Trustees of the California State University (Statewide University Police Association) (PERB 0805H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATEWIDE 	UNIVERSITY 	POLICE
ASSOCIATION,
Charging 	Party,
v.
TRUSTEES 	OF 	THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
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) 	Case Nos. 	S-CE-32-H
S-CE-33-H
PERB Decision No. 	805-H
April 	17, 	1990
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Appearances: 	Mastagni, 	Holstedt & Chiurazzi by Mark R. 	Kruger,
Attorney, 	for Statewide University Police Association; 	William B.
Haughton, 	Attorney, 	for Trustees of the California 	State
University.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the 	California 	State 	University 	(CSU) 	to 	a proposed decision
issued by a PERB administrative 	law judge 	(ALJ). 	The ALJ held
that CSU violated 	section 	3571(a) 	and 	(b) 	of the 	Higher Education
Employer-Employee Relations Act 	(HEERA or Act)1 when it
1HEERA 	is 	codified at Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to 	the
Government Code. 	Section 3571 provides, 	in pertinent part:
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
______ )

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unlawfully disciplined Officer 	John Moseley 	(Moseley) 	for his
exercise 	of protected activities. 	Specifically, 	the ALJ 	found
that CSU violated HEERA when it 	issued: 	(1) 	a 	letter of
reprimand; 	(2) 	a five-day suspension; 	and 	(3) 	a three-month
suspension.
S . .
guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by this 	chapter.
We 	have 	carefully reviewed the 	entire 	record, 	including the
proposed decision, 	transcript, 	exhibits, 	exceptions and
responses, 	and affirm the ALJ's 	conclusion that 	CSU violated
section 3571(a) 	and 	(b) 	of HEERA, 	in accordance with the
discussion 	below.2
FACTUAL 	SUMMARY
Background
Moseley was 	hired as 	a police officer at 	the Fresno 	campus
of the CSU 	system on March 	3, 	1979. 	At this time, 	Moseley was
sent to a psychiatrist, 	Doctor Edward E. 	Shev 	(Shev), 	for an
examination to determine 	his 	maturity and 	stability. 	Shev
determined that Moseley was 	in the 	"low to 	moderate 	risk
2CSU 	filed numerous 	exceptions 	to the ALJ's 	factual 	findings
and 	legal 	conclusions, 	including exceptions 	to the ALJ's
characterization of 	certain 	facts 	and 	conclusory 	statements.
Except as 	noted 	in this decision, 	these 	facts 	and 	statements 	are
not prejudicial 	and do not 	affect 	the Board's 	finding of 	unlawful
conduct by CSU. 	In its brief 	in support of exceptions, 	CSU
reasserts 	the 	same 	arguments 	contained 	in 	its post-hearing brief.
Although the ALJ 	considered the parties' 	post-hearing briefs, 	he
did 	not 	specifically 	address 	CSU's 	arguments 	in 	the proposed
decision. 	However, 	the Board finds 	that the ALJ properly
rejected 	CSU's 	arguments.
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category." 	Shortly after 	1979, 	the CSU police officers 	began to
organize 	for representational purposes 	under HEERA. 	Initially,
Moseley was 	elected 	to 	lead 	the 	Fresno 	branch 	of 	the 	statewide
organization. 	However, 	he was 	voted out of office and Officer
Richard Snow 	(Snow) 	was 	selected to replace him. 	Eighteen months
later, 	Statewide University Police Association 	(SUPA) 	began to
gain 	strength 	and Moseley was 	reelected 	the 	leader 	of 	the 	Fresno
chapter. 	During this period, 	a great deal of animosity was
generated between Moseley and 	Snow. 	Throughout 	1982 	to 	the
present, 	there have been two 	separate and distinct 	factions 	in
the Fresno State Police Department. 	Moseley, 	David Jensen
(Jensen), 	and Raymond Mendoza 	(Mendoza) 	are the officers
identified with one faction, 	while Snow, 	Maria Silva 	(Silva), 	and
her husband, 	Sergio Silva, 	are the officers 	identified with the
other 	faction.
During the 	1982-83 	school year, 	SUPA was 	negotiating with
CSU 	for 	a 	new collective 	bargaining agreement. 	During this
period, 	SUPA 	filed 	an unfair practice 	charge 	regarding harassment
of Moseley. 	In regard to this 	unfair practice 	charge,
Sergeant 	Sergio 	Silva wrote 	to 	the 	chairman of 	SUPA 	complaining
about the 	actions 	of Moseley and a paid representative 	of 	SUPA,
Robert Jones. 	The 	chairman responded that the 	investigation of
Moseley by Sergio Silva, 	as 	an agent of the 	chief 	of 	the Fresno
State Police Department, 	was 	an attempt to retaliate against
Moseley 	for the exercise 	of his 	rights 	as 	a 	SUPA director, 	and
stated 	that 	the 	settlement 	agreement 	in the unfair practice 	case
3
3

