State of California (Department of Developmental Services, Napa State Hospital) (Matta) (PERB 0378S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
RICHARD C. 	MATTA,
Charging 	Party,
v.
STATE 	OF CALIFORNIA, 	(DEPARTMENT OF
DEVELOPMENTAL 	SERVICES, 	NAPA STATE
HOSPITAL),
Respondent.
Case No. 	SF-CE-20-S
PERB Decision No. 	378-S
February 15, 	1984
Appearances; 	John D. 	Fouts, Attorney for Richard C. 	Matta.
Before Tovar, 	Jaeger and Burt, Members.
- . ..."
- . . .. .
DECISION
JAEGER, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(Board) 	on exceptions 	filed 	by 	the 	charging
party, 	Richard C. 	Matta, 	to 	the 	attached proposed 	decision.
The Administrative Law Judge 	(ALJ) 	dismissed Matta's charge
that 	the Department of Developmental Services
, , 	Napa State
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Hospital, 	violated 	subsection 	3519(a)1 of 	the 	State
1Section 	3519 	provides 	in 	relevant 	part:
It 	shall be 	unlawful 	for 	the 	state 	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.
I
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Employer-Employee 	Relations 	Act 	by 	discriminatorily 	terminating
him 	for 	engaging 	in 	protected 	activities 	on behalf 	of 	the
California State Employees' 	Association.
The Board 	has 	reviewed 	the 	entire 	record 	in 	light 	of 	the
exceptions 	filed 	and, 	finding 	the ALJ's 	findings of 	fact2
2The 	Board 	set 	forth 	the 	appropriate 	standard 	of 	review
in Santa Clara Unified 	School District 	(9/26/79) 	PERB 	Decision
No. 104:
While 	the Board 	will 	afford 	deference 	to 	the
hearing 	officer's 	findings 	of 	fact 	which
incorporate 	credibility determinations, 	the
Board 	is 	required 	to 	consider 	the 	entire
record, 	including 	the 	totality of 	testimony
offered, 	and 	is 	free 	to draw 	its own 	and
perhaps 	contrary 	inferences 	from 	the
evidence presented. 	(p. 	12.)
This 	standard 	is 	particularly 	applicable 	in discrimination
cases 	when 	the 	existence 	of 	a violation must often 	be
"established 	by 	circumstantial 	evidence 	and 	inferred 	from 	the
record 	as 	a 	whole." 	Novato Unified School District 	(4/30/82)
PERB Decision No. 	210; 	Republic Aviation Corp. 	v. 	NLRB 	(1945)
324 U.S. 	793 	[16 LRRM 620]; 	Radio Officers Union v. 	NLRB 	(1954)
347 U.S. 17.
In 	the 	instant 	case, 	Matta 	testified 	that 	Charles 	Graham,
Director 	of Program VI, 	told him, 	"I've 	been hearing 	your 	name
around 	and 	you 	better 	cool 	it, 	you're 	getting 	too hot."
Vol. 	I, p. 	67: 	15-16. 	Matta further testified,
He 	[Graham] 	indicated 	that 	I was 	becoming 	a
hot 	issue 	and 	that 	he 	was 	wanting 	to cool my
heels 	a 	bit 	and 	not 	— 	not 	put 	so much
controversy on him 	in program 6. 	Vol. 	I,
p. 70: 	10-12.
We 	agree 	with 	the 	charging 	party 	in his 	factual 	exceptions 	that
Matta's 	unrefuted 	testimony 	concerning 	Graham's 	statements 	was
not 	so 	internally 	inconsistent 	as 	to 	find Matta 	incredible on
this 	subject. 	However, 	we conclude 	that Graham's 	statements,
seen 	in 	light of 	the 	record 	as 	a whole, 	are 	insufficient 	to
ascribe 	animus 	to the director of 	the hospital, 	Dr. 	Dennis
O'Connor. 	We 	therefore 	find 	that 	the 	incorrect 	credibility
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determination on 	the 	part 	of 	the ALJ was 	not prejudicial. 	With
respect 	to 	the 	other 	credibility determinations, 	we 	do not 	find
sufficient 	evidence 	in 	the 	record 	to 	justify overturning 	the
ALJ's 	findings.
and 	conclusions 	of 	law 	free 	from prejudicial 	error, 	we 	affirm
the ALJ's dismissal of 	the 	charge.
ORDER
Upon 	the 	findings 	of 	fact 	and 	conclusions 	of 	law 	in 	the
attached 	proposed 	decision, 	and 	the 	entire 	record 	in 	this 	case,
it 	is 	hereby ORDERED 	that 	the 	unfair 	practice 	charge 	in Case
No. 	SP-CE-20-S 	is DISMISSED.
Members 	Tovar and Burt 	joined in 	this 	Decision.
33

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
RICHARD C. 	MATTA,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	DEVELOPMENTAL 	SERVICES, 	NAPA
STATE HOSPITAL),
Respondent.
Unfair 	Practice
Case No. 	SF-CE-20-S
PROPOSED 	DECISION
(11/16/82)
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Appearances; 	John D. 	Fouts, 	attorney for Richard C. Matta; 	and
Francisco 	Gutierrez H., 	attorney for 	the 	State 	of California
(Department of Developmental Services, Napa State Hospital).
Before; 	Fred D'Orazio, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
Richard C. 	Matta 	(hereafter 	charging 	party) 	filed 	this
unfair 	practice 	charge 	against 	the State 	of California
(Department 	of 	Developmental Services, 	Napa State Hospital)
(hereafter DDS or 	respondent) 	on January 	23, 	1981. 	The charge
alleges 	the 	respondent 	violated 	section 3519(a) 	of 	the State
Employer-Employee Relations Act 	(hereafter 	SEERA or 	Act)l 	by
discharging Matta 	from his 	employment 	at Napa State Hospital
because 	he 	engaged 	in protected 	activities 	on 	behalf 	of 	the
1The 	SEERA 	is 	codified at Government Code 	section 3512
et seq. 	All 	statutory references 	are to the Government Code
unless otherwise noted.
(
e•.

