Regents of the University of California (University of California San Diego) (PERB 0299H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
DONALD E. 	KEMPLAND,
Charging 	Party,
v.
THE 	REGENTS 	OF THE 	UNIVERSITY
OF CALIFORNIA 	(U.C. 	SAN 	DIEGO),
Respondent.
Case No. 	LA-CE-13-H
PERB Decision No, 	299-H
March 30, 	1983
Appearances; 	Robert J. 	Bezemek, Attorney 	(Bennett 	& Bezemek)
for 	Donald E. 	Kempland; 	Susan M. 	Thomas, Attorney for 	the
Regents 	of 	the 	University of 	California.
Before Gluck, Chairperson; Morgenstern and Burt, Members.
DECISION
BURT, Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB 	or 	Board) 	on exceptions 	filed 	by
Donald 	E. 	Kempland 	(Kempland 	or 	Charging 	Party) 	to 	the 	hearing
officer's proposed 	decision, 	and 	a 	response 	to 	those 	exceptions
filed 	by 	the 	Regents 	of 	the 	University of 	California
(University or Respondent). 	In that proposed decision, 	the
hearing 	officer 	found 	that 	Charging 	Party 	was 	unlawfully 	denied
union 	representation 	at 	a September 	6, 	1979 meeting 	in
violation of 	subsection 	3571(a) 	of 	the Higher 	Education
Employer-Employee Relations Act 	(HEERA or A c t ) . 1 The hearing
1The 	Higher 	Education 	Employer-Employee 	Relations 	Act

officer 	concluded 	that, 	although 	there 	was 	satisfactory
evidence 	to 	support 	the 	inference 	that 	Kempland's 	request 	for
union 	representation on September 	6, 	1979 was 	a 	partial
motivating 	factor 	in 	the 	University's 	decision 	to 	discharge
Kempland, 	his discharge 	would 	have 	occurred 	in 	the 	absence of
his 	request 	for 	union 	representation. 	The 	Charging 	Party filed
numerous 	exceptions 	alleging 	factual 	and 	legal 	inadequacies 	in
the 	hearing 	officer's proposed 	decision. 	We 	have 	given 	careful
consideration 	to Charging 	Party's 	exceptions 	and 	find 	the
hearing 	officer's 	statement 	of 	facts 	to 	be 	free 	of 	prejudicial
error,2 and 	we 	adopt 	that 	portion of 	his 	decision, 	which 	is
incorporated 	by 	reference 	herein, 	as 	part of 	the 	decision of
the 	Board.
is 	codified 	at 	Government Code 	section 	3560 	et 	seq. 	All
references 	are 	to 	the Government Code 	unless 	otherwise
specified.
Subsection 3571(a) 	provides:
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(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.
2charging 	Party 	excepts 	to 	certain 	credibility
resolutions made 	by 	the 	hearing 	officer. 	A careful 	review 	of
the 	record 	demonstrates 	that 	the 	credibility 	resolutions 	made
by 	the 	hearing officer 	are supported 	by 	the 	record 	as 	a whole,
Santa Clara 	Unified 	School 	District 	(9/26/79) 	PERB 	Decision
No. 104.
22

The 	Board 	has 	carefully 	reviewed 	the 	record 	in 	light of
Charging 	Party's 	exceptions 	and 	Respondent's 	responses 	thereto,
and 	affirms 	the 	hearing 	officer's 	findings of 	fact 	and
conclusions 	of 	law 	as 	modified 	herein.
FACTUAL 	SUMMARY
Kempland 	was 	a University employee 	for 	eight 	years. 	He was
an 	active member 	in American Federation of State, 	County 	and
Municipal Employees 	(AFSCME or 	Union), 	involved 	in Union
activities 	since 1973, 	and 	became AFSCME 	vice-president 	in
May 	1979. 	In his 	capacity as 	a Union 	representative 	during
that 	entire period, 	he 	represented grievants 	in formal
grievances 	and 	informal resolutions, 	counseled employees, met
with 	the 	campus 	personnel office 	and 	department 	heads 	and 	filed
grievances 	and 	administrative 	appeals on 	his 	own 	behalf. 	The
evidence 	demonstrated 	that Respondent 	was 	aware 	of 	Kempland's
Union 	activity.
While 	it 	is 	clear 	from 	the 	record 	that 	Union
representational 	activities 	and 	pursuit 	of 	grievances 	took
Kempland 	away 	from his 	work site on occasion, 	it 	is 	equally
clear 	that Kempland 	spent 	a 	considerable 	amount 	of 	time 	away
from 	his 	work 	site, 	without 	advance 	notice or 	prior
authorization, 	on 	nonwork-related 	activities, 	and frequently
responded 	with 	hostility 	if 	he 	were 	asked 	to 	account 	for 	his
whereabouts or 	activities. 	Kempland's supervisor,
W
	3

Robert Barker, 	also 	complained of 	Kempland's 	delaying 	the
performance 	of 	his 	assigned 	tasks.
Kempland 	was 	orally 	warned 	as 	early 	as 	1978 	during 	his
performance 	evaluation 	of 	the 	problem of 	his 	leaving 	the 	work
site 	without 	notice or 	authorization. 	In 1978, 	Barker 	began 	to
go 	to 	his 	supervisor, Management Services Officer Angela Pluth,
to 	complain 	that 	he 	was 	having 	difficulty supervising Kempland
and 	that 	Kempland 	was 	spending 	too 	much 	time 	away 	from 	the 	job
on 	nonwork-related 	activities. 	It 	is 	uncontradicted 	that
during 	Kempland's 	1978 	performance 	evaluation 	Barker 	warned 	him
orally 	about 	his 	spending 	too much 	time 	away 	from 	the 	job.
Angela 	Pluth 	testified 	that 	other 	employees 	also 	complained 	to
her 	that Kempland 	interrupted 	their 	work 	with 	conversations 	or
by 	reading 	the 	policy manual 	for 	long 	periods 	of 	time 	and
making 	comments 	that 	disturbed 	them.
Barker 	continued 	to 	have 	problems 	with Kempland, 	and 	in
January 	1979, 	Pluth 	instructed Barker 	to make 	notes on
Kempland's 	behavior, 	suggesting 	that 	some 	form of 	documentation
was 	necessary 	to support 	such 	a 	general 	complaint.
Sanford Schane, 	the 	head of 	the 	linguistics department, 	also
told 	Barker 	to 	document Kempland, 	though 	the 	record 	is 	unclear
as 	to 	when Schane 	so 	instructed 	Barker. 	Pluth 	also 	suggested
that 	Barker 	maintain priority 	lists 	of 	laboratory 	projects 	so
that 	Kempland 	would 	have 	clearly defined 	tasks 	with 	specific
4

deadlines.3 Finally Pluth 	enrolled 	Barker 	in 	a 	supervisory
training 	course 	and 	advised 	Barker 	to 	speak 	to Kempland 	about
curtailing 	nonjob-related 	conversations.
Barker's 	notes 	cover 	the 	period 	of 	January 	through
August 22, 	1979. 	These 	notes 	purport 	to document Kempland's
time spent 	away 	from his 	job duties 	and 	other 	problems. 	Barker
testified 	that 	he 	did not 	show 	Kempland 	these 	notes 	nor 	did he
counsel 	Kempland 	regarding 	these 	recorded 	incidents.
Linguistic Department Chairman Dr. 	Sanford 	Schane 	sent
Kempland 	a memo 	in May 	1979 	acknowledging Kempland's 	right 	to
be 	involved 	in his 	representational 	activities 	and 	allowing 	for
a 	reasonable 	amount of 	time 	to 	do 	so, 	provided Kempland
obtained 	prior 	authorization 	like 	everyone 	else.4 In 	the
memo, 	Kempland 	was 	specifically 	admonished 	not 	to leave 	the
3The 	last 	priority list 	was 	compiled 	in June 	1979 	and
Barker 	testified 	that, 	although 	the 	items 	could 	have 	been
completed 	within approximately two 	weeks, 	half 	of 	the 	items
were 	not 	done 	as of 	the 	date of Kempland's 	termination 	in
October.
4 R X - 1 8 	represents 	the 	"regulations 	governing 	the 	use 	of
university facilities and 	access 	to 	university 	employee
organizations 	and 	their 	representatives." 	Section 	I(D)
prohibits 	employee 	organizations 	and 	their 	representatives 	from
using 	University facilities 	and 	equipment, 	such 	as 	automobiles,
computers, projectors, telephones, office supplies,
photocopying, 	reproduction equipment, 	and 	typewriters.
Section 	II(A) 	reasonably permits 	employee 	organizations 	and
their 	representatives 	to 	conduct 	employee 	organization 	business
in 	nonwork 	areas 	during 	the 	employee's 	nonwork 	time.
Section 	II(E) 	prohibits 	employees 	from participating 	in and
conducting 	employee 	organizational 	business 	during 	their 	work
time.
un
	5

department 	without 	approval.5 In 	June 	1979, 	the 	linguistic
department's 	technical 	staff 	was 	reorganized 	and Kempland's
full-time 	recording 	technician 	position 	was 	replaced 	with 	a
half-time 	electronics 	position 	effective July 	1. 	Kempland
accepted 	"involuntarily" 	this 	half-time position. 	On June 	29,
1979, 	Kempland 	was 	suspended 	for 	insubordination.6 His
suspension letter 	of July 	2, 	1979 	warned Kempland 	that 	he 	would
be 	subject 	to 	dismissal 	if 	his 	resistance 	and 	uncooperative
behavior 	continued. 	Schane 	sent 	Kempland 	three 	additional
memos 	in July, 	reiterating Kempland's 	right 	to 	take
administrative leave 	with 	pay 	to 	engage 	in 	his 	representational
activities 	with prior 	authorization. 	Yet, 	Barker 	testified
that Kempland's 	unacceptable 	behavior 	continued.
On September 	6, 	1979, 	Kempland 	was 	called 	to 	a meeting with
Schane. 	In 	that meeting, 	Kempland was 	handed 	a special
performance 	evaluation 	and 	a 	letter 	of 	warning 	which 	stated 	in
relevant 	part:
5AFSCME 	Representative 	Kathy 	Esty 	testified 	at 	the
hearing 	that, 	in 	her 	capacity as a 	union representative, 	she
always 	requests 	permission 	from 	her 	supervisor 	to 	leave 	the
work 	area 	to 	perform Union 	representational 	activities.
6Charging 	Party's 	argument 	that 	Kempland's June 	29, 	1979
suspension 	occurred 	after 	the 	effective 	date 	of 	HEERA on
July 	1, 	1979 	is 	unpersuasive. 	We 	therefore 	affirm 	the 	hearing
officer's 	conclusion 	that PERB does 	not 	have 	jurisdiction over
the 	alleged June 	29, 	1979 	unfair 	practice 	because 	the
suspension 	took 	place prior 	to 	the 	effective 	date 	of 	HEERA.
Pasadena 	Unified 	School District 	(5/12/77) 	EERB Decision
No. 	16; 	U.S. 	Postal Service 	(1972) 	200 NLRB 413 	[81 LRRM 1533],
66