required 	that 	Sergio 	Silva's 	entire 	investigation be 	removed 	from
Moseley's 	file and be destroyed. 	Finally, 	the 	chairman 	stated
that 	if 	Sergio 	Silva was 	unhappy with 	SUPA and 	its
representatives, 	then Sergio 	Silva 	should give 	consideration to
his 	withdrawal 	from SUPA. 	In response 	to 	a 	letter by Moseley 	to
Robert Jones, 	wherein he 	stated that 	"Sergio Silva and his wife,
Maria, 	have been disclosed to be hatchet men who 	are hostile 	to
fellow officers," 	Silva wrote to Moseley with a 	list of
complaints 	about him.
Also, 	during the 	1982-83 	negotiations, 	Moseley was removed
from his position as 	a police officer on an 	"undue 	force" 	charge.
As 	part of 	this 	investigation, 	Moseley was 	sent to 	a 	Sacramento
psychiatrist, 	Doctor Robert S. 	Treat 	(Treat). 	In his report,
Treat 	stated 	that 	Moseley did 	not have 	any mental 	illness,
disease 	or defect 	that would 	interfere with his 	functioning 	as 	a
police officer, 	and that he was 	sufficiently stable 	to adequately
perform his 	duties 	and presented 	a 	low risk 	for 	stress-induced
problems. 	As 	a result of 	the 	investigation by both CSU and 	the
Fresno County District Attorney's 	Office, 	all 	charges 	against
Moseley were 	dropped 	and 	Moseley was 	restored 	to 	full 	duty with
all 	pay 	and 	allowances.
Letter 	of 	Reprimand 	and 	Five-Day 	Suspension
On July 	7, 	1987, 	Moseley received a 	letter of reprimand
regarding his 	"performance deficiencies." 	On July 	16, 	1987,
Moseley 	received 	a 	notice 	of 	suspension 	for 	five 	days 	commencing
44

July 28, 	1987. 	Both of these actions were allegedly based on
events occurring on July 2 and 3, 	1987.
On July 2, 	1987, 	a Level 	1 	grievance meeting was 	scheduled
before Lieutenant Steven R. 	King 	(King) 	regarding a denial of
Jensen's 	request 	for vacation days. 	Moseley was 	Jensen's
representative 	at 	this 	meeting. 	As 	Moseley and Jensen walked
into King's 	office, 	they 	saw Silva 	seated there. 	Because 	Silva
was 	not Jensen's 	immediate 	supervisor, 	was 	not 	involved 	in the
subject matter of 	the grievance, 	and was 	a member of 	the
bargaining unit, 	Moseley inquired as 	to why Silva was present.
King 	stated 	that 	Silva was 	there merely as 	a witness. 	At 	this
point, 	Moseley 	insisted that 	Silva's 	presence 	implied a 	lack of
trust 	and 	that 	he would record the 	meeting 	on his 	tape 	recorder.
King 	refused to permit the meeting to be 	recorded, 	and 	the
meeting 	ended.3
Immediately 	after or within a 	few minutes 	following 	the
Jensen grievance meeting, 	King came out 	into the work area 	and
ordered Moseley back 	into his 	office. 	Moseley asked King 	if 	this
was 	to be a disciplinary meeting and, 	if 	so, 	he wanted a
representative present. 	He 	also 	stated that he would need 	time
to 	make 	arrangements 	for 	such representation. 	King refused 	to
respond as 	to whether or not the meeting was 	to be disciplinary.
3There 	is 	a dispute 	in the 	facts 	as 	to who actually ended
the 	meeting. 	Moseley believes 	that he 	stated 	"in that 	case 	there
will be no grievance hearing." 	Following this 	statement, 	Moseley
states 	that he 	and 	Jensen walked out of 	the 	office. 	Silva
states, 	in her report, 	that King said 	"the meeting is over."
This 	factual dispute 	is 	irrelevant as 	the 	end effect was 	that the
Level 	1 	grievance meeting did not take place.
55