California State Employees Association 	(CSEA) 	and 	employees 	at
the 	hospital.
An informal 	conference was 	set 	for 	March 	2, 	1981. 	However,
on February 	13, 	1981 	respondent 	filed 	its 	answer 	and moved 	to
dismiss 	the 	charge 	as 	untimely 	because 	approximately 10 months
had 	elapsed 	since 	the effective 	date 	of 	discharge. 	In the
interim Matta 	had 	appealed 	his 	termination 	to 	the 	State
Personnel Board 	(SPB) 	which 	rendered a 	decision 	on
September 	18, 	1980.2 	On April 	15, 	1981 	another
administrative law judge 	denied 	respondent's motion 	to dismiss;
however, 	on May 15, 	1981 	he 	certified an 	interlocutory appeal
to 	the 	Public Employment Relations Board 	(hereafter 	PERB 	or
Board) 	pursuant 	to PERB Regulation 32200. 	On December 	29, 	1981
the Board 	denied 	respondent's motion, 	holding 	that 	the 	statute
of 	limitations 	was 	tolled during 	the 	State Personnel Board
proceedings. 	(See PERB Order No. 	Ad-122-S.)
A complaint 	was 	issued on February 2, 	1982. 	A pre-hearing
2After 	the SPB decision, 	which 	sustained 	the 	discharge,
Matta 	filed 	a Petition 	for Writ 	of Mandate 	in 	the 	Superior
Court 	for 	the County of Sacramento 	(Case No. 	293782) 	pursuant
to Code 	of Civil Procedure Section 1094.5. 	That 	case was
pending 	in Superior 	Court 	as 	of 	the 	hearing 	in this 	case.
Respondent 	has 	raised 	the 	argument 	that 	the SPB decision 	is 	res
judicata 	as 	to 	the 	question of 	whether 	there was 	just 	cause 	to
terminate Matta. 	It 	is 	unnecessary to address 	this 	argument,
since 	this 	proposed 	decision 	recommends 	dismissal 	of 	the
instant 	charge 	on the merits.
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conference was 	held 	on April 1, 	1982 	in San Francisco,
California, 	and 	the 	formal 	hearing was 	held on April 	26, 	27 and
28, 	1982 at the Napa State Hospital 	in Imola, California. 	The
final 	supplemental brief was 	filed on September 	22, 	1982, 	and
the 	case was 	submitted.
FINDINGS 	OF FACT
Richard Matta's 	Protected Activities.
Richard Matta was 	a 	vocational 	instructor-industrial 	arts
at 	the Napa State Hospital 	until 	he was 	terminated 	in
February 	1980. 	He 	had 	a 	good work record 	and 	had 	never 	been
disciplined. 	During his 	employment 	at 	the 	hospital Matta
became 	an 	active 	member 	of 	CSEA and of 	the California State
Employed Teachers Association 	(CSETA), 	an affiliate of CSEA.
He 	served 	as 	treasurer 	of 	CSETA 	and 	as 	a job steward 	for 	CSEA
at 	the 	hospital.
As 	a 	job steward, Matta engaged 	in a variety of 	protected
activities on 	behalf 	of 	employees 	at 	the 	hospital, 	beginning 	in
1979 	and 	continuing 	through 	the 	end of 	his 	employment. 	He was
aggressive 	and 	not 	very 	tactful 	in 	pursuing 	grievances, 	two of
which 	are 	especially noteworthy. 	One 	involved 	opposing 	the
appointment of 	a 	lead 	teacher 	at 	a 	time 	when 	the 	school 	in
which Matta worked 	was 	going 	through 	a 	period 	of
reorganization. 	This 	was 	a 	very 	important 	issue 	during 	the
latter 	part 	of 	1979 	and 	it 	attracted 	a lot 	of 	attention 	from
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employees 	and 	administrators 	alike.3 The 	second 	grievance
involved 	a 	safety 	issue 	concerning 	the 	lack 	of 	equipment 	to
enable 	teachers 	while 	in 	the 	classroom 	to 	communicate 	with
others 	outside 	the 	classroom during 	an emergency. 	On this
latter 	subject Matta 	participated 	in 	the 	filing of 	a Cal/OSHA
complaint. 	An 	investigation was 	conducted 	and 	the 	hospital 	was
cited.
During 	the 	year 	prior 	to his 	discharge, Matta 	requested
vacation 	time 	to 	go 	to Sacramento 	as 	a CSEA representative 	to
work on 	legislation 	covering 	the 	working 	conditions 	of
employees 	at 	the 	various 	state 	hospitals. 	On a 	couple of
occasions Dr. 	Charles Graham, Matta's immediate supervisor 	and
the 	head of 	program 	six in which Matta was 	employed, 	granted
the 	time 	as 	requested 	and Matta 	participated 	in the 	legislative
process.
In addition 	to 	the 	foregoing, Matta was 	generally
recognized 	by employees 	and 	administrators 	at 	the 	hospital 	as
the 	leading 	spokesperson 	for 	teachers 	on 	employment-related
matters. 	In this 	role 	he 	participated 	in several meetings 	with
administrators 	about working 	conditions 	for 	employees 	he
represented.
3At 	the 	time of 	the 	hearing in the 	instant 	case this
grievance was on appeal 	in Sacramento at DDS headquarters. 	The
last step in the grievance procedure at the 	hospital was 	the
executive director level. 	From there grievances 	are appealable
to a final level in Sacramento.
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According 	to Matta, 	during 	the 	course of 	his 	union
activities, 	hospital 	administrators made 	several 	comments 	which
support 	an 	inference 	of 	unlawful 	motive. 	Matta 	testified 	about
these 	statements 	as 	follows.
At 	a meeting on November 	5, 	1979 	to 	discuss 	various
grievances 	and 	employment-related matters, 	a 	heated 	discussion
occurred 	around 	safety issues 	in the 	shop. 	Pat 	Parnell, 	an
educational 	consultant 	in the 	office 	of 	program 	review, 	during
the 	course 	of 	the 	discussion, 	threatened 	to 	shut 	down Matta's
shop. 	Although Parnell was 	not Matta's supervisor, 	her
authority extended 	to 	yearly 	review 	of 	Matta's 	program 	to
determine effectiveness 	and efficiency and, 	if 	appropriate, 	to
recommend 	changes. 	There 	was 	no 	evidence 	presented 	that 	any
action was 	ever 	taken to close 	down Matta's shop. 	Parnell 	did
not 	testify at 	the 	hearing.
On another 	occasion, 	Dr. 	Graham 	resisted Matta's request
for 	vacation 	time 	to 	participate 	in 	the legislative 	process 	on
behalf 	of CSEA. 	He 	told Matta 	that 	he 	didn't 	think it was
reasonable 	to 	take 	classroom 	time 	for 	such 	activity, 	and 	he
once 	asked Matta why he 	had 	to 	be 	the 	only one 	who went 	to
Sacramento for 	this 	purpose. 	Another 	reason offered 	by Graham
for 	refusing 	vacation 	time was 	short 	staffing. 	Matta 	responded
that he 	used only 	vacation time, 	just as 	other 	employees, 	for
example, 	used 	such 	time 	to 	take 	long weekends. 	Matta 	testified
as 	follows 	as 	to Graham's 	response:
s

