City and County of San Francisco (PERB 2222M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CECILIA JAROSLAWSKY,
Charging Party,
V .
CITY & COUNTY OF SAN FRANCISCO,
Respondent.
Case No. SF-CE-778-M
PERB Decision No. 2222-M
November 23, 2011
Appearances: Cecilia Jaroslawsky, on her own behalf; Stephanie G. Bickham, Deputy City
Attorney, for City & County of San Francisco.
Before Mckeag, Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Cecilia Jaroslawsky (Jaroslawsky) of a Board agent's dismissal
(attached) of her unfair practice charge. The charge alleges that the City & County of San
Francisco (City) violated the Meyers-Milias-Brown Act (MMBA) by: (1) discriminating
against her because of her age; (2) interfering with her Weingarten right to representation; and
(3) retaliating against her for engaging in protected activity. The Board agent found that
Jaroslawsky failed to state a prima facie case on each allegation and dismissed the charge.
MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government code.
2 In National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court affirmed the decision of the National Labor Relations Board to afford
employees the right, upon request, to union representation during investigatory interviews.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CECILIA JAROSLA WSKY,
Charging Party,
V.
CITY & COUNTY OF SAN FRANCISCO,
Respondent.
Case No. SF-CE-778-M
PERB Decision No. 2222-M
November 23, 2011
Appearances: Cecilia Jaroslawsky, on her own behalf; Stephanie G. Bickham, Deputy
City
Attorney, for City & County
of
San Francisco.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Cecilia Jaroslawsky (Jaroslawsky)
of
a Board agent's dismissal
(attached)
of
her unfair practice charge. The c~arge alleges that the City & County
of
San
Francisco (City) violated the Meyers-Milias-Brown Act (MMBA) 1 by: (1) discriminating
against her because
of
her age; (2) interfering with her Weingarten2 right to representation; and
(3) retaliating against her for engaging in protected activity. The Board agent found that
Jaroslawsky failed to state a prima facie case on each allegation and dismissed the charge.
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government code.
2 In National Labor Relations Board
v.
Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court affirmed the decision of the National Labor Relations Board to afford
employees the right, upon request, to union representation during investigatory interviews.

On appeal, Jaroslawsky challenges the dismissal of her allegation that the City violated
the MMBA by retaliating against her for engaging in protected activity.
We have reviewed the dismissal and the record in light of Jaroslawsky's appeal, the
City's response thereto, and the relevant law. Based on this review, we find the Board agent's
warning and dismissal letters to be well-reasoned, adequately supported by the record, and in
accordance with applicable law. Accordingly, the Board adopts the warning and dismissal
letters as the decision of the Board itself, supplemented by the discussion below regarding new
information and allegations presented by Jaroslawsky on appeal.
DISCUSSION
In her appeal, Jaroslawsky alleges the City retaliated against her on May 18, 2010 by
terminating her employment because: (1) she participated on a 2009 union committee which
modified City Planning Director John Rahaim's (Rahaim) proposal concerning employee
classifications because the committee found the proposal unacceptable; (2) she sent an email to
Rahaim in February 2009 that criticized the timing of his plans for an employee recognition
program in light of impending layoffs; (3) she sent an email to Rahaim on October 21, 2009 in
which she complained of unspecified inappropriate and unprofessional behavior of another
employee towards her; and (4) she refused initially a supervisor's directive to exclude certain
information from a staff report Jaroslawsky prepared in May of 2010.3
aroslawsky also alleges on appeal that the City violated her Fourth Amendment
rights guaranteed by the U.S. Constitution by investigating her email communications.
PERB's jurisdiction does not include enforcement of the U.S. Constitution. (See Union of
American Physicians & Dentists (Menaster) (2007) PERB Decision No. 1918-S.) Thus, we do
not address this allegation on appeal.
2
On appeal, Jaroslawsky challenges the dismissal
of
her allegation that the City violated
the MMBA by retaliating against her for engaging in protected activity.
We have reviewed the dismissal and the record in light
of
Jaroslawsky's appeal, the
City's response thereto, and the relevant law. Based on this review, we find the Board
agent's
warning and dismissal letters to be well-reasoned, adequately supported by the record,
and
in
accordance with applicable law. Accordingly, the Board adopts the warning and dismissal
letters as the decision
of
the Board itself, supplemented by the discussion below regarding new
information and allegations presented by Jaroslawsky on appeal.
DISCUSSION
In her appeal, J aroslawsky alleges the City retaliated against her on May 18, 2010 by
terminating her employment because: (1) she participated on a 2009 union committee which
modified City Planning Director John Rahaim's (Rahaim) proposal concerning employee
classifications because the committee found the proposal unacceptable; (2) she sent an email to
Rahaim in February 2009 that criticized the timing
of
his plans for an employee recognition
program in light
of
impending layoffs; (3) she sent an email to Rahaim on October 21, 2009 in
which she complained
of
unspecified inappropriate and unprofessional behavior
of
another
employee towards her; and (4) she refused initially a supervisor's directive to exclude certain
information from a staff report Jaroslawsky prepared in May
of
2010. 3
J Jaroslawsky also alleges on appeal that the City violated her Fourth Amendment
rights guaranteed by the U.S. Constitution by investigating her email communications.
