California Public Employment Relations Board
California State Employees Assn.
SEIU Local 1000, AFL-CIO, CLC
State of California
California Department of Consumer Affairs
2004 PERC (LRP) Lexis 48, 28 PERC 98
March 10, 2004
Allen R. Link, Administrative Law Judge.
On January 3, 2003, the California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC (CSEA) filed an unfair practice charge with the Public Employment Relations Board (PERB or Board) against the State of California (Department of Consumer Affairs) (Department or DCA). The charge alleged various violations of the Ralph C. Dills Act (Act). n1
On February 24, 2003, after an investigation of the charge, PERB’s general counsel issued both a partial dismissal and a complaint, alleging violations of subdivisions (a), (b) and (c) of section 3519. n2
On March 20, 2003, the respondent answered the complaint denying all material allegations and propounding various affirmative defenses. An informal conference was held on March 26, 2003. in an unsuccessful attempt to reach a voluntary settlement. Two days of formal hearing were held before the undersigned on August 4 and 5, 2003.
After the conclusion of the hearing, transcripts were prepared and briefs were filed. The case was submitted for a proposed decision on January 20, 2004.
Prior to the events discussed herein, Sheila Hawkins (Hawkins) was an Education Administrator in the Bureau for Private Postsecondary and Vocational Education (BPPVE), a unit within the DCA. Two of Hawkins’ subordinate employees filed a working-out-of-class grievance. BPPVE had had a series of such grievances granted in the recent past and its administrators were very concerned about these new actions, once they were appealed to arbitration. Prior to Hawkins’ testimony at the arbitration hearing, BPPVE’s administrators conveyed their concerns to her.
In January 2002, Hawkins testified on behalf of the two employees. In June 2002, Hawkins was removed from her office, escorted out of the building and placed on paid administrative time off (ATO). She was eventually reinstated to her position. Shortly thereafter, however, she was served with an adverse action that demoted her.
CSEA alleges that Hawkins’ ATO and eventual demotion were in retaliation for her arbitration testimony, and that such actions severely discriminated against and coerced its members in their exercise of rights under the Act., i.e., the right to file grievances without fear of retaliation against either them or their supporting witness(es).
DCA contends that Hawkins’ ATO was due to her violation of DCA’s violence-in-the-workplace policy and that her demotion was the result of both her alleged submission of inaccurate backlog statistics to BPPVE management, and her violence policy violation.
In addition, CSEA requested information concerning two investigations involving bargaining unit members. It alleged that this information was necessary and relevant to its duty to represent the members of its bargaining unit. DCA failed to provide the requested information, insisting that CSEA was not legally entitled to it.
The parties stipulated, and it is therefore found, that the charging party is an exclusive representative and the respondent is a state employer within the meaning of the Act.
Marcia Trott (Trott) and Latanaya Johnson (Johnson) were BPPVE degree unit n3 employees under the supervision of Hawkins. They initially were employed at a Staff Services Analyst level. In December 1998, they filed out-of-class grievances, alleging that they had been working at the Education Specialist level. The Department of Personnel Administration (DPA) n4 granted their grievances, and each employee received out-of-class compensation from December 29, 1998 to November 2000, when they were promoted to the Education Specialist level.
On October 2, 2000, Trott and Johnson each filed a second grievance alleging that they were still working out-of-class, as they were performing duties at a Senior Education Specialist classification level, while being paid as an Education Specialist. The grievances were denied, but the denials were appealed and eventually adjudicated in a January 2002, three-day hearing presided over by Arbitrator Andria Knapp (Knapp).
Hawkins n5 was subpoenaed as a witness in that hearing. At the time Hawkins’ immediate supervisor was BPPVE Assistant Chief Bill Young (Young), who was appointed to his position in June 2000. Sylvia Ramos (Ramos), a Staff Services Manager III, is responsible for BPPVE’s administration, and Michael Abbott (Abbott) is the BPPVE Chief and the immediate supervisor of both Young and Ramos. Abbott began his assignment in November 1999.
Hawkins states that, prior to her arbitration testimony, both Ramos and Young told her that “DCA was very upset. DCA wanted to win this. ...” She states that her supervisors “more than hinted that DCA would be very unhappy if they lost this [grievance appeal].”
Hawkins testified under oath in favor of Trott and Johnson’s allegations. A few days after the arbitration hearing, Young accused Hawkins of “costing DCA the hearing,” even though Knapp’s decision had not yet been issued. Shortly after the arbitration hearing, Young began spending an increased amount of time overseeing Hawkins’ unit. He began to question her staffs work product, especially that of Trott and Johnson. He was critical of the two employees’ work, in general, and their writing and professional judgment, in particular. Hawkins’
On June 7, 2002, with no advance warning, Hawkins was directed to meet with two law enforcement officers from DCA’s Division of Investigations (DOI) who (1) escorted her to her office to retrieve her personal belongs, (2) required her to relinquish any state keys and parking passes, (3) escorted her out of the building, and (4) placed her on paid ATO. She remained on ATO for over three months, until September 16, 2002, when she was permitted to return to her duties. Her return date was twelve days after Knapp’s arbitration award was issued, granting out-of-class payments to Trott and Johnson.
Abbott contends there was a discrepancy between (1) the degree unit’s actual backlog and the reports provided by the unit to the BPPVE management, and (2) what Hawkins told management about how she assigned work to her unit’s employees and what she testified to in the arbitration hearing. In addition, he contends that on June 6, 2002, she violated DCA’s violence-in-the-workplace policy.
On June 13. 2002, Abbott requested a California Highway Patrol (CHP) n 6 investigation into his contentions.
Between June 25 and August 14, 2002, Young, either in person or by phone, discussed Abbott’s request with the investigators six times. On August 14, 2002, he submitted to a taped interrogation.
In August 2002, Hawkins, and each of her six subordinate degree unit employees were served with a Notice of Administrative Interrogation (Notice of A.I.). This notice stated that the unit employees were the “subject of an administrative interrogation” by the CHP, which was “conducting an internal investigation into allegations concerning misrepresentation of official reports.” The notice directed the served employees
... not to discuss its [the investigation’s] existence with any member of your Department, other than your representative [nor] have any contact or communication with any of the parties or witnesses regarding this investigation.”
Johnson called CHP Officer Stacey French (French) for more information about the Notice of A.I. French responded that “there is not an active internal investigation on her, however, information obtained during the administrative interrogation had the potential to lead to adverse action.” (Emphasis added.) All seven employees were interrogated under threat of being charged with insubordination. Each of the served employees, accompanied by a representative, was interrogated for at least two hours, with most of them spending between three and four hours with the officers. Most of the questions concerned unit application processing procedures. Each degree unit employee was asked questions about the California Education Code and accompanying regulations. The eventual report made findings about the employees’ level of understanding and application of these matters. Trott was interrogated for four to five hours.
Abbott does not “recall” seeing the final results of this investigation. Later he admitted seeing the report, but insists he never read it. Abbott also stated that he has “no idea” how much the CHP charged the BPPVE for this investigation.
On September 6, 2002, CHP Investigative Report 02-019 (CHP Degree Unit Report), was issued. It comprised 134 pages and set forth, in great detail, the interrogations of each employee.
Hawkins’ Notice of Adverse Action
On October 3, 2002, Hawkins received a Notice of Adverse Action (Notice of A.A.), with the CHP Degree Unit Report attached. This Notice of A.A. charged Hawkins with violating various subdivisions of Government Code section 19572, i.e., (1) subdivision (c) “Inefficiency”; (2) subdivision (d) “Inexcusable neglect of duty”; (3) subdivision (e) “Insubordination”; (4) subdivision (m) “Discourteous treatment of the public or other employees”; and (5) subdivision (t) “Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person’s employment.” The notice demoted Hawkins from an Education Administrator to a Senior Education Specialist, effective October 16, 2002, thereby reducing her salary from $6883 to $6189 per month, for a total reduction of $694 a month or $8,328 a year.