And 	he 	indicated 	that I 	was 	becoming 	a 	hot
issue 	and 	that 	he 	was 	wanting 	to cool my
heels 	a 	bit 	and 	not—not 	put 	so much
controversy on 	him 	in program 	6.
On 	other 	occasions, 	however, Graham granted Matta 	time 	off 	to
go 	to Sacramento.
On yet 	another 	occasion Matta 	represented 	a 	probationer 	in
a meeting with Dr. 	Graham. 	Matta said 	he 	"brought 	some 	light"
to 	the 	situation. 	A 	few 	days 	later 	Graham 	told him 	that 	he 	was
"stepping on 	toes." 	Matta 	recalled Graham's 	statement 	as
follows:
I 	believe 	he 	said that 	to me, 	as 	though I 	was
stepping out of 	bounds, 	influencing 	too many
people or 	attempting 	to 	influence 	too many
people.
In 	contrast 	to 	the 	inference 	arising 	from 	his 	testimony
about Graham's 	statements, Matta 	testified 	that 	they had a good
working 	relationship. 	When 	asked 	if 	he 	felt Dr. 	Graham was 	out
to 	get him in any way, Matta 	testified:
No, 	I don't think so, 	I 	really don't. 	We
had a good, 	fairly good rapport, 	I 	believe.
Graham 	did 	not 	testify at 	the 	hearing.
Lastly, Matta 	testified that Joan Finebloom, 	assistant
chief 	of 	education, 	on two or 	three occasions 	covering a long
period of 	time, made 	statements 	to Matta 	similar 	to the "your
stepping on toes" 	comment. 	Matta conceded 	that 	these 	comments
were 	not direct 	threats, 	but 	he 	described 	them 	as 	"somewhat
subliminal" 	and 	designed 	to make 	it 	known 	that 	"they didn't
like my 	activities."
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The 	Billy Incident.
Billy was 	a very active 	emotionally disturbed 	child who 	had
been 	diagnosed 	as 	schizophrenic 	and 	having 	an 	aggressive
reaction to childhood. 	He had 	to be watched 	closely, 	and 	a
psychiatric 	technician 	sometimes 	escorted 	him from 	class 	to
class 	because of 	his 	tendency 	to 	run 	away 	from 	the 	hospital.
Billy was 	about 13 years 	old 	at 	the 	time 	of 	the 	incident,
weighed 	approximately 	94 	pounds 	and 	stood 	approximately 	4 	feet
9 	inches 	tall.
On January 11, 	1980 	Billy arrived 	at Matta's classroom 	in
an 	agitated 	condition, 	having 	received a 	zero for 	his 	grade 	in
an 	earlier 	class. 	During 	the 	class, Matta told Billy that 	he
would 	receive 	another 	zero 	if 	he 	didn't make 	an 	attempt 	to
complete 	the 	assigned work. 	A zero on 	a report 	card means 	a
student may 	be 	disciplined when 	he 	returns 	to his 	ward. 	Types
of 	discipline 	which 	could 	be 	imposed 	include 	running laps,
getting 	no snacks, 	going 	to 	bed early, 	or 	not 	being 	allowed to
watch 	television.
When Matta 	told Billy that 	he might 	give 	him a 	zero 	for 	the
day, 	Billy 	attempted to 	take his 	report 	card, 	which acts 	as 	a
pass 	to 	the 	next 	class, 	from Matta's desk and 	leave 	the 	room.
Matta 	apparently 	intercepted 	Billy 	at 	his 	desk 	and 	picked 	up
the 	report 	card. 	According 	to Matta, 	Billy became excited,
assumed 	a fighting 	stance, 	and 	began to 	flail 	away 	at 	him with
his 	arms 	in an 	attempt 	to get 	the 	report 	card. 	This 	action was
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described 	as 	a "temper 	tantrum," 	and 	it 	occurred 	in 	an 	area
where 	there 	were many operative 	power 	tools. 	Matta 	testified
that 	he 	then wrestled Billy to 	the 	floor, 	using a 	technique
called management 	assaultive 	behavior 	(MAB). 	The 	philosophy of
MAB, 	a technique which Matta had 	taught, 	is 	to contain the
aggressive 	person 	so that 	he 	doesn't hurt 	himself, 	the
instructor, 	or 	any other 	individual. 	The goal 	is 	to wrestle
the 	individual 	to the 	floor, 	face 	down, 	and hold him in that
position where 	he 	has 	no leverage 	until 	he 	calms 	down.
After 	a short 	time, 	Billy calmed down. 	Matta 	then let 	him
up, 	gave 	him his 	report 	card 	and 	sent 	him off 	to his 	next 	class
unescorted. 	Matta 	did not 	call 	for 	the 	assistance 	of
Vince Mann, 	another 	instructor who was 	in the 	room, 	because 	he
described 	the 	situation 	as 	one which 	he 	could handle easily.
Billy 	immediately 	complained 	to 	the 	hospital 	administration
that 	he 	had 	been physically abused 	by Matta. 	Within a matter
of 	hours 	after 	the 	incident Billy was 	examined 	by
Dr. 	Sidney H. 	Silver, a physician at the hospital. 	The
examination 	revealed 	that Billy 	had 	been 	injured. 	The 	inside
of 	his 	left 	upper 	arm was 	black-and-blue 	where 	he 	had 	been
gripped 	by Matta. 	In addition, 	the force of 	the grip had
caused 	skin 	abrasions 	in the 	same location. 	The 	examining
physician's 	report 	indicated 	that 	the 	contusions 	and 	abrasions
were 	caused 	by 	squeezing 	and 	twisting.
In the past, Matta, 	as well as other instructors, have
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found 	it 	necessary to wrestle Billy 	to 	the 	floor 	because of 	his
behavior. 	Billy frequently complained 	that 	he was 	physically
abused 	by 	instructors, 	and 	he 	constantly 	threatened 	instructors
with 	such 	complaints. 	Matta 	testified 	that 	he 	had 	no 	knowledge
of 	any other 	employee 	ever 	having 	been disciplined 	for 	using
MAB 	technique 	on Billy. 	There was 	no 	evidence 	presented 	that
any 	other 	staff 	member 	inflicted 	injuries 	on Billy.
The Frankie Incident.
Frankie was 	a very withdrawn 	child who 	had 	been 	a student
of Matta's 	for 	approximately 	six 	to 	eight months. 	Matta 	had
established a definite 	educational plan 	for Frankie, 	and he was
making 	progress 	in 	accomplishing 	assigned 	tasks 	within 	this
plan.
On January 14, 	1980 	Frankie was 	having difficulty
performing 	tasks 	that 	he 	had 	previously 	accomplished 	without
any problem. 	Matta 	attributed 	this 	to 	the 	influence 	of
Paula Brown, 	a volunteer, 	and Ethel Yappert, a volunteer foster
grandparent, 	who were working with Frankie during the 	class.
According 	to Matta, 	they were 	actually 	performing 	tasks 	for
Frankie 	rather 	than 	demonstrating 	and 	encouraging 	him 	to
perform. 	This was 	not acceptable to Matta, 	and, 	at some point
during 	the 	period, 	he 	explained 	to Yappert 	and Brown 	that
Frankie 	should 	be 	doing 	the work. 	At 	the 	end of 	the 	period,
Frankie was 	assigned 	to 	sweep the 	floor 	with a pushbroom, 	but
Matta observed 	that Yappert 	had 	the 	broom. 	He 	took 	the 	broom
99

from Yappert 	and 	gave 	it 	to Frankie 	to 	start 	sweeping. 	Later,
Matta 	said he 	noticed 	that Frankie was 	standing 	still 	in what
he 	described 	as a 	catatonic 	state. 	He was 	not 	pushing 	the
broom 	as 	he 	had 	been 	instructed 	and 	as 	he 	had 	done 	in the
past. 	Matta 	testified 	that 	he walked over 	to Frankie 	and
instructed 	him to sweep the 	floor. 	Frankie looked at 	the
volunteers 	and began to giggle. 	Then, 	in an 	attempt 	to get
Frankie 	to sweep, Matta 	said he 	placed 	his 	(Matta's) 	hands 	on
the 	broom and 	began 	to model 	the 	proper movement, 	but 	there was
no 	response. 	Matta 	testified 	it was 	in this context 	that 	he
kicked Frankie 	in the 	buttocks 	with 	the 	side of 	his foot 	in 	an
attempt 	to motivate 	him. 	Matta 	described 	his 	action 	as 	a 	kind
of 	push, 	rather 	than a forceful 	kick.
Brown's 	version of 	the 	incident 	is 	different 	than Matta's
version. 	She 	said 	that Matta was 	generally 	dissatisfied 	with
Frankie's performance 	from 	the 	beginning of 	the 	period. 	At the
end 	of 	the 	period Matta observed Frankie 	with 	a 	broom 	in 	his
hands 	attempting 	to 	sweep the 	floor. 	The 	dissatisfaction
continued. 	Rather 	than instruct Frankie 	on 	how 	to 	sweep the
floor, Matta walked over 	to him and, 	without placing his hands
on the 	broom to model 	the 	correct 	technique, Matta yelled 	at
him and 	kicked him 	in the 	buttocks. 	According 	to Brown, 	the
kick 	lifted Frankie off 	the 	floor; 	Frankie 	said 	"ugh" 	and
continued 	his 	sweeping 	attempts. 	Yappert 	essentially confirmed
Brown's 	version of 	the 	incident 	in 	her 	discussions 	with
10

O'Connor 	and 	the 	investigating 	officer, 	and 	in 	her 	testimony 	at
the 	SPB 	hearing. 	Yappert 	did not 	testify at 	the 	hearing 	in
this case.
The Frankie 	incident 	was 	also witnessed 	by Vince Mann, 	a
staff member 	who was 	in the 	shop 	at 	the 	time. 	Mann told
Phil Ryan, 	senior 	special 	investigator 	at the hospital, 	during
the 	investigation 	that Matta walked 	up 	to Frankie 	and 	kicked
him in the 	buttocks, 	but, 	contrary to Brown's testimony, he
said 	he 	did 	not 	think the 	kick was 	done 	in 	anger 	or 	with
malice. 	Mann 	did not 	testify at 	the 	hearing. 	He did testify
at 	the SPB hearing, 	but his 	testimony there was 	so inconsistent
and 	confusing 	that 	it can 	be 	given 	little weight 	toward
corroborating 	either Matta's 	or Brown's 	version of 	the
incident. 	Specifically, 	at 	the SPB hearing Mann 	testified at
one 	point 	that 	the 	kick was 	not a 	hard 	kick. 	At 	another 	point
he 	testified 	that 	"maybe" 	the 	kick was 	a hard 	kick. 	At yet
another 	point 	he 	testified 	that 	he 	did 	not 	see 	the 	contact.
Brown was 	a credible witness 	whose 	testimony 	about 	this
incident 	is 	consistent 	with 	her 	testimony 	at 	the 	SPB hearing,
as 	well 	as 	with her 	statements 	to Ryan 	and Dorothy Owen,
personnel director, 	during 	the 	course of 	the investigation.
Watching 	her 	testify, one 	could see 	that 	she was 	still 	angry at
Matta's 	conduct. 	In addition, 	her 	version of 	the Frankie
incident 	is 	essentially corroborated 	by 	the 	statements made 	by
Yappert 	to Ryan 	and O'Connor 	during 	the 	investigation, 	and with
11

