City and County of San Francisco (PERB 2712M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Charging Party,
v.
CITY & COUNTY OF SAN FRANCISCO,
Respondent.
Case No. SF-CE-1576-M
PERB Decision No. 2712-M
May 6, 2020
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele and Benjamin J.
Fuchs, Attorneys, for Service Employees International Union, Local 1021; Jonathan
Yank, Deputy City Attorney, for City and County of San Francisco.
Before Banks, Krantz, and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Service Employees International Union, Local 1021
(SEIU) from the Office of the General Counsel’s dismissal of SEIU’s unfair practice
charge against the City and County of San Francisco (City). SEIU’s charge, as
amended, alleged that the City violated the Meyers-Milias-Brown Act (MMBA)1 by: (1)
unilaterally reclassifying certain positions and/or otherwise changing related policies
without providing SEIU notice and an opportunity to bargain over the decision or its
effects; (2) dealing directly with bargaining unit employees rather than with their
1 The MMBA is codified at Government Code section 3500 et seq. Unless
otherwise specified, all statutory references herein are to the Government Code.

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exclusive representative, SEIU; and (3) retaliating against SEIU Chapter President
Edlyn Kloefkorn (Kloefkorn) for protected activities. The Office of the General Counsel
(OGC) dismissed the amended charge for failure to state a prima facie case. SEIU
timely appealed the dismissal of its retaliation allegations.
In resolving an appeal of a dismissal, we review OGC’s decision de novo.
(Lake Elsinore Unified School District (2018) PERB Decision No. 2548, p. 6, fn. 5; City
of San Jose (2013) PERB Decision No. 2341-M, p. 47.) At this stage of litigation, “the
charging party’s burden is not to produce evidence, but merely to allege facts that, if
proven true in a subsequent hearing, would state a prima facie violation.” (County of
Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) We assume that
charging party’s factual allegations are true, and we view them in the light most
favorable to the charging party. (Cabrillo Community College District (2015) PERB
Decision No. 2453, p. 8 (Cabrillo I); Cabrillo Community College District (2019) PERB
Decision No. 2622, p. 4 (Cabrillo II).) We do not rely on the respondent’s responses if
they explicitly or implicitly create a factual conflict with charging party’s allegations,
even if the respondent’s contrary responses are stated more persuasively or appear
as if they may be backed up by more supporting evidence, when compared to
charging party’s allegations. (Cabrillo I, supra, PERB Decision No. 2453, p. 8; Salinas
Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, p. 13.)
Thus, in this procedural posture we generally do not resolve conflicting
allegations, make conclusive factual findings, or judge the merits of the dispute.
(Cabrillo II, supra, PERB Decision No. 2622, pp. 4-5; County of Santa Clara, supra,
PERB Decision No. 2321-M, p. 12.) If there are one or more contested, outcome-

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determinative facts (or mixed questions of law and fact), OGC should issue a
complaint and generally a formal hearing is needed, absent a stipulated record.
(Salinas Valley Memorial Healthcare System, supra, PERB Decision No. 2298-M, p.
13.) A complaint typically must also issue if there are contested, colorable legal
theories. (County of Santa Clara, supra, PERB Decision No. 2321-M, p. 12.)
Nonetheless, it is appropriate to dismiss an alleged violation without issuing a
complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim.
(Cabrillo I, supra, PERB Decision No. 2453, p. 9.)
Mere legal conclusions are insufficient to state a prima facie case. (Lake
Elsinore Unified School District, supra, PERB Decision No. 2548, p. 18.) However,
“where a material factual dispute turns on the respondent’s state of mind,” we take into
account that motive is generally within respondent’s own knowledge and that there is
little opportunity for pre-hearing discovery, and we impose on charging party a
relatively low burden to allege facts tending to show the requisite state of mind. (Ibid.)
The Board has reviewed the entire record, including the unfair practice charge,
the amended charge, the City’s position statement, the warning and dismissal letters,
SEIU’s appeal, and the City’s response thereto. Based on this review, we grant
SEIU’s appeal and remand to OGC to issue a complaint on SEIU’s retaliation
allegations. SEIU did not appeal the dismissal of its unilateral change and direct
dealing claims, and those allegations remain dismissed.
We first recount the facts we presume true at this stage—together with relevant
procedural history—and we then explain why we reverse OGC’s dismissal of SEIU’s
retaliation claims.

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BACKGROUND
1. 	As the City moved to reclassify four bargaining unit positions, SEIU sought to
meet and confer
The Human Services Agency (HSA) is a City department that provides public
benefits and services to individuals, children and families, the elderly, and dependent
adults. At all times relevant, Kloefkorn worked in HSA’s Workforce Development
Division as the Welfare-to-Work Handbook Coordinator. Her position was classified
as a 2915 Program Specialist Supervisor (2915 Specialist). She also served at all
relevant times as SEIU’s Chapter President. In the fall of 2017, Kloefkorn was the
most senior of the five 2915 Specialists at HSA. HSA’s other four 2915 Specialists
worked in the Investigations Division.
On July 10, 2017, the City posted a job announcement for recruitment into the
2917 Program Analyst Classification (2917 Analyst), which is higher paid than the
2915 Specialist Classification. At an unknown time, Kloefkorn and all four of her 2915
Specialist counterparts in HSA sat for the 2917 Analyst examination and qualified for
the 2917 Analyst eligibility list.
On or about October 23, 2017, HSA posted four openings for 2917 Analysts in
its Investigations Division. SEIU and Kloefkorn came to understand that HSA
intended to reclassify the four Investigations Division 2915 Specialists by promoting
them into the new 2917 Analyst positions. On October 24, 2017, Kloefkorn e-mailed
HSA Labor Relations Manager Sharee Nisha (Nisha), HSA Director of Human
Resources Luenna Kim (Kim), and HSA Deputy Director of Finance Daniel Kaplan
(Kaplan) to advise them that SEIU had received HSA’s notice that it intended to

