State of California (Department of Corrections and Rehabilitation) (PERB 2024S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party, Case No. SA-CE-1696-S
Vv. PERB Decision No. 2024-S
STATE OF CALIFORNIA (DEPARTMENT OF May 13, 2009
CORRECTIONS AND REHABILITATION),
Respondent.

Appearances: Suzanne L. Branine, Staff Counsel, for California Correctional Peace Officers
Association; State of California (Department of Personnel Administration) by Todd M.
Ratshin, Labor Relations Counsel, for State of California (Department of Corrections and
Rehabilitation). —
Before McKeag, Neuwald and Wesley, Members.
DECISION

McKEAG, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by the California Correctional Peace Officers Association (CCPOA) of a
dismissal (attached) of an unfair practice charge. T he charge alleged that the State of
California violated the Ralph C. Dills Act (Dills Act)' when a manager for the State of
California (Department of Corrections and Rehabilitation) (CDCR) distributed a document via
e-mail entitled, re-bid memoranda, to all the youth correctional officers at Ventura Youth
Correctional Facility. CCPOA alleged this conduct violated the Dills Act section 3519.

Specifically, CDCR alleged this conduct constituted unlawful retaliation against CCPOA.

Chapter President, Daryl Lee, and also constituted unlawful interference.

' The Dills Act is codified at Government Code section 3512 et seq.

We have reviewed the entire record in this matter and find the warning and dismissal
letters well-reasoned, adequately supported by the record and in accordance with applicable
law. Accordingly, the Board hereby adopts the warning and dismissal letters as a decision
of
the Board itself.
N
2
ORDER
The unfair practice charge in Case No. SA-CE-1696-S
is
hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Neuwald and Wesley joined in this Decision.

STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
December 24, 2008
Suzanne L. Branine, Staff Legal Counsel
California Correctional Peace Officers Association
755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
Re: 	California Correctional Peace Officers Association
v.
State
of
California (Department
of
Corrections and Rehabilitation)
Unfair Practice Charge No. SA-CE-1696-S
DISMISSAL LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with tlie Public Employment Relations
Board (PERB or Board) on July 17, 2008 and amended on December 3, 2008. The California
Correctional Peace Officers Association (CCPOA or Charging Party) alleges that the State
of
California (Department
of
Corrections and Rehabilitation) (CDCR, State, or Respondent)
violated the Ralph
C.
Dills Act (Dills Act or Act)1 by: (1) retaliating against an employee for
his protected conduct; and (2) interfering with employees' rights under the Act.
( 	. 	( 	,
	===========================~~=========~==
You were informed in the attached letter dated October 31, 2008 (Warning Letter), 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 that 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 November 12, 2008, the charge would
be dismissed. On November 10, 2008, you verified to me during our telephone conversation
that you had in fact received the Warning Letter. At your request, I extended at that time the
deadline to file an amended charge to December 3, 2008. On December 3, 2008, a First
Amended Charge was filed with PERB in this matter.
DISCUSSION
The First Amended Charge realleges that CDCR managers: 	(1) retaliated against CCPOA
Chapter President at Ventura Youth Correctional Facility (VYCF) Daryl Lee by distributing,
via electronic mail, an April 18, 2008 memorandum titled "Re-bid memoranda to all Youth
Correctional Officers at VYCF" (Re-bid memo) that allegedly made false statements against
Mr. Lee; (2) retaliated against Mr. Lee by failing to meet informally with him; and (3)
interfered with CCPOA and employees' rights under the Dills Act by distributing the Re-bid
memo. These issues are discussed in further detail below.
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-1696-S
December 24, 2008
Page 2
I. Discrimination
In the Warning Letter, I set forth the elements and the types
of
facts that you would need to
provide to demonstrate a prima facie case
of
discrimination in violation
of
the Dills Act. These
elements are revisited below. However, the amended charge does not cure the defects
previously explained to you and, as described below, not all
of
the requisite elements have
been met.
A. Protected Conduct
On or about December
3,
2007, Mr. Lee met with Major Dewayne Johnson and Lieutenant
John Ojeda who both represent VYCF management. During the December 3 meeting, the
parties negotiated over the division
of
posts into union and management shares. The parties
also met on December
17
and
18,
2008, and February 14 and 15, 2008, to negotiate this matter.
PERB has held that an employee engages in protected conduct by participating in negotiations.
(Santa Paula School District (1985) PERB Decision No. 505.) Accordingly, Mr. Lee engaged
in protected activity by participating in the aforementioned negotiation sessions.
On or about April 18, 2008, Mr. Lee wrote a draft memo informing bargaining unit employees
of
the status
of
bargaining. On or about April 20, 2008, Mr. Lee deposited copies
of
his memo
in employee mailboxes. As stated in the Warning Letter, PERB has held that the distribution
of
information to bargaining unit members impacting the employer-employee relationship
constitutes protected conduct. (Mt. San Antonio Community College District (1982) PERB
Decision No. 224 [employee leaflets regarding a labor dispute]; Santa Monica Unified School
District (1980) PERB Decision No. 147 [union officer's letter to unit members asking that they
not encourage participation in a disputed environmental education project is protected conduct].)
Thus, for purposes
of
this discussion, the amended charge demonstrates that Mr. Lee engaged in
protected activity by drafting a memorandum to bargaining unit employees.
B. CDCR's Knowledge
of
Mr. Lee's Protected Conduct
As previously noted in the Warning Letter, there is no dispute that the State was aware
of
the
above protected activities.
C.
	Adverse Action
The First Amended Charge reiterates CCPOA's conclusion that the Re-bid memo constitutes an
adverse action. The First Amended Charge argues that the Re-bid memo caused: (1) Mr. Lee
to be humiliated; and (2) caused CCPOA members to question Mr. Lee's motives as the
Chapter President.
In the Warning Letter you were advised that the allegedly false and "libelous" statements in the
Re-bid memo did not establish the requisite adverse action element of a discrimination
allegation. As discussed more thoroughly in the Warning Letter, PERB uses an objective
standard to determine 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.) The First Amended Charge has
failed to allege facts demonstrating that Mr.
Lee's
employment at
CDCR
was adversely
affected
by
the Re-bid memo.
SA-CE-1696-S
December
24, 2008
Page 3
Charging Party also alleges that VYCF Superintendent David Finley (Superintendent Finley)
imposed adverse action against Mr. Lee by "changing his behavior" towards Mr. Lee in April
2008. In particular, after Apr~l 2008, Mr. Finley allegedly refused to meet informally with Mr.
Lee to discuss issues affecting bargaining unit employees and cancelled all scheduled meetings
with Mr. Lee. As previously noted, an employer's adverse action must cause a reasonable
person
in
the same or similar circumstance to consider his/her employment adversely affected.
(Ibid.) It is difficult to conceive
how
Mr.
Finley's
"changed behavior" negatively affected Mr.
Lee's
employment at CDCR. Further, PERB may not speculate that Mr. Finley's "changedbehavior" impacted Mr.
Lee's
employment. (See Regents
of
the University
of
California
(2005) PERB Decision No. 1771-H.) The First Amended Charge is devoid
of
any facts
demonstrating, for example, how Mr. Finley's comment affected Mr.
Lee's
pay, work
schedule, opportunity
or
ability to promote, or any other matter causing a reasonable
person in
the same or similar circumstance to consider his/her employment adversely impacted.
	In thatregard, Charging Party has failed to establish the adverse action element.
D. Nexus
For the reasons set forth
in
the Warning Letter, the timing factor has been established.
However, Charging Party was advised in the Warning Letter that the charge failed to raise any
inference
of
unlawful motivation under Novato Unified School District (1982) PERB Decision
No. 210.
To bolster its argument that CDCR departed from established procedures, Charging Party alleges
that Superintendent Finley cancelled meetings with Mr. Lee. In particular, a few months prior to
the distribution
of
the Re-bid memo, Mr. Lee met "regularly" with Superintendent Finley to
discuss issues pertaining to Bargaining Unit 6 employees. However, after April 2008,
Superintendent Finley would not accept appointments with Mr. Lee. It is also alleged that
"[
o Jn
the few occasions when [Mr.] Lee was successful in scheduling appointments, for several
months immediately after the April [Re bid] memo, the superintendent canceled meetings
repeatedly with [Mr.J Lee without offering justification or excuse."
In the Warning Letter, you were advised that this allegation failed to meet its pleading burden
under United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944 because it
failed to describe, among other things: 	(1) the date(s) on which CDCR management met with
Mr. Lee prior to April 18, 2008; (2) the date(s) Mr. Lee was scheduled to meet with CDCR
management after April 18, 2008; (3) the date(s) CDCR management cancelled the meetings;
( 4) whether, in the past, CDCR cancelled meetings with CCPOA representatives in other
matters; and (5) whether there are rules or procedures for the parties to follow prior to
canceling a scheduled informal meeting. The First Amended Charge failed to address these