the 	testimony Yappert 	gave 	at 	the 	SPB hearing. 	Even Mann's
statements 	to Ryan 	early 	in the 	investigation 	serve 	to
corroborate Brown's 	version of 	the 	incident 	to the 	effect 	that
Matta 	kicked Frankie. 	Further, 	I 	find 	it 	highly unlikely that
Brown 	and Yappert, 	both 	elderly women who 	performed 	volunteer
work at 	the 	hospital, 	would fabricate 	a version of 	the 	kicking
incident 	to harm Matta 	in some 	way.4 Therefore, 	it 	is 	found
that Matta, 	while dissatisfied with Frankie's 	progress 	in
sweeping 	the 	floor, 	kicked him with some degree of 	force, 	and
he 	did 	so 	without 	first 	putting 	his 	hands 	on the 	broom 	in 	a
modeling 	fashion.
Similarly, 	the 	facts 	fail 	to support Matta's description of
his 	actions 	as 	an 	acceptable 	teaching method 	to motivate
Frankie 	to sweep the 	floor. 	This 	assertion was 	convincingly
contradicted 	by Charles Ball, 	a 	20-year 	teacher 	at 	the 	hospital
who 	was 	called as 	a witness 	by 	the 	charging 	party. 	Ball
testified 	that while 	it may 	be 	appropriate for 	instructors 	to
have 	some physical 	contact 	with patients, 	the 	school of 	thought
which advocates forceful, sharp contact, such as 	kicking, 	has
4This 	conclusion 	is 	not 	altered 	by 	the 	fact 	that Brown
had 	reported 	the 	incident 	to 	hospital 	administrators 	and,
therefore, 	arguably had 	a stake 	in her 	own vindication 	in the
subsequent 	proceedings. 	Such 	possible 	self-interest 	was
outweighed 	by 	her 	truthful 	demeanor 	and 	the 	consistency of 	her
testimony with 	that 	of 	other 	witnesses 	before 	the 	SPB 	as 	well
as 	the PERB.
12

never 	been adopted 	at the Napa State Hospital. 	In fact, 	using
physical 	force 	with 	patients 	has 	become 	a 	sensitive 	area 	at
Napa. 	Ball further 	testified that, 	in his opinion, 	such
contact 	should be 	conducted 	by 	a psychologist who was 	treating
a patient, 	not 	by a teacher 	in the program. 	Ball 	has 	never
used physical 	force 	on a patient. 	At the SPB hearing, 	Pat
Parnell, 	an educational 	consultant 	at the 	hospital, 	essentially
corroborated 	Ball's 	testimony on 	this 	subject.
The 	Investigation 	and 	the Decision.
After 	receiving 	reports 	on both 	incidents, 	Phil 	Ryan
investigated 	the Billy 	and Frankie 	cases 	pursuant 	to
established 	procedures 	at 	the 	hospital.5 He 	interviewed 	the
appropriate 	individuals 	and 	submitted 	reports 	and
recommendations 	on both 	incidents 	to Dr. 	Dennis O'Connor,
5After 	the Billy and Frankie 	incidents, 	Jack Euser, 	a
teaching 	assistant 	in Matta's 	class, 	was 	approached 	by
Bill Muirhead, 	a 	staff 	representative 	to O'Connor 	with duties
as a 	patients' 	rights advocate, who 	asked him 	if Matta had
taken any materials 	or 	equipment 	out 	of 	the 	wood 	shop. 	Euser
replied 	that Matta 	had 	brought 	in materials 	and 	tools 	of 	his
own 	and 	he 	removed 	them when 	he was 	put 	on leave. 	There was 	no
indication, 	Euser 	told Muirhead, 	that Matta 	had 	taken 	anything
from 	the 	shop. 	There was 	no 	evidence 	presented 	that Muirhead,
who 	had 	no supervisory 	authority over 	either Euser 	or Matta,
was 	acting 	at 	O'Connor's 	direction when 	he 	approached Euser,
that Muirhead 	ever 	discussed 	his 	actions 	with O'Connor, 	or 	that
Muirhead was 	a part 	of 	the 	investigation. 	Although O'Connor
testified 	at length 	at 	the 	hearing, 	he was 	not 	asked about 	this
incident 	by 	either 	party. 	Muirhead was 	not 	called 	to 	testify.
Therefore, 	this 	evidence 	does 	not support 	an inference of
unlawful motive.
13

executive director 	of 	the 	hospital. 	There 	is 	no evidence 	that
Ryan 	harbored 	an 	unlawful 	motive 	or 	that 	his 	reports 	were
inaccurate 	(other 	than 	to 	the 	extent Matta's 	version of 	the
incidents 	differed on certain facts).
Ryan 	recommended 	that 	since 	Billy 	sustained 	an 	injury
further 	review 	of 	the 	case would be 	appropriate. 	With respect
to 	the Frankie 	incident, 	Ryan 	recommended 	further 	review
because 	the 	complaint 	involved 	physical 	contact. 	Ryan
suggested 	both 	cases 	be 	referred 	to Dorothy Owen 	and Dr. 	Graham
for 	further 	review 	and 	disposition. 	On January 24 	O'Connor
accepted 	these 	recommendations 	and 	instructed Owen 	and Graham
to 	review 	the 	cases 	and make 	recommendations 	to him no 	later
than February 1, 	1980. 	Ryan was 	not 	otherwise 	consulted 	by
O'Connor 	about 	the 	incidents.
Meanwhile, 	Dr. 	Graham had 	set 	up a meeting with Matta 	for
January 	25, 	1981 	to discuss 	the incidents. 	This was expected,
since 	the 	normal 	practice 	at 	the 	hospital was 	to 	begin
disciplinary 	and 	patient 	abuse 	actions 	at 	the 	program director
level 	after 	the 	initial 	investigation was 	undertaken.
Depending on 	the 	decision of 	the program director, 	the 	case
could end there, or 	it could be appealed. 	Jack Lair, 	a
supervisor, 	testified that Graham, 	in a reference to Matta's
situation, 	told him 	(Lair) 	prior 	to 	the January 25 meeting 	that
he 	(Graham) 	intended to "write him up." 	This suggests 	that
Graham, 	at 	this 	time, had no intention to discharge Matta.
14

However, 	it 	appears 	doubtful 	that Graham had 	had the
opportunity to review Ryan's 	reports 	as 	of 	this 	time. 	On
January 	24 Graham 	sent Matta 	a memo 	saying 	that 	the meeting
scheduled for 	the 	next 	day was 	cancelled and, 	as 	per
instructions of Dr. 	O'Connor, Matta was 	to be 	placed on
administrative 	leave. 	Graham 	told Matta 	that 	he was 	upset 	and
surprised 	that 	the matter 	had 	been 	taken out 	of 	his 	hands 	and
handled 	in this 	way.
Shortly after 	receiving Ryan's 	reports, 	O'Connor 	placed
Matta on 	paid 	administrative 	leave 	pending 	the 	outcome 	of 	the
investigation. 	In deciding whether 	to 	take 	such 	action
O'Connor's 	practice 	is 	to 	consider 	whether 	an 	employee 	is
dangerous 	to patients 	or 	residents. 	O'Connor 	testified 	that 	it
is more 	likely 	an 	employee 	will 	be 	placed on 	administrative
leave 	when 	the 	investigative 	reports 	reveal patient 	abuse. 	He
viewed 	the 	complaints 	against Matta 	as 	serious 	cases 	of 	patient
abuse, 	so he 	exercised his prerogative 	as 	he 	had on
approximately 12 occasions 	since 	becoming executive 	director
where 	similar 	administrative 	leaves 	had 	been directed. 	There
was 	no 	evidence 	presented 	by either 	party with 	respect 	to
details 	of 	other 	cases 	where 	employees 	were 	placed on
administrative leave.
After 	Owen, 	Graham 	and O'Connor 	reviewed 	the 	special
incident 	reports 	and 	the 	appropriate 	investigative 	reports, 	at
least 	two meetings 	significant 	were 	held. 	At 	the 	first meeting
15
.

these three administrators discussed the case in great detail,
using the written documentation as a basis for discussion.
Because he was concerned about Billy's injuries, 	O'Connor,
during the course of the meeting, called Dr. Silver, who had
examined Billy hours after the incident. 	O'Connor was
especially curious that the black-and-blue marks would appear
so fast on Billy's arm. 	During the course of the conversation,
Silver 	essentially confirmed the diagnosis written at the 	time
of the exam:
Black and blue mark and abrasions on the
underside of the left upper 	arm. 	Impression:
contusion and abrasions from squeezing and
twisting, mild to moderate. 	Treatment: 	none
necessary.
In answer 	to O'Connor's question, 	Silver 	specifically said that
the black-and-blue marks had been caused by the incident with
Matta.6
6During his testimony at the State Personnel Board
hearing, Silver 	changed his opinion and stated that, 	in
retrospect, he didn't think the black-and-blue marks were
caused by the incident with Matta. 	Nevertheless, 	at the time
of 	the 	investigation, O'Connor, as a result of his discussion
with Silver, was 	under 	the impression that the black-and-blue
marks had been caused by the Matta incident. 	In addition, 	it
is possible that the skin abrasions could have been caused
elsewhere or 	even 	self-inflicted, 	but 	there 	is 	insufficient
evidence in the record to contradict Dr. 	Silver's report, or 	to
show that Billy's abrasions were incurred elsewhere. 	Thus, at
the time he made the decision to terminate Matta, O'Connor had
before him only evidence that Billy's injuries had been
inflicted 	by Matta. 	Finally, 	it is 	noted that the evidence
regarding Billy's injuries 	came from a reliable source,
Dr. Silver, and there is no evidence that he harbored an
unlawful 	motive.
16