Since 	your 	last 	performance 	evaluation, 	your
work 	performance 	has 	become 	unsatisfactory.
The 	work 	which 	you 	have 	been 	hired 	to 	do 	is
simply not 	being 	done 	to 	your 	supervisor's
and my 	satisfaction. 	On 	repeated 	occasions
you 	have 	spent 	the 	major 	part 	of 	your 	work
day 	in 	activities 	not 	directly 	related 	to
your 	job, 	such 	as 	frequently leaving 	your
work 	area for 	periods of 	time, 	engaging 	in
the 	writing of 	memoranda 	and 	the 	reading of
PPM manuals, 	interfering 	with 	other 	people's
ability 	to 	work 	by 	engaging 	in 	unnecessary
discussion 	and 	similar 	disruptive
activities, 	being 	insubordinate 	to your
supervisor, 	and 	using 	University equipment,
in particular 	the 	telephone 	and 	office
space, 	for 	personal 	and AFSCME business.
In accordance 	with 	the 	letter 	I 	sent 	you on
July 17, 	1979 	I 	said I would grant you
reasonable periods 	of 	time 	to pursue 	the
grievances 	that you 	have 	been 	filing. 	As
Department Chairman 	I 	have 	the 	right 	to
decide 	what 	is 	reasonable 	based 	upon 	the
operational needs 	of 	this 	department. 	The
amount of 	time 	away 	from your 	work 	area 	has
been 	excessive, 	and 	especially now 	that 	you
are a half-time employee. 	If you wish 	to
leave 	your 	work during office 	hours, 	your
supervisor, Robert Barker, 	the Management
Services 	Officer, 	Angela Pluth and/or 	I 	have
the 	right 	to 	ask you where you 	are going,
whom you 	intend 	to 	see, 	and 	the 	purpose of
your 	leaving. 	We 	need 	not 	approve your
request. 	Your 	failure 	to provide 	an answer
or 	claiming 	that 	it 	is 	not 	the 	department's
business 	is 	insubordinate 	behavior. 	You
were 	also 	explicitly 	told 	that 	absences 	had
to 	be made 	up as 	decided 	by your
supervisor. 	You 	have 	attempted 	to make 	up
these 	absences 	at 	your 	own 	convenience.
This 	procedure 	is 	not 	acceptable 	to me 	nor
is 	it 	in accordance 	with University policy.
You must 	arrange 	with 	your 	supervisor 	for
all 	make-up 	times 	at 	the 	department's
convenience.
I 	have 	no 	intention 	to 	interfere 	with 	an
employee's 	utilization of 	the 	grievance
procedure 	in a manner 	consistent 	with
77

University 	policy 	and 	procedure 	and 	this
department's operational needs. 	For 	that
reason, 	I 	outlined 	in my letter 	of July 17
the 	procedure 	for 	dealing 	with 	your 	requests
that 	would 	be 	acceptable. 	In 	accordance
with 	University policy, 	employees 	are
entitled 	to 	a 	reasonable 	amount 	of 	time 	off
in the 	resolution of 	grievances. 	You have
abused 	this 	right, 	not 	only in 	terms of
excessive 	time 	spent 	away 	from 	your 	job and
your manner 	in making 	up absences, 	but 	also
in on-job time 	spent 	in 	such 	activities 	as
reading 	PPM's 	and 	writing 	and 	typing 	of
grievances 	and 	memoranda. 	These 	activities
can 	and 	should 	be 	carried 	out 	on your 	own
time 	and 	utilizing 	your 	own
facilities 	. . . .
You 	have 	been 	hired 	by 	this 	department 	to
perform a 	particular 	service 	as 	an
Electronics Technician. 	Your 	work since
your 	last 	performance 	evaluation 	has 	been
highly unsatisfactory. 	In addition, 	your
numerous 	activities 	have 	impaired 	other
employees' 	ability to work. 	I have 	reached
the 	point 	that 	I 	will 	no longer 	tolerate
such 	behavior. 	If 	you again engage 	in any
of 	the 	conduct 	described 	in 	this 	letter 	and
if 	your 	performance 	does 	not 	immediately
improve, 	you will be dismissed.
In writing 	the 	evaluation, 	Schane 	relied 	upon Barker's
report 	to 	him. 	Schane 	testified 	that 	the letter 	of 	warning 	was
based 	to 	a 	significant 	extent 	upon 	the 	information 	received
from Barker. 	Other 	than Schane's 	own 	knowledge, 	he 	relied 	upon
documentation 	from Barker 	and 	Language 	Librarian 	Linda Murphy
regarding Kempland's 	comings 	and 	goings.
Kempland 	requested 	and 	was 	denied 	Union 	representation 	at
this 	meeting.7
7NO 	party excepts 	to 	the 	hearing 	officer's 	conclusion
8

On September 	20, 	1979, AFSCME Representative Patsy Healy
sent 	a 	letter 	to Schane 	requesting 	to meet 	and discuss 	the
disciplinary documents 	of 	September 	6, 	1979. 	Schane 	answered
that letter 	on September 	24, 	1979 	stating 	that he 	had 	already
met 	with 	Kempland 	on 	that 	matter 	on September 	6, 	and 	therefore
could 	see 	no 	useful 	purpose 	to be 	served 	by 	this 	requested
meeting. 	Schane 	testified 	at 	the 	hearing 	that 	he 	denied 	the
request 	because 	Kempland's 	written 	comment 	on 	the 	evaluation
had 	led 	him 	to 	expect 	a formal grievance 	to 	be 	filed, 	with
ample 	opportunity 	for 	discussion 	in subsequent proceedings.
Healy 	testified 	that 	her 	letter 	of 	September 	20 was 	intended 	to
be 	the 	first 	step 	in 	the 	grievance process.
Kempland 	was 	absent 	from 	work 	for 	three 	days 	following
Healy's letter 	to Schane. 	On Friday, 	September 	21, 	1979,
Kempland 	called 	the 	department 	at 	approximately 	12:00 	noon 	and
reported 	to a 	student 	worker 	in 	the 	lab 	that 	he 	had a medical
appointment. 	The 	student worker 	passed 	the message 	on 	to
Linda Murphy, 	who 	then 	reported 	the 	absence 	to Pluth.
On Monday, 	September 	24, 	Kempland 	again did not 	report 	for
work. 	This 	was 	the 	first 	day of 	the 	fall quarter, 	usually a
that 	the 	University violated 	section 	3571 (a) 	of 	the Act 	by
denying 	Kempland's 	request 	for 	Union 	representation 	on
September 	6, 	1979. 	Accordingly, 	we 	adopt 	that 	conclusion as
that of 	the Board. 	We 	note, 	however, 	that we 	rely 	upon
Robinson v. 	State 	Personnel Board 	(1979) 	97 	Cal.App.3d 	994 	[159
Cal.Rptr. 	222] 	as the applicable precedent.
9

very 	busy 	day 	for 	the 	department. 	Kempland's 	alleged 	reporting
of 	this 	absence will be discussed, 	infra.
Kempland 	was 	absent 	a 	third 	time 	on Tuesday, 	September 	25.
This 	time 	he 	phoned 	the 	department 	at 	8:30 	in 	the 	morning 	and
reported 	to Murphy 	that 	he 	was 	having 	car 	trouble. 	He 	placed 	a
second 	call 	around 	noon 	when 	he 	discovered 	that 	the 	trouble 	was
serious. 	At 	2:30 p.m., 	Kempland 	advised Murphy 	that 	things
were 	looking 	better 	and 	he might 	come 	in. 	He did not 	report 	to
work 	at 	all 	that 	day. 	Murphy 	kept Pluth 	and Schane 	informed 	of
Kempland's 	calls 	at 	various 	times 	during 	the 	day. 	That 	same
day Schane 	sent 	a 	telegram 	to Kempland's 	home 	asking 	him 	to
report 	for 	work 	the 	following 	day.
Kempland did 	come 	in on September 	26 	and 	was 	summoned 	to 	a
meeting 	with Schane, 	Pluth and 	Barker. 	Prior 	to 	the meeting,
Schane 	had 	consulted 	with Cynthia Starkovsky, 	manager 	of
labor/employee 	relations 	for 	the 	University since August 	1979,
and 	had 	been 	advised 	by 	Starkovsky 	that Schane 	could 	inform
Kempland 	of 	the 	University's 	intention 	to 	dismiss 	him 	and 	could
request 	that Kempland 	not 	appear 	for 	work 	in 	the 	interim. 	When
Kempland 	arrived, 	Schane 	asked 	him 	to 	explain his 	three 	days of
absence. 	Kempland 	answered 	that 	on Friday 	he 	had 	been 	ill 	and
had 	a medical 	appointment, 	and 	that 	he 	had 	called 	in and 	spoken
to a 	student 	worker. 	No one 	asked Kempland 	for 	a 	doctor's
verification. 	He 	argued 	that 	his 	illness 	had 	continued 	through
Monday 	and 	that 	another 	call 	for 	the 	same 	illness 	was
10

unnecessary. 	Pluth 	disagreed 	and 	testified 	that 	employees 	were
required 	to 	call 	in each 	day 	they 	are 	sick. 	Kempland 	responded
that 	he 	had 	reported 	in only 	once 	per 	illness 	for 	years.
Kempland 	then 	discussed 	his 	car 	trouble 	on Tuesday 	and 	pointed
out 	that 	he 	had 	called 	in 	three 	times. 	He mentioned 	the
difficulties 	of 	alternative 	means 	of 	transportation 	in 	response
to a question 	by Schane. 	Schane 	then 	told Kempland 	that 	he
considered 	the 	absences 	to 	be 	unexcused 	and 	that 	he 	planned 	to
issue 	a 	notice of 	intention 	to dismiss. 	He 	asked Kempland 	to
give 	up 	his 	keys 	to 	the 	lab and 	to 	refrain from coming 	to work
in 	the meantime. 	Kempland 	testified 	that Schane 	told 	him 	he
was 	fired. 	Schane 	denies 	that 	he made 	this 	remark. 	He 	then
left 	the meeting 	and 	went 	home 	where 	he 	found 	the 	telegram
Schane 	had 	sent 	the 	previous 	day.
After 	the meeting, 	Schane 	drafted 	a 	notice of 	intention 	to
dismiss 	and 	sent 	it 	to 	Kempland's 	home 	by 	registered mail. 	The
notice 	listed 	the 	evaluation 	and letter 	of 	warning 	of
September 	6 	and 	the 	three 	unexcused 	absences 	as 	the 	bases 	of
Schane's 	decision. 	It 	also 	stated 	that Kempland 	had 	the 	right
to 	respond 	orally or 	in writing 	within 	five 	days 	of 	his 	receipt
of 	the 	notice.
Kempland 	and 	AFSCME 	Representative 	Patsy 	Healy met 	with
Schane, 	Pluth 	and Starkovsky on October 	2, 	1979 	to discuss 	the
notice of 	intent 	to dismiss. 	It was 	during 	this meeting 	that
Kempland 	claimed 	for 	the 	first 	time 	that 	his 	wife 	had 	phoned
11

the 	department 	on September 	24 	to 	report 	that 	Kempland 	was
ill. 	Schane 	investigated Kempland's 	representation 	to
ascertain whether 	or 	not 	it 	was 	true 	and 	testified 	at 	the
hearing 	that 	he 	checked 	with 	and 	questioned 	everybody 	on 	the
second 	floor 	area 	that 	could 	conceivably 	have 	taken 	the 	phone
message 	and 	ascertained 	that 	there 	had 	been 	no 	call. 	At 	the
hearing, 	Kempland 	testified 	that 	his 	wife called 	in 	to 	report
his September 	24 	illness. 	Mrs. 	Kempland also 	testified 	that
she called 	and 	spoke with Murphy. 	Murphy, 	however, 	testified
that 	she did 	not 	receive 	a 	phone 	call 	from Mrs. 	Kempland 	and
that 	she 	questioned 	her 	staff 	and 	was 	informed 	that 	no 	one 	had
received 	a call 	from Mrs. 	Kempland.8 Schane 	sent 	Kempland 	a
notice of dismissal on October 	3, 	1979.
DISCUSSION
The 	hearing 	officer 	based 	his 	legal 	conclusions 	upon 	his
application of 	Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB
Decision No. 	89. 	Since 	the 	issuance of 	the proposed 	decision
in 	the 	instant case, 	this 	Board 	has 	adopted 	the Novato 	test 	in
analyzing 	discriminatory 	discharge 	cases 	brought 	under 	HEERA
subsection 3571(a). 	California State 	University, 	Sacramento
(4/30/82) 	PERB Decision No. 	211-H.
8The 	hearing 	officer 	credited 	the 	testimony 	of
Linda Murphy 	over 	the 	testimony of Mrs. 	Kempland. 	We 	find 	this
credibility 	resolution 	to 	be 	supported 	by 	the 	record 	as 	a
whole. 	See 	footnote 	2, 	supra.
12