The Notice of A.A. had three general charges, i.e., (1) Hawkins’ failed to direct her staff in such a manner as to avoid out-of-class work, (2) she submitted inaccurate backlog statistics to BPPVE management, thereby tainting the reports it submitted to the Legislature, and (3) she was involved in a series of interpersonal workplace conflicts, the most egregious of which was an incident on June 6, 2002, in which Hawkins allegedly violated DCA’s violence-in-the-workplace policy.
The BPPVE used the following determinations in its Notice of A. A. to support Hawkins’ demotion:
Allegation of Impropriety re Hawkins’ Arbitration Testimony -- Item G
Item G in the Notice of A. A. stated, in relevant part:
Despite the fact that their job duties did not change between 1998 and 2000, ... you nevertheless testified under oath, at an arbitration hearing on an out-of-class claim, that your two employees were working at the higher ... level. ... You testified that in your opinion the two employees in question were performing Senior Education Specialist level work.
On or about September 4, 2002, an Arbitration and Dispute Resolution was reached regarding the out of class claims of your employees. Andria S. Knapp, arbitrator, decided in favor of the employees and awarded them back pay totaling at least $20,500. The arbitrator gave great weight to your opinion . ... P. Your inefficiency and neglect of duty as a supervisor has cost the Bureau over $20,500 in out-of-class awards, and additional costs incurred for the DP A counsel . ...[ n7 ]
Allegation Hawkins Used Improper Definition of “Backlog” -- Item H
Section H of the Notice of A. A. alleges that Hawkins used an improper formula for the definition of “backlog,” a definition that was not approved by Young.
Abbott cited the CHP Degree Unit Report in support of his contention that Hawkins submitted erroneous backlogged statistics. In Item No. 5, Page 4, of that report, the following summarization is found:
As a result of an audit conducted by the Bureau of State Audits,[ n8 ] the BPPVE was required to submit quarterly reports detailing workload and backlogged applications. Ms. Hawkins failed to ensure the accuracy of the workload data that was submitted on behalf of her unit. As a result, an official report sent quarterly to the California State Legislature contained misrepresentations and inaccuracies.
On page 99 of the CHP Degree Unit Report, Hawkins is quoted as stating that when she first met Abbott he told her, ‘‘I understand you are the only one who knows what they are doing.” Neither Abbott nor Young have any background in the area regulated by BPPVE, whereas Hawkins has extensive educational and work experience spanning decades in this field. She was in a CEA II position in the Council, BPPVE’s predecessor agency. The CHP Degree Unit report, on page 100 states that she was the Council’s Deputy Director and was
... directly involved with the development of the regulations. She was the staff person to the advisory council when the statutes were developed by the Legislature. ... At the Council, Hawkins was considered “one of the experts” with regard to regulation interpretation. At the Bureau, Ms. Hawkins interprets regulations for the Degree Unit and answers questions for Mr. Abbott pertaining to regulation interpretation. ... There are no sourcebooks for Ms. Hawkins to research for interpretation of statute and, currently, all of the regulations are outdated. In 1998, new statutes were enacted and regulations should have been amended. In 2002, the Act was amended again,[ n9 ] however, regulations have not been changed since 1996. Ms. Hawkins stated that a BPPVE employee named “Julieta” had been tasked with developing new regulations. Ms. Hawkins had sent emails and had personal conversations with management to inform them that new regulations needed to be developed but was told that Degree regulations were “low on the totem pole.”
... Ms Hawkins has never sent “Julieta” an email informing her of a regulation that needed change. She directs her emails to Mr. Young and Mr. Abbott and does not know what happens with the information. Nothing has ever happened on any change she has requested through Mr. Young or Mr. Abbott. Ms. Hawkins stated that since “things went up and never came back” the Degree Unit had stopped sending recommendations for regulations change to management. ...
Hawkins explained to Abbott that the regulations, as they were constituted, were internally inconsistent, and that, due in part to staff shortages, the regulatory application processing time frames were unrealistic. She has also explained that a lot of the regulations are vague and need interpretation. Whenever she seeks guidance from Mr. Young, she receives no response.
The CHP Degree Unit Report, on p. 92, contained the following relevant information:
In Mr. Young’s email dated November 28, 2000, a backlog is defined as any case in excess of 365 days. Mr. Young explained that the “365 days” was a consensus among the leadership team. He stated the “law” says that once an application is complete, the Bureau issues a temporary approval, but within 365 days, the Bureau has to issue a permanent approval.
Investigator’s Note. When questioned about which “law “ he was referring to, Mr. Young was unable to provide an answer. He kept referring to what the Legislature wanted in the quarterly report. In the statutes and regulations pertaining to BPPVE, there is no such section that mandates the Bureau complete an application within 365 days.
Investigator’s Note: Mr, Young’s explanation of the 30-day statutory processing time frame outlined in section 71400(b) is illogical. He explained that although BPPVE does not always meet the requirements of section 71400(b), those applications are not considered “backlog” as defined for the Legislature. This contradicts the footnote at the bottom of the submitted quarterly reports that defines a backlog as anything “in excess of statutory time frames.”
Page 93 of the CHP Degree Unit Report, included the following sentence:
Investigator’s Note: Mr. Young did not appear to have a clear working understanding of the statutes and regulations pertaining to statutory processing time frames. [Italics in original; emphasis added.]
In addition, the CHP Degree Unit Report, on page 113, states, in pertinent part:
Investigator’s Note: The footnote on the bottom of the quarterly report defines backlog as “work in excess of statutory processing time frames. “ This footnote is misleading because Mr. Young defined backlog as work in excess of 365 days. The statutes do not indicate 365 days as a processing time frame. Mr. Young created this misrepresentation by including a footnote on the report that was not accurate. [Italics in original.]
Allegation of Improper Training -- Item I
Item I in the Notice of A. A. alleges that Hawkins failed to provide appropriate training for her staff because, inter alia, she did not provide three of them duty statements or procedural manuals.
Allegation of Improper Supervision -- Item J
Abbott insisted that prior to his arrival at BPPVE, the agency had experienced a number of employee out-of-class claims that were eventually determined to be meritorious. In response, BPPVE “had undertaken a reorganization that was partly to meet workload issues, but also partly to make sure that staff did not work out-of-class.” The reorganization created, by fiat, a work structure in which there was one Senior Education Specialist assigned to each BPPVE unit, and all other unit positions were Education Specialists.
There was no evidence that this restructuring took into account the individual levels of responsibility or the educational qualifications necessary for accomplishing the tasks assigned to each BPPVE unit. Abbott insisted that all BPPVE supervisors knew of these structural parameters. Hawkins, according to Abbott, insisted that in her degree unit the work was sufficiently complex that it could only be done only by Senior Education Specialists. Hawkins contention is based on a realization that there is a substantive difference between licensing an organization that trains barbers, as opposed to one that grants Ph.D.’s in philosophy. The primary difference between the two classifications is the degree to which the subject employees make decisions either independently or under the control of a more senior employee.
Item J in the Notice of A.A. alleges that Hawkins failed to assign and monitor the workload of her employees by (1) failing to assign license applications upon receipt, and (2) failing to keep the unit’s application chronologies accurate and up-to-date.
Allegation of Failure to Properly Interpret Laws and Regulations -- Item K
Item K in the Notice of A. A. alleges that Hawkins failed to insure her subordinates (1) interpreted the licensing laws and regulations properly, and (2) were internally consistent in their approval timelines.
All of the remaining eight charges relate to the same type of behavior, i.e., alleged inappropriate interactions with fellow employees. Four of these charges occurred over a twenty-one month period, August 17, 2000 to June 6, 2002. The remaining four all occurred within two days of Hawkins return from ATO. Only one of these was memorialized in a counseling memorandum.