Subsequently, 	Owen 	interviewed Brown about 	the Frankie
incident 	and 	submitted 	a memorandum 	report 	to O'Connor, 	stating
that 	the 	kick was 	hard 	enough 	to 	raise Frankie 	off 	the 	floor.
During 	this 	interview Brown 	also 	told Owen 	that Matta 	had
"browbeaten" Frankie. 	At 	the 	hearing, 	Brown reinforced this
statement, 	testifying that Matta was 	too 	hard on Frankie and
had 	called 	him 	a "goddamn little 	bastards." 	(sic) 	O'Connor
personally 	interviewed Yappert, 	who 	confirmed 	that Matta 	had
kicked Frankie.
During 	the 	course of 	the 	second meeting, O'Connor 	reviewed
reports made 	by Noelle Melvin, 	a 	childcare practitioner 	with
18 years 	experience who 	is proficient 	in sign 	language. 	She
had 	interviewed 	three 	deaf 	patients 	who 	witnessed 	the Billy
incident 	and 	each 	patient 	confirmed 	that 	it occurred. 	More
specifically, 	Melvin's 	report 	reflects 	that 	they 	told 	her Matta
chased Billy around 	the 	room, 	caught 	him, 	picked 	him up and
threw 	him 	to 	the 	floor. 	One 	patient who 	witnessed 	the 	incident
told Melvin 	that Matta was 	angry and 	kept 	his 	foot 	on Billy
after 	throwing 	him 	to 	the 	floor.
None 	of Matta's activities 	on 	behalf 	of 	CSEA were 	ever
discussed 	or 	considered 	during 	the 	two meetings 	discussed 	above
or 	at 	any 	time 	during 	the 	course of 	the 	disciplinary procedure,
according 	to O'Connor 	and Owen. 	O'Connor 	testified 	that 	prior
to 	receiving Ryan's 	reports 	he 	had 	never 	heard 	the 	name of
Richard Matta, 	and 	he 	had 	no 	knowledge of 	the 	grievances 	filed
17

by Matta or of the Cal/OSHA complaint. 	He said there were
approximately 2400 employees at Napa State Hospital, and he was
unable to keep up with the names of all of them. 	Owen also
credibly testified that 	she 	knew of Matta's CSEA affiliation,
but disclaimed 	knowledge of 	his specific activities.
On February 19, 	1980, O'Connor issued a letter of
termination. 	The letter 	accused Matta of 	the following, 	all
violations of 	subsections of Government Code section 19572.
(b) 	Incompetency
(c) 	Inefficiency
(o) 	Willful 	disobedience
(t) 	Other 	failure 	of 	good 	behavior 	either
during 	or 	outside 	of 	duty 	hours 	which
is 	of 	such 	a nature 	that 	it 	causes
discredit 	to 	his 	agency 	or 	his
employment.
As 	a 	basis 	for 	the 	discharge 	the 	letter 	cited 	the 	Billy 	and
Frankie 	incidents 	and 	concluded 	that 	these 	actions 	violated
Rule 41 	of 	the 	rules 	and 	regulations, 	which 	state:
No 	employee shall 	strike, 	abuse, 	or 	inflict
cruelty 	by 	physical 	means 	upon 	any 	patient.
The 	use 	of 	physical 	strength 	to 	secure 	the
cooperation of 	patients 	is 	to 	be 	avoided 	and
is 	to 	be 	undertaken only 	to 	the 	extent
necessary 	to 	ensure 	the 	safety 	and 	comfort 	of
the 	patients. 	Sufficient 	assistance 	should
be 	had 	from 	other 	employees 	so 	that 	injury
to 	patients 	and 	employees 	can 	be 	avoided.
No 	employee 	shall 	abuse 	or 	inflict 	cruelty
by 	psychological means 	upon 	any 	patient. 	No
employees 	shall 	use 	language 	or 	take 	actions
with 	(sic) 	are 	detrimental 	to 	the 	patient's
welfare.
Any 	employee 	violating 	this 	rule 	shall 	be
subject 	to 	disciplinary 	action.
18

O'Connor 	concluded in the letter 	that Matta's 	conduct was
"without just cause or 	excuse" 	and it was "inappropriate and
harmful 	to the 	patient's 	treatment program."
Shortly thereafter, 	a so-called Skelly hearing was held and
Matta was given the opportunity to review the evidence against
him and present additional facts 	and 	arguments.7 However,
after 	hearing Matta's presentation, 	O'Connor 	chose not to
modify his 	decision.
Other 	Incidents 	of Patient Abuse.
Ryan investigates all patient abuse complaints. 	Since he
began his job in 1978 he has investigated approximately 450
cases of physical and verbal 	abuse.8 On seven other
occasions, 	employees were discharged for 	physically or 	verbally
abusing 	patients.9 The complaints were unfounded in the
7gkelly v. 	State Personnel Board, et al. 	(1975)
15 Cal.3d 181 	[124 Cal.Rptr. 14] provides tor notice of
proposed disciplinary action and an opportunity for 	the
employee to present evidence in his 	behalf.
8There was no breakdown of how many complaints were
physical, 	as opposed to verbal.
9The 	cases of patient abuse where employees were
discharged included the following: 	grabbing a patient by the
hair, dunking his head 	in a toilet and flushing i t ; 	kicking two
patients and choking two patients; 	fracturing a patient's arm
while twisting it for 	the 	purpose of 	restraining him;
dispensing medication without a physician's order; 	forcing
medication down a patient while holding her on a bed; 	taking a
patient home, giving him alcohol and allowing him to drive the
employee's car; 	and having a co-worker 	ask a deaf patient to go
home with him and have sex.
19

majority of the approximately 442 other 	cases. 	In the
remaining cases, employees received various forms of discipline
ranging from a letter of 	reprimand to a six-month suspension
and/or 5 percent reduction in pay, depending on the seriousness
of 	the 	infraction.
The charging party presented evidence of other patient
abuse cases in an attempt to show disparate treatment. 	One
complaint involved an incident in the boys' 	gymnasium in
1978.10 	After 	a football game between staff and patients,
staff members placed a laundry bag over the head of one
patient, and picked up another patient and held him upside down
over 	a toilet bowl while the toilet was flushed. 	After special
incident 	reports were filed, these incidents were investigated
by Ryan, who concluded that the activity was "horseplay"
involving no punitive intent. 	Ryan did recommend further
review by the personnel office and program director to
determine if 	these acts were detrimental to the patients.
Staff members who participated were counselled as a result of
the 	investigation.
In 1978 O'Connor was the new executive director at the
hospital. 	He had only a vague recollection of the gymnasium
incidents, 	but distinguished them from the Billy and Frankie
10This 	incident 	is different 	from 	the 	toilet 	incident
referred to in Footnote 	9.
20

cases. 	He 	viewed the gymnasium incident 	as 	horseplay, 	as 	did
Ryan, while he 	felt 	the 	Billy and Frankie 	incidents 	involved
anger 	and a 	punitive 	intent on Matta's 	part. 	Additionally, 	he
considered 	Billy's 	injuries 	as 	a distinguishing factor.
The 	charging 	party 	also 	introduced 	evidence 	to 	show 	that
Cliff 	Atcosta, 	a psychiatric technician, 	physically abused
patients 	and was 	not discharged. 	There were, 	in fact, 	several
complaints 	lodged against Atcosta. 	However, most of 	these were
determined 	by 	the 	investigator 	to 	be lacking 	in foundation or
fabricated 	by patients. 	Only one 	complaint 	was 	pursued 	beyond
the investigation stage 	and 	no 	patient 	abuse was found. 	It was
finally determined 	that Atcosta 	had 	simply 	exercised 	poor
judgment. 	Additionally, 	Atcosta 	had 	a serious medical problem
which 	apparently 	affected 	his 	relationship with 	patients.
Dr. 	Graham 	eventually recommended 	that 	he 	be 	given a 	complete
physical 	and mental 	examination 	and 	be 	transferred 	to 	light
duty. 	Although the 	record 	is 	unclear 	on this 	point, 	it appears
that Atcosta 	refused 	to 	take 	the 	examination 	and 	either
resigned 	or 	was 	dismissed.
DISCUSSION
The 	issue 	presented 	here 	is 	whether Matta's 	discharge was
based on his 	protected 	activities. 	The 	charging party does 	not
contend 	that 	the 	accusations 	against 	him 	as 	set 	forth 	in 	his
letter 	of 	termination are 	entirely pretextual. 	He does 	contend
that 	his 	protected 	activities 	played a 	part 	in the 	decision 	to
21