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reclassify the 2915 Specialist positions in its Investigations Division.2 Kloefkorn, on
behalf of SEIU, requested that the City meet and confer over the reclassification
decision and its effects on unit members. On October 25, 2017, Labor Relations
Analyst Jared Harris (Harris) replied to Kloefkorn, stating that “[HSA] is in the process
of reviewing and gathering information on the 2915 [Specialist] classification in
Investigations,” and that HSA was not agreeing to meet and confer at that point.
On November 7, 2017, Kloefkorn e-mailed Nisha with SEIU’s second request to
meet and confer over HSA’s decision to reclassify the 2915 Specialist positions.
Kloefkorn stated that there were only five 2915 Specialists in HSA, four of whom were
in the Investigations Division, and she was the only 2915 Specialist who was not in the
Investigations Division. Kloefkorn noted that she was scheduled for a worker’s
compensation-related surgery on November 17, 2017, and she requested that HSA
agree to postpone all actions concerning the reclassification until she would be able to
meet and confer. Kloefkorn closed by writing that “employees have protect[ed] rights
regarding their class,” and she included the section of the City’s civil service rules that
she believed to be applicable (section 109).
On November 21, 2017, SEIU Field Representative Thomas Vitale (Vitale)
e-mailed Kim and Nisha with a request for information regarding HSA’s reclassification
of 2915 Specialist positions to 2917 Analyst positions. Among other requests, Vitale
asked that HSA: (1) explain whether it intended to eliminate the 2915 Specialist
classification or take any other action with respect to that classification; (2) provide the
2 SEIU and the City variably refer to the conversion of the 2915 Specialist
positions to 2917 Analyst positions as either a “reclassification” or a “reassignment.”
For the purpose of consistency, we refer to the decision as a “reclassification.”

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names of employees who had applied for the 2917 Analyst positions and which
employees were successful; (3) provide the job analysis the City was using “to support
the change to the 2917 class”; and (4) identify the date the reclassification had
occurred or would take effect.
On November 29, 2017, Kloefkorn e-mailed HSA Office of Civil Rights Analyst
Kathleen Tran (Tran) to inform her that her surgery had been delayed. Tran
responded on the same day and asked Kloefkorn for new tentative dates for her
disability leave and a completed federal Family Medical Leave Act (FMLA) form from
her doctor.
On November 30, 2017, Kloefkorn e-mailed Tran to express her concern that
she might miss the interviews for the 2917 Analyst positions if they occurred during
her disability leave, because her request for a reasonable accommodation to interview
had gone unanswered. Kloefkorn noted that she would be the only 2915 Specialist
left in the City after the reclassification, leaving her vulnerable to layoff and affecting
her ability to promote. In Kloefkorn’s view, HSA was pushing her to provide dates for
her disability leave so that it could complete the reclassification while she was absent.
Kloefkorn renewed her request for a reasonable accommodation to interview for one
of the 2917 Analyst positions during her disability leave, and asked how she could be
provided an interactive meeting to discuss her impending disability leave.
On December 11, 2017, Harris e-mailed Kloefkorn to state that HSA would not
agree to meet and confer regarding its reclassification decision. However, HSA was
willing to meet with Kloefkorn and her union representative to discuss her concerns
regarding the reclassification. Harris provided available dates and times.

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That same day, Harris replied to Vitale’s request for information. Harris stated
that “[HSA] has no intent to take any classification action involving the classification
2915 Program Specialist Supervisor position.” With respect to HSA’s intent as it
pertained to current 2915 Specialists, Harris responded that “[HSA] has no intent to
make changes.” Harris refused to provide the relevant job analysis, stating that
“[e]xam information, including job analysis, is kept highly confidential to maintain the
integrity of the exam materials.” He did not provide an answer to Vitale’s questions
about the date the reclassification occurred or was set to occur. Harris stated that
there were “No Respondents” for any of the four posted 2917 Analyst positions.
Harris also e-mailed Kloefkorn on December 11, 2017, denying SEIU’s
October 24 and November 7, 2017 requests to meet and confer over the impacts of
the reclassification.
On December 12, 2017, Vitale e-mailed Nisha and Kim, stating that SEIU
maintained its demand to meet and confer over the impacts of the reclassification.
Nisha replied that Harris had already offered on behalf of HSA to meet on either
December 14 or 15, 2017.
Later that day, SEIU Chief Strategist and Steward Sin Yee Poon (Poon)
e-mailed Harris, Nisha, and Kim. Poon recounted SEIU’s multiple requests to meet
and confer over the reclassification. She included with her e-mail an HSA
organizational chart showing the four incumbent 2915 Specialists in the Investigations
Division, specified by name, as being promoted to 2917 Analyst positions. As
discussed further below, SEIU alleges that the early timing of this chart demonstrates

