On April 27, 2004, the County issued a written decision overturning the termination and
issuing Ms. Keiser a sixty (60) day suspension. The decision did find, however, that Ms.
Keiser had secured her employment through "fraud." The termination was reduced largely
because of Ms. Reiser's ten year performance record.
During Ms. Reiser's sixty day suspension, from February 27, 2004 through May 24, 2004, the
Court discovered over a hundred instances of work-related neglect and violations of Court
policy. Among the most significant was Charging Party's failure to recall a bench warrant, as
ordered by the judge, which resulted in the defendant's arrest on the warrant.
3 The Trial Court Act requires an evidentiary hearing by an impartial hearing officer.
However, Government Code section 71653 requiring such a hearing does not apply to
confidential or management employees.

SF-CE-1-C
November 17, 2004
Page 4
On May 24, 2004, the Court issued Ms. Keiser a 10 page single-spaced Notice of Termination.
The notice included each and every instance of work-related neglect, including the failure to
process 21 criminal complaints, failure to maintain court records, failure to respond to Court
billings, improper use of Court equipment, improper use of trademark, and failure to follow
judicial instructions in processing other matters.
On July 8, 2004, Ms. Keiser responded to the County's May 25, 2004, notice of termination.
In her 18-page response to the Court, Ms. Keiser responded point-by-point to each of the 100
errors and omissions. In summary, she contended she was the victim of a Court conspiracy,
the errors resulted from other employee's omissions and that she was not adequately trained
for her position. Nowhere in the 18 page response does Ms. Keiser assert the reason for her
termination was because of her protected activity. On July 28, 2004, the Court issued its
decision to sustain the proposed termination.
On August 24, 2004, the Courts offered to provide Ms. Keiser with an evidentiary hearing in
front of an independent hearing officer, despite the fact that Local Rule 1350 does not provide
such review for confidential employees. In making this offer, the Court specifically noted that
Ms. Keiser's classification was clearly confidential and that such an offer did not alter that
classification. It does not appear Ms. Keiser responded to this offer. Instead, on August 30,
2004, Ms. Keiser filed this unfair practice charge. In investigating this charge, I was able to
facilitate the scheduling of an impartial hearing of this matter before arbitrator Gerald McCay.
However, the status of that hearing is unclear.
Based on the facts provided in the original and amended charges, as well as those presented
during the injunctive relief investigation, the charge still fails to state a prima facie violation of
the Trial Court Act, for the reasons provided below. Charging Party presents a number of new
legal theories which will each be addressed in turn.
I. Duty to Meet and Confer (Gov. Code section 71634)
Charging Party contends the Court failed to meet and confer with her over a variety of
negotiable subjects, including inclusion in the confidential unit and changes in disciplmary
provisions, in violation of Government Code sections 71634, 71634.1, and 71634.2. However,
as explained to Charging Party prior to the filing of the amended charge, Government Code
section 71634, 71634.1 and 71634.2 require the Court to give notice and an opportunity to
bargain to recognized employee organizations. For example, Government Code section
71634.2 provides as follows:
(a) The trial court, or those representatives as it may designate,
shall meet and confer in good faith regarding wages, hours and
other terms and conditions of employment within the scope of
representation, as defined in section 71634, with representatives
of the recognized employee organization, as defined in section
71611...