Most of the interpersonal workplace conflicts alleged in the Notice of A.A. were fairly minor incidents. However, Abbott relied heavily on a conversation between Hawkins and Young to support his decision (1) to summarily place Hawkins on ATO, and (2) to issue her an adverse action. Abbott did not ask Hawkins for her version of her conversation with Young prior to placing her on ATO.
The CHP Degree Unit Report included the following summarization:
The scope of the investigation included an incident on June 6, 2002, which potentially violated the DCA workplace violence policy. Specifically, on or about June 6, 2002, during a meeting with Deputy Chief Bill Young, Ms. Hawkins allegedly stated she would “scorch this place” and be “the only one standing when it is over.” Her comments were made in response to being questioned regarding her unit’s workload statistics submitted to the California State Legislature.
The CHP Degree Unit Report, on pages 117 and 118 described Hawkins’ explanation of her meeting with Young, as follows:
... Ms. Hawkins did not recall telling Mr. Young that the workload request he made was “harassment.” Ms. Hawkins was unable to “honestly” say what she specifically told Mr. Young. However, she recalled that she sent an email to Mr. Young stating that she was feeling harassed because she was given work with unreasonable and unrealistic time frames for completion. Ms. Hawkins spontaneously stated that she never threatened Mr. Young and stated that she was frustrated during the meeting because she felt the SCUPS[ n10 ] assignment was unreasonable. ...
Ms. Hawkins stated that she never said, “I’ll scorch this place and be the only one standing when it is over.” The only time she used the term “scorch” was when she was talking about preparing the SCUPS report without notes. Ms. Hawkins stated she was not even sure she made that comment to Mr. Young and that what she actually said was along the lines of having to prepare a report with a “scorch the earth approach.” Ms. Hawkins clarified that she had used the term in a “regulatory sense” and never talked about “scorching the place.” ...
The CHP Degree Unit Report based its conclusion that Hawkins actually made the “scorch” statement on (1) the alleged inconsistency of Hawkins’ initial failure to remember what she said to Young, and (2) another employee’s statement that she heard Hawkins raise her voice and saw her point her finger at Young during the June 6 meeting.
However, on page 16 of the CHP Degree Unit Report, Young is quoted as saying that
... Ms. Hawkins and her staff believe that Bureau executive management makes “deals” with schools. ... [she] indicated that the Bureau Chief was trying to push the Degree Unit to approve applications. ...
Young told the investigators that Abbott was merely trying to obtain a recommendation, not trying to get approval of a particular application. Hawkins told the CHP investigators that she
... is “very disappointed” with the BPPVE and feels that the Bureau is not enforcing the law. Attempts to enforce the law by DCA staff are blocked by politics and though she has reported many concerns and issues to Mr. Young and Mr. Abbott, nothing has been done nor does she receive feedback. ...
Although it was Young’s version of the June 6 conversation that formed the basis for Abbott’s decision to place Hawkins on ATO for three months, and eventually demote her, he did not testify at the formal hearing.
There is no doubt that Hawkins believed Young and Abbott were not very knowledgeable about either the regulations appurtenant to, or the requirements of, approving licenses for degree granting institutions. The CHP Degree Unit Report confirmed this belief with regard to Young. There was no evidence proffered that Abbott knew any more than Young about the substance of the area he was attempting to manage.
It is also clear that Hawkins believed that her two supervisors were attempting to require her unit to make specific licensing decisions. She believed these decisions were being made for political reasons and were not based on empirical evidence.
Given this background, Hawkins’ words can logically be interpreted to mean that if Young and Abbott persisted in what she believed was harassment, she was going to expose these political motivations, which would bring a firestorm of scrutiny upon BPPVE. Once this storm passed, she believed that she would be the only one not negatively affected. Given Hawkins’ employment/educational background, age, and professional achievements, this is a much more reasonable interpretation of her words than believing that she was going to physically set a match to the office furniture.
The Notice of A. A. alleges that, at various times Hawkins’ attitude was hostile, angry, rude, discourteous and loud. Rude, discourteous, and loud are not terms which suggest a potential for violence. Even “hostile” and “angry” must be accompanied by the possibility of a physical act before it can be considered potentially violent. Words alone, unless they threaten violence, are not enough.
The CHP Degree Unit Report, on page 13 in paragraph 4, contains the following:
[On] June 20, 2002 CHP Officer Tamara Baarts-Samples, #13298, Protective Services Division, reviewed the case file and current documents provided by DCA and formed the opinion that Ms. Hawkins’ behavior was not consistent with those behaviors usually resulting in violence. Officer Samples is a department expert on workplace violence and is assigned as an investigator in the Special Investigations Unit.
It is interesting to note that none of the employees that allegedly had confrontations with Hawkins testified at the formal hearing. The only evidence provided with regard to these incidents was the uncorroborated testimony of Abbott. Although hearsay evidence is admissible in administrative hearings, the fact that none of these “independent” witnesses testified must seriously diminish the weight given to Abbott’s testimony. Obviously, Abbott was not a disinterested bystander, and yet, he provided the only evidence in support of these allegations. Not even Young, who was Hawkins’ immediate supervisor and the primary accuser in the June 6 incident, testified at the hearing.
The only witnesses for the respondent were Abbott and two employees of DCA’s Department of Investigations. These three witnesses were not in a position to provide evidence to support a determination that Hawkins acted inappropriately in eight separate instances.
DCA’s violence in the workplace policy states, in pertinent part:
Violent, threatening, harassing, ... words made directly to ... another person, and threats or actions to damage or to destroy state property ... will be taken seriously by the Department of Consumer Affairs, whether or not they are:
- made directly or indirectly to the intended victim.
- made with the actual intent of carrying out the threatening behavior.
- initiated by or directed at others, including employees, ...
This policy applies to ... spoken communication, ... and to expressed or implied threats of violence or harm. Hawkins’ Appeal of the Notice of A. A.
Hawkins appealed the Notice of A. A. to the State Personnel Board (SPB). n11 Over several hearing dates, DCA’s attorney, DPA’s Labor Relations Counsel Peggy Dalton (Dalton), agreed to delete various causes of action in Hawkins’ Notice of A. A. Included in this deletion were Sections G, H, I, J, and K, which included all Investigation Report references to Hawkins’ (1) arbitration testimony, (2) alleged failure to maintain accurate workload/backlog statistics, and (3) properly train and direct her staff. As a result of these deletions, the DPA attorney agreed to the elimination of DCA’s allegations that Hawkins was guilty of a violation of Government Code section 19572(c), inefficiency.
It must be noted that the formal hearing provided no evidence of formal counseling, mediation, or progressive discipline for Hawkins prior to her ATO and demotion. The absence of these normal precursors to major discipline suggests that her allegedly negative intra-personal conflicts were not initially considered to be of any substance, but were pretextual justifications for the administrators’ attempt to punish her and her employees for the working-out-of-class grievances.
An examination of Sections G, H, I, J, and K of the Notice of A. A., along with Abbott’s overreaction to Young’s version of Hawkins’ June 6 language, strongly support a finding that BPPVE’s manifested reasons for Hawkins’ Notice of A.A. are without credibility. Due to the pretextual reasons given for the adverse action, as well as the manner in which it was implemented, there is little doubt that the respondent’s primary reasons for its action was to (1) threaten reprisals and coerce Trott and Johnson because of their filing working-out-of-class grievances, and (2) punish Hawkins for her arbitration testimony. There is little doubt that Hawkins’ adverse action would cause both Trott and Johnson to have fears of retaliation when contemplating the filing of any future grievances. It was quite apparent that the CHP Degree Unit Report did not provide sufficient information to levy an adverse action against either of these two bargaining unit employees, but it was also apparent that Abbott and Young were predisposed to such a course of action.
Although it is unusual for PERB to provide relief for a employee who is not within the jurisdiction of the Act, this case presents facts that closely show that bargaining unit employees were interfered with, discriminated against, coerced and threatened with reprisals due to their exercise of rights guaranteed by the Act, i.e., the filing of working-out-of-class grievances.