Subsection 	3571(a) 	expressly 	prohibits 	a 	higher 	education
employer 	from 	imposing 	reprisals 	against 	employees 	because 	of
their 	exercise of 	rights 	guaranteed 	to 	them by 	the HEERA. 	In
Novato 	Unified School District 	(4/30/82) 	PERB Decision No. 	210,
the 	Board 	held 	that 	a 	party alleging 	such 	a 	violation 	has 	the
burden 	of making 	a 	showing 	sufficient 	to 	demonstrate 	that
protected 	conduct 	was 	a 	"motivating 	factor" 	in 	the 	employer's
decision 	to 	engage 	in 	the 	conduct 	of 	which 	the 	employee
complains. 	Once 	this 	is 	established, 	the 	burden shifts 	to 	the
employer 	to 	demonstrate 	that 	it 	would 	have 	taken 	the 	same
action 	even 	in 	the 	absence of 	the 	protected 	conduct.
Kempland's 	Protected 	Activity
Kempland 	indisputably was 	a Union 	activist, 	involved 	in
Union 	activities 	since 	1973 	and 	becoming 	AFSCME 	vice 	president
in May 	1979. 	In his 	capacity as 	a Union 	representative 	during
that 	time 	period, 	he 	represented 	grievants 	in 	formal 	grievances
and 	informal resolutions, 	he counseled 	employees, 	he met with
the 	campus 	personnel office 	and 	department 	heads 	and 	he
obtained 	signatures 	on 	a representation petition. 	These 	types
of 	union representational activities 	are 	clearly 	protected 	under
HEERA. 	Kempland 	also 	filed 	grievances 	and 	administrative
appeals 	on 	his 	own 	behalf 	relating 	to 	his 	layoff 	and 	rehire,
his 	suspension, 	his 	rights 	under 	the Public Records Act, 	and
release 	time. 	Kempland 	also exercised 	protected 	rights 	when 	he
requested 	Union 	representation 	at 	the 	meeting 	of 	September 	6,
13

1979. 	This Board 	in Carlsbad 	recognized 	that 	direct 	proof 	of
motivation 	is 	rarely possible 	and 	concluded 	that 	unlawful
motive 	can 	be 	established 	and 	inferred 	from 	the 	record 	as 	a
whole. 	Carlsbad, supra, 	at p. 	11; Republic Aviation Corp. v.
NLRB 	(1945) 	324 U.S. 	793 	[16 LRRM 620]; 	Radio Officer's Onion
v. 	NLRB 	(1954) 	347 	U.S. 	17 	[33 LRRM 2417]. 	We find both the
timing 	of Kempland's 	discharge 	in 	relation 	to 	his 	participation
in protected 	activity as 	well 	as 	the 	University's documentation
of 	Kempland's 	activities 	coupled 	with 	Barker's 	failure 	to 	show
Kempland 	the 	notes 	or 	counsel Kempland 	regarding 	the 	recorded
incidents 	to 	be circumstantial 	evidence of 	unlawful motive.
The 	Charging 	Party has 	thus 	met 	its 	burden 	to present
sufficient 	evidence 	to 	raise 	the 	inference 	that Kempland's
protected 	activity, 	specifically his 	exercise 	of 	his 	Union
representational 	activities 	and 	his 	request 	for 	Union
representation 	at 	the September 	6, 	1979 meeting, 	a motivating
factor 	in 	the University's 	decision 	to discharge Kempland. 	The
burden 	now 	shifts 	to 	the 	University 	to 	demonstrate 	that 	it
would 	have 	taken 	the 	same 	action 	even 	in 	the 	absence of 	the
protected 	conduct.
Kempland 	would have 	been 	fired 	even 	in 	the 	absence 	of 	his
protected 	conduct.
While 	it 	is 	clear 	from 	the 	record 	that 	Union
representational 	activities 	pursuant 	to 	grievances 	took
Kempland 	away 	from his 	work site on occasion, 	it 	is 	equally
14

clear 	that Kempland 	spent 	a 	considerable 	amount 	of 	time 	away
from 	his 	work 	site 	without 	advance 	notice 	or 	prior
authorization on 	nonwork-related 	activities, 	some 	of 	which 	were
Union 	activities, 	and 	responded 	with 	hostility whenever 	he 	was
asked 	to 	account 	for 	his 	whereabouts 	or 	activities. 	Kempland's
supervisor, 	Barker, 	also complained of Kempland's delaying 	the
performance 	of 	his 	assigned 	tasks. 	While 	the 	record 	indicates
a 	less 	than 	favorable 	relationship between 	Barker 	and 	Kempland,
Kempland's 	"insubordination" 	appeared 	to be 	the 	source of 	the
problem.
Kempland 	was 	warned 	orally 	as 	early 	as 	1978 	during 	his
performance 	evaluation of 	the 	problem of 	his 	leaving 	the 	work
site 	without 	notice 	or 	authorization. 	The 	testimony of
Respondent's 	witnesses 	and 	record 	evidence 	indicated 	that 	the
linguistic 	department 	complained 	of 	Kempland's 	frequent
disappearances 	and 	engagement 	in 	nonwork 	activities, 	not 	about
his 	right 	to 	engage 	in 	authorized 	Union 	representational
activities. 	Schane 	sent Kempland 	a memo 	as 	early 	as May 1979
acknowledging 	Kempland's 	right 	to 	be 	involved 	in his
representational 	activities 	and 	allowing 	for 	a 	reasonable
amount of 	time 	to do 	so. 	However, Kempland was 	expected 	to
obtain 	prior 	authorization 	like 	everyone 	else 	and 	was
specifically 	admonished 	not 	to 	leave 	the 	department 	without
approval. 	Kempland's July 	2, 	1979 suspension for
insubordination 	warned 	him 	that 	he 	would 	be 	subject 	to
15

dismissal 	if 	his 	resistance 	and 	uncooperative 	behavior
continued. 	Schane 	sent 	Kempland 	three 	additional memos 	in
July, 	reiterating Kempland's 	right 	to 	take 	administrative leave
with 	pay 	to 	engage 	in his 	representational 	activities 	with
prior 	authorization, 	yet Barker 	testified 	that Kempland's
unacceptable 	behavior 	continued.
On September 	6, 	1979, 	Kempland 	received his letter 	of
warning 	and 	special 	performance 	evaluation, 	which 	again
admonished 	Kempland 	for 	his 	insubordinate 	behavior 	and 	refusal
to 	obtain prior 	approval 	for 	administrative 	leave 	in 	accordance
with 	University 	policy 	and 	procedures. 	This 	letter 	warned of
dismissal 	if 	Kempland's 	performance 	did 	not 	immediately 	improve..
Kempland's 	three-day absence on September 	21, 	24 and 	25,
1979 	was 	determined 	by 	the 	University 	to 	be 	unauthorized 	and
further 	evidence 	of 	Kempland's 	insubordination. 	The 	University
did 	not 	credit 	Kempland's 	explanations 	for 	the 	absences.
Kempland's 	change 	of 	story 	regarding 	the 	reporting 	of 	his
September 	24 	absence 	provided 	ample 	basis 	for 	the 	University's
conclusion. 	The 	University's 	stated 	reasons 	enumerated 	in 	the
notice 	of 	intention 	to 	dismiss 	included 	the September 	6, 	1979
letter 	of 	warning 	and 	performance 	evaluation 	as 	well 	as 	the
events of September 	21, 	24 and 	25, 	1979. 	The notice stated
that 	the 	three-day 	absence 	clearly 	demonstrated Kempland's
failure 	to 	correct 	the 	inadequate 	performance 	outlined 	in 	the
letter 	of 	warning 	and 	performance 	evaluation.
16

It 	is 	clear 	that Kempland 	repeatedly 	refused 	to follow
University procedures 	authorizing 	him 	to 	engage 	in his
representational 	activities,9 that 	he 	spent 	excessive 	time
away 	from his 	work, 	and 	that 	he 	refused 	to 	be 	held 	accountable
for 	his 	whereabouts or 	his 	behavior. 	Thus, we 	find 	that 	the
University 	has 	met 	its 	burden 	to 	demonstrate 	that 	it 	would 	have
fired 	Kempland 	in 	the 	absence 	of 	his 	protected 	conduct.
Indeed, 	the 	University 	repeatedly made 	it 	abundantly 	clear 	that
it 	had 	no 	intention of 	interfering with Kempland's 	Union
activities, 	provided 	that 	they 	were 	conducted 	in a manner
consistent 	with 	University policy. 	Clearly, 	Kempland 	would
have 	been 	fired 	even 	in 	the 	absence 	of 	his 	protected 	conduct
for 	insubordination.10 Accordingly, 	the 	Union's exceptions
are 	dismissed.
9AFSCME 	does 	not 	contend 	that 	Kempland 	observed
University policy 	in his 	conduct of 	Union 	activities, 	nor 	that
the 	policy 	itself 	was unreasonable.
10While 	the 	University may 	have 	demonstrated 	poor
management practices, 	our 	inquiry 	does 	not 	encompass 	the
justness 	of 	the 	discharge 	on 	that 	basis, 	where 	the 	facts 	do not
raise discriminatory motives 	on 	the 	part of management. 	In
Moreland 	Elementary 	School 	District 	(7/27/82) 	PERB 	Decision
No. 	227, we stated at p. 15:
Lack of 	'just 	cause' 	is 	nevertheless 	not
synonymous 	with 	anti-union 	animus. 	By
itself, 	it does 	not permit 	such 	a finding.
Disciplinary 	action may 	be 	without 	just
cause where 	it 	is 	based on 	any of 	a host 	of
improper 	or 	unlawful 	considerations 	which
bear 	no 	relation 	to matters 	contemplated 	by
17

ORDER
Upon 	the 	foregoing 	findings of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	the 	Public Employment
Relations 	Board ORDERS 	that 	the 	charge 	brought 	by
Donald E. 	Kempland 	against 	the Regents of 	the 	University of
California, Case No. 	LA-CE-13-H 	is DISMISSED, except as 	to 	that
portion 	thereof 	alleging 	that 	the 	University 	violated
subsection 	3571(a) 	of 	the 	HEERA by 	denying 	Union 	representation
to Donald Kempland 	on September 	6, 	1979.
The 	hearing 	officer's 	decision 	and 	order 	with 	respect 	to
said allegations, 	not having 	been excepted 	to, 	is 	final 	as 	to
the 	parties. 	Therefore, 	we 	adopt 	the order 	and 	compliance
requirements 	set 	forth 	in 	the 	hearing 	officer's 	order 	and
notice.
Chairperson 	Gluck 	and Member 	Morgenstern 	joined 	in 	this
Decision.
EERA and 	which 	this 	Board 	is 	therefore
without power 	to 	remedy.
Thus, 	the 	Union 	bears 	the 	burden of 	producing 	evidence
which 	would 	permit 	the 	conclusion 	that 	the 	discharge 	here 	was
an 	act 	of 	employer 	retaliation 	against 	Kempland 	for 	his
organizing 	efforts.
18

PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE OF CALIFORNIA
DONALD E. 	KEMPLAND,
Charging 	Party,
v.
THE 	REGENTS 	OF THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-13-H
PROPOSED 	DECISION
(8/5/81)
Appearances; 	Christopher L. 	Ashcraft, 	Attorney 	(Thistle,
Krinsky, 	Idler & Lambert) 	for Charging Party, 	Donald E.
Kempland; 	Susan M. 	Thomas, 	Attorney for 	The Regents 	of 	the
University 	of 	California.
Before Kenneth A. 	Perea, 	Hearing Officer.
PROCEDURAL 	HISTORY
On February 25, 	1980, 	Charging Party, 	Donald E. 	Kempland,
filed 	an 	unfair 	practice 	charge 	against 	the Regents 	of 	the
University of California 	(hereafter 	University). 	The 	charge
alleged 	that 	the University had 	violated 	section 	3571(a) 	of 	the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(hereafter
HEERA1 in 	that 	it 	first 	suspended 	and 	later 	discharged
Mr. 	Kempland 	because of 	his 	union position, 	activities 	and
request 	for union representation at meetings with his 	supervisors.
1Government 	Code 	section 3560 	et 	seq. 	All 	statutory
references 	are 	to 	the California Government 	Code 	unless
otherwise 	specified.
... . . .
)
)
)
)
)
)
)
)
)
)
______________ )

The University answered 	on March 	17, 	1980. 	The parties were
unable 	to 	resolve 	the matter 	at 	an 	informal 	conference 	held 	on
March 	21. 	The 	charge was 	amended on June 	17 	and 	the 	answer 	was
amended 	on July 	2 	and again on November 	24, 	1980.
The 	formal hearing was 	originally 	set 	for 	September, 	but
was 	continued 	at 	the 	request 	of 	both parties. 	The 	hearing 	took
place at San Diego, 	California, 	on December 	10-12, 	and 	15-16
1980.
FINDINGS 	OF 	FACT
A. 	Events Prior 	to July 	1, 	1979
Charging 	Party Donald 	Kempland 	was 	first 	employed 	by 	the
University at 	its San Diego campus 	in September, 	1971. 	In
April, 	1973, 	he 	began work 	in the Department of Linguistics
(hereafter 	Department) 	as a 	recording 	technician 	in 	the
language 	laboratory 	(hereafter 	lab).
In the 	following years, 	Mr. 	Kempland became an active
member 	of 	the California State Employees' 	Association
(hereafter 	CSEA) 	and of 	the American Federation of 	State,
County, 	and Municipal Employees 	(hereafter AFSCME). 	He 	served
as president of CSEA, 	Chapter 	104 from 1973 	to 1975. 	In 	1976
he 	became a 	steward 	for AFSCME, 	Local 	2068, 	and he was 	elected
vice-president of 	the same 	local 	in 	1979.
Robert Barker 	became 	Kempland's 	supervisor 	in 	the 	lab 	in
1976. 	In the following 	three years, 	considerable 	friction
developed 	between 	Kempland 	and 	Barker. 	Much 	of 	this 	friction
arose 	from Barker's 	perception 	that 	Kempland 	was 	slow 	in ... . . .
2

completing 	assignments 	and was 	spending 	too much 	time 	on
activities 	unrelated 	to 	his 	job. 	Barker 	objected 	that 	he 	often
observed 	Kempland 	working 	on 	written 	material 	unrelated 	to 	lab
business 	and 	that 	Kempland 	frequently 	gave 	little 	or 	no 	advance
notice 	before 	leaving 	the 	lab 	during 	working 	hours.
Dr. 	Sanford Schane, 	chairman of the Department, 	first
became 	involved 	with 	the 	above-stated 	situation 	in 	the 	lab 	in
April, 	1979. 	Barker 	assigned 	Kempland 	to 	adjust his 	work
schedule 	by 	half 	an 	hour 	on 	three 	dates 	to 	accommodate certain
scheduled 	video 	tape 	showings. 	When Kempland 	resisted, 	he 	was
called 	to a meeting 	with Angela Pluth, 	a management 	services
officer 	in 	the Department. 	A series 	of memos 	ensued 	between
Pluth 	and Kempland. 	On April 	12 	Schane 	sent 	a memo 	to Kempland
stating 	that 	failure 	to 	work 	the 	adjusted 	schedule 	would 	result
in 	corrective 	action. 	Kempland 	subsequently 	filed 	for
administrative 	review of 	the 	schedule 	adjustment 	under 	a
University procedure. 	Schane's 	response 	to 	the 	filing
reasserted 	the 	need 	to 	adjust 	Kempland's 	hours 	on 	the 	three
occasions 	and 	set 	forth 	the 	chairman's 	views 	on break 	time 	and
on 	the 	requirement of 	Department 	approval 	to 	leave 	the 	work
place.
On June 	1, 	1979, 	Schane 	sent 	to 	the University's Staff
Personnel Office 	a proposal 	to 	reorganize 	the 	Department's
technical 	staff. 	Because of 	shifting 	departmental 	needs,
Schane 	sought 	to 	increase 	the 	position 	of 	computer 	programmer
33

from 	half-time 	to 	full-time 	and 	to 	replace 	the 	full-time
recording 	technician with 	a 	half-time 	electronics 	technician.
Accordingly, 	Schane 	notified Kempland 	on June 	15 	that 	his
position 	of 	recording 	technician 	would 	be 	eliminated 	as 	of
June 	30 	and 	that 	he 	would 	be 	laid 	off 	with 	the 	right of
preferential 	rehire 	for 	twenty-four 	months. 	Schane 	also
offered 	Kempland 	the 	new position 	of 	electronics 	technician 	to
be created July 	1. 	On June 	20, 	Kempland 	indicated 	his
"involuntary 	acceptance" 	of 	the half-time position.
On June 	29, 	Pluth called 	Kempland 	in 	the 	lab 	and 	asked 	him
to come 	to 	the 	Department offices 	to 	sign 	the 	necessary 	forms
for 	his 	layoff 	and 	rehire. 	Kempland 	indicated 	that 	he 	did 	not
wish 	to come without 	a union 	representative. 	Schane 	also
called 	and 	explained 	that 	the 	meeting 	did 	not 	require
representation 	because 	it did not 	involve discipline, 	but
Kempland 	repeated 	his 	desire 	to 	be 	represented. 	Some 	time
later, 	Kempland 	came 	to 	the Department offices and met with
Pluth 	and 	Schane. 	Schane 	handed 	him 	the 	forms 	to 	be 	signed
along 	with 	an 	envelope 	containing 	a memo 	about his 	new working
hours. 	Kempland 	took 	these 	and 	started 	to 	leave 	the 	room, 	but
Schane 	insisted 	that 	the 	papers 	were 	not 	to 	leave 	the 	office.
Kempland 	returned 	them 	and 	left 	without 	signing.
Later 	in 	the 	day, 	Kempland 	returned with 	a draft 	of 	a
letter 	confirming 	his 	continuing 	preferential 	rehire 	rights.
He 	asked 	Schane 	to 	sign 	this, 	but 	Schane 	refused. 	When
4

Kempland 	again 	declined 	to 	accept 	the memo 	about 	his 	working
hours, 	Schane 	suspended 	him and 	told 	him to 	return 	the
following 	Thursday 	to 	be 	told 	when 	he 	could 	resume 	work.
B. 	The 	One 	Week Suspension 	of 	June 	29 	and 	Events 	of 	the 	Summer
of 	1979
On July 	2, 	Schane 	sent 	Kempland 	a 	letter 	informing 	him 	that
his 	suspension would 	be 	for 	one week 	and 	that 	the 	reason 	was
insubordination 	in delaying 	his 	appearance 	in 	the office 	and
refusing 	to 	cooperate with 	the processing 	of 	standard 	forms.
The 	letter 	also 	indicated 	that 	further 	uncooperative 	behavior
could 	result 	in 	dismissal.
During 	the 	summer 	months, 	Kempland 	worked 	as 	an 	electronics
technician on a 	four-hour 	afternoon 	shift. 	He 	and Barker
continued 	to 	argue 	in the 	lab 	about 	the 	use 	of work 	time 	for
outside activities. 	In 	late July, 	Schane sent Kempland three
memos 	reiterating 	the 	need 	to 	secure 	approval 	before 	taking 	any
"administrative 	leave" 	from 	the work place. 	Schane 	further
stated that 	he 	would 	grant 	one 	hour 	per 	week 	with 	pay 	for
grievance 	resolutions. 	In addition, 	Kempland 	filed grievances
during 	the 	summer 	concerning 	his 	layoff 	and 	suspension 	and
filed 	administrative 	appeals 	on other 	subjects.
C. 	The 	Letter 	of Warning 	and 	Performance Evaluation 	of
September 	6
On September 	6, 	Kempland 	went 	to 	the Department 	offices 	for
a meeting 	to which 	he 	had 	been 	summoned 	the previous 	day. 	He
was 	accompanied 	by Patsy Healey, 	his AFSCME union
representative. 	Schane, 	who was 	standing 	in the doorway,
5

refused 	to permit 	Healey 	to 	enter 	on 	the 	grounds 	that 	the
purpose 	of 	the 	meeting 	was 	simply 	to present 	Kempland 	with 	a
performance 	evaluation 	and 	a 	letter 	of 	warning. 	Kempland 	and
Healey 	stepped 	aside 	for 	a 	brief 	discussion 	and 	then 	tried
again 	to gain entry 	for 	Healey. 	When 	this 	second 	attempt
failed, 	Kempland went 	alone 	to meet with Schane, 	Pluth and
Barker. 	He 	received 	the evaluation, 	which 	Schane and Barker
had 	prepared, 	and 	the 	letter 	of warning 	by Schane. 	Kempland
did 	not 	comment 	orally, 	although he had 	the 	opportunity 	to 	do
so 	and 	his 	comments 	would have 	been 	considered 	by Barker 	and
Schane, 	but 	he 	did 	write on 	the 	evaluation 	that he disagreed
with 	its 	allegations 	of 	unsatisfactory performance 	and 	would
pursue 	the matter 	through University procedures.
On September 	20, 	Healey wrote 	to Schane 	to 	request 	a
meeting 	for 	purposes 	of 	"informal 	review" 	of 	the warning 	and
evaluation. 	Schane 	denied 	the 	request 	on 	the 	grounds 	that 	he
had 	met 	with 	Kempland 	on 	September 	6 	and 	that 	there was 	no
reason 	for 	further 	discussion. 	He 	testified 	at 	the 	hearing
that 	he 	denied 	the 	request 	because 	Kempland's 	written 	comment
on 	the 	evaluation 	had 	led 	him 	to 	expect 	a 	formal 	grievance 	to
be 	filed, 	with 	ample 	opportunity 	for 	discussion 	in subsequent
proceedings. 	Healey 	testified 	that 	her 	letter 	of 	September 	20
was 	intended 	to 	be 	the 	first 	step 	in 	the grievance process.
D. 	The Events 	of September 	21, 	24 	and 25
Kempland was 	absent 	from work on 	Friday, 	September 	21. 	He
. . .
66