SF-CE-1-C
November 17, 2004
Page 5
Nothing in Government Code section 71634 or any other provision requires a trial court to
meet and confer with individual employees. As the Court is not obligated to negotiate with its
employees directly nor obligated to bargain such changes if no recognized employee
organization is present, these allegations must be dismissed.
Charging Party also appears to be alleging the Court failed to meet and confer with LCEA over
changes in her terms and conditions of employment. However, individual employees do not
have standing to pursue employee organization rights to represent employee or be free from
employer interference. (Oxnard School District (Gorcey) (1988) PERB Decision No. 667;
California Department of Corrections (1993) PERB Decision No. 972-S.) Moreover, as
explained above, LCEA is not Charging Party's exclusive representative and never has been.
While Charging Party may choose to join LCEA for other benefits, LCEA does not represent
Charging Party with regard to the terms and conditions of her employment. As such, the Court
did not violate the Government Code by unilaterally changing the terms and conditions of
Charging Party's employment.
II. Representation of Confidential Employees (Gov. Code sec. 71639)
Charging Party contends that because the LCEA was the exclusive representative of some
Court employees prior to 1999, it should be found to be the exclusive representative of all
Court employees, including confidential and management employees after passage of the Trial
Court Act. In support of this contention, Charging Party cites Government Code section
71639. Government Code section 71639 states in relevant part as follows:
(a) As of the implementation date of this chapter, an employee
organization that is recognized as a representative of a group of
trial court employees or the exclusive representative of an
established bargaining unit of trial court employees, either by the
county or the trial court, shall continue to be recognized by the
trial court as a representative or the exclusive representative of
the same trial court employees.
This provision does not, however, support Charging Party's allegation. Nothing herein
demonstrates the Court failed to continue to recognize LCEA as the exclusive representative of
the Court Reporters. Additionally, as I have explained numerous times, the LCEA was not
Charging Party's exclusive bargaining representative at any time during her employment, and
certainly not after she became a confidential employee in 2000. As such, there can be no
violation of this provision and this allegation must also be dismissed.
Additionally, Charging Party contends this provision requires employers to provide notice to
employees that they are not being represented by an employee organization. 	However, nothing
in the Trial Court requires such notification. Moreover, Charging Party certainly had
constructive knowledge that she was unrepresented as the LCEA contract specifically excluded
her position. As such, this allegation is also dismissed.

SF-CE-1-C
November 17, 2004
Page 6
III. Unlawful Discrimination (Gov. Code sec. 71635.1)
To establish a prima facie case of discrimination in violation of Government Code section
71635.1, the charging party must show that: (1) the employee exercised rights under the Trial
Court 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 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.)4
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 contradictor--------------y 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.).
Charging Party contends the Court discriminated against her because of her protected activity
of speaking with Court Reporters about the wages and working conditions, and complaining
about her unit placement. Initially, it is unclear whether Ms. Keiser engaged in any protected
activity. 	While Ms. Keiser alleges she spoke with Court Reporters about their working
conditions, she does not name these employees or provide declarations regarding their
discussions. Moreover, the charge fails to provide any facts demonstrating the Court was
aware of these conversations. 	With regard to her confidential unit placement, Ms. Keiser did
not begin to complain about her unit placement until after she received notice of her
termination. Ms. Keiser was well aware of her placement prior to the appeals of her
termination and well aware she was an unrepresented employee, as the Lake County
Employees Association did not seek to represent the confidential unit. Additionally, Ms.
Keiser was aware the Association did not want to assist her with her employment matters.
Even assuming Charging Party engaged in some protected activity that was known to the
courts, the charge fails to provide any facts demonstrating nexus. 	The Court followed the
When interpreting the Trial Court Act, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Government Code section 71639.3; Firefighters Union v. City of Vallejo
(1974)12 Cal.3d 608.)

SF-CE-1-C
November 17, 2004
Page 7
applicable procedures in disciplining and terminating Ms. Keiser and cited relevant provisions
of Ordinance 1350 in disciplining her. In fact, the Court appears to have gone beyond its own
procedures in offering Ms. Keiser an evidentiary hearing. Additionally, the Court provided
Ms. Keiser with the reasons for her termination and never shifted or wavered from those
reasons. 	In fact, Ms. Reiser's work related problems began only after she refused to submit
her fingerprints to the DOJ. Such insubordination is not protected activity. As such, this
allegation is dismissed.
Right to Appeal
Pursuant to PERB Regulations,5 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).)
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
5 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-1-C
November 17, 2004
Page 8
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
Kristin L. Rosi
Regional Attorney
Attachment
cc: Joseph Wiley