CSEA Request for Information re CHP Degree Unit Report
On August 21, 2002, CSEA, through its field representative, Lois Kugelmass (Kugelmass), requested information about the investigation that resulted in the CHP Degree Unit Report. This request included (1) copies of “official reports” referenced in the Notice of A.A., (2) the alleged “misrepresentations” being investigated, (3) a copy of DCA’s authorization to CHP to conduct the investigation, and (4) the result of such investigation, including, but not limited to all written and electronic reports, recommendations and background material. DCA has never provided CSEA with any of the requested information. n12 Nor were any of the interrogated employees provided with the result of their interviews.
Tonya Blood (Blood), DCA labor relations officer, on September 5, 2002, wrote that as CSEA-represented employees were not the subjects of the investigation, their union was not entitled to a copy of the report.
In June and July 2002,Trott became increasingly concerned about a licensing application from Westhaven University (Westhaven) and its owner, Charles Frye (Frye). She requested that this application be assigned to someone else. She had concerns not only about the institution’s educational programs, but also Frye’s increasingly combative, unduly repetitious, and voluminous communications.
In order to understand Trott’s concerns about Frye’s actions, it is necessary to describe the manner in which the degree unit processes applications for the licensing of degree-granting educational institutions.
Any institution in the state that wishes to award any educational degree above the high school or technical level must first obtain approval from the BPPVE degree unit. Once the application is received, and it states a prima facie case for approval, the applicant is granted temporary approval to operate while an educational specialist in the unit initiates a comprehensive investigation into the substance of the application. This investigation is concerned with, inter alia, monetary, physical plant, faculty credentials, and management experience issues.
Initially Frye requested approval for a program to grant nursing degrees, which are often granted after the completion of a two-year program. He received temporary approval for this program from Trott. All further contacts with him were in conjunction with her investigation as to whether he should receive final approval to grant such degrees. Later he amended his original application to include a request that he be permitted to award Bachelor of Science in Nursing degrees. At the time of her initial concerns over both Frye and Westhaven, she had not given temporary approval to this additional request.
Prior to final approval of any degree unit application, an on-site review panel visits the institution’s location. Experts, curriculum and otherwise, in the same educational field as the applicant, along with the assigned BPPVE unit education specialist, comprise the membership of this review panel.
Trott was concerned over a number of Frye’s idiosyncratic behaviors. He would, at times, e-mail various demands and complaints in the middle of the night to dozens of DCA employees, including Trott’s fellow BPPVE employees. In his discussions with Trott, he would often make hostile and frequent references to his military career, touting his expertise in treating victims of bioterrorism. n13 Frye’s faxes and e-mail to BPPVE became increasingly voluminous, frequent and hostile. Trott testified that she was concerned because she “didn’t want to be the one that knew that Ted Kazinsky was around and nobody figured out that he was the unibomber until he blew somebody up.”
On July 15, 2002, Trott, by e-mail, told Abbott that she had just received a ten-page fax from Frye and that he had expanded his list of addressees to include nine other BPPVE employees, who had no official contact with his application. She said that she considers Frye “dangerous and believe him to be fully capable of violence.” She stated that Frye was upset because he believed BPPVE had not approved his application in a timely manner. In support of her allegations, she cited his idiosyncratic behavior and what she believed to be thinly veiled hints of violence if he was not given such approval. Abbott responded by stating that BPPVE would “take steps to try to ensure that Mr. Frye directs and limits his communications to only the appropriate BPPVE contact person(s).” n14
On July 31, 2002, Trott again e-mailed her safety concerns to Abbott and sent a copy of her letter to Senior Educational Specialist Steve Baker (Baker), a fellow unit employee, as well as CSEA representatives Jerry Fields and Kugelmass.
Lynnell Case (Case), Pam Martin (Martin), Shirley Ann Geddes (Geddes), Hawkins, and Baker all shared Trott’s concerns about Frye’s potential for violence. Martin recalled receiving a ten-page fax from him. She observed that in his e-mails he
had several examples of ... how evil the government is. And then he made reference to his military career and terrorism, and ... in my opinion, we were meant to put two and two together, and perceive that he was threatening us.”
Case pointed out Frye’s threat to sue “everyone that has or has taken part in abusing my rights.” Case concluded that Frye was “a very unstable person, [who] was a threat to the safety of the people in the degree program.” Baker believed that Frye was way out of bounds and far and away the worst I’d ever seen in terms of rationality, P. ... in terms of being overly emotional and intimidating and threatening.
For example, on June 3, 2002, at 3:45 a.m., Frye sent a six-page, single-spaced e-mail to Young, with copies to five employees of the BPPVE or DCA. In addition he listed, individually, Governor Davis, gubernatorial candidate Bill Simon, all forty state Senators and eighty Assembly members. He attached a comment that the copies to these elected officials were being held in abeyance until the next day, suggesting that if he did not receive any satisfaction on that day, he would send these additional copies. He insisted that the BPPVE was violating his civil rights, and asked that it stop its “vicious cycle of abuse.” He likened himself to Rodney King and threatened a federal civil rights lawsuit against “select members of the BPPVE” staff.
On July 29, 2002, Kim Trefry (Trefry), an investigator in the DCA Department of Investigations (DOI), interviewed Trott about her complaints about Frye. Trott was neither satisfied with the interview, nor with Trefry’s commitment to a thorough investigation. They spoke only for fifteen to twenty minutes, and the conversation seemed to center on the manner in which Trott processed Frye’s application, rather than the “tenor of the E-mails.” Trott stated that she felt like it “was my judgment being questioned,” rather than Frye’s.
Trefry stated that she did not recall interviewing anyone other than Trott and a CHP member of the Governor’s security detail. n15 Nor did she interview Frye. Trefry contends that Trott did not tell her that her (Trott’s) fellow employees were also concerned about Frye. Therefore, she saw no reason to talk to them.
Trefry concluded that “Dr. Frye did not commit any criminal acts and his behavior did not rise to the level of where I felt there was any type of immediate threat.” She characterized him as no more than “annoying.” She admitted that she has not had any training on workplace violence.
Trefry’s supervisor. Lynda Swenson (Swenson), characterized Trefry’s investigation as thorough, stating that her staffs only jurisdiction was to determine whether or not Frye’s behavior was a criminal violation.
Trefry prepared an “eight to fifteen page report.” The only information given to Trott or CSEA regarding Trefry’s report was a September 6, 2002, DOI memo that states:
The assessment has been completed and it was determined that the allegations against Charles Frye were “Unfounded.” Mr. Frye’s behavior did not rise to the level of criminal conduct and he did not pose an immediate threat to employees at BPPVE. (Bold in original.)
Young’s Accusations of a Trott Breach of Confidentiality
On August 15, 2002, Trott was summoned to a meeting with Young. She was accompanied by Kugelmass. They expected Young to discuss Trott’s request for reassignment and the report on Trefry’s investigation. Instead, Young threatened Trott with disciplinary action for sharing what he claimed was confidential attorney-client information with CSEA. When Trott asked Young about the status of her complaint about Frye, he became loud and angry. He refused to discuss either Trefry’s investigation or Trott’s request that the Westhaven/Frye application be reassigned. He eventually dismissed her concern that Frye posed a potential for workplace violence to the staff, stating that her complaint had been “found unwarranted.”
On September 19, 2002, Young put into writing the allegations he made at the meeting with Trott and Kugelmass. He served Trott with a written warning for having given attorney-client and privileged information to CSEA. His memo said:
... the California State Employees Association is not a part of the Bureau or Department and does not provide advice or counsel to the Department. ...
Young stated that this conduct was “unacceptable and will not be tolerated” and that if she engaged in similar conduct in the future, the “Department will take adverse action against [her].”
Shortly after Young’s accusation, Abbott accused Trott of breaching confidentiality when she discussed the Westhaven application with Dr. Faye Bower (Bower). Bower is a nursing educational specialist, who had contracted with BPPVE to render services as a curriculum specialist on the Westhaven on-site review panel. In such a consultant role, Bower is acting in the same capacity as an employee. Certainly, she could not participate in an effective on-site review without all available information about a potential licensee. It was both appropriate and necessary for Trott to discuss all aspects of Frye’s application with any member of the review panel, including Bower.