December 24, 2008
Page 4
deficiencies. 	On those grounds, the allegation that CDCR departed from established
procedures fails.
Charging Party also argues that an inference
of
union animus can be drawn from
Superintendent Finley's April 2008 statement (i.e., "Put it in a grievance. Send it to
Sacramento. That's how it
is
now. That's how you made it.") in response to Mr. Lee's
"proposal to solve a problem." Charging Party alleges that Superintendent Finley's statement
did not pertain to the broken down negotiations leading to the State's implementation
of
the
last, best, and final offer since Mr. Lee allegedly resolved issues very well with Superintendent
Finley after the implementation up until the April 2008 memo was put out. Assuming
Superintendent Finley's comment was made, it does not show an unlawful animus as Charging
Party contends. It appears Superintendent Finley's statement was general in nature. At most,
it may indicate that Superintendent Finley was less than enthusiastic about making any effort
to informally resolve a "problem" in place
of
the grievance process. Moreover, as previously
noted, the First Amended Charge has failed to present any facts that speak to any prior
cancellations
of
informal meetings in other matters either before or after April 2008. In that
regard, PERB will not speculate that VCYF management's statement to Mr. Lee was in
reaction to his memo. 	(Regents
of
the University
of
California, supra, PERB Decision
No. 177i-H.) Accordingly, the charge fails to demonstrate that Superintendent Finley's
statement displays an unlawful animus against Mr. Lee for his protected conduct.
Accordingly, the charge fails to demonstrate any circumstantial evidence that the alleged
adverse action here was based on Mr. Lee's protected conduct.
II. Interference
In the Warning Letter, I set forth the elements and the types of facts that you would need to
provide to demonstrate a prima facie case
of
interference in violation
of
the Dills Act.
However, for the reasons described below, the charge does not cure those defects and a prima
facie violation has not been established.
Charging Party realleges that the Re-bid memo constitutes interference. To support this
conclusion, Charging Party contends that the Re-bid memo stated:
that [Mr.] Lee as chapter president created the shift split which
the majority of employees viewed as greatly favoring
management, and that he put his own interests ahead
of
the
membership by arguing over a position in which he was
personally interested in working. When a manager accuses a
chapter president of siding with management and representing
himself only in negotiations, a reasonable employee would
certainly view these statements as interfering with [Mr.] Lee's
ability to engage in protected activity, i.e.[,] as likely to chill
future union activity by [Mr.] Lee.
SA-CE-1696-S 	C