called 	the 	Department 	at 	approximately 	12:00 	noon 	and 	reported
to 	a 	student 	worker 	in 	the 	lab that 	he 	had 	a medical
appointment. 	The 	student worker 	passed 	the message 	on 	to
language 	librarian Linda Murphy, 	who 	then 	reported 	the 	absence
to Pluth.
On Monday, 	September 	24, 	Kempland 	again did not 	report 	for
work. 	This 	was 	the 	first day of 	the 	fall quarter, 	usually a
very 	busy day 	for 	the Department. 	Kempland 	testified 	that 	his
wife 	called 	in to report 	that he was 	ill. 	Mrs. 	Kempland 	also
testified 	that 	she 	called 	and 	spoke 	with Murphy. 	However,
Murphy's 	testimony was 	that 	she 	did 	not 	receive 	such 	a 	phone
call. 	It 	is 	concluded 	that 	the 	testimony of 	Linda Murphy must
be credited 	over 	the 	testimony of Mrs. 	Kempland due 	to Mrs.
Kempland's 	interest 	in 	the outcome of 	this 	case,
Mrs. 	Kempland's 	equivocal 	testimony 	regarding 	her 	telephone
conversation with Linda Murphy of September 	24, 	and 	the 	fact
that 	although 	asked 	to 	explain his 	absence 	as 	early 	as
September 	26, 	1979 Mr. Kempland did not 	mention his 	wife's
phone 	call 	to anyone 	in the Department until 	October 	2. 	There 	is
an 	inconsistency 	in Mr. 	Kempland's 	testimony on 	this 	latter 	point
in 	that Kempland 	explained his 	failure 	to mention his wife's
phone 	call 	to anyone 	in 	the Department 	until 	October 	2 	on 	the
basis 	that 	he 	did 	not 	know 	she 	had 	called 	until 	after 	September
26. 	However, 	in 	earlier 	testimony, 	Kempland 	testified 	that 	his
7
7

wife 	had 	told 	him of 	her 	call 	to 	the 	Department on 	September
24. 	For 	the 	foregoing 	reasons, 	the 	testimony of Mrs. 	Kempland
that 	she 	called 	the 	Department 	on 	September 	24 	is 	not credited.
Kempland 	was 	absent 	a 	third 	time 	on September 	25. 	This
time 	he 	phoned 	the 	Department 	early 	in 	the morning 	and 	reported
to Murphy 	that 	he was having 	car 	trouble. 	He placed 	a second
call 	a 	few 	hours 	later 	when 	he 	discovered 	that 	the 	trouble 	was
serious. 	By mid-afternoon 	he 	had 	solved 	the 	problem, 	and 	he
called 	to 	tell Murphy he might 	come 	in. 	He 	did not 	report 	to
work 	at 	all 	that 	day. 	Murphy 	kept Pluth 	and 	Schane 	informed 	of
Kempland's 	calls 	at 	various 	times 	during 	the 	day. 	That 	same
day 	Schane 	sent 	a 	telegram 	to 	Kempland's 	home 	asking 	him 	to
report 	for 	work 	the 	following 	day.
E. 	The Notice of Dismissal Effective October 	13, 	1979
Kempland 	did 	come 	in 	on 	September 	26 	and 	was 	summoned 	to 	a
meeting 	with Schane, 	Pluth, 	and Barker. 	Prior 	to 	the meeting,
Schane 	had 	consulted with Cynthia 	Starkovsky, 	manager 	of
labor/employee 	relations 	for 	the University, 	and 	had 	been
advised 	by 	her 	that 	he could 	inform Kempland 	that 	he 	would 	be
dismissed 	and 	could 	request 	that 	Kempland 	not 	appear 	for 	work
in 	the 	interim. 	When Kempland 	arrived, 	Schane asked 	him 	to
explain 	his 	three 	days 	of 	absence. 	Kempland 	answered 	that 	on
Friday he 	had 	been 	ill 	and had 	a medical 	appointment, 	and 	that
he 	had 	called 	in 	and 	spoken 	to 	a student 	worker. 	He 	argued
that 	his 	illness 	had 	continued 	through Monday 	and 	that 	another
call 	for 	the 	same 	illness 	was 	unnecessary. 	Pluth 	disagreed 	and. . . . .
8

said 	that 	employees 	should 	call 	in 	each 	day 	they 	are 	sick.
Kempland 	then 	discussed 	his 	car 	trouble 	on Tuesday 	and 	pointed
out 	that 	he 	had 	called 	in 	three 	times. 	He mentioned 	the
difficulties 	of 	alternative 	means 	of 	transportation 	in 	response
to a 	question by 	Schane. 	Schane 	then 	told Kempland 	that 	he
considered 	the 	absences 	to 	be 	inexcusable 	and 	that 	he 	planned
to 	issue 	a 	notice of 	intention 	to dismiss. 	He asked 	Kempland
to 	give 	up 	his 	keys 	to 	the 	lab 	and 	to 	refrain 	from coming 	to
work 	in 	the 	meantime. 	Kempland 	requested 	and was 	given 	a
receipt 	for 	the 	keys. 	He 	then 	left 	the meeting 	and 	went 	home,
where he 	found 	the 	telegram Schane 	had 	sent 	the previous 	day.
After 	the meeting, 	Schane 	drafted 	a 	notice of 	intention 	to
dismiss 	and 	sent 	it 	to Kempland's home by registered mail. 	The
notice 	listed 	the 	evaluation 	and 	letter 	of 	warning 	of 	September
6 	and 	the 	three 	unexcused 	absences 	as 	the 	bases 	of 	Schane's
decision. 	It 	also 	stated 	that 	Kempland 	had 	the 	right 	to
respond 	orally or 	in writing within 	five days 	of 	his 	receipt of
the 	notice.
The 	following day, 	September 	27, 	Kempland went 	to 	the
Department offices 	to examine 	his personnel 	file. 	He was
accompanied 	by Kathy Esty, 	a 	union 	representative. 	Pluth made
the 	file 	available, 	and 	Kempland 	and 	Esty proceeded 	to go
through 	and 	initial 	the 	various 	documents 	therein. 	In 	the 	file
Kempland 	found 	a 	series 	of 	notes 	about 	his 	activities 	in 	the
lab 	with 	an 	indication 	that 	they 	had 	been 	taken 	by Barker 	over
99

a period of 	several months. 	He 	requested 	a copy of 	them, 	and
Pluth 	gave 	them 	to 	another 	employee 	to 	xerox 	and 	presented 	the
copies 	to Kempland.
Pluth 	testified 	that 	Kempland 	also 	found 	a copy 	of 	the
notice of 	intention 	to 	dismiss 	in 	the 	file 	and 	requested 	and
received 	a 	copy 	of 	it. 	Kempland 	testified 	that 	he 	did 	not 	see
a copy of 	the 	notice 	in 	the 	file 	and 	did 	not 	receive 	one 	that
day.
The 	original 	notice, 	sent 	by 	registered 	mail 	on
September 	26, 	was 	not received 	by Kempland 	until October 	1. 	On
that 	date, 	Kempland 	took 	the 	notice 	to Healey, 	who drafted 	a
letter 	to Schane 	to 	request 	a meeting. 	This 	letter 	was
hand-delivered 	by 	Kempland 	the 	same 	day.
On October 	2, 	in response 	to Healey's 	letter, 	Pluth 	tried
to 	contact 	both 	Kempland 	and Healey 	by phone. 	Healey 	returned
her 	call 	in 	the 	afternoon. 	Pluth 	informed 	Healey that 	if 	a
meeting 	was 	desired 	it 	would 	have 	to 	be held 	that 	day 	because
five 	days 	had 	elapsed 	since 	Kempland 	had 	inspected his
personnel 	file 	and 	received 	a copy 	of 	the 	notice. 	Healey
protested 	that 	this 	would 	not provide 	adequate 	time 	for
preparation 	and 	that 	the 	five 	days 	should 	have 	started 	on
October 	1, 	when 	Kempland 	received 	the mailed 	notice.
Nevertheless, 	she 	contacted 	Kempland 	and 	agreed 	to meet 	at 	the
Department 	offices. 	Kempland 	arrived 	first 	and 	found 	Schane,
Pluth, 	and 	Starkovsky 	waiting. 	Kempland 	took 	Starkovsky 	aside
10

and 	requested 	an 	extension 	of 	the 	five-day 	period, 	but 	she
declined 	to 	grant 	it. 	When Healey 	arrived, 	the meeting 	began.
It 	was 	during 	this 	meeting 	that 	Kempland 	first mentioned 	that
his 	wife 	had 	phoned 	the 	Department 	on 	September 	24.
Schane 	sent 	Kempland 	a 	notice 	of 	dismissal 	on 	October 	3,
the 	day 	following 	their 	last 	meeting. 	Kempland 	received 	the
notice 	two 	days 	later 	and protested 	in writing 	that 	his
dismissal was 	in violation 	of 	University procedure, 	in part
because 	of 	the 	hasty manner 	in which 	the meeting 	of 	October 	2
had 	been 	called. 	Kempland's 	dismissal 	became 	effective 	on
October 	13, 	1979.
ISSUES
Did 	the 	University violate 	section 	3571(a) 	by:
(a) 	Denying 	the 	Charging Party's 	request 	for 	union
representation on June 	29, 	1979, 	and by 	subsequently 	suspending him
from 	employment?
(b) 	Denying 	the Charging Party's 	request 	for 	union
representation 	at 	the meeting 	of 	September 	6, 	1979?
(c) 	Calling the meeting 	of October 	2, 	1979, 	at 	such 	a 	time
that 	Charging 	Party 	could 	not 	be 	represented 	by 	an 	attorney?
(d) 	Discharging 	the Charging Party 	from employment?
CONCLUSIONS 	OF 	LAW AND 	DISCUSSION
1. 	The 	One 	Week Suspension 	of June 	29
The 	Charging 	Party 	alleges 	that 	the 	University 	violated
section 	3571(a) 	by 	denying 	his 	request 	for 	union 	representation
. .
11

and 	by 	subsequently 	suspending 	him 	from 	employment. 	Section
3571(a) 	makes 	it 	unlawful 	for 	a higher 	education 	employer 	to:
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.
The 	University 	raises 	the 	following 	three 	procedural
defenses 	to 	this 	allegation 	in 	addition 	to 	its 	substantive
response: 	(1) 	the 	allegation 	is 	based on events which are
outside 	the 	jurisdiction 	of 	the 	Public 	Employment Relations
Board 	(hereafter 	PERB) 	because 	they occurred prior 	to 	the
effective 	date 	of HEERA; 	(2) 	PERB should 	defer 	to an
arbitrator's 	award 	concerning 	the 	subject matter 	of 	the
allegation; 	and 	(3) 	the 	charge was 	not 	filed 	within 	six months
after 	the 	alleged 	violations 	and 	is 	therefore 	barred 	by 	the
statute 	of 	limitations.
The 	record 	discloses 	that 	on June 	29, 	1979, 	the Charging
Party 	was 	called 	to 	the 	Department 	offices 	to 	sign 	forms
pertaining 	to his 	layoff 	and 	rehire 	and 	to 	be 	notified 	in
writing 	about his 	new working 	hours. 	He 	requested 	and was
denied 	union 	representation 	and 	was 	told 	on 	the 	same 	day 	that
he was 	suspended 	from employment. 	On July 	2, 	Department
Chairman Schane 	sent 	him a 	letter 	which 	confirmed 	the
suspension 	and 	stated 	the 	reasons 	for 	it.
12