On August 19, 2002, Kugelmass filed a heath and safety grievance on behalf of Trott, requesting her reassignment and complaining about Young’s threats for bringing the issue to CSEA.
On August 21, 2002, Kugelmass requested the following information:
The findings and conclusions of the investigation by Trefry and all reports, summaries, notes, recordings and documents, either written or electronic, upon which DOT and/or the Bureau relied in its decision not to reassign Trott.
DOI refused to provide the report to CSEA or Trott, relying on Government Code section 6254(f), a part of the California Public Records Act. The cited subdivision exempts the disclosure of investigative or criminal reports. In its opinion, neither Trott, nor any other BPPVE employee, was a victim entitled to the report.
Abbott’s Response to Trott’s Concerns
On August 26, forty days after Trott’s initial complaint. CSEA was informed that Trott’s request for a reassignment was granted. Prior to this reassignment, Abbott, without informing Trott, permitted Frye to add a Bachelor of Science in Nursing to his original application, thereby granting him temporary authority to grant such degrees.
At the same time Abbott’s precipitous approval of Frye’s bachelor’s nursing degree was granted, Trott was working with DCA Attorney Christy Shields (Shields) in the drafting of a letter denying Frye’s entire application to operate Westhaven.
Abbott insists that Shields told him that the case for the denial of Frye’s application had “not been made.” Shields did not testify at the formal hearing.
Denial of Request for Information
On September 5, 2002, DCA Eabor Relations Officer Blood sent a letter to Kugelmass, stating that since Frye’s application had been reassigned, she believed “that the issue has been resolved to the satisfaction of Ms. Trott and CSEA.” However, she also stated,
... the department’s Division of Investigation has continued to proceed with the investigation of this matter and the findings will be available in the near future. Once the findings are made available, Ms. Trott will receive a formal response from the Department and a courtesy copy will be forwarded to you.
On September 6, 2002, Lynda Swenson from DOI sent Trott a memo stating:
The assessment has been completed and it was determined that the allegations against Charles Frye were “Unfounded.” Mr. Frye’s behavior did not rise to the level of criminal conduct and he did not pose an immediate threat to employees at BPPVE. (emphasis in original.)
On September 23, 2002, Kugelmass sent Blood a second request for information regarding the Frye investigation, citing discrepancies between statements made by different administrators. DCA has never provided the requested information.
Transfer of Employees out of Degree Unit
On September 5, 2002, Arbitrator Knapp ruled on behalf of Trott and Johnson in their out-of-class grievance. Later that month Trott, Johnson, and Geddes were “temporarily transferred” out of the degree unit. The DCA stated that the reason for the transfers was that it did not want to make any additional out-of-class salary payments to the unit employees. At the time of these transfers, the unit had a backlog, and Baker was the only remaining professional in the degree unit. Baker remained the only Educational Specialist in the unit for three to four weeks. On October 1, 2002, the transfers became permanent. Martin was transferred out of the unit two weeks before the August 4, 2003, formal hearing in this case.
1. Did the DCA, when it placed Hawkins on ATO and served her with an adverse action of demotion, interfered with its rank-in-file ‘employees because of their exercise of rights granted by the Act, thereby violating subdivision (a) of section 3519?
2. When the DCA failed to provide CSEA with specified information about the CHP Degree Unit Report, did it violate subdivision (c) of section 3519?
3. When the DCA failed to provide CSEA with specified information about the Trefry investigation, did it violate subdivision (c) of section 3519?
4. Did the DCA, in any of the above circumstances, deny to CSEA rights guaranteed to it by the Act, thereby violating subdivision (b) of section 3519?
Issue No. 1
In Novato Unified School District (1982) PERB Decision No. 210 (Novato). the Board set forth the test for retaliation or discrimination in light of the National Labor Relations Board (NLRB) decision in Wright Line. Inc. (1980) 251 NLRB 1083 enforced in part (1st Cir. 1981) 662 F.2d 899. Under Novato, unlawful motivation must be proven in order to find a violation.
In order to establish a prima facie case, the charging party must first prove that the subject employee engaged in protected activity. n16 Next, it must establish that the employer had knowledge of such protected activity. Lastly, it must prove that the subject adverse action(s) were taken, in whole or in part, as a result of such protected activity.
Proving the existence of unlawful motivation can be difficult. PERB acknowledged that when it stated the following in Carlsbad Unified School District (1979) PERB Decision No. 89, at page 11:
Unlawful motivation, purpose or intent is essentially a state of mind, a subjective condition generally known only to the charged party. Direct and affirmative proof is not always available or possible. However, following generally accepted legal principles the presence of such unlawful motivation, purpose or intent may be established by inference from the entire record. [Fn. omitted.]
In addition, the Board in Novato set forth examples of the types of circumstances to be examined in a determination of whether union animus is present and a motivating factor in the employer’s action(s). These circumstances are: (1) the presence of any disparate treatment of charging party; (2) the proximity of time between the participation in protected activity and the adverse action; (3) any inconsistent, contradictory or vague explanation of the employer’s action(s); (4) any departure from established procedures or standards; and (5) any inadequate investigation. (See also Baldwin Park Unified School District (1982) PERB Decision No. 221.)
Respondent Contends CSEA Lacks Standing to Request Rescission of Hawkins’ Demotion
Respondent’s initial defense is that CSEA may file an unfair labor practice charge only on behalf of a supervisor in narrowly defined circumstances, and then only where a “chilling effect,” is proven. It cites NLRB v. Nevis Industries (1981) 647 F.2d 905 (Nevis Industries) and State of California ( Department of Health) (1979) PERB Decision No. 86-S, in support of this defense (Dept. of Health).
In Dept. of Health, PERB stated, as dicta
... if CSEA can show that the [employer’s] comments would have had the effect of restraining, coercing or interfering with nonsupervisors in the exercise of their ... rights, the unfair practice process is the proper vehicle for resolving the dispute. ...
In Nevis Industries the Court said that supervisors have been reinstated only in three situations: (1) for refusing to commit an unfair labor practice, (2) for testifying before the National Labor Relations Board, and (3) as a pretext for terminating his/her pro- union crew. When a supervisor is reinstated in any of these circumstances, the remedy is implemented only to remedy the harm done to the rank-and-file employees.
The following is a summarization of the steps taken by BPPVE’s administrators in pursuit of stopping the filing of degree unit working-out-of-class grievances: (1) reorganizing the unit’s employee classifications, permitting only one Senior Education Specialist, although the work required employees at a higher level, (2) attempting to have Hawkins testify in support of their employee classification structure. (3) investigating alleged misrepresentations by degree unit employees, (4) marching Hawkins out of the building and placing her on ATO, (5) demoting Hawkins, and (6) with one exception, transferring all educational specialists out of the degree unit.
In this case, all seven of the degree unit employees were notified that they were “the subject of an administrative interrogation.” In subsequent contacts, the interrogators informed the employees that their answers “had the potential to lead to adverse action.” As DCA refuses to release Abbott’s request for the investigation, it is not possible to know to what extent these employees were a target of the investigation. However, under any circumstance, having one of their arbitration witnesses accused of a series of subjective improprieties, summarily marched out of the office by armed personnel, left in employment limbo for over three months, and then returned and demoted, unquestioningly creates a coercive effect on the remaining bargaining unit employees.
The record is clear that Abbott and Young were very sensitive about BPPVE employees filing working-out-of-class grievances. They communicated this sensitivity to Hawkins. However, despite this communication she testified in favor of the employees’ claims. They believed that Hawkins’ failure to testify in the manner they wished was going to result in an unfavorable decision. They then embarked upon a path of retaliation. Their object was to chastise both the employees that filed the grievances and the supervisor that supported them. When the investigation did little, if anything, to support this objective, the administrators took what little support it did provide, added some relatively minor personality conflicts, and used it to embarrass and demote Hawkins.