terminate, 	and 	but for 	his 	protected activities 	he would 	not
have 	been terminated. 	Thus, 	charging party views 	this 	as 	a
mixed motive 	case.
Respondent, 	on the other 	hand, 	argues 	that Matta's
protected 	activities 	played 	no 	part 	in 	the 	termination
decision. 	Rather, 	he was 	discharged solely because he
physically abused 	two 	patients 	in 	violation of Rule 	41 	of 	the
hospital's 	regulations.
Section 3519(a) 	expressly prohibits 	the 	state 	employer 	from
imposing 	reprisals 	against 	employees 	because 	of 	their 	exercise
of 	rights 	guaranteed 	to 	them 	by 	the Act. 	A party alleging a
violation of 	this 	section 	has 	the 	burden of making 	a showing
sufficient 	to 	support 	the 	inference 	that 	the 	protected 	conduct
was 	a motivating factor 	in 	the 	employer's 	decision 	to 	engage 	in
the 	action about 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 	activity. 	A shift 	in the 	burden of 	producing
evidence 	operates 	consistently with 	the 	charging 	party's
obligation to 	establish 	an 	unfair 	practice 	by a 	preponderance
of 	the 	evidence. 	Novato Unified School District 	(4/30/82) 	PERB
Decision No. 	210; 	California State University, Sacramento
(4/30/1982) 	PERB 	Decision No. 	211-H.11 The 	same principles
11See also Wright Line, A Division of Wright Line Inc.
22

(1980) 	251 NLRB No. 150, 	[105 LRRM 1169], aff'd, on other
grounds NLRB v. Wright Line, A Division of Wright Line Inc.
(1st Cir. 1981) 	662 F.2d 899, 	[108 LRRM 2513]; Martori Bros.
Distributors V. ALRB (1981) 	29 Cal.3d 721 [175 Cal.Rpt. 626] •
are applicable in discrimination cases under SEERA. 	State of
California, Franchise Tax Board 	(7/29/82) 	PERB Decision
No. 229-S.
Matta's 	protected 	activity.
Matta was a job steward for CSEA. 	In this capacity, he
filed several 	grievances 	and served 	as 	chief-spokesperson for
employees on employment related matters. 	He was also
instrumental 	in filing 	health 	and safety related 	charges 	with
CAL-OSHA, and he participated in the legislative process on
behalf of CSEA. 	These activities, 	as a whole, 	clearly 	fall
within the coverage of 	section 3515, which provides 	that,
. 	. 	. 	state 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.
Moreover, Matta was outspoken and not always as tactful as may
have been desired 	under the circumstances. 	This characteristic
made him a highly visible advocate to employees and to some
hospital 	administrators. 	In sum, 	it 	is 	concluded that Matta's
conduct 	constituted a course of 	protected representational
activities 	within the meaning of 	the Act.
23

The inference of 	unlawful motive.
Direct proof 	of motivation is 	rarely possible, 	since
motivation is a state of mind which may be known only to the
actor. 	Thus, unlawful motive can be established by
circumstantial evidence and inferred from the record as a
whole. 	Carlsbad Unified School District 	(1/30/79) 	PERB
Decision No. 	89 at p. 11; Novato Unified School District,
supra, at p. 6. 	To justify such an inference, however, the
charging party must prove that the employer had actual or
imputed knowledge of 	the employee's activity. 	In this case,
the record evidence shows that the requisite knowledge existed
in Dr. Graham and Dr. O'Connor.
Although O'Connor disclaimed knowledge of Matta's protected
activities, 	and of who Matta was, this disclaimer is rejected.
I 	find 	it unlikely that O'Connor, 	the 	chief 	administrative
officer 	and the person who participated in the last step of 	the
grievance procedure at the hospital, would have been unaware of
Matta' s activities as a union steward. 	Lack of knowledge is
even more unlikely when one considers that Matta was an active
steward with high visibility and a key participant in at least
one popularly supported grievance 	(lead teacher) 	that passed
through O'Connor's office 	before 	being appealed to the next
level in Sacramento. 	In addition, Matta was openly involved in
several 	crucial employment-related matters 	at the 	hospital,
including the communications grievance and the health and safety
24

issues which ultimately resulted in the hospital being cited by
Cal/OSHA. 	Therefore, knowledge of Matta's protected activity
is 	imputed 	to O'Connor.
It 	is similarly concluded 	that Graham, 	as Matta's
supervisor, 	had actual knowledge of Matta's protected conduct.
He participated in several grievance and employment-related
meetings where Matta was the chief spokesperson for 	employees,
and he was clearly aware of Matta's activities on behalf of
CSEA in the legislative process. 	Thus, the requisite knowledge
of protected activities has 	been established for 	two of 	the
three people who played key roles in the discharge.
The charging party has, however, fallen short of
establishing 	a record from which an unlawful motive can be
inferred, although some evidence of 	such motive exists. 	It
might be argued, for example, that an unlawful motive should be
attributed to Dr. Graham as a result of his statements to the
effect that Matta was getting too hot to handle and was trying
to influence too many people. 	Also, Graham's resistance to
Matta's 	request for leave to participate in the CSEA
legislative program might be interpreted to show at least some
displeasure with this activity. 	And since Graham participated
directly in the process 	to terminate Matta and contributed
directly to the decision, 	any animus on his part might be
attributed 	to O'Connor—who 	testified 	unbelievably to his
knowledge of Matta's union activities—or found to have
25

otherwise 	unlawfully tainted the 	ultimate decision. 	Moreover,
since Graham did not 	testify at the hearing, Matta's testimony
about his 	allegedly unlawful 	statements was therefore
uncontradicted, thus suggesting that an unlawful motive has
been 	established.12
. 	. 	. when a party testifies 	to favorable
facts, 	and any contradictory evidence is
within the 	ability of 	the opposing party to
produce, 	a failure to bring forth such
evidence will 	require acceptance of the
uncontradicted testimony 	unless 	there is
some rational 	basis 	for 	disbelieving i t .
Martori Brothers Distributors v. ALRB,
supra, 29 Cal.3d 721, 728.
However, in the present case, 	there is a rational basis for
disbelieving Matta's testimony about Graham's allegedly
unlawful 	statements, 	thereby negating the inference of 	unlawful
motive.
Jack Lair, 	a witness for 	charging party, testified Graham
told him that he 	(Graham) 	intended to issue a written reprimand
to Matta for 	the Billy and Frankie incidents. 	Graham's
intention to give Matta such a light penalty strongly suggests
that he had no ax to grind with Matta and, more importantly, he
12Neither 	Finebloom nor Parnell 	testified at the
hearing. 	Although testimony by Matta about their 	allegedly
anti-union comments was also uncontradicted and might therefore
support an inference of 	unlawful motive, 	it will not be
considered here since there is no evidence that either of 	these
two individuals played any role in the decision to terminate
Matta. 	See Moreland Elementary School District 	(7/27/82) 	PERB
Decision No. 227.
26

had no intention of 	firing him. 	Moreover, Matta testified that
he was always on good terms with Graham and would have
preferred that Graham make the decision on any possible
disciplinary action. 	In fact, 	charging party strenuously
argues that taking the disciplinary decision away from Graham
evidences an unlawful motive. 	Matta also testified that he
didn't think Graham was out to get him. 	Even in his brief,
charging party states 	that Graham "throughout the process
remained friendly." 	In the face of 	this 	evidence, 	it is
entirely inconsistent for 	the 	charging party to then point 	to
Graham's earlier statements and argue that he harbored an
unlawful motive and acted on that motive during the meetings
with Owen and O'Connor. 	To the contrary, it appears that
Graham harbored no unlawful 	intent 	and, 	if 	anything, 	it was 	to
Matta's 	advantage to have Graham participate in the meetings
where his case was deliberated.
In sum, the charging party has produced evidence which,
under some circumstances, might support an inference of
unlawful motive from Graham's statements. 	However, facts and
incidents must be considered compositely and reasonably
justified inferences 	drawn 	therefrom. 	Santa Clara Unified
School District 	(9/26/82) 	PERB Decision No. 104, pp. 14-15. 	In
this 	case, the totality of the evidence on this point is so
inherently inconsistent 	and contradictory that Matta's
testimony about Graham's statements simply cannot be believed.
27