The effective date of HEERA was, July 1, 	1979. 	In Petrone
v. 	Pasadena Unified Schoo	. . 	l District 	(5/12/77) 	EERB Decision No.
16,2 the 	PERB 	sustained 	the 	dismissal 	of 	an 	unfair 	practice
charge 	where 	all 	of 	the 	employer's 	alleged 	actions 	occurred
prior 	to 	the 	effective 	date 	of 	the Educational Employment
Relations Act, 	Government Code 	section 3540 	et seq. 	containing
language 	similar 	to 	section 3571(a). 	Since 	the denial of
representation 	and 	the 	suspension 	both 	occurred 	on
June 	29, 	1979, 	two days 	before HEERA became operative, 	the
University 	argues 	that 	they 	cannot 	form 	the 	basis 	of 	an 	unfair
practice 	charge. 	The Charging 	Party 	responds 	with 	the 	claim
that 	the 	suspension 	was 	not 	effective 	under 	University
regulations 	until July 	2, 	when Dr. 	Schane 	gave written notice
of 	it. 	But 	assuming 	arguendo 	that Charging 	Party's 	claim 	is
correct, 	it 	still 	cannot 	be 	said 	that 	the Charging Party was
engaged 	in 	the 	exercise 	of protected 	rights 	under HEERA when 	he
requested 	union 	representation 	on June 	29. 	Though 	such 	rights
may 	arguably 	have 	existed 	under 	other 	legislation 	enforceable
in another 	forum, 	HEERA granted 	no 	rights 	to 	employees prior 	to
July 	1, 	1979. 	The University 	therefore 	did 	not violate HEERA
by 	denying 	a 	request 	for 	representation 	on June 	29 	or 	by
2See 	also U.S. 	Postal Service 	(1972) 	200 NLRB No. 	56 	[81
LRRM 1533], 	in which 	the National Labor 	Relations Board
(hereafter 	NLRB) 	dismissed 	a complaint 	based 	on 	events
occurring 	before 	it 	acquired 	jurisdiction 	over 	the 	Postal
Service 	through 	the 	Postal 	Reorganization Act.
13

allegedly 	suspending 	the 	Charging 	Party 	because 	of 	that 	request
subsequently.
Since 	the University's 	actions 	under 	these 	facts 	cannot
form 	the 	basis 	of 	an unfair 	practice 	charge, 	no violation of
section 	3571(a) 	is 	found 	and 	it 	is 	unnecessary 	to consider 	the
University's 	two 	remaining 	defenses of 	deferral 	to 	arbitration
and 	the 	statute 	of 	limitations, 	whether 	the Charging Party
would 	have 	had 	a 	right 	to union 	representation 	under 	similar
circumstances 	after 	July 	1, 	1979 	or 	whether 	the 	suspension 	was
in 	fact 	a 	reprisal 	for 	said 	request.
2. 	Union Representation 	at 	the Meeting 	of 	September 	6
The 	Charging 	Party 	alleges 	that 	the 	University 	violated
section 	3571(a) 	by 	denying 	his 	request 	for 	union 	representation
at 	the meeting of September 	6, 	1979. 	He 	claims 	that his
request 	was 	an 	exercise 	of 	his 	rights 	under 	section 	3565, 	which
provides 	that:
Higher 	education 	employees 	shall 	have 	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 	and 	for 	the
purpose 	of 	meeting 	and 	conferring. 	Higher
education 	employees 	shall 	also 	have 	the
right 	to 	refuse 	to 	join 	employee
organizations or 	to participate 	in 	the
activities 	of 	these 	organizations 	subject 	to
the 	organizational 	security 	provision
permissible 	under 	this 	chapter.
In SEIU v. 	Marin Community College District 	(11/19/80) 	PERB
Decision No. 	145, 	the PERB found 	a 	right 	to 	representation 	by
14

an 	employee 	organization 	in 	the parallel 	language 	of 	section
3543 	of 	the 	Educational 	Employment 	Relations 	Act 	(hereafter
EERA).3 The 	Board 	cited 	with 	approval 	the 	analogous 	private
sector 	right 	enunciated 	by the U.S. 	Supreme Court 	in NLRB v. 	J.
Weingarten, 	Inc. 	(1975) 	420 U.S. 	251 	[88 LRRM 2689].
Weingarten 	upheld 	the 	right 	of 	an 	employee 	to 	union
representation 	upon 	request 	at 	an 	investigatory 	interview which
he 	reasonably believes 	might 	result 	in disciplinary 	action.
This 	right 	was 	based 	on 	the NLRB's 	interpretation of 	the
"concerted 	activities" 	clause of 	section 	7 	of 	the National
Labor Relations Act 	(hereafter NLRA)4 to 	include 	union
assistance 	in such 	a 	situation. 	The Court 	reasoned 	that 	the
union 	representative would 	safeguard 	the 	interests 	of 	other
union members 	by 	assuring 	that 	the 	employer 	does 	not 	impose
punishment 	unjustly.
In 	recent 	cases 	both 	the NLRB 	and 	the 	federal 	courts 	have
emphasized 	the 	element 	of 	the 	investigatory 	interview 	in
determining 	when 	the Weingarten 	right 	attaches. 	In Baton Rouge
Water Works 	(1979) 	246 NLRB No. 	161 	[103 LRRM 1056], 	the NLRB
held 	that 	when 	an 	employer 	has 	reached 	a 	final 	decision 	to
impose discipline, 	and calls 	a meeting merely to 	inform the
employee 	of 	that 	decision, 	there 	is 	no 	right 	to union
representation. 	The 	right 	attaches 	only when 	the 	employer 	seeks
3 Gov. 	Code 	sec. 	3540 	et 	seq.
429 	U.S.C. 	sec. 	157.
15

facts 	or 	admissions 	from the 	employee, 	either 	to help him reach
a decision 	or 	to 	support 	a decision 	already made. 	In
Anchortank, 	Inc. 	v. NLRB 	(5th Cir. 	1980) 	104 LRRM 2689, 	the
Court 	of Appeals 	approved 	the 	holding 	of Baton Rouge and
clarified 	the 	rationale 	further. 	When 	the 	employer 	simply
announces 	discipline 	and 	does 	not 	seek 	information, 	there 	is 	no
need 	for 	concerted 	activity 	to protect 	the 	employee 	from
intimidation 	or 	to 	guard 	against 	an 	unjust 	decision-making
precedent. 	Once the decision 	is final, 	it 	is of concern only
to 	the 	disciplined 	employee 	himself.
California 	courts 	have 	likewise 	had 	the 	opportunity 	to
consider 	the 	question 	of 	whether 	certain public 	employees 	are
entitled 	to 	union 	representation 	at 	meetings 	with 	their
employer. 	In Civil 	Service Association v. 	City 	and County of
San Francisco 	(1978) 	22 	Cal.3d.552 	[150 Cal.Rptr.129, 	586 	P.2d
162] , 	the Supreme Court 	held 	that 	the Meyers-Milias-Brown Act
granted 	to 	local governmental 	employees 	the 	right, 	upon
request, 	to 	participation of 	a 	union 	representative 	during 	an
investigatory 	interview 	held prior 	to 	the 	imposition 	of 	a
short-term suspension. 	Furthermore, 	in Robinson v. 	State
Personnel Board 97 Cal.App.3d 994 	[159 Cal.Rptr. 	222], 	the
Court 	of Appeal 	concluded 	that 	a 	state 	employee 	has 	a 	right 	to
union 	representation, 	at 	a meeting with 	his 	superiors 	held with
a 	significant 	purpose 	to 	investigate 	facts 	to 	support
disciplinary 	action 	and 	may 	not 	be 	disciplined 	for 	attempted
16

exercise of that right. 	In reaching 	its result, 	the Court of
Appeal 	held 	that 	the 	studied 	congruence 	of 	sections 	3503-3504
and 	3528-3529 	leads 	to 	the 	conclusion 	that 	the meaning
attributed 	by Civil 	Service Association, 	supra, 	must 	also 	be
attributed 	to 	the 	State 	Employee 	Organizations 	Act 	and 	that 	the
rulings of NLRB v. 	J. Weingarten, 	Inc. 	(1975) 	420 U.S. 	251 	[43
L.Ed.2d 	171, 	95 	S.Ct. 	959] 	and 	its progeny are persuasive 	in
interpreting 	sections 	3528 	and 	3529.
In 	the present case, 	the 	record 	shows 	that Department
Chairman 	Schane 	called 	the Charging 	Party 	to 	the Department
offices 	to present him with 	a 	letter 	of 	warning 	and 	a
performance 	evaluation, 	both 	already prepared. 	When 	the
Charging 	Party 	arrived, 	Schane 	informed him of 	the purpose 	of
the 	meeting 	and 	denied 	entry 	to 	his 	representative.
Examination 	of 	the 	above-cited 	California precedent,
together 	with Weingarten 	and 	its 	progeny, 	provides 	significant
guidance 	in 	determining 	whether 	Kempland was 	entitled 	to 	union
representation 	during 	the 	September 	6, 	1979 	meeting 	with 	his
superiors. 	Had 	the 	University held 	said meeting 	for 	the 	sole
purpose 	of presenting 	its 	letter 	of 	warning 	dated 	September 	6
it 	could well be 	argued 	that 	Kempland 	was 	not 	entitled 	to 	union
representation 	since 	under 	the 	rationale 	of Anchortank, 	Inc.,
and 	Baton 	Rouge 	when 	the 	employer 	simply 	announces 	discipline
and 	does 	not 	seek 	information 	there 	is 	no need 	for 	union
17

representation at 	the meeting 	to 	protect 	the 	employee 	from
intimidation or 	to 	guard 	against 	an unjust 	decision-making
precedent. 	However, 	under the facts of this 	case, 	in addition
to 	presenting the 	letter of warning, 	the University presented
Kempland with a performance 	evaluation 	in 	support 	thereof
specifically warning Kempland 	that, 	"If you again 	engage 	in any
of 	the 	conduct 	described 	above 	[spending major 	parts 	of 	the
workday on activities 	unrelated 	to 	his 	job, 	interfering with other
person's 	ability 	to 	work, 	insubordination 	and 	unauthorized 	use
of 	University equipment 	for 	personal 	and AFSCME business] 	and
if 	your 	performance 	does 	not 	immediately 	improve, 	you will 	be
dismissed."
Since 	the 	penalty of 	discharge 	was 	clearly 	contemplated 	in
the performance 	evaluation of September 	6, 	1979, 	the
performance 	evaluation 	contained 	space 	for 	"Employee 	Comments,"
University policy 	requires 	discussions 	with 	employees 	to 	reach
understandings on duties, 	responsibilities, 	and objectives 	as
part of performance 	evaluations, 	and Barker 	and 	Schane would
have considered 	any 	comments 	Kempland 	offered 	and 	could have
changed his 	evaluation based upon those 	comments, 	is 	concluded
under 	the 	facts 	of 	this 	case 	that 	Charging 	Party was 	entitled 	to
union 	representation.
18