The evidence is also clear that Hawkins was placed on ATO and demoted (1) in a misguided attempt to stop future working-out-of-class grievances and/or (2) to punish those employees that had filed them in the past, and (3) to punish Hawkins for her support of the employees when she testified at the arbitration hearing. When the adverse action against Hawkins did not provide the desired result, the BPPVE administrators transferred all of the “trouble-makers” out of the unit. It is clear that Hawkins’ ATO and eventual demotion was a precursor to eliminating the employees’ employment in the degree unit.
The evidence clearly shows that Trott and Johnson engaged in protected activities when they filed working-out-of-class grievances. It is equally clear that Abbott and Young were aware of such grievances. Therefore, the only remaining element is whether the negative circumstances were taken, in whole or in part, as a result of such protected activity.
Hawkins was told of DCA’s concerns prior to her arbitration testimony. A few days after her testimony, she was accused of “costing DCA the hearing,” even though the decision had not yet been issued. Shortly thereafter, Young began a pattern of intense oversight of the unit, with an emphasis on criticism of the work product of Trott and Johnson.
Hawkins’ period of ATO was terminated on September 16, 2002, twelve days after the arbitrator’s award was issued. Next, she was served with the Notice of A. A. on October 3, 2002, seventeen days after her return from ATO and less than a month after the arbitrator’s award was issued.
The proximity of time between Hawkins’ testimony in support of Trott and Johnson and the various DCA’s actions lends support to an inference of unlawful motivation. However, PERB has made it clear that timing alone is insufficient to create an inference of a nexus between protected activity and negative personnel actions. (Moreland Elementary School District (1982) PERB Decision No. 227; Charter Oak Unified School District (1984) PERB Decision No. 404.)
As there was no evidence proffered of any other DCA employee(s) being similarly investigated, there is little evidence of disparate treatment. However, the excessive length of Hawkins’ ATO, over three months, which was based on little more than (1) several intra-office personality disputes, (2) a highly subjective violence-in-the-workplace allegation, and (3) ultimately unproven allegations of supervisory misconduct, is highly unusual. The inordinate length of this obvious misuse of state funds supports an inference of unlawful motivation.
The findings of fact, supra, are rife with inconsistent, contradictory and vague explanations of the employer’s actions. The fact that none of the DCA’s allegations concerning Hawkins’ (1) arbitration testimony, (2) failure to properly supervise her staff, (3) inaccurate backlogged statistics, (4) improper staff training, and (5) failure to properly interpret laws and regulations survived the entire SPB hearing is very strong evidence of DCA’s inconsistent, contradictory and vague justifications for its actions. The fact that these charges were ultimately deemed to be inadequate clearly supports a conclusion that they produced a chilling effect on Trott and Johnson. These failed allegations also provide evidence of a departure from established procedures and standards. The entire above-described circumstances provide strong support for an inference of unlawful motivation.
Additional support for an inference of unlawful motivation is provided by Young’s accusations and threats regarding Trott’s sharing her safety concerns with CSEA. In the same manner, Abbot’s accusations and threats regarding Trott informing a member of the Westhaven review team of the problems the unit was experiencing with Frye, also supports such an inference.
Abbott’s attempt to use Young’s unilateral account of the June 6, 2002, incident without even discussing the matter with Hawkins goes well beyond the definition of an “inadequate investigation.”
These conclusions are not to suggest that Hawkins is totally without culpability for some of the confrontations. She is a strong assertive leader who does not suffer fools easily. She has been involved with, and committed to, the objectives of the Department’s degree unit for many years. She was not pleased with being told to interpret laws and regulations in a manner that she believed was not legally supportable. She was direct and vocal in her objections to these directions. Given the manner in which she was treated by Young and Abbott, a certain amount of irritability and rancor is certainly understandable.
Based on all of the foregoing, it determined that the manner in which the Department’s administration reacted to Hawkins’ arbitration testimony supports an inference of unlawful motivation. This supports a conclusion that BPPVE, with regard to its actions against Hawkins, engaged in activities that interfered with the degree unit employees’ exercise of rights guaranteed by the Act. Therefore, it is determined that when the Bureau (1) placed Hawkins on ATO, (2) filed a Notice of A.A. against her, and (3) demoted her, it violated subdivision (a) of section 3519.
Issue No. 2.
Did the DCA, when it refused to provide CSEA with specified information about the CHP Degree Unit Report, violate subdivision (c) of section 3519?
PERB has long held that an employer must disclose information relevant to the representation of employees with regard to both negotiations and the policing of collective bargaining agreement compliance. Mt. San Antonio Community College District) (1982) PERB Decision No. 224 ( Mt. San Antonio). Failure to provide such information is deemed a refusal to meet and confer in good faith and a violation of subdivision (c) of section 3519.
Information requests that pertain directly to a mandatory subject of bargaining n17 are presumptively relevant. Once such relevance has been established, the burden shifts to the employer to either provide the information within a reasonable time or overcome the presumption of relevance. If the requested information does not pertain immediately to a mandatory subject of bargaining, there is no presumption of relevance, and the requestor must show that the requested information is relevant and necessary to its representational responsibilities. The determination of whether requested information is relevant is made under a “liberal discovery standard.” ( State of California (Departments of Personnel Administration and Transportation) (1997) PERB Decision No. 1227-S (DPA and Cal Trans).) Because information request cases ordinarily turn on the particular facts involved, each request is analyzed separately. (DPA and Cal Trans. ) Analysis
The notice given to each of the degree unit employees states that the CHP, was “conducting an internal investigation into allegations concerning misrepresentation of official reports.” (Emphasis added.) The notice did not limit itself to allegations regarding Hawkins’ misrepresentation(s). The notice compounded its potentially punitive impact by warning the employees “not to discuss its [the investigation’s] existence with any member of your Department, other than your representative [nor] have any contact or communication with any of the parties or witnesses regarding this investigation.”
The relationship between the CHP Degree Unit Report and the threat of potential punitive action for bargaining unit members makes it clear that the investigation, and its resulting report, are directly related to discipline and wages, mandatory subjects of negotiation.
Applying the Mt. San Antonio standard, the information requested by CSEA was plainly relevant. CSEA requested (1) copies of all “official reports” referenced in the report, (2) the alleged “misrepresentations” being investigated, (3) a copy of DCA’s authorization to conduct the investigation, and (4) the final report, along with its recommendations and background materials.
The material requested is relevant and necessary for CSEA to determine whether the investigation was (1) a fishing expedition for something negative that could be used against the subject employees, and/or (2) merely a thinly disguised punitive action in retaliation for the working-out-of-class grievances filed by Trott and Johnson. Under either circumstance, CSEA has both a duty and an obligation to request information that is relevant to representing unit employees in a potential disciplinary matter.
DCA insists that CSEA is not entitled to a copy of the report as none of its employees were the subject of the investigation. However, the CHP Degree Unit Report clearly shows that the individual employees were being questioned about their knowledge, experience and actions, not just those of Hawkins. The fact that none of them received an adverse action as a result of the investigation is irrelevant. The very fact that they were legitimately one of its subjects is sufficient to bring them within the class of persons entitled to be informed of the eventual outcome of the investigation.
The members of the degree unit staff evaluate, on a daily basis, the credibility of various members of the academic community. The fact that they were investigated for allegations of misrepresenting official statistics, i.e., acts of moral turpitude, could do serious damage to their credibility in their contacts with their client academicians.
In addition, in a recent case, State of California (Department of Corrections) (2003) PERB Decision No. 1579-S (Corrections ), the Board held that “A trier of fact could easily conclude that [an employee’s] career was damaged by the mere initiation of a criminal investigation for fraud.”