December 24, 2008
Page 5
(
As set forth in the Warning Letter, certain types
of
employer speech is protected unless it
contains "threats
of
reprisal or force or promise
of
a benefit." (See, e.g., Rio Hondo
Community College District (1980) PERB Decision No. 128 (Rio Hondo).)2 Viewed against
this standard, the above facts fail to demonstrate that the Re-bid memo contained a threat
of
reprisal or promise
of
benefit. Furthermore, PERB has held an employer statement construed
by employees as blaming a union for a particular matter in negotiations is protected free
speech. (See, e.g., Chula Vista City School District (1990) PERB Decision No. 834
[employer's statement that could be construed as putting the blame for a salary situation on the
exclusive representative].)
Charging Party also fails to provide a plausible theory to establish how the Re-bid memo will
chill Mr. Lee's future ability to engage in protected activity. For example, there
is
no evidence
demonstrating that Mr. Lee will not be able to form, join, and participate in organizational
activities. Accordingly, the First Amended Charge fails to demonstrate that the Re-bid memo
tends to or does result in some harm to employees' rights under the Dills Act.
CONCLUSION
For the reasons set forth above, and in the October 31, 2008 Warning Letter, this charge is
hereby dismissed.
Right to Appeal
Pursuant to PERB Regulations,3 Charging Party 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
ofthis dismissal. (Cal. Code Regs, tit.
8,
sec. 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 during a regular PERB business day.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 11020(a).) A
document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Facsimile Transmission Cover Sheet which meets the requirements
of
PERB 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. 	(Cal. Code Regs, tit.
8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Charging Party argues without any supporting authority that Rio Hondo, supra, PERB
Decision No. 128 was wrongly decided and should be overturned by the current Board. 	The
Board's decision in Rio Hondo is binding precedent at this time and must be followed by this
Board Agent in charge processing.
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
C

SA-CE-1696-S
December 24, 2008
Page 6
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
I
031
18th Street
Sacramento, CA 95811-4124
(916) 322-8231
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. (Cal. Code Regs, tit. 8, sec. 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 Cal. Code Regs., tit. 8, sec. 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, sec. 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. (Cal. Code Regs, tit. 8, sec. 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,
TAMI R. BOGERT
General Counsel

______________
_
SA-CE-1696-S
December 24, 2008
Page 7
By
___
":::1
Yaron .Parto.Ji
Regional Attorney
Attachment
cc: 	Todd Ratshin