This 	is not 	to hold that 	all 	routine performance 	evaluations
are 	subject 	to union representation. 	This 	holding 	is 	limited 	to
those 	situations 	where 	a 	performance 	evaluation which 	includes
the 	opportunity for 	discussions with 	the 	employee 	to 	reach under-
standing on duties, 	responsibilities, 	and objectives 	is prepared
to 	serve 	as 	a warning of contemplated disciplinary action 	should
the 	employee's 	performance not 	improve.
3. 	Representation 	by Attorney 	on 	October 	2
The 	Charging 	Party further 	alleges 	that 	the University
violated 	section 	3571(a) 	by 	the manner 	in which 	it called 	and
conducted 	the meeting of 	October 	2, 	1979. 	The 	record 	discloses
that 	Angela 	Pluth 	arranged 	the 	meeting 	by 	phone 	on 	October 	2,
in 	response 	to 	a 	letter 	written 	the 	previous 	day 	by union
representative Patsy Healey. 	The University's 	argument 	is 	that
the 	meeting 	had 	to 	take place 	on 	or 	before October 	2 	because
the 	Charging 	Party 	had 	received 	the 	notice 	of 	intention 	to
dismiss 	five 	days 	earlier. 	The Charging Party argues 	that 	he
should 	have 	had 	an opportunity 	to 	respond 	to 	the 	notice within
five 	days 	after 	he 	received 	a copy 	in 	the mail. 	Since 	he
received 	the mailed 	copy 	on 	October 	1, 	he 	claims 	he 	had until
October 	6 	to meet 	with his 	superiors. 	The Charging Party
further 	argues 	that 	because 	the meeting was 	so hastily called,
he 	was 	unable 	to 	be 	represented 	by 	his 	attorney 	and 	had 	to
19

settle 	for 	a 	union 	representative. 	He 	also 	alleges 	that 	the
meeting 	was 	conducted 	in 	violation 	of 	various 	University
policies, 	including 	a 	requirement 	that 	the 	University disclose
the 	information 	it 	used 	in 	reaching 	its 	decision 	to 	dismiss 	him.
With 	respect 	to 	the 	Charging 	Party's 	inability 	to 	be
represented 	by 	an 	attorney, 	it 	should 	first 	be 	noted 	that 	the
record 	contains 	no 	evidence 	that 	the 	Charging 	Party 	expressed 	a
desire 	for 	such 	representation 	at 	any 	time 	on October 	2. 	But
even 	if 	he had done 	so, 	he would 	not 	have been exercising 	any
right 	guaranteed 	by HEERA. 	The 	Charging 	Party's 	argument
relies 	on 	the case 	of Civil 	Service 	Association 	v. 	City 	and
County of San Francisco, 	supra, 	decided under 	the
Meyers-Milias-Brown Act, 	supra, 	(hereafter MMBA). 	The Charging
Party 	interprets 	that 	case 	as 	holding 	that 	the 	right 	of
representation guaranteed 	by MMBA 	includes 	the 	right 	to 	counsel
at 	a hearing 	to 	review discipline. 	But 	the 	primary holding 	of
the 	court 	actually was 	that 	employees 	are 	entitled 	to 	a hearing
either 	during 	or 	within 	a 	reasonable 	time 	after 	a 	short-term
suspension 	from 	employment. 	The 	court 	recognized 	that 	under
previous 	California 	cases 	employees 	were 	entitled 	to 	counsel 	at
disciplinary hearings generally. 	Then, 	in a 	separate analysis,
the 	court 	found 	that 	employees 	enjoyed 	the 	right 	to 	union
representation at 	these 	same 	hearings 	under 	the MMBA. 	The
court 	did 	not 	however 	find 	that 	the 	MMBA 	in 	any 	way 	guarantees
the 	right 	to counsel.
20

Similarly, 	HEERA guarantees 	only 	that 	employees 	may 	be
represented 	by 	employee 	organizations 	and 	does 	not 	protect 	the
right 	to 	counsel. 	Since 	the 	Charging 	Party was 	represented 	by
his 	union 	representative 	at 	the meeting 	of 	October 	2, 	the
University 	cannot 	be 	found 	to 	have 	violated 	his
representational 	rights 	under 	HEERA on 	that 	date 	and 	it 	is
therefore 	unnecessary 	to 	resolve 	the 	conflicting 	testimony 	as
to 	whether 	Kempland 	received 	a copy 	of 	the 	notice 	of 	intention
to dismiss 	on September 	27.
It 	is 	also 	found 	that 	alleged 	violations 	of University
policies 	do 	not 	fall 	within 	the purview of 	HEERA. 	The 	PERB 	is
not 	the 	proper 	forum for 	the 	enforcement 	of 	University
regulations, 	nor 	is 	it 	the proper 	forum for 	enforcement of
rights 	involving 	pre-dismissal 	hearings 	under 	Skelly 	v. 	State
Personnel Board, 	supra. 	Indeed, 	the 	record 	shows 	that 	the
parties 	have 	been 	engaged 	in 	litigation 	of 	these 	very 	issues 	in
another 	forum.5 For 	all 	of 	the 	foregoing 	reasons, 	it 	is
found 	that 	the University did 	not 	violate 	section 	3571(a) 	at
the 	meeting 	of October 	2.
4. 	Discharge
The 	Charging Party's 	final 	allegation 	is 	that 	his 	discharge
from University 	employment was 	a violation of 	section 	3571(a).
His 	claim 	is 	that 	the 	discharge was 	a 	reprisal 	imposed 	upon 	him
5The 	record 	contains 	exhibits 	which 	are 	identified 	as
pleadings 	in 	an 	action 	in 	superior 	court 	against 	the 	University
for 	writ 	of mandate.
21

for 	his 	exercise 	of protected 	rights 	over 	a period 	of 	years 	and
for 	his 	requested 	union 	representation 	on 	September 	6. 	He 	also
alleges 	that 	the 	discharge 	was 	the 	result 	of 	the denial 	of 	his
right 	to counsel 	on October 	2; 	but 	since 	it 	has 	been 	found 	that
HEERA does 	not protect this 	right, 	it 	is unnecessary to
consider 	this 	additional 	claim.
Since 	section 3571(a) 	is 	identical 	to section 3543.5(a) 	of
EERA, 	it 	is 	appropriate 	to apply here 	the 	test promulgated 	by
the 	PERB 	for 	alleged 	violations 	of 	the 	latter 	section. 	That
test 	was 	set 	forth 	in Carlsbad Unified 	School 	District
(1/30/79) 	PERB Decision No. 	89 as follows:
1. 	A single 	test 	shall be applicable 	in all
instances 	in which 	violations 	of 	section
3543.5 (a) 	are alleged;
2. 	Where 	the Charging Party 	establishes
that 	the 	employer's 	conduct 	tends 	to or 	does
result 	in 	some 	harm 	to 	employee 	rights
granted 	under 	the EERA 	a prima 	facie 	case
shall be deemed 	to 	exist;
3. 	Where the harm to employees' 	rights 	is
slight, 	and 	the 	employer 	offers
justification 	based 	on 	operational
necessity, 	the 	competing 	interest 	of 	the
employer 	and 	the 	rights 	of 	the 	employees
will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
4. 	Where 	the 	harm 	is 	inherently 	destructive
of 	employee rights, 	the 	employer's 	conduct
will 	be 	excused 	only 	on proof 	that 	it 	was
occasioned 	by circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course 	of 	action was 	available;
5. 	Irrespective of 	the 	foregoing, 	a charge
will be 	sustained where 	it 	is 	shown 	that 	the
22

employer 	would 	not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an 	unlawful
motivation, 	purpose or 	intent.
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.
The 	most 	difficult prong 	of 	this 	test 	for 	the Charging
Party 	to 	satisfy 	is 	the 	fifth, 	which 	requires 	a showing of
motive 	or 	intent. 	The NLRB has 	recently promulgated 	a
causation 	test 	for 	motivation 	cases 	in Wright 	Line 	and
Lamoureux 	(1980) 	251 NLRB No. 	150 	[105 LRRM 1169] 	as 	follows:
Thus, 	for 	the reasons 	set forth above, we
shall 	henceforth 	employ 	the 	following
causation 	test 	in 	all cases 	alleging
violations 	of Section 8(a)(3) 	or 	violations
of 	Section 	8(a)(1) 	turning on 	employer
motivation. 	First, 	we 	shall 	require 	that
the General Counsel make 	a prima 	facie
showing 	sufficient 	to 	support 	th	-- e 	inference
that protected 	conduct 	was 	a 	"motivating
factor" 	in 	the 	employer's 	decision. 	Once
this 	is 	established, 	the burden will 	shift
to 	the 	employer 	to 	demonstrate 	that 	the 	same
action 	would 	have 	taken place 	even 	in 	the
absence 	of 	the 	protected 	conduct.
It 	is 	concluded 	that 	the Wright 	Line 	test 	is 	appropriate
for 	deciding mixed motive 	cases 	under 	section 	3571(a) 	where 	the
issue 	is 	whether 	the 	employer 	would 	have 	engaged 	in 	the
complained-of 	conduct 	"but 	for" 	an 	unlawful motivation,
23
• 	•

purpose, 	or 	intent. 	To hold 	that 	a violation of section
3571(a) 	occurs 	when 	the 	employer's 	conduct was 	"in part"
motivated 	by 	an 	unlawful 	purpose 	or 	intent 	would 	place 	an
employee 	in 	a better 	position 	as 	a result of 	the 	exercise 	of 	a
right 	guaranteed 	by HEERA than 	he 	would 	have 	occupied 	had 	he
done 	nothing. 	While 	a 	borderline 	or 	marginal 	employee 	should
not 	be 	disciplined 	because of 	the 	exercise 	of 	rights 	guaranteed
by HEERA, 	that 	same 	employee 	should 	not 	be 	able, 	by engaging 	in
protected 	activity, 	to prevent 	his 	employer 	from assessing 	his
performance 	record 	and 	reaching 	a decision 	on 	the 	basis 	of 	that
record. 	Furthermore, 	the Wright 	Line 	test 	represents 	a
recognition 	of 	the 	practical 	reality 	that 	the 	employer 	is 	the
party with 	the best 	access 	to proof of 	its motivation. 	This
fact 	is 	underscored 	by 	the 	lack 	of 	discovery mechanisms 	under
HEERA afforded 	to 	charging 	parties 	from which 	they may
investigate 	the 	employer's motivation.
Applying 	this 	test 	to the discharge of 	Donald Kempland, 	it
is 	concluded 	that 	the Charging Party 	has 	not made 	a 	prima 	facie
showing 	sufficient 	to 	support 	the 	inference 	that 	his 	general
history 	of 	organizational 	activity was 	a motivating 	factor 	in
the 	University's 	decision. 	The 	record 	shows 	that 	the Charging
Party's 	superiors 	were 	concerned 	with 	the 	amount 	of 	time 	he 	was
spending 	in 	activities 	unrelated 	to his 	job 	and with 	his
failure 	to 	give 	advance 	notice 	of his 	absences 	from 	the
workplace. 	The 	record 	does 	not 	show 	that 	they were 	concerned
.: . . .'	24