And even if 	it were accepted that Graham made these statements,
it 	is more likely that 	they were 	uttered 	in passing during the
daily give-and-take in a labor 	relations setting. 	Under the
circumstances, 	it 	is 	simply not 	reasonable to interpret them as
carrying an unlawful motive.
Contrary to the 	charging party's assertion, 	I 	find the
nature of 	the investigation likewise does not give rise to the
inference of 	an unlawful motive. 	O'Connor, through Ryan's
reports, 	received Matta's initial 	version of 	the incidents.
Several witnesses 	to each event were interviewed and O'Connor
personally discussed Billy's 	injuries 	with Dr. 	Silver.
O'Connor then met with Graham and Owen and discussed the
incidents in great detail. 	Lastly, Matta was given an
opportunity to present 	his 	arguments 	to O'Connor 	after 	the
evidence was in and before the termination decision was
actually finalized. 	While the 	investigation may have been
conducted differently than others in the past, 	this 	does 	not
overshadow 	the fact that 	it was 	otherwise done with dispatch
and was thorough. 	Therefore, no unlawful motive can be
inferred from 	the manner 	in which the 	investigation was
conducted.
Charging party also contends 	that Matta's discipline was
more severe than that given to other 	employees for much harsher
treatment of patients. 	The record does not support this
contention. 	The evidence shows that other employees who abused
28

patients had been discharged in the past. 	Of the approximately
450 complaints of patient abuse investigated since 1978, the
majority were found to be without substance and others received
discipline in various forms ranging from letters of 	reprimand
to lengthy suspensions. 	Seven other employees since 1978 had
been discharged for 	abusing patients.
While it might be argued that the Billy and Frankie
incidents were not 	as serious as certain infractions for which
other employees were terminated, 	it can be argued with equal
force that they were at least as serious as other 	incidents of
patient abuse which resulted in discharge. 	For example, the
Billy and Frankie incidents might not be considered as serious
as breaking a patient's arm, dunking a patient's head in a
toilet and flushing i t , or 	kicking and choking patients with
criminal intent. 	However, one might argue that Matta's conduct
is at least as serious as, for 	example, dispensing medication
without a physician's order, forcing medication down a patient
while holding him on a bed, giving a patient alcohol and
allowing him to drive an employee's car, or having a co-worker
ask a deaf patient to go home with him and have sex. 	All of
the latter 	cases 	resulted in discharge.
It is unnecessary to determine which of 	these offenses were
more serious or less serious than the conduct which formed the
basis for Matta's discharge. 	Suffice 	it 	to say that Matta's
conduct was 	at least within the range of dischargeable offenses
29

at the hospital. 	Even if one disagrees that Matta's conduct
was 	a dischargeable offense, this alone does not establish
anti-union animus. 	Moreland Elementary School District, 	supra,
p. 15.
Inherent 	in charging party's disparate treatment 	argument
is the 	contention that Matta's conduct was more like past
incidents where lesser penalties, such as suspension, were
imposed. 	This argument, too, must fail. 	The Billy and Frankie
incidents, 	as O'Connor 	credibly testified, are easily
distinguished from the 1978 gymnasium incidents which, while
obviously inappropriate, can reasonably be characterized as
horseplay, 	as opposed to physical abuse of patients.
Atcosta's alleged physical abuse of patients can be
similarly distinguished. 	Of the several complaints filed
against Atcosta and introduced into evidence, all were found by
the investigators to be either lacking in foundation or
completely fabricated by patients. 	Thus, except for one
complaint, the investigators recommended no further action and
the cases were closed. 	As to the remaining complaint, the case
was closed after investigation and Atcosta's 	conduct written
off 	as poor judgment. 	Additionally, at about the time the
complaints were filed against Atcosta, he was suffering from a
serious medical problem and his overall condition was such that
Dr. Graham recommended he be given a complete physical and
mental examination with the objective of placing him on light
30

duty not involving nursing care in the program. 	As a result,
Atcosta either resigned or was dismissed. 	In comparison, the
complaints against Matta were found to have merit and the
investigator recommended further 	action. 	Also, Matta had no
mitigating circumstances based on his health.
Finally, regarding disparate punishment claims, Ryan
testified that in several hundred 	cases 	of 	patient abuse 	since
1978 employees received a form of discipline less than
discharge. 	A comparison of these cases with Matta's conduct
may have 	supported charging party's disparate treatment
argument. 	However, 	since evidence about these cases was not
presented, such an undertaking is impossible, 	as 	it would
necessarily 	involve 	speculation 	and 	conjecture.13
Even assuming that Matta should have received a lighter
penalty, this alone does not violate the Act in the absence of
other evidence from which an unlawful motive can be inferred.
Disciplinary action may be without just cause where it is based
on improper or 	unlawful considerations which bear no relation
to matters contemplated by the Act and which the Board is
13It 	might be argued that DDS, not charging party, had
the 	burden of production regarding details of 	these lesser
penalty situations. 	However, since DDS produced evidence of
other discharge cases, of which Matta's was within the class,
thereby 	establishing 	the 	business 	justification 	defense,
further 	rebuttal 	that a lesser 	penalty was appropriate was
properly the 	burden of 	the charging party.
31

therefore without power to remedy. 	Moreland Elementary School
District, supra, at p. 	15.
Charging party next argues unequal enforcement of work
rules in that respondent did not use progressive discipline in
Matta's case. 	According to charging party, application of 	this
concept along with Matta's good work record and clean
disciplinary slate would have resulted in a lesser form of
punishment. 	In support of this 	argument, charging party cites
Ryan's testimony for 	the proposition that progressive
discipline was routinely used at the hospital. 	The charging
party has misread the record. 	That part of Ryan's testimony
referred to by charging party does not indicate that
progressive discipline was 	the standard practice at the
hospital.14 Ryan simply said that, when considering the
forms of discipline given out in the past, the number of
penalties got progressively less as one approached the more
severe penalties. 	In other words, there were fewer discharges
than there were letters of reprimand. 	Ryan's testimony shows
only the expected fact that less serious infractions met with
lighter 	penalties, while more serious infractions met with
stiffer penalties. 	The record simply does not show that
progressive discipline was the rule at the hospital. 	Owen's
14Transcript, Vol. II, p. 87.
32

unrebutted testimony establishes the opposite. 	She said that
progressive discipline is not 	a practice at the hospital and in
fact each case is judged on its own circumstances. 	Thus, there
is no support in the record for 	charging party's assertion that
the hospital demonstrated an unequal enforcement of 	any
progressive 	discipline rule with respect to Matta's discharge.
Based on the foregoing, 	it is 	concluded that the record
contains 	insufficient evidence from which an unlawful motive
can be inferred and then attributed to those who played a role
in the decision to terminate Matta. 	The charging party has not
met its 	burden of making a sufficient showing to support the
inference that protected activity was 	a motivating factor 	in
respondent's decision to take adverse personnel action. 	The
requisite nexus between the protected conduct and the adverse
action has therefore not been established. 	Novato Unified
School District, 	supra, 	p. 6; State of California, Department
of Developmental Services 	(7/28/82) 	PERB Decision No. 	228-S, at
p. 22. 	Thus, the charge must be dismissed.
Respondent has met its 	burden of producing evidence.
Assuming charging party had made a prima facie showing
sufficient to support the inference that the exercise of 	an
employee rights guaranteed by the Act was a motivating factor,
thus creating a "mixed motive," 	the 	burden would shift to the
employer 	to prove that its actions "would have occurred in any
event." Martori Bros. Distributors v. ALRB, supra, 29 Cal.3d
33

at 	730; 	See also Novato Unified School District, supra, 	at
p. 	14. 	If 	the employer 	is able to show that 	it would have
taken the action in the absence of 	protected activity the
charge must f a i l . 	Once employee misconduct 	is demonstrated,
the 	employer's 	action,
. 	. 	. 	should not be deemed an unfair labor
practice 	unless 	the Board determines that
the employee would have been retained "but
for" 	his 	union membership or 	his performance
of 	other 	protected activities. 	Martori
Bros. 	Distributors v. ALRB, supra,
29 Cal. 3d at 730.
In this case respondent 	has 	presented just such a defense.
There was no evidence presented by charging party that
Matta's protected activity was 	discussed as part of 	the
decision to discharge him. 	See, e.g., Coast Community College
District 	(10/15/82) 	PERB Decision No. 251, at pp. 23-24. 	In
fact, 	the 	credible testimony of Owen and O'Connor 	establishes
that Matta's protected activity was 	not 	a factor 	in the
decision to terminate. 	And the totality of 	the evidence
supports 	this testimony. 	The charges from the outset of 	the
investigation were viewed as serious by O'Connor. 	A complete
investigation was quickly undertaken and Matta was given an
opportunity to 	respond 	in full 	after 	all 	the facts 	were
gathered. 	After weighing all 	the evidence, 	including input
from Owen and Graham, 	O'Connor decided that there were
sufficient grounds 	to discharge Matta based on the violation of
Rule 41.
34