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that the City went into the promotion process with a bias as to the probable outcome
and thereby did not give Kloefkorn fair consideration.
Poon also contended: “It is very clear that it is HSA’s intent to ‘turn’ the four (4)
2915 [Specialist] positions in Investigations into 2917 [Analyst] positions (with the
incumbents attached), without a formal reclassification process.” Poon alleged that
this action was “highly unusual” and “inappropriate” and “would result in leaving
[Kloefkorn] as the only incumbent 2915 [Specialist] left in the City.” Hence, if the City
subsequently decided to eliminate Kloefkorn’s position, Kloefkorn would be summarily
laid off with no one to displace. According to Poon, the four 2915 Specialist
incumbents in Investigations had informed SEIU that “[m]anagement had (covertly)
prompted them to take the 2917 [Analyst] test (through several cycles) in anticipation
of this move to change their positions. Ms. Kloefkorn is also on the eligible list but
was not prompted by Management nor given any advance information about the
pending changes to the 2915 [Specialist] positions in Investigations.” (Underlining in
original.) Poon also noted that HSA had been pressing Kloefkorn to complete an
FMLA form calling for her disability leave dates, even though worker’s compensation
leave did not require FMLA protection. Poon reiterated SEIU’s request for a meet and
confer.
On December 15, 2017, an HSA representative e-mailed Vitale to confirm “the
2915 [Specialist] Request for Information meeting” set for December 19, 2017, at
10:00 a.m. That same day, Nisha e-mailed Vitale to explain that HSA was agreeing to
“meet and clarify the issues surrounding the classification 2915 Program Specialist
Supervisor. The Agency do[es] not agree to meet and confer at this time but [we] are

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happy to meet to clarify [the] issues that [the] Union wishes to bargain.” Later that
day, Kloefkorn sent Nisha’s e-mail to a number of recipients, all of whom appear to be
internal to SEIU. According to Kloefkorn, HSA had already conducted interviews for
the 2917 Analyst positions and offered the four positions to the 2915 Specialists
working in the Investigations Division.
On December 19, 2017, Harris e-mailed Vitale and Kloefkorn. Harris stated
that earlier that day HSA management had waited from 10:00 a.m. until approximately
10:20 a.m. at the agreed upon location, but that no one from SEIU had appeared.
Harris further stated that HSA was still willing to “meet and clarify any impact issues
from the reclassification.” Kloefkorn replied by e-mail on the same day. Kloefkorn’s
e-mail maintained SEIU’s demand to meet and confer rather than merely meet and
clarify, asked whether the City now agreed to meet and confer, and insisted that the
City maintain the status quo until after it had met and conferred with SEIU. Based on
the information SEIU submitted with its charge, it appears that neither Kloefkorn nor
SEIU received a response to Kloefkorn’s December 19 e-mail.
The City ultimately completed the hiring process by mid-January, choosing the
four 2915 Specialists in its Investigations Division over Kloefkorn. The City asserts it
did so because Kloefkorn interviewed poorly. We do not assume the City’s contention
to be true at this stage, because it conflicts with multiple factual allegations SEIU has
made, creating a factual dispute regarding the City’s motives. We discuss the nature
of that factual dispute post at pages 21-27.

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2. 	OGC’s warning letter
OGC issued SEIU a warning letter stating that the above facts, as set forth in
SEIU’s initial charge, failed to establish a prima facie case of any MMBA violation.
The warning letter indicated that SEIU had failed to identify any existing policy that the
City allegedly changed when it reclassified the 2915 Specialist positions as 2917
Analyst positions. Accordingly, OGC found that the charge failed to state a prima
facie unilateral change claim. OGC rejected SEIU’s direct dealing allegation for
similar reasons, finding that SEIU did not sufficiently specify a rule or policy that the
City attempted to waive or modify through its discussion with Investigations Division
employees.
As to SEIU’s retaliation claim, the warning letter found that SEIU had alleged
two protected activities: (1) Kloefkorn’s service as SEIU Chapter President; and (2)
Kloefkorn’s efforts to meet and confer on behalf of SEIU between late October and
December 2017. The letter also found SEIU had alleged that the City took adverse
action in deciding not to grant Kloefkorn a promotion to one of the 2917 Analyst
positions.
However, OGC found the allegations were insufficient to support a nexus
between the adverse action and either form of protected activity. As to the first
protected activity, OGC explained that SEIU’s charge did not cite “any specific
instance when Kloefkorn exercised her duties as Chapter President.” OGC opined
that it therefore did not know whether the City’s adverse action was temporally
proximate to one or more times Kloefkorn exercised her duties, and, as a result,