PERB's jurisdiction does not include enforcement of the U.S. Constitution. (See Union
of
American Physicians & Dentists (Menaster) (2007) PERB Decision No. 1918-S.) Thus, we do
not address this allegation on appeal.
2

Applicable Law
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.) "Unless good cause is shown, a charging party may not present on appeal new
charge allegations or new supporting evidence." (PERB Reg. 32635(b); see also CSU
Employees Union, SEIU Local 2579 (Kyrias) (2011) PERB Decision No. 2175-H.)
Jaroslawsky's Participation On The 2009 Committee
In the warning letter, the Board agent advised Jaroslawsky that in order to establish a
prima facie case of retaliation, she would have to allege facts to support: (1) when Jaroslawsky
participated on the committee; (2) who at the City received the modified proposal; and
(3) when the modified proposal was submitted. In her amended charge, Jaroslawsky did not
address these deficiencies discussed in the warning letter.
On appeal, Jaroslawsky repeats the allegation presented in her original charge that the
City retaliated against her for her participation on the 2009 committee. In her appeal,
Jaroslawsky provides new information that addresses some of the deficiencies in the original
charge. This new information is provided for the first time on appeal and references incidents
which predate the filing of the original charge. This information was not provided to the Board
agent and Jaroslawsky provides no reason why this information could not have been presented
in the original charge or in the amended charge. Jaroslawsky has failed to establish the
ERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3
Applicable Law
PERB Regulation 32615(a)(5)4 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.) "Unless good cause is shown, a charging party may not present on appeal new
charge allegations or new supporting evidence." (PERB Reg. 32635(b); see also CSU
Employees Union, SEIU Local 2579 (Kyrias) (2011) PERB Decision No. 2175-H.)
Jaroslawsky's Participation On The 2009 Committee
In the warning letter, the Board agent advised Jaroslawsky that in order to establish a
prima facie case
of
retaliation, she would have to allege facts to support: (1) when Jaroslawsky
participated on the committee; (2) who at the City received the modified proposal; and
(3) when the modified proposal was submitted. In her amended charge, Jaroslawsky did not
address these deficiencies discussed in the warning letter.
On appeal, Jaroslawsky repeats the allegation presented in her original charge that the
City retaiiated against her for her participation on the 2009 committee. In her appeal,
J aroslawsky provides new information that addresses some
of
the deficiencies in the original
charge. This new information is provided for the first time on appeal and references incidents
which predate the filing
of
the original charge. This information was not provided to the Board
agent and Jaroslawsky provides no reason why this information could not have been presented
in the original charge or in the amended charge. Jaroslawsky has failed to establish the
3
PPERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

requisite good cause to consider this new information. Thus, we do not consider the new
information and we do not address this allegation on appeal.
Jaroslawsky's February 2009 Criticism Of Rahaim's Timing For An Employee Recognition
Program
Jaroslawsky alleges that the City retaliated against her after she sent an email in
February 2009 that criticized Rahaim's timing for conducting an employee recognition
program. This new allegation is presented for the first time on appeal and references incidents
which predate the filing of the original charge. This allegation was not presented to the Board
agent and Jaroslawsky provides no reason why this allegation could not have been presented in
the original charge or in the amended charge. Jaroslawsky has failed to establish the requisite
good cause to consider this new allegation. Thus, we do not consider the new allegation.
Jaroslawsky's October 21, 2009 Complaint Concerning The Behavior Of Another
Employee
Jaroslawsky alleges that the City retaliated against her because she sent an email to
Rahaim on October 21, 2009, in which she complained of unspecified inappropriate and
unprofessional conduct toward her by a manager. This new allegation is presented for the first
time on appeal and references incidents which predate the filing of the original charge. This
allegation was not presented to the Board agent and Jaroslawsky provides no reason why this
allegation could not have been presented in the original charge or in the amended charge.
Jaroslawsky has failed to establish the requisite good cause to consider this new allegation.
Thus, we do not consider the new allegation.
Jaroslawsky's May 2010 Refusal To Follow Employer Direction
Jaroslawsky alleges that the City retaliated against her because she refused to follow the
employer's directive in May 2010. This new allegation is presented for the first time on appeal
requisite good cause to consider this new information. Thus, we do not consider the
new
information and we do not address this allegation on appeal.
Jaroslawsky's February 2009 Criticism
OfRahaim's
Timing For An Employee Recognition
Program
Jaroslawsky alleges that the City retaliated against her after she sent an email in
February 2009 that criticized Rahaim's timing for conducting an employee recognition
program. This new allegation is presented for the first time on appeal and references incidents
which predate the filing
of
the original charge. This allegation was not presented to the Board
agent and Jaroslawsky provides no reason why this allegation could not have been presented in
the original charge or in the amended charge. Jaroslawsky has failed to establish the requisite
good cause to consider this new allegation. Thus, we do not consider the new allegation.
Jaroslawsky' s October 21, 2009 Complaint Concerning The Behavior
Of
Another
Employee
Jaroslawsky alleges that the City retaliated against her because she sent an email to
Rahaim on October 21, 2009, in which she complained
of
unspecified inappropriate and
unprofessional conduct toward her by a manager. This new allegation is presented for the first
time on appeal and references incidents which predate the filing
of
the original charge. This
allegation was not presented to the Board agent and Jaroslawsky provides no reason why this
allegation could not have been presented in the original charge or in the amended charge.