STATE OF CALIFORNIA 	(
==============	
ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
October 31, 2008
Suzanne Branine, Staff Attorney
California Correctional Peace Officers Association
755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605
Re: 	California Correctional Peace Officers Association v. State
of
California
Unfair Practice Charge No. SA-CE-1696-S
WARNING LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 17, 2008. The California Correctional Peace Officers
Association (CCPOA or Charging Party) alleges that the State
of
California (Department
of
Corrections and Rehabilitation) (CDCR, State, or Respondent) violated the Ralph C. Dills Act
(Dills Act or Act)1 by: (1) retaliating against an employee for his protected conduct; and (2)
interfering with employees' rights under the Act.
Investigation
of
the charge revealed the following relevant information. CCPOA is the
exclusive representative
of
State Bargaining Unit 6 (BU 6) employees
of
the State. CCPOA
and CDCR were parties to a Memorandum
of
Understanding (MOU) that expired by its terms
on June 30, 2006. 	On September 12, 2007, the State presented its last, best, and final offer
(LBFO) to CCPOA. CCPOA did not accept the State's LBFO. 	On September 18, 2007, the
State notified CCPOA that, "[p]ursuant to the Ralph C. Dills Act, Government Code Section
3517.8, the State is exercising its right to implement.
..
its last, best, and final offer.
...
"
At all times relevant herein, Daryl Lee was the CCPOA Chapter President at Ventura Youth
Correctional Facility (VYCF). At some unspecified date, CCPOA representatives met with
VYCF management to discuss matters regarding section 24.05 (Preferred Watch/Regular Days
Off by Seniority [RDO bid])
of
the Implemented Terms
of
the LBFO. Mr. Lee participated in
this meeting.
On April 18, 2008, Mr. Lee drafted a letter that stated, in pertinent part,
The Youth Correctional Officer [YCO] positions are listed on the
wall in the old visiting room.
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-1696-S
October 31, 2008
Page 2
CCPOA attempted to negotiate in good faith to reach a fair
70%130% RDO split each watch for YCO positions. As you may
be aware[,] CCPOA ended negotiations on 02/15/08 with CDCR
and local VYCF management on all program changes at Ventura
due to bad faith negotiations by management.
YCO positions listed are management regular day off patterns
and seniority/management post picks.
All individual posts descriptions and restrictions are management
language. Management refused to allow mutual selection
of70%130% RDO and watch breakdown. Management owns the
majority
of
transportation weekend
off
selections. CCPOA
notified VYCF management
of
theses errors and attempted to
correct the 70%/30% watch and RDO breakdowns. Management
refused to redistribute any YCO positions. CCPOA contends
since CDCR management eliminated YCO sliding six RDO' s
[sic] and implemented YCO 5 and 2 work week, the YCO
70%/30% breakdown should reflect each watch and RDO's [sic].
Their answer to CCPOA was "we have to have these positions[.]"
CCPOA believes any YCO can perform the duties [of] any YCO
position with appropriate specialized training.
CDCR and local management violated their own "Last[,] Best[,
and] Final Offer" post and bid policy when YCO shifts are
available for viewing by BU6 staff only 4 full days prior to
bidding.
CCPOA believes the YCO bid scheduled for Monday, April 21,
2008 is premature. Management has not yet activated all living
units. BU6 staff again will not have the opportunity to view and
select all available YCO dates.
According to the charge, the letter was initially shown to VYFC Superintendent David Finley
on April 18, 2008. Mr. Lee informed Mr. Finley that he intended to distribute the memo to
members later that day in the afternoon. However, before Mr. Lee could distribute his memo
to unit members, VYCF Major Dwayne Johnson wrote and distributed via e-mail a document
titled "Re-bid memoranda to all Youth Correctional Officers at VYCF" (Re-bid memo), which
stated:
Youth Correctional Officers,
I would like to express my concerns regarding the Memoranda
that CCPOA Chapter President Daryl Lee passed out on April 18,
2008. The aforementioned documentation is filled with half-

SA-CE-1696-S
October 31, 2008
Page 3
truths and duplicity. First, Daryl Lee and Kathy Torres
developed the 70/30 split not management. Let me clarify, it was
Kathy Torres who did an excellent job in creating this document
and submitted it to the Master Scheduler and myself to review.
Daryl Lee also, asserted that management refused to allow mutual
selection
of
the shifts, once again this is a partial truth. During
our meeting two months ago, he only objected to one shift that
management had designated as a part
of
our 30%. It is interesting
to note that this shift was
of
personal interest to just one
individual. In addition, why did the CCPOA Chapter President
wait so long, 3 days before the bid to voice his consternation. I
am willing to answer any questions you may have regarding the
re-bid. Thank you.
The charge alleges that after the Re-bid memo was "disseminated
...
management had
canceled meetings repeatedly with [Mr.] Lee." It is further alleged that "[Mr.] Finley has
refused to resolve ay [sic] issue
of
concern informally." Charging Party contends that during a
conversation with Mr. Lee in April
of
2008, Mr. Finley informed Mr. Lee in regards to Mr.
Lee's
proposal (to resolve a "probiem") that he "[p Jut it in a grievance. Send it to Sacramento.
That's how it is now. That's how you made it."
DISCUSSION
The charge specifically alleges that Respondent's Re-bid memo constitutes both discrimination
and interference in violation
of
the Dills Act. For the reasons described below, the charge fails
to demonstrate a prima facie case under both theories.
I.
	Discrimination
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)
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