11
SEIU’s charge was insufficient to state a prima facie retaliation case based upon this
first form of protected activity.
As to the second protected activity, OGC found that SEIU had alleged close
temporal proximity between Kloefkorn’s attempts to compel the City to meet and
confer over the reclassification decision and the City’s later decision not to select
Kloefkorn to fill one of the new 2917 Analyst positions. However, OGC did not find
that SEIU sufficiently pleaded any other nexus elements. Although OGC noted that
there were allegations of “suspicious” City conduct—such as pushing the staffing
decisions through as promotions rather than as reclassifications, and encouraging all
of the incumbent 2915 Specialists other than Kloefkorn to apply—OGC found these
allegations insufficient because much of the suspicious City conduct predated
Kloefkorn’s efforts to meet and confer. OGC therefore found insufficient allegations
tending to show that Kloefkorn’s efforts substantially motivated the City’s actions.
3. 	SEIU’s amended charge
After receiving the warning letter, SEIU filed an amended unfair practice charge
(amended charge), alleging a number of additional protected activities in which
Kloefkorn engaged, both as SEIU Chapter President and otherwise, between May
2016 and the date of the amended charge. SEIU also alleged new adverse actions
occurring after the filing of the initial charge. We proceed to recount these additional
facts, which at this stage of litigation we must assume are true.
On May 3, 2016, Kloefkorn e-mailed HSA management to express concerns
about health and safety issues relating to concrete drilling and attendant dust
exposure that occurred during the workday at the HSA office. HSA addressed

12
Kloefkorn’s complaint in a May 24, 2016 letter to the California Department of
Industrial Relations’ Division of Occupational Safety and Health (OSHA), stating that it
had responded to Kloefkorn’s concerns with a variety of remedial measures.
On or around October 19, 2016, Kloefkorn filed a complaint with OSHA wherein
she reported various hazardous conditions at the HSA office. That same day,
Kloefkorn e-mailed HSA management representatives to demand that HSA cease and
desist all renovation on the second floor of the HSA office building due to potential
asbestos exposure. Kloefkorn stated that SEIU was putting HSA on notice that
employees had been exposed to a harmful amount of dust and noise pollution. She
stated that employees were working under “disruptive and hazardous” conditions and
demanded a “safe and healthy work environment” for HSA employees. Following an
investigation, OSHA issued two citations to the City “for not ensuring compliance with
safe and healthful work practices.”
On January 3, 2017, a representative from HSA Employee and Labor Relations
e-mailed Kloefkorn to confirm that HSA had approved release time for her and other
individuals to attend a one-day bargaining team training at SEIU’s offices.
On February 3, 2017, Kloefkorn e-mailed Kim and other HSA representatives to
request to meet and confer regarding health and safety issues affecting HSA
employees. Kloefkorn detailed her efforts to call the City’s Health and Safety unit
regarding the HSA office’s high temperature and limited air flow. In addition, she
outlined other employee complaints, including unhealthy and unsafe cubicles,
concerns about equipment, concerns about the security of property, and low employee

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morale, as well as employees’ fear of retaliation for speaking out about health and
safety issues.
On July 11, 2017, Kloefkorn e-mailed Kaplan and other HSA representatives to
“document an account of blatant harassment and discrimination that [she] discovered
during [her] investigation of a member complaint” affecting two SEIU members.
On or around September 8, 2017, Kloefkorn submitted a request for information
to HSA regarding the installation of glass partitions in the cubicles at the HSA office
building. Nisha provided responses on September 19, 2017.
From September 13, 2017 through September 18, 2017, Kloefkorn sent several
e-mails to Nisha and other HSA management representatives to request to meet and
confer over health and safety concerns related to the City’s plan to move bargaining
unit staff to a different office building.
On June 19, 2019, HSA issued Kloefkorn a Notice of Intent to Suspend from
Permanent Position and Skelly Notification (Notice of Intent to Suspend), which stated
that HSA intended to suspend her for 10 days. The proposed discipline was based in
part upon Kloefkorn’s alleged failure to demonstrate improvement following her
placement on a second Performance Improvement Plan (PIP) on March 1, 2019. HSA
placed Kloefkorn on the second PIP, which covered a period from March 1, 2019
through May 31, 2019, after her purported failure to meet the goals of her first PIP.3
3 HSA issued the first PIP to Kloefkorn on September 25, 2018, which covered
a period from October 3, 2018 through February 27, 2019. On September 28, 2018,
HSA issued a written warning to Kloefkorn for allegedly engaging in inappropriate
workplace conduct and refusing to comply with directives. On October 2, 2018, HSA
issued Kloefkorn a letter setting forth expectations regarding work assignments and
communication. Immediately prior to issuing the second PIP, HSA issued Kloefkorn a

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The second PIP covered a timeframe during which Kloefkorn was involved in citywide
collective bargaining for a successor contract between SEIU and the City.
4. 	OGC’s dismissal
On September 23, 2019, OGC dismissed the amended charge. In dismissing
the unilateral change and direct dealing claims, OGC concluded that the amended
charge, “like the initial one, does not include any specific allegations about which
existing civil service rules the City might have violated when it was recruiting to fill the
2917 Analyst positions.” OGC then found that “this same paucity of information
prevents the charge from stating a prima facie case that the City’s failure to hire
Kloefkorn [into a 2917 Analyst position] was retaliation. Neither the initial nor the
amended charge shows that the City’s conduct in recruiting for the 2917 Analyst
[positions] departed from standard procedures.” Although OGC impliedly found that
the amended charge alleged the City took adverse action at a time that was
subsequent and proximate to most or all of Kloefkorn’s protected activities, OGC
expressly found that “the charge does not demonstrate an additional nexus factor.”
With respect to HSA’s later adverse actions against Kloefkorn for alleged performance
issues, OGC similarly found that SEIU alleged close temporal proximity between
Kloefkorn’s protected activity and the adverse actions. However, OGC again found
that “no additional nexus factor has been pleaded.”
second written warning on February 27, 2019, for allegedly failing to improve job
performance.