Jaroslawsky has failed to establish the requisite good cause to consider this new allegation.
Thus, we do not consider the new allegation.
Jaroslawsky's May 2010 Refusal To Follow Employer Direction
Jaroslawsky alleges that the City retaliated against her because she refused to follow the
employer's directive in May 2010. This new allegation is presented for the first time on appeal
4

and references incidents which predate the filing of the original charge. This allegation was
not presented to the Board agent and Jaroslawsky provides no reason why this allegation could
not have been presented in the original charge or in the amended charge. Jaroslawsky has
failed to establish the requisite good cause to consider this new allegation. Thus, we do not
consider the new allegation.
In sum, we conclude that Jaroslawsky has failed to establish the requisite good cause for
the Board to consider any of the new information and allegations advanced in her appeal of the
Board agent's dismissal of her claim of retaliation.
After review of the dismissal and the entire record, we find that the Board agent's
decision is well-reasoned, adequately supported by the record, and in accordance with applicable
law. Accordingly, we affirm the Board agent's decision that Jaroslawsky failed to state a prima
facie case of retaliation against her by the City for engaging in protected activity.
ORDER
The unfair practice charge in Case No. SF-CE-778-M is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Members Mckeag and Dowdin Calvillo joined in this Decision.
5
and references incidents which predate the filing
of
the original charge. This allegation
was
not presented to the Board agent and J aroslawsky provides no reason why this allegation could
not have been presented in the original charge or in the amended charge. Jaroslawsky has
failed to establish the requisite good cause to consider this new allegation. Thus, we do
not
consider the new allegation.
In sum, we conclude that Jaroslawsky has failed to establish the requisite good cause for
the Board to consider any
of
the new information and allegations advanced in her appeal
of
the
Board agent's dismissal
of
her claim
of
retaliation.
After review
of
the dismissal and the entire record, we find that the Board agent's
decision is well-reasoned, adequately supported by the record, and in accordance with applicable
law. Accordingly, we affirm the Board agent's decision that Jaroslawsky failed to state a
prima
facie case
of
retaliation against her by the City for engaging in protected activity.
ORDER
The unfair practice charge in Case No. SF-CE-778-M is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
5

EDMUND G. BROWN JR., Governor	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377	P.E.R.B
January 26, 2011
Cecilia Jaroslawsky
Re: 	Cecilia Jaroslawsky v. City & County of San Francisco
Unfair Practice Charge No. SF-CE-778-M
DISMISSAL LETTER
Dear Ms. Jaroslawsky:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 5, 2010. Cecilia Jaroslawsky (Jaroslawsky or Charging
Party) alleges that the City & County of San Francisco (City and County or Respondent)
violated the Meyers-Milias-Brown Act (MMBA or Act)' by: (1) discriminating against her
because of her age; (2) interfering with her Weingarten right to representation; and (3)
retaliating against her for engaging in protected activity.
Charging Party was informed in the attached Warning Letter dated January 18, 2011, 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 January 25, 2011, the charge would be
dismissed.
On January 21, 2011, Charging Party filed a first amended charge.
The attached Warning Letter explained in detail why the above-referenced charge did not
initially state a prima facie case. The Warning Letter included an explanation of the pleading
burden that a charging party must satisfy in order to have a complaint issue. PERB Regulation
32615(a)(5) requires, inter alia, that an unfair practice charge include a "clear and concise
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 In National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court granted employees the right to representation during disciplinary
interviews.
3 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
STATE OF CALIFORNIA 	EDMUND
G.
BROWN
JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento	Sacramento Regional Office	Regional
I
03
I I 8th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (9 I
6)
327-63 77
Office
January 26, 2011
Cecilia J aroslawsky
403 Monterey Road
Pacifica, CA 94044
Re: 	Cecilia Jaroslawsky
v.
City & County
of
San Francisco
Unfair Practice Charge No. SF-CE-778-M
DISIVIISSAL
LETTER
Dear Ms. Jaroslawsky:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 5, 2010. Cecilia Jaroslawsky (Jaroslawsky or Charging
Party) alleges that the City & County
of
San Francisco (City and County or Respondent)
violated the Meyers-Milias-Brown Act (MMBA or Act) 1 by: (1) discriminating against her
2
because
of
her age; (2) interfering with her Weingarten 	right to representation; and (3)
retaliating against her for engaging in protected activity.
Charging Party was informed in the attached Warning Letter dated January 18, 2011, 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 January 25, 2011, the charge would be
.dismissed.
On January 21, 2011, Charging Party filed a first amended charge.
The attached Warning Letter explained in detail why the above-referenced charge did not
initially state a prima facie case. The Warning Letter included an explanation
of
the pleading
burden that a charging party must satisfy in order to have a complaint issue. 	PERB Regulation
32615(a)(5)3 requires, inter alia, that an unfair practice charge include a "clear and concise
1 The MMBA is codified at Government Code section 3500 et seq. 	The text
of the
MMEA and PERE Regulations may be found at www.perb.ca.gov.
2 In National Labor Relations Board
v.
Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court granted employees the right to representation during disciplinary
interviews.