SA-CE-1696-S
October 31, 2008
Page 4
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 that might
demonstrate the employer's unlawful motive. (Novato, supra, PERB Decision No.
21
O;
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 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; footnote omitted.]
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
A. Protected Conduct
It is alleged that Mr. Lee engaged.in protected conduct by: (1) participating in negotiations
over, among other things, the RDO bid system; and (2) drafting a memo to bargaining unit
employees.
Participating in negotiations is protected conduct. (Santa Paula School District (1985) PERB
Decision No. 505.) Moreover, PERB has held that the distribution
of
information to
bargaining unit members impacting the employer-employee relationship constitutes protected
conduct. (Mt. San Antonio Community College District (1982) PERB Decision No. 224
[employee leaflets regarding a labor dispute
J;
Santa Monica Unified School District (1980)
PERB Decision No. 147 [union officer's letter to unit members asking that they not encourage
participation in a disputed environmental education project is protected conduct].)
C

SA-CE-1696-S
October 31, 2008
Page 5
But
the charge presently fails to meet its burden under United Teachers-Los Angeles
(Ragsdale), supra, PERB Decision No. 944 because it fails to describe, for example, the date(s)
Mr. Lee engaged in bargaining with the State over the RDO bid and whether Mr. Lee actually
distributed the memo to bargaining unit employees (and
if
so, when and by what means).
B. CDCR's Knowledge
of
Mr. Lee's Protected Conduct
Assuming the charge is cured to meet its Ragsdale burden, there is no dispute that CDCR was
aware
of
Mr. Lee's protected conduct since Mr. Johnson admits in the Re-bid memo that he
"would like to express [his] concerns regarding the Memoranda that
...
[Mr.] Lee passed out .
on April 18, 2008. There is also no dispute that the State was aware
of
Mr. Lee's participation
in the negotiation process.
C. Adverse Action
Although not clear, it appears Charging Party is claiming that the adverse action in this matter
relates to allegedly false statements in the Re-bid memo; i.e., that Mr. Lee: 	(1) developed the
70/30 split; and (2) made less-than-truthful statements that "management did not allow mutual
selection
of
shifts"; and (3) oniy objected to one shift as being unfairly part
of
management's
30%." The charge also alleges that "the memo went on to infer that [Mr.] Lee objected to this
shift only because he was personally interested in obtaining rights to this shift." The charge
concludes by alleging that these statements were libelous and leave an impression that Mr. Lee
did not act in the best interest
of
the chapter membership, but instead acted in his own personal
interests.
While the element
of
"adverse action" is typically identifiable in cases
of
alleged
discrimination, in this case it is not; the facts fail to demonstrate that this threshold element
exists. To the extent CCPOA may be asserting that CDCR libeled Mr. Lee in this
matter-and
that such constitutes adverse action for purposes
of
this
discussion-such
is not supported by
PERB or National Labor Relations Board (NLRB) authorities. And notably, the California
Supreme Court has recognized that different standards should apply with respect to statements
made in the context
of
labor disputes because in passing the Labor Management Relations Act,
29 U.S.C. 141, et seq., Congress wanted to encourage free debate on issues dividing labor and
management. (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596.) Further, as
previously noted, the test for an adverse action requires that 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, supra, PERB Decision No. 864.) In the instant
case, it is difficult to conceive how CDCR's statements in the Re-bid memo would have any
negative impact on Mr. Lee's employment at CDCR. For example, the charge does not
establish that the Re-bid memo affected Mr. Lee's pay, work schedule, opportunity or ability to
promote, or any other matter causing a reasonable person in the same or similar circumstance
to consider his/her employment adversely affected. There is also nothing in the current record
to demonstrate that CDCR pursued any separate action against Mr. Lee for his participation in
negotiations over the RDO bid. Any argument that Mr. Lee's subjective view of the