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5. 	SEIU’s appeal
On appeal, SEIU argues that its retaliation allegations were sufficient to
establish a prima facie case. In the alternative, SEIU argues that OGC was required
to send SEIU a second warning letter before dismissing the amended charge. The
City contends that OGC properly dismissed SEIU’s amended charge.
In our below discussion, we find that the amended charge included sufficient
factual allegations to warrant a complaint on SEIU’s retaliation claims. As a result, we
need not determine whether OGC was required to issue SEIU a second warning letter
based upon OGC’s determination that SEIU’s new allegations contained deficiencies.
DISCUSSION
Absent evidence that a respondent took action that was facially or inherently
discriminatory, a charging party has the burden to establish a prima facie case of
retaliation by proving, via a preponderance of the evidence, that: (1) one or more
employees engaged in activity protected by a labor relations statute that PERB
enforces; (2) the respondent had knowledge of such protected activity; (3) the
respondent took adverse action against one or more employees; and (4) the
respondent took the adverse action “because of” the protected activity, which PERB
interprets to mean that the protected activity was a substantial or motivating cause of
the adverse action. If the charging party meets its burden to establish each of these
factors, certain fact patterns nonetheless allow a respondent the opportunity to prove,
by a preponderance of the evidence, that it would have taken the same action even
absent protected activity. This affirmative defense is most typically available when,
even though the charging party has established that protected activity was a

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substantial or motivating cause of the adverse action, the evidence also reveals a non-
discriminatory motivation for the same decision. In such “mixed motive” or “dual
motive” cases, the question becomes whether the adverse action would not have
occurred “but for” the protected activity. (NLRB v. Transportation Management
Corporation (1983) 462 U.S. 393, 395-402; McPherson v. PERB (1987) 189
Cal.App.3d 293, 304; Martori Brothers Distributors v. Agricultural Labor Relations Bd.
(1981) 29 Cal.3d 721, 729-730; San Diego Unified School District (2019) PERB
Decision No. 2634, pp. 12-13; Omnitrans (2010) PERB Decision No. 2121-M,
pp. 9-10; Los Angeles County Superior Court (2008) PERB Decision No. 1979-C,
p. 22; Palo Verde Unified School District (1988) PERB Decision No. 689, pp. 7-8;
Novato Unified School District (1982) PERB Decision No. 210, pp. 5-6; Wright Line
(1980) 251 NLRB 1083, 1086-1089.)
At the present stage of litigation, the critical disputes before us involve SEIU’s
allegations of protected activity, adverse action, and nexus between the adverse
actions and the protected activity. While nothing prevents the City from contesting
every element of SEIU’s case (including employer knowledge) at a later stage, we find
no reason to disturb OGC’s apparent implicit finding that SEIU has alleged sufficient
facts tending to show employer knowledge. Moreover, while the eventual litigation in
this matter may center, in part, on whether the City can establish an affirmative
defense, our below discussion of nexus will also demonstrate why there are disputed
material facts relating to the City’s affirmative defense.

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A. 	Protected Activity
Under Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, an
employee’s role as a union officer constitutes protected activity irrespective of whether
the employee exercises specific duties in that role. (Id. at pp. 27-29.) Thus, there is no
categorical requirement that a union’s retaliation charge on behalf of a union officer
necessarily allege specific duties the officer exercised. (Ibid.) Such a requirement
would contravene our holding that there is “no purpose” in “arbitrarily ‘raising the bar’ for
employees to show their ‘protected activity’ by requiring that they allege that they have
engaged in ‘something more’ than holding union office.” (Id. at p. 29.)
In addition to alleging protected activity, a charging party must separately allege
the other elements of a prima facie retaliation case: employer knowledge, adverse
action, and nexus. (Santa Clara Valley Water District, supra, PERB Decision No. 2349-
M, p. 28.) Particularly when a case reaches the formal hearing stage, a charging party
seeking to prove employer knowledge and nexus may be well-advised to introduce
evidence of specific times a union officer exercised his or her role, though such
evidence may not be needed if the charging party presents other strong evidence and
the respondent is not able to present a persuasive non-discriminatory explanation for
having taken adverse action. For instance, facts regarding the temporal relationship
between the employer’s action and the employee’s term of union office may be relevant
and probative, and further details regarding the officer’s exercise of official duties may
provide additional probative value. In any event, temporal proximity or lack thereof is
rarely the sole determinant of nexus. (See, e.g., City of Santa Monica (2020) PERB
Decision No. 2635a-M, pp. 45-47 [judicial appeal pending on other grounds].)