3 PERE regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-778-M
January 26, 2011
Page 2
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. 1
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.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
With respect to Charging Party's allegation that the City and County discriminated against her
because of her age, Charging Party was informed that PERB has no jurisdiction over a claim of
age discrimination. (United Teachers - Los Angeles (Glickberg) (1990) PERB Decision
No. 846.) Moreover, nothing in the amended charge addresses this allegation. Therefore,
Charging Party's allegation that the City and County discriminated against her because of her
age is hereby dismissed based on the facts and reasons set forth herein and in the January 18,
2011 Warning Letter.
Lastly, with respect to Charging Party's allegation that the City and County retaliated against
her for engaging in protected activity, Charging Party was informed that in order to
demonstrate that an employer discriminated or retaliated against an employee in violation of
the MMBA section 3506, the charging party must show that: (1) the employee exercised rights
under the MMBA; (2) the employer had knowledge of the exercise of those rights; (3) the
employer took adverse action against the employee; and (4) the employer took action because
of the exercise of those rights. (Novato Unified School District (1982) PERB Decision
SF-CE-778-M
January 26, 2011
Page 2
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-S071-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.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing
of
the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing
of
the charge. (Coachella Valley Mosquito
and Vector Control District
v.
Public Employment Relations Board (2005) 3 5 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
With respect to Charging Party's allegation that the City and County discriminated against her
because
of
her age, Charging Party was informed that PERB has no jurisdiction over a claim
of
age discrimination. ( United Teachers - Los Angeles (Glickberg) (1990) PERB Decision
No. 846.) Moreover, nothing in the amended charge addresses this allegation. Therefore,
Charging Party's allegation that the City and County discriminated against her because
of
her
age is hereby dismissed based on the facts and reasons set forth herein and in the January 18,
2011 Warning Letter.
· With respect to Charging Party's allegation that the City and County violated her WeingartenWith respect to Charging Party's allegation that the City and County violated her Weingarten
right to representation on April 30, 2010 when she was issued a Letter
of
Intent to Terminate	right to representation on April 30, 2010 when she was issued a Letter of Intent to Terminate
from her supervisor, Charging Party was informed that in order to establish a prima facie	from her supervisor, Charging Party was informed that in order to establish a prima facie
violation, she must establish that the April 30, 2010 meeting was: (1) investigatory in nature;	violation, she must establish that the April 30, 2010 meeting was: 	(1) investigatory in nature;
and (2) that she requested
u11ion
represc11tation. (See
Red1,,voods CorrnnunitJJ
College District
v.and (2) that she requested union representation. (See Redwoods Community College District v.
Public Employment Relations Board (1984) 159 Cal.App.3d 617; Freemont Union HighPublic Employment Relations Board (1984) 159 Cal.App.3d 617; Freemont Union High
School District (1983) PERB Decision No. 301.) Nothing in the amended charge addresses	School District (1983) PERB Decision No. 301.) Nothing in the amended charge addresses
whether the April 30, 2010 meeting was investigatory in nature or whether Charging Party	whether the April 30, 2010 meeting was investigatory in nature or whether Charging Party
requested union representation. Therefore, Charging Party's allegation that the City and	requested union representation. Therefore, Charging Party's allegation that the City and
County violated her Weingarten right to representation hereby dismissed based on the facts and	County violated her Weingarten right to representation hereby dismissed based on the facts and
reasons set forth herein and in the January 18, 2011 Warning Letter.	reasons set forth herein and in the January 18, 2011 Warning Letter.
Lastly, with respect to Charging Party's allegation that the City and County retaliated against
her for engaging in protected activity, Charging Party was informed that in order to
demonstrate that an employer discriminated or retaliated against an employee in violation of
the MMBA section 3506, the charging party must show that: 	(1) the employee exercised rights
under the MMBA; (2) the employer had knowledge of the exercise of those rights; (3) the
employer took adverse action against the employee; and (4) the employer took action because
of
the exercise of those rights. 	(Novato Unified School District (1982) PERB Decision

SF-CE-778-M
January 26, 2011
Page 3
No. 210.) Specifically, Charging Party's allegation failed to establish when Charging Party
engaged in protected activity, how the City and County gained knowledge of Charging Party's
alleged protected activity and that the City and County took action because of her protected
activity.
In the amended charge, Charging Party provided a two-page response setting forth Charging
Party's argument in support of establishing that the City and County took action because of her
protected activity. For example, Charging Party states that: (1) she was the only female
employee and one of only two non-managers terminated for violating the City and County
computer and e-mail policies therefore establishing disparate treatment; (2) her disciplinary
process was "totally politicized" therefore establishing that the City and County departed from
established procedures and past practices; and (3) no discussion or consideration was given to
her "prior exemplary record" therefore establishing that the City and County engaged in a
cursory investigation.
However, as written, Charging Party's amended statement does not address all the deficiencies
outlined in the Warning Letter. Nothing in the charge as amended states: (1) when Charging
Party participated on the committee of City and County Planning Department employees to
discuss a proposal submitted by the City and County Planning Director; (2) who at the City and
County received the modified proposal; or (3) when the modified proposal was submitted.
Without a clear and concise statement of facts and conduct addressing the deficiencies outlined
in the Warning Letter, Charging Party has failed to satisfy PERB Regulation 32615(a)(5) and
fails to state a prima facie case. Therefore, the allegation that the City and County
discriminated against Charging Party for engaging in protected activity is hereby dismissed
based on the facts and reasons set forth herein and in the January 18, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, 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 of
this dismissal. (Cal. Code Regs, tit. 8, $ 32635, subd. (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, $8 32135, subd. (a) and 32130; see also Gov. Code, $ 11020, subd. (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, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $$ 32090 and
32130.)