Rule 41 provides that no employee shall "strike, abuse, or
inflict cruelty by physical means" on a patient. 	The kicking
of Frankie and the twisting of Billy's arm clearly violate this
part of 	the rule, as these acts constitute physical abuse of
patients. 	The rule also states that physical strength to
secure the cooperation of patients 	is to be avoided and used
"only to the extent necessary to ensure the safety and comfort
of the patients." 	As more fully explained below, an analysis
of 	the relevant facts shows that Matta similarly violated this
part of 	the rule.
In reaching the decision to terminate Matta, O'Connor
relied on evidence that indicated Matta, while in an angry
state wrestled Billy to the 	floor, 	inflicting abrasions 	and
black-and-blue marks on his 	body.15 Granted, since Billy was
an active and aggressive child, Matta may have had ample
justification for wrestling him to the floor. 	However, even
assuming Matta was initially acting to ensure Billy's safety
and comfort, and assuming further 	that Billy struggled in the
15The fact that Dr. 	Silver later 	formed the opinion that
the black-and-blue marks may not have been caused by Matta is
immaterial. 	The crucial point here is that, as of the time
O'Connor decided to terminate Matta, he was justified in
relying on Silver's medical opinion that the marks had been
caused by Matta. 	Additionally, while the abrasions may have
been incurred elsewhere, the evidence produced by the
investigation pointed to the fact that Matta had inflicted them
on Billy during the incident, and it was this evidence that was
presented to O'Connor for his consideration.
35

process, the evidence suggests that the amount of force used
was excessive. 	Since Billy was only 4'9" tall and weighed only
94 pounds, it seems that Matta, an expert in MAB technique,
should have 	been able to control him without excessive force.
This did not occur. 	Rather, Matta gripped Billy's 	arm in such
a way that the skin was broken, thus strongly suggesting that
the force was far in excess of what was needed 	under the
circumstances. 	The fact that Matta did not call upon
Vince Mann for 	assistance, either 	at that time or 	at the end of
the class as 	a possible escort, also suggests 	that the incident
with Billy was routine, presented no real danger, and should
have been handled by Matta with ease. 	And in the end Matta
released Billy from the class without an escort, thus
indicating that he could have done so at the outset, avoided
the entire incident, 	and taken up the report card incident at a
later date. 	Moreover, although Billy was an aggressive child
and frequently needed to be restrained, there was no evidence
that 	any other 	instructor 	ever 	inflicted physical 	injury in
doing so. 	All of this supports O'Connor's conclusion that
Matta was 	acting in anger, as opposed to merely attempting to
subdue Billy or protect himself, Billy or others. 	The evidence
thus provides 	ample support for O'Connor's conclusion that
Matta violated Rule 41.
With respect to the second incident, witnesses stated that
Matta kicked Frankie with a considerable amount of force. 	Even
36

the charging 	party concedes in its 	brief 	that Matta may have
gone too far "and used a foot where a push with the hand would
have avoided all appearances of 	impropriety." 	Once again, the
fact that Matta used a foot, with some considerable amount of
force, when a push would have been sufficient, suggests that he
was 	acting in anger, as opposed to merely trying to motivate
Frankie. 	It 	cannot reasonably be 	argued that this act was for
the purpose of providing "safety and comfort" 	to Frankie.
Based on the foregoing, 	and the fact that 	physical force is
frowned on by the hospital, O'Connor was justified in his
conclusion that Matta's conduct during the Billy and Frankie
incidents 	violated Rule 41. 	While it is 	true that Matta's good
work record 	and clean disciplinary slate 	are factors in his
favor, they do not outweigh the fact that he violated a
hospital rule 	and O'Connor 	had just cause to discharge him.
See Dade Tire Co. (1979) 244 NLRB 244 [102 LRRM 1029].
It 	has 	been 	concluded that respondent did not discriminate
against Matta because of 	his protected activities. 	However,
there is 	a fine line 	between "discrimination" 	and
"interference" 	cases 	and this case may thus lend itself to a
Carlsbad as well as a Novato analysis. 	See Coast Community
College District, 	supra, at pp. 	19-20; Moreland Elementary
School District, supra, 	at p. 	16. 	Under Carlsbad, while proof
of 	unlawful motive 	is generally not 	required in interference
cases, the charging party must demonstrate some nexus between
37

the employer's 	conduct 	and the protected activity with
resultant harm to employee rights under 	the Act. 	In such
event, 	the Board will balance the operational justification
claimed by the employer against the harm done.
Here, assuming the nexus and resultant harm were
established,16 the justification was 	the need to protect
against patient abuse 	and the right to take disciplinary action
against offenders. 	After 	balancing the 	competing interests
here, 	it is found that 	the 	employer's interest in maintaining
an educational environment free of patient abuse outweighs any
harm to employee rights. 	As O'Connor wrote in the discharge
letter, Matta's actions were "inappropriate and harmful 	to the
patient's treatment program." 	Any other 	conclusion would
preclude employers 	from ever 	disciplining union activists
irrespective of just cause. 	See Moreland Elementary School
District, 	supra, p. 	16.
PROPOSED ORDER
Based 	upon 	the 	foregoing 	findings 	of 	f a c t , 	conclusions 	of
law 	and 	the 	e n t i r e 	record 	of 	t h i s m a t t e r , 	the 	unfair 	p r a c t i c e
charge 	f i l e d 	by 	Richard C. 	Matta 	a g a i n s t 	the 	Napa 	S t a t e
Hospital 	and 	the 	r e l a t e d 	PERB 	complaint 	are 	hereby DISMISSED.
16 This assumption is made only for purposes of analysis.
As noted earlier, charging party has proved neither a nexus nor
resultant harm to employee rights, and under the facts
presented here it cannot be concluded that resultant harm is
inherent in respondent's action.
38

Pursuant 	to California Administrative Code, 	t i t l e 	8,
part 	I I I , 	section 32305, 	t h i s Proposed Decision 	and Order 	shall
become final on December 	6, 1982, 	unless a party f i l e s 	a timely
statement 	of 	exceptions. 	In accordance with the 	rules, 	the
statement 	of 	exceptions should identify 	by 	page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record relied 	upon for 	such
exceptions. 	See California Administrative Code 	t i t l e 	8,
part 	I I I , 	section 32300. 	Such statement 	of 	exceptions 	and
supporting 	brief must 	be actually received 	by the 	Public
Employment 	Relations Board 	at 	i t s 	headquarters 	office 	in
Sacramento 	before the 	close of 	business 	(5:00 p.m.) 	on
December 	6, 	1982, 	or 	sent 	by 	telegraph or 	certified United
States mail, 	postmarked 	not l a t e r 	than 	the 	last 	day for 	filing
in order 	to 	be 	timely f i l e d . 	See California Administrative
Code, 	t i t l e 	8, 	part 	I I I , section 	3213 5. 	Any statement of
exceptions 	and supporting 	brief 	must 	be 	served 	concurrently
with 	i t s 	filing 	upon 	each 	party to this 	proceeding, 	proof 	of
service 	shall 	be 	filed with 	the 	Board 	i t s e l f . 	See California
Administrative Code, 	t i t l e 	8, 	part 	I I I , 	sections 	32300 and
32305 as 	amended.
Dated: 	November 16, 	1982
FRED D'ORAZIO
Administrative Law Judge
39
.