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The instant case is still at the prehearing stage, where we do not attempt to judge
which party will ultimately have the greater weight of evidence. (See ante at p. 2.)
Even more so at this stage than at a formal hearing, there is no absolute rule requiring
that a charging party always detail the specific actions a union officer took. Doing so
may nonetheless be a smart pleading practice in some cases. In fact, as discussed
below, SEIU included such detail in its amended charge in this case.
The amended charge primarily alleged instances in which Kloefkorn sought to
address working conditions at the HSA office. Employee speech is protected if it is
“related to matters of legitimate concern to the employees as employees so as to
come within the right to participate in the activities of the employee organization for
the purpose of representation on matters of employer-employee relations.” (Chula
Vista Elementary School District (2018) PERB Decision No. 2586, p. 15 (Chula Vista),
quoting Rancho Santiago Community College District (1986) PERB Decision No. 602,
p. 12.) Thus, “an individual employee’s criticism of management or working conditions
is protected when its purpose is to advance other employees’ interests or when it is a
logical extension of group activity.” (Id., quoting Trustees of the California State
University (2017) PERB Decision No. 2522-H, p. 16.) As one example, an employee
is protected in reporting safety concerns to his or her employer or to a third party.
(Menlo Park Fire Protection District (2008) PERB Decision No. 1983-M, p. 6; Oakdale
Union Elementary School District (1998) PERB Decision No. 1246, pp. 17-19.)
As detailed ante at pages 11-14, SEIU thus alleged that Kloefkorn engaged in
protected activity not only by serving as Chapter President, but also by the following
activities: e-mailing HSA management on May 3, 2016 to raise health and safety

19
concerns relating to concrete drilling and dust exposure at the HSA office; complaining
to OSHA in October 2016 regarding hazardous office conditions; e-mailing HSA
management in October 2016 to demand that HSA cease and desist all renovation on
the second floor of the HSA office building due to potential asbestos exposure;
e-mailing Kim and other HSA management on February 3, 2017, requesting to meet
and confer regarding health and safety issues affecting HSA employees, including
environmental and ergonomic concerns; e-mailing Kaplan and other HSA
management on July 11, 2017 to document an account of discrimination and
harassment affecting two SEIU members; requesting information, on September 8,
2017, regarding the installation of glass partitions in the cubicles at the HSA office;
e-mailing Nisha and other HSA representatives in September 2017 to reiterate SEIU’s
request to meet and confer over health and safety concerns related to the City’s plan
to move SEIU-represented staff to a different office building; requesting and receiving
release time for bargaining training; seeking SEIU’s assistance for the 2917 Analyst
recruitment process; seeking to meet and confer and otherwise engage with the City
regarding the 2917 Analyst reclassification and its effects; and participating in
successor contract negotiations between SEIU and the City.
B. 	Adverse Action
PERB uses an objective test to determine whether an employer’s action is
adverse. (Chula Vista, supra, PERB Decision No. 2586, pp. 24-25.) “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.” (Id. at

20
p. 25, quoting Newark Unified School District (1991) PERB Decision No. 864,
pp 11-12.) OGC correctly found that SEIU alleged the City took adverse actions
against Kloefkorn by not reclassifying her to one of the 2917 Analyst positions in
December 2017 and by issuing her the Notice of Intent to Suspend in June 2019.
We find that SEIU also alleged several additional adverse actions related to
hiring into the 2917 Analyst classification: (1) failing to encourage Kloefkorn to take
the promotional exam while encouraging HSA’s other 2915 Specialist incumbents; (2)
failing to notify Kloefkorn how she could be accommodated to interview for a 2917
Analyst position during a disability period; and (3) delaying meeting with Kloefkorn and
declining to provide timely and accurate information concerning the recruitment. A
reasonable person in Kloekforn’s circumstances would view such alleged actions as
adverse to her employment for multiple reasons, including because they impeded
Kloefkorn’s efforts to progress in her career and suggested any effort on Kloefkorn’s
part to apply for a 2917 Analyst position would be disfavored.
Moreover, we conclude that the February 27, 2019 written warning and related
March 1, 2019 PIP were adverse actions as well. (City of Long Beach (2008) PERB
Decision No. 1977-M, p. 13; City of Davis (2016) PERB Decision No. 2494-M, p. 42.)4
4 At the formal hearing, one or both parties may wish to introduce evidence
pertaining to the City’s actions in the fall of 2018, when the City issued Kloefkorn the
first PIP, as well as a related written warning and letter of instruction. Those actions
likely bear on the ultimate determination of employer motive. (State of California
(California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17
[events occurring before the six-month statute of limitations, or otherwise outside the
“four corners” of the charge, are relevant in assessing a respondent’s motive].)
However, we do not consider whether the complaint should allege those earlier
adverse actions to constitute MMBA violations, because they appear to have occurred
more than six months prior to the amended charge. If SEIU seeks to amend the

21
C. 	Nexus
While PERB considers all relevant facts and circumstances in assessing an
employer’s motivation, we have identified the following factors as being the most
common means of establishing a discriminatory motive, intent, or purpose: (1) timing
of the employer’s adverse action in relation to the employee’s protected conduct; (2)
disparate treatment; (3) departure from established procedures or standards; (4) an
inadequate investigation; (5) a punishment that is disproportionate based on the
relevant circumstances; (6) failure to offer a contemporaneous justification, or offering
exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons;
(7) employer animosity towards union activists; and (8) any other facts that might
demonstrate the employer’s unlawful motive. (See, e.g., City of Santa Monica, supra,
PERB Decision No. 2635a-M, p. 42; City of Sacramento (2019) PERB Decision
No. 2642-M, p. 21.)
We find that SEIU’s amended charge alleged not only temporal proximity as
OGC found in its dismissal letter, but also other viable nexus facts, and that there
remains a significant, unresolved factual dispute as to the City’s motive or motives.
Although OGC does not (and should not) list out nexus factors in a complaint, we
briefly summarize the additional nexus allegations that lead us to disagree with OGC’s
determination.
OGC focused primarily on whether SEIU had sufficiently identified which civil
service rule the City allegedly violated. Although we believe OGC’s focus on this
complaint to reflect those events as alleged MMBA violations, the Board agent will
need to assess the matter at that point, including any allegations supporting a
recognized exception to the statute of limitations.