SF-CE-778-M
January 26, 2011
Page 3
No. 210.) Specifically, Charging
Party's
allegation failed to establish when Charging
Party
engaged in protected activity, how the City and County gained knowledge
of
Charging
Party's
alleged protected activity and that the City and County took action because
ofher
protected
activity.
In the amended charge, Charging Party provided a two-page response setting forth Charging
Party's
argument in support
of
establishing that the City and County took action because
o/her
protected activity. For example, Charging Party states that: 	(1) she was the only female
employee and one
of
only two non-managers terminated for violating the City and
County
computer and e-mail policies therefore establishing disparate treatment; (2) her disciplinary
process was "totally politicized" therefore establishing that the City and County departed from
established procedures and past practices; and (3) no discussion or consideration was
given
to
her "prior exemplary record" therefore establishing that the City and County engaged in a
cursory investigation.
However, as written, Charging
Party's
amended statement does not address all the deficiencies
outlined in the Warning Letter. Nothing in the charge as amended states: (1) when Charging
Party participated on the committee
of
City and County Planning Department employees to
discuss a proposal submitted by the City and County Planning Director; (2) who at the
City
and
County received the modified proposal;
or
(3) when the modified proposal was submitted.
Without a clear and concise statement
of
facts and conduct addressing the deficiencies outlined
in the Warning Letter, Charging Party has failed to satisfy PERB Regulation 32615(a)(5) and
fails to state a prima facie case. Therefore, the allegation that the City and County
discriminated against Charging Party for engaging in protected activity is hereby dismissed
based on the facts and reasons set forth herein and in the January 18, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, 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
of
this dismissal. 	(Cal. Code Regs, tit. 8, § 32635, subd. (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, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (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, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)

SF-CE-778-M
January 26, 2011
Page 4
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 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, $ 32635, subd. (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, $ 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, $ 32135, subd. (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, $ 32132.)
SF-CE-778-M
January 26, 2011
Page 4
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 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,
§ 32635, subd. (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,
§ 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,
§ 32135, subd. (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,
§ 32132.)

SF-CE-778-M
January 26, 2011
Page 5
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
WENDI L. ROSS
Interim General Counsel
Katharine Ny
Regional Attorney
Attachment
cc: Gina Roccanova, Deputy City Attorney
SF-CE-778-M
January 26, 2011
Page 5
Final Date
If
no
appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
WENDI L. ROSS
Interim General Counsel
By_-.,_
_____
-+--+-------	By
Katharine Nym	man
Regional Attorney
Attachment
cc: Gina Roccanova, Depμty City Attorney

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377	PER.B
January 18, 2011
Cecilia Jaroslawsky
Re: 	Cecilia Jaroslawsky v. City & County of San Francisco
Unfair Practice Charge No. SF-CE-778-M
WARNING LETTER
Dear Ms. Jaroslawsky:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 5, 2010. Cecilia Jaroslawsky (Jaroslawsky or Charging
Party) alleges that the City & County of San Francisco (City and County or Respondent)
violated the Meyers-Milias-Brown Act (MMBA or Act)' by: (1) discriminating against her
because of her age; (2) interfering with her Weingarten right to representation; and (3)
retaliating against her for engaging in protected activity.
Factual Background as Alleged
In 2009, a committee of City and County Planning Department employees was formed to
discuss a proposal submitted by City and County Planning Director John Rahaim (Rahaim)
regarding placing "special conditions" on certain employee classifications to protect them from
impending layoffs. Jaroslawsky was one of the participants on the committee. The committee
determined that Rahaims' proposal was not acceptable and modified the proposal substantially.
On March 30, 2010, after a six-week disability leave, Jaroslawsky was "interrogated" by the
City and County Human Resources Department regarding her use of the City and County e-
mail system. Charging Party states that she was "approximately the 35th employee to be
interrogated" and that a union representative was present at all interrogations, yet she did not
receive any advance information regarding the interrogation.
On April 30, 2010, Jaroslawsky was given an Intent to Terminate Letter (Letter) by Rahaim
"without a union representative." Charging Party states that none of her direct supervisors had
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 In National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court granted employees the right to representation during disciplinary
interviews.
STATE
OF
CALIFORNIA 	EDMUND G.
BROWN
JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103
l 18th Street
Sacramento, CA 95811-4124
Teiephone: (916) 327-8386
Fax: (916) 327-6377
January 18, 2011
Cecilia Jaroslawsky
403 Monterey Road
Pacifica, CA 94044
Re: 	Cecilia Jaroslawsky
v.
City & County
of
San Francisco
Unfair Practice Charge No. SF-CE-778-M
WARNING LETTER
Dear Ms. J aroslawsky:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 5, 2010. Cecilia Jaroslawsky (Jaroslawsky or
Charging
Party) alleges that the City & County
of
San Francisco (City and County or Respondent)
violated the Meyers-Milias-Brown Act (MMBA or Act) 1 by: (1) discriminating against
her
because
of
her age; (2) interfering with her Weingarten2 right to representation; and (3)
retaliating against her for engaging in protected activity.