The respondent’s argument that the release of the report would compromise Hawkins’ right to privacy does not withstand scrutiny. The employer used pretextual allegations to justify subjecting Hawkins to (1) a demeaning and publicly humiliating office ouster by two armed personnel, (2) a very extensive investigation into all aspects of her job performance, (3) a three-month ATO limbo, and (4) a demotion. The respondent is now expressing an overly solicitous consideration for her privacy by refusing to give CSEA an official copy of a report she has obviously already shared with it.
The fact that Hawkins provided CSEA a copy of the CHP Degree Unit Report has no bearing on whether DCA should comply with CSEA’s request. In the first place, the final report was only one of four items requested. The other three requests have not been satisfied. Secondly, there is also no evidence that the original report is the only report issued. There is a possibility that parallel reports, with recommendations concerning Trott, Johnson, et al., exist. Each of the four requests is individually relevant, and failure to provide them is deemed a separate violation of the law.
The respondent’s final argument is based on a lengthy discussion of the California Public Records Act (PRA), n18 insisting that the exclusions found therein are relevant to the requests in this case.
PERB, in Trustees of the California State University (2004) PERB Decision No. 1591-H (CSU), made clear, “[t]he exemptions from disclosure provided by the PRA cannot be used to deny an information request that is otherwise required by HEERA.” Indeed, the PRA expressly provides that:
The provisions of this chapter shall not be deemed in any manner to affect the status of judicial records as it existed immediately prior to the effective date of this section, nor to affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state, nor to limit or impair any rights of discovery in a criminal case. (Gov. Code sec. 6260, emphasis added.) n19
Therefore, it is determined that when DCA failed to provide CSEA with the requested information about the CHP Degree Unit Report, it violated subdivision (c) of section 3519.
Issue No. 3.
When DCA failed to provide CSEA with specified information about the Trefry investigation, did it violate subdivision (c) of section 3519?
The law applicable to this issue was set forth in Issue No. 2, supra, and is incorporated herein, as though set forth in its entirety.
Given Frye’s words and actions, Trott had a reasonable and justifiable concern for her safety. These concerns were supported by both empirical evidence, i.e., Frye’s irrational e-mails and threatening telephone calls, as well as the subjective determinations of her fellow employees. His repeated references to his expertise in the area of bio-terrorism have no legitimate justification with regard to his license application. It was reasonable for Trott to construe them as potentially threatening.
The members of the degree unit have come into contact with innumerable license applicants over the years, and they agreed that Frye was well out on the irrational fringe of these applicants. Even Abbott admitted that Frye refused, at first, to limit his personal contacts to either Abbott or Young. He was overly aggressive in his license application and with the degree unit employees processing it.
PERB has long held that health and safety are legitimately within the scope of representation.
CSEA requested, in addition to the report’s findings and conclusions, “all reports, summaries, notes, recording and documents ... upon which DOI and/or the Bureau relied in its decision not to reassign Trott.”
On September 5, DCA wrote to CSEA that “findings will be available in the near future” and that Trott “will receive a formal response ... and a courtesy copy will be forwarded to you.” The next day the DOI sent Trott a memo stating that the “allegations” were “ Unfounded.” (emphasis in original.) The memo continued, “Mr. Frye’s behavior did not rise to the level of criminal conduct and he did not pose an immediate threat to employees at BPPVE.”
It is understandable that Trott and CSEA, and especially the employee to whom the application was eventually reassigned, would be very concerned about any evidence in support of DOI’s conclusion. Of particular importance would be an understanding of how DOI defines the phrase, “immediate threat.” When a threatening job-related circumstance arises, the involved employees are entitled to know their employer has adequately investigated the potential threat and taken the appropriate action. When the union requests information that the employer claims is confidential, a balancing test is used to determine if the union is entitled to the requested information. (DPA v. Cal Trans.) In this case, the “confidential” claim is based on a unilateral designation of the investigation as “criminal.” This designation is not credited. The cursory investigative report did not resolve the employee’s concerns and the equities must be resolved in favor of CSEA’s request and against the employer’s defense.
CSEA’s request for “all reports, summaries, notes, recordings and documents ... upon which DOI and/or the Bureau relied in its decision. ...” clearly asks for relevant information necessary to enable CSEA to make an informed decision with regard to Frye’s potential for harm to Trott and/or other unit employees.
A cursory memo, stating that “the allegations against Charles Frye were ‘Unfounded’” is insufficient to meet the employer’s obligation under the Act.
DCA insists that CSEA is not entitled to a criminal investigation of a private citizen. This argument misses the point. Trott was not attempting to have Frye charged with a crime. She was concerned for her safety, and she wanted her employer to make a determination about whether he was going to harm either her or her fellow employees. The fact that BPPVE or the CHP unilaterally characterized the investigation as “criminal” does not affect Trott’s legitimate right to know whether Frye posed a threat to her. The cursory and conclusionary report that she received is insufficient to enable either her or her representative to make an informed determination as to whether Frye was a potential threat. The fact his application was eventually reassigned to a fellow employee is of little solace to Trott. The negative personal characteristics that Frye repeatedly manifested could very well lead to future harm based on past perceived slights. The fact that Trott no longer will have any official contact with the applicant, and now a colleague must process the license application, is irrelevant to CSEA’s duty to ensure that the employer will meet its contractual obligation to provide a safe workplace.
Once again the respondent attempts to use the PRA as a defense to an exclusive representative’s request for information. As more fully described supra, this defense has no persuasive value. (See CSU.)
Respondent contends that CSEA abandoned its information request when it withdrew the Trott grievance. The evidence is quite clear that the grievance and the information request were two separate items. The former was filed on August 19, 2002, and the request for information was filed two days later, on August 21. Therefore, the withdrawal of the former was not necessarily a withdrawal of the latter. This became very clear when, on September 23, Kugelmass sent Blood a second request for the same information.
Therefore, it is determined that when DCA failed to provide CSEA with the requested information concerning the Trefry report, it violated subdivision (c) of section 3519.
Issue No. 4.
Did DCA, under any of the above circumstances, deny to CSEA rights guaranteed to it by the Act, thereby violating subdivision (b) of section 3519?
The test for whether a respondent has interfered with the rights of an employee organization under the Act does not require that unlawful motive be established, only that at least a slight harm to employee organizational rights result from the conduct. Section 3515.5 grants employee organizations “the right to represent their members in their employment relations with the state, ...” Analysis
There is no doubt that the BPPVE’s (1) attempt to punish Hawkins for testifying on behalf of two bargaining unit employees, (2) coercion of two bargaining unit members, and (3) refusal to provide properly requested information, harms CSEA’s ability to represent its members and to fulfill its duties under the Act. CSEA is also harmed in that BPPVE’s action diminishes its stature as an employee representative, and therefore, its effectiveness in the view of its members.
Most of respondent’s defenses stress BPPVE’s authority to manage its own affairs. And yet, three independent decision-makers have determined BPPVE was incorrect in various aspects of the manner in which it dealt with the degree unit employees and/or Hawkins. First, DPA determined, over BPPVE’s objections, that various degree unit employees were working-out-of-class. Second, an arbitrator determined, over BPPVE’s very strong objections, that the same employees were still working-out-of-class. Thirdly, SPB, with the concurrence of DPA’s attorney, determined that most of BPPVE’s charges against Hawkins had no merit.
Therefore, based on the foregoing and the entire record as a whole, it is concluded that when the BPPVE (1) ordered Hawkins to be escorted from her office, (2) placed her on ATO for three plus months, (3) subjected specified employees to a potentially punitive investigation, (4) demoted Hawkins, and (5) failed to provide properly requested information, it threatened and coerced bargaining unit employees, and harmed CSEA, thereby denying it a protected right, i.e., the right to represent its members in their employment relations with their employer.
Based on all of the foregoing, it is concluded that the Department violated subdivisions (a), (b), and (c) of section 3519 when it (1) took the above described actions against its employees, and (2) refused to provide information to CSEA relevant to its representation of employees.
The PERB, in section 3514.5, is given
... the power to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter.