Rather, 	King ordered Moseley 	into his 	office. 	Moseley refused to
go 	into 	King's 	office. 	King then told Moseley that he was
insubordinate 	and 	ordered him back to 	the 	field. 	Moseley
returned to his regular duties. 	King, 	in his testimony, 	stated
that 	he 	and 	Moseley had previously 	scheduled a 	meeting 	regarding
a 	two-week vacation in August, 	and 	that he was 	attempting to 	get
Moseley 	into the office 	for this meeting. 	However, 	the ALJ did
not 	credit King's 	testimony due to the 	fact 	that there was: 	(1)
no 	reference 	to 	this 	previously 	scheduled meeting 	in any of 	the
documentation; 	(2) 	no witnesses heard King refer to 	such a
meeting; 	(3) 	no witnesses 	remembered any break between the Jensen
grievance meeting 	and King 	ordering Moseley 	back 	into 	his 	office;
and 	(4) 	no witnesses 	remembered the 	exchange between the two men
as having taken place in or near the 	squad room, 	but, 	instead,
recalled 	it 	as 	having taken place 	in the 	clerical 	area 	just
outside of King's 	office.
Based on this 	incident, 	King 	sent a two-page request 	for
discipline of Moseley to Chief William A. 	Anderson 	(Anderson),
Fresno 	State 	Police 	Department. 	King 	stated that Moseley
violated 	section 	1.2 	of 	the 	Department 	Policy Manual 	regarding
"Unbecoming Conduct," 	and 	section 	1.41 	of 	the manual 	regarding
"Insubordination" 	by his willful 	failure to obey a 	lawful 	order
in the presence of members 	of the public.4 In this 	report, 	King
6
'Section 	1.2 	"Unbecoming Conduct" 	states:
Employees 	shall 	conduct 	themselves 	at 	all
times, 	both on and off duty in such a manner
as 	to 	reflect 	favorably on the department.
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recommended 	a 	minimum 	three-day 	suspension without 	pay.
Conduct unbecoming an 	employee 	shall 	include
that which brings 	the department 	into
disrepute 	or reflects 	discredit 	upon the
employee as a member of the department, 	or
that which 	impairs 	the 	operation or
efficiency of 	the department 	or 	employee.
Section 	1.41 	"Insubordination" 	states:
Willful 	failure 	or deliberate 	refusal 	of 	any
officer or 	civilian to 	obey 	any 	lawful 	order
given by a 	superior officer 	shall 	be
insubordination. 	Ridiculing a 	superior
officer or his 	orders, 	whether in or out of
his presence, 	is also insubordination.
The 	third 	incident 	on which 	the 	letter 	of 	reprimand 	and
five-day 	suspension was 	based occurred on July 	3, 	1987. 	On this
date, 	Jensen received a notice regarding a departmental
investigation that 	concerned a 	report 	he had written 	on 	a
shooting 	incident. 	Because 	this 	meeting might be disciplinary 	in
nature, 	Jensen selected Moseley as his 	representative. 	Moseley
and Jensen met with Snow. 	Silva was 	also present 	at 	this
meeting. 	At the 	start of the meeting, 	Moseley and Snow discussed
whether this 	meeting was 	part 	of 	an official 	internal 	affairs
investigation. 	While 	Snow insisted that 	it was 	not 	an internal
affairs 	investigation, 	Moseley 	stated that 	it had all 	the
characteristics 	of 	an internal 	affairs 	investigation and,
therefore, 	was 	such an investigation. 	At this point, 	Snow asked
his 	questions 	and Jensen answered them. 	During 	Snow's 	questions,
Moseley 	interjected 	statements 	to protect 	Jensen's 	rights. 	At
various 	times, 	when Moseley tried to 	speak, 	Snow told him to
"shut up" 	and to quit 	interfering. 	Finally, 	Snow told Moseley he
77