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October 31, 2008
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(
statements in the Re-bid memo constituted an adverse action fails under the applicable
standard.
D. Nexus
Assuming for the sake
of
this discussion that the "adverse action" in this case is the allegedly
libelous e-mail from Mr. Johnson, such action occurred on the same day Mr. Lee drafted his
memo. Although timing is an important factor in this case, it does not without more
demonstrate nexus between the alleged adverse action and Mr. Lee's protected conduct. (See
North Sacramento School District, supra, PERB Decision No. 264; Moreland Elementary
School District, supra, PERB Decision No. 227.)
Even
if
one were to assume that Mr. Johnson's Re-bid memo constitutes an adverse action, and
all the above-stated deficiencies in the matter had been cured, the charge nevertheless fails to
raise any inference
of
unlawful motivation under Novato Unified School District, supra, PERB
Decision No. 210.
Likewise, although Charging Party alleges that Mr. Finley's cancellation
of
meetings with Mr.
Lee demonstrates a departure from past practice, this allegation fails to meet its burden under
United Teachers-Los Angeles (Ragsdale), supra, PERB Decision No. 944 because it fails, for
example, to describe: 	(1) the date(s) on which CDCR management met with Mr. Lee; (2) the
nature
of
the discussion(s) involved in the cancelled meetings; (3) the name(s)
of
the
management employee(s) that met with Mr. Lee before April 18, 2008; (4) the date(s) Mr. Lee
was scheduled to meet with CDCR management after April 18, 2008; (5) the date(s) CDCR
management cancelled the meetings; (6) the name(s)
of
the manager(s) that cancelled the
meetings after April 18, 2008; (7) whether CDCR managers provided a justification for
canceling meeting, and
if
so to whom; (8) whether, in the past, CDCR has cancelled meetings
with CCPOA representatives in other matters; and (9) whether there are rules or procedures for
the parties to follow prior to canceling a scheduled informal meeting:
Charging Party further alleges that Mr. Finley's statement to Mr. Lee demonstrates that the
alleged adverse action was motivated by "anti-union animus." In pertinent part, Mr. Finley's
statement, "[t]hat's how you made it," presumably refers to the broken down negotiations
leading to the State's implementation
of
the LBFO. However, the allegation fails to meet its
burden under United Teachers-Los Angeles (Ragsdale), supra, PERB Decision No. 944
because it fails, for example, to describe when Mr. Finely made the this statement to Mr. Lee.
The charge fails to demonstrate that the alleged adverse action (false statements in the Re-bid
memo) was motivated by any union animus since the context
of
the conversation was over
resolution
of
a "problem" that appears separate and apart from either the RDO bid issues or
Mr. Lee's memo. Although Mr. Finley's statement may have been impolite, there is nothing in
the record to demonstrate that this statement discouraged Mr. Lee from distributing his memo
or dissuaded him from filing a grievance to resolve the "problem." There is also no evidence
in the charge that this statement was in reaction to Mr. Lee's memo.