about 	the 	particular 	activities 	in which 	the 	Charging 	Party was
engaged 	during 	that 	time.
However, 	there 	is 	satisfactory 	evidence 	to 	support 	the
inference 	that 	the 	Charging 	Party's 	request 	for 	union
representation 	on September 	6 	was 	a partial motivating 	factor
in 	the University's 	decision. 	When 	the 	Charging Party appeared
with 	his 	union 	representative, 	the Department 	chairman 	became
upset 	and 	stood 	in 	the office 	doorway 	to prevent 	the
representative's 	entry. 	It 	is 	also clear 	that 	the 	chairman was
upset 	by 	the 	Charging Party's 	previous 	request 	for 	union
representation on June 	29, 	and 	that 	that 	request 	was 	a part of
the 	"insubordination" 	for 	which 	the 	Charging 	Party was
suspended.6
Following 	the Wright Line 	causation 	test 	the 	burden 	now
shifts 	to 	the 	University 	to 	show 	that 	the 	discharge 	would 	have
occurred 	even 	in 	the 	absence 	of 	the Charging Party's 	request
for 	representation. 	The 	record discloses 	that 	the 	Charging
Party 	had 	a 	history 	of 	leaving 	the 	workplace 	without 	advance
notice 	and 	of 	delaying 	the 	performance 	of 	his 	assigned 	tasks.
Prior 	to 	the September 6 	request 	for 	representation, 	Dr. 	Schane
had 	sent 	him 	several memos 	concerning 	his 	performance 	and 	had
6Although 	it 	has 	been 	found 	that 	the 	events 	of 	June 	29
cannot 	form 	the 	basis of 	an unfair 	practice 	charge, 	it 	is
nevertheless 	appropriate 	to 	consider 	them 	as 	evidence 	to 	shed
light 	on 	the 	character 	of 	later 	events 	which 	can 	form 	the 	basis
of 	a charge. 	Local Lodge 1424 v. 	NLRB 	(1960) 	362 U.S. 	411 	[45
LRRM 3212] , 	Hendrix v. 	Operating Engineers, 	Local 571 	(8th Cirt.
1979) 	100 LRRM 27 04. -. .4
25
(

prepared 	a 	letter 	of warning 	indicating 	the 	possibility 	of
dismissal. 	Immediately prior 	to 	the discharge, 	the Charging Party
was 	absent without 	approved leave 	for three 	days 	at 	the beginning
of the fall 	quarter. 	Under 	these 	facts, 	it 	is 	concluded that 	the
University has 	adequately met 	its 	burden 	and 	that 	the 	Charging
Party would have 	been 	discharged 	even 	in 	the 	absence 	of his 	request
for 	representation.
It 	is 	still 	necessary, 	however, 	to examine 	the University's
conduct 	in 	this 	case 	and 	any 	resulting 	harm 	to 	employee 	rights
in 	the 	light 	of 	whether 	there 	is 	"slight harm" 	or 	"inherently
destructive 	harm" 	under 	the Carlsbad 	test. 	It 	is concluded
that 	the University's conduct 	tends 	to or 	does 	result 	in
"slight harm" 	to 	employee rights 	since, 	as 	concluded above, 	the
University 	was 	motivated 	in 	part 	by 	the Charging Party's
protected request 	for 	representation. 	However, 	the
University's 	conduct 	does 	not 	rise 	to 	the 	level of 	"inherently
destructive 	harm" 	because 	it 	is 	not 	conduct 	which 	"carries 	with
it 	unavoidable 	consequences 	which 	the 	employer 	not 	only 	foresaw
but which he must 	have 	intended." 	NLRB 	v. 	Great 	Dane 	Trailers,
Inc. 	(1967) 	388 U.S. 	26 	[65 LRRM 2465], NLRB v. Erie Resistor
Corp. 	(1963) 	373 U.S. 221 	[53 LRRM 2121].
Under 	the 	"slight harm" 	prong 	of 	the Carlsbad test, 	a
balance 	must 	be 	struck 	between 	employee 	rights 	and 	the
University's 	business 	justification. 	Under 	the 	facts 	of 	this
case, 	it 	is 	found 	that the University's 	operational 	necessity
outweighs 	the 	slight 	harm 	to 	employees' 	representational 	...
26

rights. 	The University discharged 	an 	employee who had
performed 	unsatisfactorily 	at 	various 	times, 	had 	been
repeatedly 	absent without giving 	advance 	notice, 	and had
received 	informal memos 	and 	a 	formal 	letter 	of 	warning 	which
made him aware 	that he 	needed to 	improve. 	It 	is 	therefore
concluded 	that 	the 	University's 	discharge 	of 	the Charging 	Party
did 	not 	violate 	section 	3571(a) 	and 	that 	the 	charge 	should
accordingly 	be 	dismissed.
REMEDY
Section 	3563.3 	provides 	that:
The 	board 	shall have 	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 	this 	case, 	the University violated 	section 3571(a) 	by
denying 	an 	employee 	the 	right 	to 	be 	represented 	upon 	request 	by
an 	employee 	organization 	at 	a confrontation 	with 	his 	department
chairman 	and 	others 	involving 	a 	significant 	potential 	impact 	on
his 	employment 	relationship with 	the University. 	In 	Kraft
Foods, 	Inc. 	(1980) 	105 LRRM 1233, 	the NLRB concluded that there
had 	been 	no 	showing 	of 	a nexus 	between 	an 	employee's 	request
for 	union 	representation 	and 	his 	eventual 	discipline 	and 	that
accordingly 	although 	the 	denial 	of 	representation 	was 	wrongful,
the 	evidence 	demonstrated 	that 	the 	employer's 	decision 	to
27

discipline 	was 	not 	based 	upon 	any 	information 	obtained 	at 	the
unlawful 	interview. 	The NLRB 	therefore 	limited 	the 	remedy 	in
that 	case 	to 	a 	cease 	and 	desist order. 	Having 	concluded 	in
this 	case 	that 	Kempland 	would 	have 	been 	discharged 	even 	in 	the
absence 	of 	his 	request 	for 	representation 	and 	no 	evidence
appearing 	in 	the 	record 	that 	the University's 	decision 	to
discharge Mr. 	Kempland was 	based 	upon 	any 	information obtained
at 	the 	said meeting, 	it 	is 	concluded 	that 	an 	appropriate 	remedy
in 	this 	case 	is 	to order 	the University 	to 	cease 	and 	desist
from 	denying 	union 	representation 	when 	requested 	under 	facts
similar 	to 	those 	at 	hand.
It 	is 	also 	appropriate 	that 	the University 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms of 	the order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	University
indicating 	that 	it 	will 	comply with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such 	a notice
will provide 	employees 	with 	notice 	that 	the 	University has
acted 	in 	an 	unlawful manner 	and 	is 	being 	required 	to 	cease 	and
desist 	from 	this 	activity. 	It 	effectuates 	the purposes of
HEERA that 	employees 	be 	informed 	of 	the 	resolution 	of 	the
controversy 	and 	the 	District's 	readiness 	to 	comply 	with 	the
ordered 	remedy. 	See 	Placerville Union 	School 	District
(9/18/78) 	PERB Decision No. 	69. 	In Pandol 	and Sons v. ALRB and
UFW 	(1979) 	88 Cal.App.3d 580, 	the California District Court of
Appeal 	approved 	a posting 	requirement. 	The U.S. 	Supreme Court
28

approved 	a 	similar 	posting 	requirement 	in NLRB 	v. 	Express
Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
PROPOSED 	ORDER
Based 	on 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law 	and 	the 	entire 	record 	in 	this 	case, 	it 	is 	hereby ordered
that:
I. 	The 	Regents 	of 	the University of California, 	its
representatives 	and 	agents 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
Refusing 	or 	failing 	to 	accede 	to 	the 	request of
employees 	to 	be 	represented 	by 	an 	employee 	organization 	at 	a
meeting 	held 	by 	the 	University 	to 	discuss 	a performance
evaluation 	which 	contains 	a warning 	that 	unless 	improvement 	in
performance 	is 	made 	the 	employee will 	be 	disciplined.
B. 	TAKE THE FOLLOWING AFFIRMATIVE 	ACTION WHICH 	IS
DESIGNED 	TO 	EFFECTUATE THE 	PURPOSES 	OF 	THE 	HIGHER
EDUCATION 	EMPLOYER-EMPLOYEE 	RELATIONS 	ACT:
1. 	Within 	fifteen 	(15) 	calendar 	days 	after 	this decision
becomes 	final, 	prepare 	and post 	a copy of 	the Notice 	to
Employees 	attached 	as an appendix 	hereto, 	for 	thirty 	(30)
workdays 	at 	its 	San Diego 	campus 	in conspicuous 	places
at 	the 	locations where notices 	to 	employees 	are customarily
posted. 	It must not be reduced 	in 	size, 	and reasonable 	steps
should be taken to 	see that 	it 	is not 	defaced, 	altered, 	or
covered by 	any material;
29

2. 	Within twenty 	(20) 	workdays 	from service of the 	final
decision herein, 	notify the Los Angeles 	Regional 	Director of
the Public Employment Relations 	Board, 	in writing, 	of 	the steps
the 	employer has 	taken to 	comply with 	the 	terms 	of 	this 	ORDER.
Continue 	to 	report 	in writing 	to 	the regional 	director
periodically thereafter as 	directed. 	All reports 	to 	the
regional 	director 	shall 	be 	served 	concurrently on 	the 	charging
party herein.
II. 	For 	the reasons 	discussed in the foregoing opinion, 	all
other 	allegations 	included 	in unfair 	practice 	charge 	LA-CE-13-H
are 	hereby 	DISMISSED.
Pursuant 	to 	California Administrative Code, 	title 8, 	part 	III,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become 	final
on August 	25, 	1981 	unless 	a party 	files 	a 	timely 	statement of
exceptions 	within twenty 	(20) 	calendar 	days 	following 	the 	date of
service of 	the 	decision. 	Such 	statement of exceptions 	and
supporting 	brief must 	be 	actually received by 	the 	executive
assistant 	to 	the 	Board at 	the headquarters 	office 	in 	Sacramento
before the close of business 	(5:00 p.m.) 	on August 25, 	1981 	in
order 	to be 	timely 	filed. 	(See 	California Administrative Code,
title 8, 	part 	III, 	section 32135.) 	Any statement of exceptions 	and
supporting 	brief must 	be 	served 	concurrently with 	its 	filing upon
each party 	to 	this 	proceeding. 	Proof of 	service 	shall 	be 	filed
30

with the Board itself. 	(See Administrative Code, 	title 	8,
part III, 	sections 	32300 and 32305, 	as amended.)
Dated August 	5, 	1981
Kenneth A. 	Perea
Hearing 	Officer
31

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE 	PUBLIC
EMPLOYMENT 	RELATIONS 	BOARD 	:
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case No. 	LA-CE-13-H, 	as
amended, 	Donald 	E. 	Kempland v. 	Regents of 	the University of
California, 	in which 	all parties 	had 	the 	right 	to participate,
it 	has 	been 	found 	that 	the 	Regents 	of 	the University 	of
California, 	violated Government Code 	section 3571(a).
As 	a 	result of 	this 	conduct, 	we have 	been ordered 	to post
this Notice, 	and will 	abide 	by 	the 	following. 	We will:
1. 	CEASE AND DESIST FROM 	refusing 	or 	failing 	to 	accede 	to
the 	request 	of 	employees 	to 	be 	represented 	by 	an 	employee
organization at meetings 	held by 	the University 	to 	discuss 	a
performance 	evaluation 	which 	contains 	a warning 	that 	unless
improvement 	in performance 	is made 	the 	employee will 	be
disciplined.
DATED: 	University of 	California, 	San Diego
By
(Authorized 	Representative)
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR THIRTY 	(30)
WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST NOT BE 	REDUCED 	IN 	SIZE
DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.