was 	going to 	ignore him. 	During this period, 	Jensen continued to
answer Snow's 	questions. 	After Moseley had 	interjected 	comments,
Snow 	finally 	ordered 	Moseley 	to 	quit 	interfering 	and 	told 	him 	he
was 	being 	insubordinate. 	Jensen eventually 	answered 	Snow's
questions, 	and Snow concluded the 	investigatory meeting. 	In the
hearing, 	Snow testified 	that 	he had additional 	questions 	and that
he was 	forced to 	stop his 	questioning of 	Jensen because 	of 	the
repeated 	interruptions by Moseley. 	However, 	in his written
report about 	the meeting, 	Snow did not 	state that Moseley
prevented him 	from 	completing his 	investigatory meeting. 	Based
on this 	inconsistency, 	the ALJ did not credit Snow. 	Moseley, 	in
his 	testimony, 	admitted that he 	interfered with 	Snow's
questioning because 	Snow was 	trying to 	elicit 	untruthful
responses.
Three-Month 	Suspension
1. 	Sexual harassment complaint.
On or about July 9, 	1987, 	Silva went to Doctor Arthur Wint
(Wint), 	director of affirmative action and assistant to the
president at Fresno State University, 	with a 	series 	of 	complaints
regarding Moseley. 	Wint met with 	Silva 	over a period of 	two
months 	and 	assisted 	Silva 	in preparing a 	letter 	to 	Moseley
setting 	forth her complaints.5 In her letter, 	Silva accused
Moseley 	of 	attempting 	to 	discredit 	her candidacy 	for promotion 	to
55Wint 	also 	advised 	Silva 	to wait 	until 	the proposed decision
in PERB Case No. 	S-CE-25-H issued. 	On September 21, 	1987, 	the
decision issued. 	On September 27, 	1987, 	Moseley received the
letter 	signed by 	Silva 	setting 	forth her 	complaints.
8

sergeant 	and demanded that Moseley 	cease 	his 	ongoing, 	continued
harassment. 	Shortly after Silva 	sent Moseley this 	letter, 	she
filed a 	formal 	complaint with Wint 	in the Office 	of Affirmative
Action Services 	alleging 	sexual 	harassment 	against 	her by
Moseley.
Wint 	investigated 	the 	complaint 	and 	issued his 	report 	and
recommendations on January 22, 	1988. 	In his conclusion, 	Wint
stated 	"the 	evidence preponderates 	in 	favor of 	a 	finding of
reasonable cause to believe that the complainant, 	Sgt. 	Maria
Silva, 	has 	been the victim of 	sexual harassment by Officer
Moseley." 	Wint's 	report 	contained various 	incidents which he
concluded 	support a 	finding of 	sexual 	harassment. 	The 	first
incident 	involved SUPA's 	letter to 	the president 	of 	CSU Fresno 	in
1986 	regarding the 	examination process 	for the position of
sergeant. 	In this 	examination process, 	Silva was promoted to
sergeant. 	Silva 	stated that the 	focus 	of the 	letter was 	not 	on
the promotion process, 	but, 	rather, 	on her selection as 	sergeant.
She 	specifically pointed 	to 	the 	transcript 	of 	a 	grievance 	hearing
in which 	the 	SUPA representative 	asked 	questions 	which 	raised 	the
issue 	of 	her moral 	character and 	implied 	that 	she 	received 	the
promotion for 	nonmeritorious 	reasons.
Wint also 	examined the 	issue of 	Silva's 	competence. 	One
witness 	stated he did not believe 	Silva was 	being harassed, 	and
further 	stated that 	Silva was 	"weak 	in officer 	safety" 	and
potentially 	could cause 	someone to 	get hurt. 	Another officer
stated that, 	although Silva was 	a good person, 	she was
9
9

unqualified to 	fill 	the position of 	sergeant, 	because all her
experience 	came 	from a university 	setting 	and 	she 	lacked 	any
"street 	experience." 	Another witness 	stated there had been a
number of 	complaints 	about Silva's 	competence, 	and that he had
lodged a 	complaint against her 	five years 	ago. 	These 	three
witnesses 	all 	felt 	the 	complaint 	filed by Silva was 	an attempt 	to
attack Moseley's 	position as 	union head 	and to 	eventually 	get 	rid
of him. 	On the other hand, 	another witness 	stated that, 	in his
experience, 	male and 	female officers 	make the 	same mistakes 	and
that men 	forget 	their own mistakes 	and tend to 	focus 	on the
mistakes 	made by women. 	This witness 	also 	stated that most 	of
the 	references 	to 	Silva's 	competence dealt with 	incidents which
occurred 	five 	to 	seven years 	ago, 	and that her performance
improved 	remarkably 	after 	she 	attended 	safety 	school. 	Another
witness 	stated he had worked with 	Silva 	and was 	never 	in a
situation where he 	felt that his 	life was 	in danger. 	Another
witness 	stated 	she 	had worked with 	Silva 	for 	six 	months 	and,
although 	she was 	led 	to 	believe 	Silva's 	competency would be 	an
issue, 	she was 	never put 	in a 	life-threatening 	situation
by Silva. 	Anderson 	stated the 	allegations 	about 	Silva's
competence were 	unfounded 	and he hired 	Silva because 	she was 	the
top 	candidate.
Finally, 	a witness 	stated 	she had worked with both Silva 	and
Moseley and 	it was 	apparent Silva was 	getting 	"a 	lot of
unnecessary heat 	from Moseley 	and 	the 	men around 	him." 	This
witness 	also 	stated that during 	the 	time 	she has worked 	in the
1.
10