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(
Accordingly, the charge fails to demonstrate any circumstantial evidence that the adverse
action here was based on
Mr.
Lee's protected activity. Thus, an inference
of
unlawful motive
is not substantiated by the facts in this case.
II. Interference
Although not clear from the charge, it appears Charging Party is alleging that the State
engaged in unlawful interference by distributing its April 18, 2008 Re-bid memo.
In Rio Hondo Community College District (1980) PERB Decision No. 128 (Rio Hondo),
PERB reiterated its determination that certain types
of
employer speech will be protected and
confirmed adoption
of
"a
standard by which such speech will be analyzed which conforms to
the express protection set forth in section 8(c)
of
the NLRA." (Ibid.)
Like the Dills Act, the National Labor Relations Act (NLRA) imposes on private-sector
employers an obligation to bargain in good faith. The NLRA also expressly guarantees
employers the right
of
free, non-coercive speech. Section 8(c)
of
the NLRA provides as
follows:
The expressing
of
any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence
of
an unfair labor
practice under any
of
the provisions
of
this Act,
if
such
expression contains no threat
of
reprisal or force or promise
of
benefit.
(29 U.S.C. 158(c).)
Looking to the NLRA and the NLRB's interpretation
of
section 8(c), PERB has consistently
held that employers may communicate with employees about labor relations matters as long as
the communication does not contain a threat
of
reprisal or force or promise
of
benefit.
In Muroc Unified School District (1979) PERB Decision No. 80, PERB construed the
Educational Employment Relations Act (BERA) to allow public school employers to
communicate "in a noncoercive fashion, with employees during negotiations." (Id. at p. 21,
citing NLRB v. General Electric Co. (2nd Cir. 1969) 418 F.2d 736, 762, cert. den. (1970) 397
U.S. 965; Proctor & Gamble Mfg. Co. (1966) 160 NLRB 334, 340.) Whether an employer's
speech is unlawful is determined by applying an objective rather than a subjective standard.
(California State University (California State Employees Association, SEIU Local 1000) (1989)
PERB Decision No. 777-H.) The charging party must show that the employer's communications
would tend to coerce or interfere with a reasonable employee in the exercise
of
protected rights,
and the fact that employees may interpret statements, which are otherwise protected, as coercive
does not necessarily render those statements unlawful. (Regents of the University of California
(1983) PERB Decision No. 366-H, pp. 15-16, fn. 10.) And statements by an employer are

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October 31, 2008
Page 8
viewed in their overall context to determine if they have a coercive meaning. (Los Angeles
Unified School District (1988) PERB Decision No. 659.)
In the instant case, the State is entitled to express its views on any employment related matter
over which it has a legitimate concern including the status of negotiations. (See Rio Hondo,
supra, PERB Decision No. 128 [it is umeasonable to assume that the Legislature intended to
restrict a public agency from disseminating its views regarding the employment relationship].)
Furthermore, Mr. Johnson's statements in the Re-bid memo are considered protected speech
since they did not contain a threat of reprisal or force or promise of benefit. In addition, the
charge fails to show how Mr. Johnson's statements (i.e., that Mr. Lee developed the 70/30
split, that Mr. Lee made false statements, and that Mr. Lee's personal interest in the rights to
the shift) tends to or does result in some harm to employee rights granted under the Dills Act.
(See Carlsbad Unified School District (1979) PERB Decision No. 89 [it is the charging party's
burden to demonstrate that the employer's communication tends to/does coerce or interfere
with a reasonable employee in the exercise of protected rights].) For example, there is no
evidence that the State's conduct in this matter had the effect of nullifying the ability of
employees to form, join, and participate in organizational activities. Moreover, there is no
basis for speculation that a threat or intimidation occurred in this case. (See, e.g., Admiral
Petroleum Corp. (1979) 240 NLRB No. 122.) Thus, while it appears thatthere was some
disagreement about which party developed the 70/30 shift, the charge fails to present evidence
establishing that employees' rights to representation were interfered with under the Dills Act.
Furthermore, PERB had held that false, misleading, and derogatory statements may not be
unlawful if they do not contain a threat of reprisal or promise of benefit. (Rio Hondo
Community College District, supra, PERB Decision No. 87.) While the charge states that the
statements in the Re-bid memo were false and inaccurate, this is without a threat of reprisal or
force of benefit that is sufficient to constitute an unfair labor practice. Therefore, this
allegation fails to show that the State's April 18, 2008 communication tended to coerce or
interfere with a reasonable employee in the exercise of Dills Act protected rights.
CONCLUSION
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
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 an amended
charge or withdrawal is not received in this matter before November 12, 2008, your charge
shall be dismissed. If you have any questions, please call me at the above telephone number.

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Page 9

Sincerely,

Yaron Partovi
Regional Attorney
YP