Factual Background as Alleged
In 2009, a committee
of
City and County Planning Department employees was formed to
discuss a proposal submitted by City and County Planning Director John Rahaim (Rahaim)
regarding placing "special conditions" on certain employee classifications to protect
them
from
impending layoffs. Jaroslawsky was one
of
the participants on the committee. The committee
determined that Rahaims' proposal was not acceptable and modified the proposal substantially.
On March 30,2010, after a six-week disability leave, Jaroslawsky was "interrogated"
by the
City and County Human Resources Department regarding her use
of
the City and County e-
mail system. Charging Party states that she was "approximately the 35th employee to
be
interrogated" and that a union representative was present at all interrogations, yet she did not
receive any advance information regarding the interrogation.
On April 30, 2010, Jaroslawsky was given an Intent to Terminate Letter (Letter) by Rahaim
"without a union representative." Charging Party states that none
of
her direct supervisors had
1 The MMBA is codified at Government Code section 3500 et seq. The text
of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 In National Labor Relations Boardv. Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court granted employees the right to representation during disciplinary
interviews.

SF-CE-778-M
January 18, 2011
Page 2
any knowledge of or participated in the decision to issue her the Letter. Charging Party further
states that:
Upon receipt of the Intent to Terminate, my name was leaked to
the press, even though this was a confidential issue. I was
contacted by several people outside the Department, including a
writer at SF Weekly, two to three days after receipt of the Intent
to Terminate.
On May 18, 2010, Charging Party was terminated from employment with the City and County
"without being given an opportunity to address the charges and instructed by [ Rahaim] to keep
all details confidential." Charging Party states that four other employees were also terminated
in a similar fashion and that all were over the age of 50.
On February 18, 2010, during a public budget hearing held by the City and County Planning
Commission, Rahaim was directed to "hang on to the younger planners as "one gets more bank
for their buck'."
Discussion
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.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
ERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
SF-CE-778-M
January 18, 2011
Page 2
any knowledge
of
or participated in the decision to issue her the Letter. Charging Party further
states that:
Upon receipt
of
the Intent to Terminate, my name was leaked to
the press, even though this was a confidential issue. I was
contacted by several people outside the Department, including a
writer at SF Weekly, two to three days after receipt
of
the Intent
to Terminate.
On May 18, 2010, Charging Party was terminated from employment with the City and County
"without being given
an
opportunity to address the charges and instructed by [Rahaim] to keep
all details confidential." Charging Party states that four other employees were also terminated
in a similar fashion and that all were over the age
of
50.
On February 18, 2010, during a public budget hearing held by the City and County Planning
Commission, Rahaim was directed to "hang on to the younger planners as
'one
gets
more
bank
for their buck'."
Discussion
PERB Regulation 32615(a)(5)3 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.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing
of
the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City a/Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing
of
the charge. (Coachella Valley Mosquito
and Vector Control District
v.
Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
P PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-778-M
January 18, 2011
Page 3
1 . 	Age Discrimination
PERB's jurisdiction is limited to the determination of unfair labor practice claims arising under
the MMBA and various other public-sector collective bargaining statutes. (Union of American
Physicians & Dentists (Menaster) (2007) PERB Decision No. 1918-S.) PERB's jurisdiction
does not include, among other things, enforcement of the Americans with Disabilities Act, the
U.S. Constitution, the Whistleblower Protection Reporting Act, laws governing improper
government activity, laws governing sexual harassment, laws governing defamation, or laws
governing the unemployment insurance process. (Ibid.) Thus, allegations regarding statutes
other than the MMBA are dismissed as outside of PERB's jurisdiction. (Ibid.)
Charging Party alleges that the City and County discriminated against her because of her age.
However, PERB has no jurisdiction over a claim of age discrimination. (United Teachers -
Los Angeles (Glickberg) (1990) PERB Decision No. 846.) Therefore, Charging Party's
allegation that the City and County discriminated against her because of her age must be
dismissed as being outside of PERB's jurisdiction.
2. 	Weingarten
Though unclear, Charging Party also appears to allege that the City and County violated her
Weingarten right to representation on April 20, 2010 when she was issued the Letter without
union representation.
In Rio Hondo Community College District, supra, PERB Decision No. 260, the Board cited
with approval Baton Rouge Water Works Company (1979) 246 NLRB 995, that provided:
the right to representation applies to a disciplinary interview,
whether labeled as investigatory or not, so long as the interview
in question is not merely for the purpose of informing the
employee that he or she is being disciplined.
In approving the Weingarten rule, the U.S. Supreme Court noted with approval that the
National Labor Relations Board would not apply it to "such run-of-the-mill shop-floor
conversations as, for example, the giving of instructions or training or needed corrections of
SF-CE-778-M
January 18, 2011
Page 3
1.
	Age Discrimination
PERB
's
jurisdiction
is
limited
to
the determination
of
unfair labor practice claims arising under
the MMBA and various other public-sector collective bargaining statutes. (Union
of
American
Physicians & Dentists (Menaster) (2007) PERB Decision No. 1918-S.) PERB'sjurisdiction
does not include, among other things, enforcement
of
the Americans with Disabilities Act, the
U.S. Constitution, the Whistleblower Protection Reporting Act, laws governing improper
government activity, laws governing sexual harassment, laws governing defamation, or laws
governing the unemployment insurance process. (Ibid.) 	Thus, allegations regarding statutes
other than the MMBA are dismissed as outside
of
PERB 's jurisdiction. (Ibid.)