22
factor to the exclusion of others was error—in that there were numerous other, clearer
nexus facts alleged, as discussed below—it is appropriate to begin by assessing
whether SEIU was sufficiently clear in alleging that the City deviated from its own civil
service rules.5
PERB has relatively few formal pleading rules, though PERB Regulation 32615,
subdivision (a)(5) requires that a charging party should provide a clear and concise
statement of the facts alleged to constitute an unfair practice.6 OGC need not scour
charges looking for obscure deviations from policy that a charging party fails to point
out, but PERB Regulation 32620, subdivision (b)(1) requires OGC to assist the
charging party in stating the information that Regulation 32615 requires.7
5 We assess the alleged deviation only as a nexus factor, since SEIU did not
file any appeal regarding its unilateral change or direct dealing claims.
6 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
7 These standards apply irrespective of parties’ legal sophistication or whether
they are represented by counsel. PERB’s efforts to provide equal access to justice to
all are evident, for instance, in our decision in National Union of Healthcare Workers
(2012) PERB Decision No. 2249-M. There, we noted that while it is useful to explain
to a charging party that the goal of an unfair practice charge should be to specify the
“who, what, when, where and how” of the charge, that formulation is not a “litmus test”
or “hurdle over which every charging party must leap at the risk of dismissal.” (Id. at
p. 15.) Sound public policy reasons support PERB’s preference for hearing cases on
their merits, notwithstanding technical non-compliance with matters of form. (County
of Santa Clara (2018) PERB Decision No. 2613-M, p. 7, citing United Farm Workers of
America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 916.) “We are
sensitive to the fact that PERB is not a court, but an administrative agency, and that
the formalities of practice and procedure in the judicial system are not always
appropriate for fulfilment of PERB’s mission, which includes assisting parties and
representatives who are laypersons.” (County of San Luis Obispo (2015) PERB
Decision No. 2427-M, p. 28.)

23
Here, the record does not reflect to what extent, if at all, there was any
communication between OGC and the parties during the investigation, other than the
warning letter. That letter and the subsequent dismissal suggest that OGC focused on
an e-mail from Kloefkorn to the City, in which Kloefkorn pasted section 109 of the civil
service rules without identifying which subsections SEIU believed the City had
violated. In a different exhibit, however, SEIU identified specific subsections it claimed
the City violated. For instance, SEIU pointed to Rule 109.10, entitled “Effects of
Classification Changes on the Status of Incumbents,” and particularly to subsection
109.10.17. SEIU claims this subsection provides that in a reclassification, the City will
grant all remaining employees in the same former class and department the right to
positions in a new class as vacancies occur, according to seniority. In the same
exhibit to its charge in which it pointed out subsection 109.10.17, SEIU asserted that
the City deviated from its “normal” process. In contrast, the City has claimed
throughout that it acted in a typical and lawful manner when it posted four new
positions, conducted interviews, and ultimately chose to promote the four
Investigations Division 2915 Specialists as superior candidates. A formal hearing is
needed to resolve this dispute, absent settlement.
In addition, SEIU alleged numerous other nexus factors creating a non-frivolous
dispute as to the City’s motives. First, whereas the City has asserted that it promoted
four employees over Kloefkorn because Kloefkorn interviewed poorly, SEIU has
alleged facts directly contradicting this claim. For instance, as noted above, SEIU has
provided an HSA organizational chart showing the four incumbent 2915 Specialists,
specified by name, as being promoted to 2917 Analyst positions, which allegedly

24
shows the City went into the promotion process with a bias as to the probable
outcome and thereby did not give Kloefkorn fair consideration. While we cannot
predict precisely what explanations or evidence the City will marshal in response to
this allegation, it presents a stark credibility issue that can only be resolved at a formal
hearing.
SEIU also made colorable disparate treatment allegations. HSA allegedly
designed and implemented the 2917 Analyst recruitment to prioritize all 2915
Specialists except Kloefkorn. For instance, the City allegedly gave the other 2915
Specialists advance information about the recruitment and encouraged them to take
the promotional exam. While the City may ultimately rebut this allegation or admit it
while introducing evidence of a non-discriminatory reason for its disparate treatment,
we cannot ignore that this allegation constitutes a quintessential claim of
discrimination and raises a material factual dispute as to whether HSA singled out
Kloefkorn.
Another relevant nexus allegation is the apparently undisputed fact that
Kloefkorn was the senior-most employee in the 2915 Specialist Classification. HSA
thus converted Kloefkorn from the 2915 Specialist with the greatest protection against
layoff to the most vulnerable 2915 Specialist. This had the effect of making her more
susceptible to layoff, though the City disputes that fact played any part in its
motivation.
SEIU further contends that Kloefkorn’s greater experience helps to establish
that she was not the least qualified of the five 2915 Specialists in HSA, and that
absent any unlawful considerations she merited being chosen over at least one of the