In order to remedy the unfair practice of the Department and prevent it from benefiting from its unfair labor practices, and to effectuate the purposes of the Act, it is appropriate to order the Department to (1) reinstate Hawkins to her position as an Education Administrator, (2) cease and desist from imposing and threatening to impose reprisals on employees and discriminating against employees because of their exercise of rights guaranteed by the Act, (3) cease and desist from denying CSEA rights guaranteed to it by the Act, and (3) provide CSEA with the information it requested on the subjects of (a) the CHP Degree Unit Report, and (b) the Trefry report.
It is also appropriate that Hawkins be made whole by receiving any salary lost as a result of her unlawful demotion and ATO. Such retroactive salary award shall include interest at the rate of 7 percent per annum. Hawkins should also be made whole for any ancillary losses, such as benefits, seniority credit(s), leave credit(s), and reasonably expected overtime salary opportunities, if any, that she would have received, but for the Department’s unlawful actions.
It is also appropriate that the respondent delete all references in Department and state records to Hawkins’ ATO and demotion, as well as to the CHP degree unit investigation and report. This deletion shall be effected after the Department provides CSEA with the information it requested regarding such investigation and report.
The evidence with regard to the reasons that BPPVE transferred almost all of the subject employees out of the degree unit is mixed. However, this issue was contained in the original charge and on February 24, 2003, was dismissed by PERB’s board agent. The only avenue available to the charging party after this dismissal is an appeal to the Board itself.
The Department shall be required to post a notice incorporating the terms of this order at all Department sites were notices are customarily placed for its employees. The notice must be subscribed by an authorized agent of the District, indicating that it will comply with the terms therein. The notice shall not be reduced in size, defaced, altered, or covered by any other material. Posting such a notice will provide employees with notice the Department has acted in an unlawful manner and is being required to cease and desist from this activity. It effectuates the purposes of the Act that employees be informed of the resolution of the controversy and will announce the Department’s readiness to comply with the ordered remedy. (See Placerville Union School District (1978) PERB Decision No. 69.) In Pandol and Sons v. Agricultural Labor Relations Board (1979) 98 Cal.App.3d 580, 587, 159 Cal.Rptr. 584, the California District Court of Appeals approved a similar posting requirement. (See also National Labor Relations Board v. Express Publishing Co. (1941) 312 U.S. 426.)
Based upon the foregoing findings of fact and conclusions of law and the entire record in this matter, it is found that the State of California (Department of Consumer Affairs) (DCA) violated the Ralph C. Dills Act (Act), Government Code section 3519(a), (b) and (c).
Therefore, it is hereby ORDERED that DCA, its administrators, and representatives shall:
A. Cease and desist from:
1. Imposing and threatening to impose reprisals on employees and discriminating against employees because of their exercise of rights guaranteed by the Act;
2. Denying to the California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC (CSEA), rights guaranteed to it by the Act; and
3. Refusing to meet and confer in good faith with CSEA, a recognized employee organization, by unlawfully refusing to provide properly requested information and materials.
B. Take the following affirmative actions designed to effectuate the policies of the act:
1. Reinstate Sheila Hawkins (Hawkins) to her position as an Education Administrator;
2. Pay to Hawkins, upon demand, the salary she lost as a result of her unlawful demotion. Such retroactive salary award shall include interest at the rate of 7 percent per annum;
3. Make Hawkins whole, upon demand for any other losses, such as benefits, seniority credit(s), leave credit(s), for example, and reasonably expected overtime salary opportunities she may have suffered as a result of DCA’s unlawful action;
4. Provide CSEA with the information it requested on the subjects of (a) the California Highway Patrol (CHP) Degree Unit Report and (b) the report by Kim Trefry, investigator in the DCA Department of Investigations (Trefry Report);
5. Once the material described in No. 4 has been provided, delete all references in any DCA and state records to Hawkins’ administrative time off and demotion, as well as to the CHP degree unit investigation and report; and
6. Upon issuance of a final decision, make written notification of the actions taken to comply with this Order to the Sacramento Regional Director of the Public Employment Relations Board (PERB or Board) in accordance with his instructions. Continue to report, in writing, to the regional director thereafter as directed. All reports to the regional director shall be concurrently served on the charging party herein.
It is further Ordered that all aspects of the charge and complaint, not resolved in the above proposed decision, are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision and Order shall become final unless a party files a statement of exceptions with the Board itself within 20 days of service of this Decision. The Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
Fax: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by page citation or exhibit number the portions of the record, if any, relied upon for such exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered “filed” when actually received before the close of business (5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A document is also considered “filed” when received by facsimile transmission before the close of business on the last day for filing together with a Facsimile Transmission Cover Sheet which meets the requirements of California Code of Regulations, title 8, section 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, sec. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its filing upon each party to this proceeding. Proof of service shall accompany each copy served on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305, 32140, and 32135(c).)
1 All section references, unless otherwise noted, are to the Government Code. The Act is codified at section 3512 et seq.
2 Subdivisions (a), (b) and (c) of section 3519 state:
It shall be unlawful for the state to do any of the following:
(a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. ...
(b) Deny to employee organizations rights guaranteed to them by this chapter.
(c) Refuse or fail to meet and confer in good faith with a recognized employee organization.
3 The BPPVE is divided into a number of units. The non-degree or technical unit oversees the licensing of vocational schools, i.e., barbers, hairdressers, etc. The degree unit oversees the licensing of institutions that grant educational degrees, i.e., from Associate-in-Arts to postgraduate degrees.
4 DPA is the agency that administers the Governor’s labor relations policies.
5 Hawkins has a BA in linguistics from UC Santa Cruz, an MA in education from Harvard, and an MBA from CSU Sacramento. She has been continuously employed in the private post-secondary education area since January 1989. She has had permanent status as an Education Administrator (EA) since 1992. From 1993 to 1997 she held a Career Executive Assignment II (CEA II), as the Deputy Director of BPPVE’s predecessor organization, the Council on Private Postsecondary and Vocational Education (Council). Hawkins reverted to the EA civil service classification on January 1, 1998. She began her BPPVE employment on January 1, 1998, but, soon thereafter, left for employment with the Bureau of Automotive Repair. She returned to BPPVE in February 1999 and became the manager of the degree unit. She has been a state employee since 1978.
6 At some time in the past, the state police department was absorbed by the CHP. Thereafter, all state internal security functions previously assigned to that department are performed by the CHP.
7 DPA provides the attorneys that represent state agencies in any legal or administrative adjudications regarding labor relations matters.
8 This audit preceded Hawkins’ return to BPPVE in February 1999.
9 The 2002 statutory amendments did not affect the degree unit.
10 SCUPS is an acronym for Southern California University for Professional Standards, an institution that had a pending license application in Hawkins’ unit.
11 The SPB’s final decision on Hawkins’ appeal is a public record. Administrative notice of this decision was taken by the undersigned. The decision was analyzed and used in the preparation of this proposed decision.
12 CSEA submitted a copy of the report into evidence at the formal hearing. Respondent speculated that CSEA received it from Hawkins, who was provided a copy.
13 Frye is a retired U.S. Navy Master Chief corpsman.
14 On July 10, 2002, five days before Trott’s e-mail complaint, Abbott told Frye that an earlier communication, sent by Frye, was “inappropriate and counterproductive and I must respectfully remind you to limit your communication with BPPVE to Mr. Young and/or myself.” (Emphasis added.) On the same day Frye acknowledged and agreed to Abbott’s request.
15 Trefry admitted knowledge of Frye’s course on treating victims of bioterrorism, but she did not mention this to the Governor’s CHP security detail.
16 Section 3515 grants state employees
... the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. ...
17 The Act’s scope of representation states:
The scope of representation shall be limited to wages, hours, and other terms and conditions of employment, ...
18 The PRA is codified at Government Code section 6250 et seq.
19 See also Stockton Unified School District (1980) PERB Decision No. 143.