Charging Party alleges that the City and County discriminated against her because
of
her age.
However, PERB has no jurisdiction over a claim
of
age discrimination. (United Teachers
Los Angeles (Glickberg) (1990) PERB Decision No. 846.) Therefore, Charging Party's
allegation that the City and County discriminated against her because of her age must be
dismissed as being outside
of
PERB' s jurisdiction.
2. 	Weingarten
Though unclear, Charging Party also appears to allege that the City and County violated her
Weingarten right to representation on April 20, 2010 when she was issued the Letter without
union representation.
An employee required to attend an investigatory interview with the employer is entitled to	An employee required to attend an investigatory interview with the employer is entitled to
union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. PERB adopted the Weingarten rule in Rio Hondo Community College
District (1982) PERB Decision No. 260. In order to establish a violation
of
this right, the
charging party must demonstrate: 	(a) the employee requested representation; (b) for an
investigatory meeting; (c) which the employee reasonably believed might result in disciplinary
action; and (d) the employer denied the request. 	(See Redwoods Community College District
v.
Public Employment Relations Board (1984) 159 Cal.i\pp.3d 617 (Redwoods); Fremont Union	Cal.App.3d 617 (Redwoods); Fremont Union
High School District (1983) PERB Decision No. 301; see also, Social Workers' Union, Local
535
v.
Alameda County Welfare Department (1974)
11
Cal.3d 382.)
union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. PERB adopted the Weingarten rule in Rio Hondo Community College
District (1982) PERB Decision No. 260. In order to establish a violation of this right, the
charging party must demonstrate: (a) the employee requested representation; (b) for an
investigatory meeting; (c) which the employee reasonably believed might result in disciplinary
action; and (d) the employer denied the request. (See Redwoods Community College District v.
Public Employment Relations Board (1984) 159
High School District (1983) PERB Decision No. 301; see also, Social Workers' Union, Local
535 v. Alameda County Welfare Department (1974) 11 Cal.3d 382.)
In Rio Hondo Community College District, supra, PERB Decision No. 260, the Board cited
with approval Baton Rouge Water Works Company (1979) 246 NLRB 995, that provided:
the right to representation applies to a disciplinary interview,
whether labeled as investigatory or not, so long as the interview
in question is not merely for the purpose of informing the
employee that he or she is being disciplined.
In approving the Weingarten rule, the U.S. Supreme Court noted with approval that the
National Labor Relations Board would not apply it to "such run-of-the-mill shop-floor
conversations as, for example, the giving of instructions or training or needed corrections of

SF-CE-778-M
January 18, 2011
Page 4
work techniques." (Weingarten, supra, 420 U.S. 251, quoting Quality Manufacturing Co.
(1972) 195 NLRB 197, 199.)
A right to union representation may be held to exist, in the absence of an objectively
reasonable fear of discipline, only under "highly unusual circumstances." (Redwoods, supra,
159 Cal.App.3d 617.) The finding of "highly unusual circumstances" in the Redwoods case
was based on the requirement that the employee attend a meeting that she no longer sought
over her appeal of a negative performance rating; the fact that the interview was investigatory
and formal; the interview was held by a high-ranking official of the employer; and the hostile
attitude of the official toward the employee.
Here, the facts demonstrate that, on April 30, 2010, Charging Party attended a meeting with
Rashaim. No facts were provided to demonstrate an investigatory purpose of the meeting such
as whether Rashaim interrogated Charging Party or otherwise sought to obtain facts to support
disciplinary action against her. No facts were provided to demonstrate that Charging Party at
any point requested union representation. The charge states only that Charging Party received
the Letter on April 30, 2010. The Board has held that if the purpose of an employer-employee
meeting is to present a final disciplinary memo and is not investigatory, the employee has no
right to union representation at the meeting. (Regents of the University of California
Los Alamos National Laboratory) (2003) PERB Decision No. 1519-H.) Accordingly,
Charging Party has not established a prima facie case that the City and County violated her
Weingarten rights by issuing her the Letter.
Retaliation
Thought not expressly articulated in the charge, it appears Charging Party is also alleging that
the City and County retaliated against her for engaging in protected activity.
To demonstrate that an employer discriminated or retaliated against an employee in violation
of Government Code section 3506 and PERB Regulation 32603(a), the charging party must
show that: (1) the employee exercised rights under MMBA; (2) the employer had knowledge
of the exercise of those rights; (3) the employer took adverse action against the employee; and
(4) the employer took the action because of the exercise of those rights. (Novato Unified
School District (1982) PERB Decision No. 210 (Novato).) In determining whether evidence of
adverse action is established, the Board uses an objective test and will not rely upon the
subjective reactions of the employee. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) 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.
SF-CE-778-M
January 18, 2011
Page 4
work techniques." (Weingarten, supra, 420 U.S. 251, quoting Quality Manufacturing Co.
(1972) 195 NLRB 197, 199.)