25
less experienced employees chosen for the four open positions. It will take a hearing,
and possibly credibility determinations, to resolve whether this is the case or whether
the City chose not to promote Kloefkorn for other reasons, such as her allegedly poor
interview. Among other issues, the parties may contest evidentiary items such as the
above-referenced organizational chart allegedly showing pre-interview bias, as well as
any evidence regarding the relative skills, experience, references, or interview
performances of the interviewees. The weight of the overall record will ultimately
determine the import of these and other factors.
SEIU also alleged that HSA departed from its norms when it asked Kloefkorn to
return a completed FMLA form even though none was needed for a work-incurred
injury. Again, we express no opinion as to the merits of that allegation or whether it is
persuasive evidence of motive; we find only that it is a colorable allegation creating a
dispute of fact. Similarly, the City pushing Kloefkorn for her disability leave dates
could show the City’s desire to know her leave period so as to schedule interviews
during that time, as SEIU alleges, but we decline to speculate what facts may be
proven at the formal hearing.
SEIU also alleged that the City evidenced discriminatory motivation when it
offered Kloefkorn and SEIU vague, incomplete, and/or inaccurate responses to their
queries about the reclassification. These responses include, but are not limited to,
HSA’s statement that there were “No Respondents” for the 2917 Analyst positions,
even though HSA was conducting interviews for the 2917 Analyst positions and
allegedly knew who the applicants were by the date of its answer.

26
Moreover, in response to SEIU’s inquiry regarding the job analysis that HSA
used to support the reclassification, the City allegedly claimed “confidentiality” without
further explanation. In light of the fact that the City asserts it requested funds for the
2917 Analyst positions in its 2015-2016 budget proposal and apparently had explained
its reasoning for the reclassification, HSA’s alleged blanket assertion of confidentiality
is a further circumstantial nexus allegation.
SEIU noted two additional nexus allegations: (1) HSA’s alleged failure to
respond to Kloefkorn’s November 30, 2017 request for assurances as to how she
could be accommodated to interview for a 2917 Analyst position during her disability
leave (including how she could obtain an interactive meeting regarding her impending
disability leave); and (2) HSA’s alleged refusals to respond in a timely and/or adequate
manner to Kloefkorn’s requests to meet and confer over the reclassification and/or its
effects. For all of the foregoing reasons, while HSA contends that Kloefkorn “was
permitted to participate in the merit-based hiring process for the 2917 position” and
was treated fairly and appropriately throughout that process, SEIU has alleged more
than enough facts to warrant a formal hearing.
Finally, we address whether a complaint should also issue as to the City taking
adverse action against Kloefkorn via a second written warning, the second PIP, and
the Notice of Intent to Suspend. OGC found that SEIU did not make factual
allegations tending to show any nexus factors other than timing. However, SEIU’s
allegations regarding HSA’s unusual, discriminatory, or otherwise suspicious conduct
surrounding the 2917 Analyst reclassification, as detailed above, constitute an
adequate factual basis to state a prima facie case that HSA may have been

27
substantially motivated by unlawful animus in its later adverse actions against
Kloefkorn. (State of California (California Correctional Health Care Services), supra,
PERB Decision No. 2637-S, p. 17 [earlier events are relevant in assessing a
respondent’s motive]; County of Santa Clara (2019) PERB Decision No. 2629-M,
adopting proposed decision at p. 30 [“Context is always relevant in determining
motive.”].)
As discussed above, we do not prejudge which nexus factors SEIU may
primarily rely on at the formal hearing, which rationales or arguments the City may
make in countering SEIU’s case or in affirmatively asserting that it would have taken
exactly the same actions even absent protected activity, or which party will ultimately
introduce a more persuasive set of overall evidence. Rather, at the present stage, we
find only that there is a material dispute of fact regarding HSA’s motives vis-à-vis
Kloefkorn.8
ORDER
The claims in Case No. SF-CE-1576-M are hereby DISMISSED WITH
PREJUDICE solely to the extent they allege that the City (i) unilaterally reclassified
certain positions and/or changed existing policy without providing SEIU notice and an
8 In its appeal of the dismissal, SEIU alleged additional nexus evidence that it
did not include in its initial or amended charge: the contents of an alleged September
21, 2017 e-mail from HSA Executive Director Trent Rohrer and an alleged September
10, 2018 communication from HSA Handbook and Training Manager Gabriel Jones.
Because a charging party may not present on appeal new charge allegations (PERB
Reg. 32635, subd. (b)), we rely only on SEIU’s factual allegations in its amended
charge. However, as we noted above, in issuing a complaint, OGC does not list out the
nexus factors or evidence tending to show nexus, and SEIU remains free to introduce
all relevant and admissible evidence of nexus at the formal hearing.

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opportunity to bargain over the decision or its effects, and (ii) bypassed SEIU to deal
directly with bargaining unit employees.
OGC’s dismissal of the remaining claims in Case No. SF-CE-1576-M—
concerning the City’s alleged retaliation against Kloefkorn for her protected activities—
is hereby REVERSED. We REMAND the matter to OGC to issue a complaint alleging
that Kloefkorn engaged in the protected activities noted ante at pages 18-19, the City
took the adverse actions noted ante at pages 19-20, and the protected activities were
a substantial or motivating cause for the adverse actions.
Members Banks and Paulson joined in this Decision.