A right to union representation may be held to exist, in the absence
of
an objectively
reasonable fear
of
discipline, only under "highly unusual circumstances." (Redwoods, supra,
159 Cal.App.3d 617.) The finding
of
"highly unusual circumstances" in the Redwoods case
was based on the requirement that the employee attend a meeting that she no longer sought
over her appeal
of
a negative performance rating; the fact that the interview was investigatory
and formal; the interview was held by a high-ranking official
of
the employer; and the hostile
attitude
of
the official toward the employee.
Here, the facts demonstrate that, on April 30, 2010, Charging Party attended a meeting
with
Rashaim. No facts were provided to demonstrate an investigatory purpose
of
the meeting such
as whether Rashaim interrogated Charging Party or otherwise sought to obtain facts to support
disciplinary action against her. No facts were provided to demonstrate that Charging Party at
any point requested union representation. The charge states only that Charging Party received
the Letter on April 30, 2010. 	The Board has held that
if
the purpose
of
an employer-employee
meeting is to present a final disciplinary memo and is not investigatory, the employee has no
right to union representation at the meeting. (Regents
of
the University
of
California
(Los Alamos National Laboratory) (2003) PERE Decision No. 1519-H.) Accordingly,
Charging Party has not established a prima facie case that the City and County violated
her
Weingarten rights by issuing her the Letter.
3.	3. 	Retaliation
Thought not expressly articulated in the charge, it appears Charging Party is also alleging that
the City and County retaliated against her for engaging in protected activity.
To demonstrate that an employer discriminated or retaliated against an employee in violation
of
Government Code section 3506 and PERE Regulation 32603(a), the charging party
must
show that: 	(1) the employee exercised rights under MMBA; (2) the employer had knowledge
of the exercise
of
those rights; (3) the employer took adverse action against the employee; and
(4) the employer took the action because
of
the exercise
of
those rights. (Novato Unified
School District (1982) PERB Decision No. 210 (Novato).) 	In determining whether evidence of
adverse action is established, the Board uses an objective test and will not rely upon the
subjective reactions
of
the employee. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) In a later decision, the Board further explained that:
The test ,vhich 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
emplovment.

SF-CE-778-M
January 18, 2011
Page 5
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
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 (City of Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action (Oakland
Unified School District (2003) PERB Decision No. 1529) or the offering of exaggerated,
vague, or ambiguous reasons (Mcfarland Unified School District (1990) PERB Decision No.
786); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
unlawful motive. (North Sacramento School District, supra, PERB Decision No. 264; Novato,
supra, PERB Decision No. 210.)
As stated above, PERB Regulation 32615(a)(5) requires that an unfair practice charge include
a "clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
A 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), supra, PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale), supra, PERB Decision
No. 944.)
As presently written, the charge fails to provide a complete statement of facts upon which to
base a retaliation allegation. Specifically, Charging Party does not allege any facts to support:
(1)
received the modified proposal; or (3) when the modified proposal was submitted. Therefore,
this allegation fails to satisfy the Ragsdale burden, and thus fails to demonstrate a prima facie
violation of discrimination. (United Teachers-Los Angeles (Ragsdale), supra, PERB Decision
No. 944.) It is further noted that the charge does not demonstrate disparate treatment of
Charging Party; instead, the charge alleges that four other employees were terminated at the
same time as Charging Party.
SF-CE-778-M
January 18, 2011
Page 5
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
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 a/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 (City
of
Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action ( Oakland
Unified School District (2003) PERB Decision No. 1529) or the offering
of
exaggerated,
vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision No.
786); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
unlawful motive. (North Sacramento School District, supra, PERB Decision No. 264; Novato,
supra, PERB Decision No. 210.)
As stated above, PERB Regulation 326 l 5(a)(5) requires that an unfair practice charge include
a "clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
A charging party's burden includes alleging the "who, what, when, where, and how"
of
an
unfair practice. (State
of
Cal(fornia (Department
of
Food and Agriculture), supra, PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale), supra, PERB Decision
No. 944.)
As presently written, the charge fails to provide a complete statement of facts upon which to
base a retaliation allegation. 	Specifically, Charging Party does not allege any facts to support:
(1) when Charging Party participated	when Charging Party participated on the committee; (2) who at the City and County	
Or1
the oommittee; (2) who at the City and County
received the modified proposal; or (]) when the modified proposal was submitted. Therefore,
this allegation fails to satisfy the Ragsduic burden, and thus fails to demonstrate a prima facie
violation of discrimination. 	(United Teachers-Los Angeles (Ragsdale), supra, PERB Decision
No. 944.)
	It is further noted that the charge does not demonstrate disparate treatment of
Charging Party; instead, the charge alleges that four other employees were terminated at the
same time as Charging Party.

SF-CE-778-M
January 18, 2011
Page 6
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, Charging Party may 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 an authorized agent of 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 filed on or before January 25, 2011, PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
KN
n Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)
SF-CE-778-M
January 18, 2011
Page 6
not	For these reasons the charge, as presently written, does 	state a prima facie case. 4
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent
of
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
withdrawal is not filed on or before January 25, 2011,5
PERB. 	If an amended charge or 	PERB
will dismiss your charge.	
If
you have any questions, please call me at the above telephone
number.
Sincerely,
Katharine Nyman/
Regional Attorney
KN
I In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause
of
action and that the
charging party is capable
of
providing admissible evidence in support
of
the allegations.
Consequently, where the investigation results in receipt of conflicting allegations
of
fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)