department, 	Moseley had engaged 	in a pattern of 	sexual 	harassment
which included dirty 	jokes, 	talking about his 	sex 	life, 	talking
about other people's 	sex 	life, 	asking dispatchers 	about their 	sex
life, 	and grabbing a dispatcher at a party and trying to kiss
her.6 Another witness 	also 	stated Moseley 	engaged 	in a 	pattern
of making sexual 	jokes 	and comments. 	Based on this 	report, 	Wint
found 	reasonable 	cause 	to 	believe 	Silva 	had been the 	victim of
sexual 	harassment 	by 	Moseley 	and 	recommended 	appropriate
disciplinary 	action 	"up 	to 	and 	including 	termination."
In the testimony at the hearing, 	numerous witnesses
testified they had 	never 	seen Moseley 	engage 	in 	sexual 	harassment
with 	Silva or other 	female 	officers. 	Numerous witnesses 	also
testified that 	almost all 	of 	the officers 	engaged 	in 	sexual 	jokes
and 	comments. 	With regard to the 	letter 	filed by SUPA 	in
relation to the 	examination process 	for the 	sergeant position,
witnesses 	testified that 	this 	letter was 	aimed at 	the 	examination
process 	itself, 	and not at Silva personally. 	The 	letter to 	the
president of 	CSU Fresno 	requested an immediate, 	unbiased and
6This 	last 	alleged 	incident 	occurred at 	a 	Christmas 	party at
Moseley's home. 	Dispatcher Deborah Stamp 	(Stamp) 	alleges 	that'
her blouse was 	torn when Moseley allegedly attempted 	to 	throw her
on the 	couch and give her a kiss 	as 	she was 	putting her hand 	out
to 	say goodbye. 	However, 	in the hearing, 	Officer Margie
Hernandez 	(Hernandez) 	testified that 	she 	and Stamp went 	to 	the
Moseley Christmas 	party together. 	When they were driving home,
Stamp mentioned the 	incident regarding the 	torn blouse. 	She 	told
Hernandez 	at 	that time that 	it occurred when Moseley 	sat 	on the
couch next to her. 	Apparently, 	he was 	sitting on the tail of her
blouse and 	it ripped when 	she 	tried to get up. 	Hernandez 	stated
that 	Stamp did not 	appear to be mad or upset about 	the 	incident.
Finally, 	Mrs. 	Moseley, who was also present at this Christmas
party, 	gave 	Stamp a 	check for $15 	to cover the cost of 	the torn
blouse.
11

independent 	review of 	the 	selection promotion process. 	The
letter 	stated 	there were 	conflicting 	statements 	on how tests 	and
oral 	interviews 	were 	scored and how rankings 	were 	determined.
There was no 	specific mention of Silva's 	name. 	Rather, 	the
letter referred 	to 	the 	last 	two promotions 	and alleged 	that 	they
have 	been held 	in 	"clouded 	secrecy 	and plagued with 	contradicting
statements 	and procedures."
With regard to the veracity of Wint's 	report, 	Wint admitted
that 	he 	did not 	include 	all 	of his 	comments 	from witnesses 	in his
final 	report because he was 	not 	investigating a 	union matter and
did not have to put 	everything into the 	findings. 	Wint 	also
stated, 	in the fall of 	1987, 	he determined that racial harassment
was 	not provable and would 	not be part of his 	investigation.
However, 	there was 	nothing 	in his 	report to exonerate Moseley of
the charge of racial harassment. 	Rather, 	Wint testified the
racial harassment 	charge was 	taken care of by omission. 	In his
final 	report, 	Wint 	recommended that 	appropriate disciplinary
action be 	taken against 	Moseley 	"up 	to 	and 	including
termination." 	However, 	in two earlier drafts of his report, 	Wint
recommended 	"suspension without pay 	for 	five days" 	and 	"minimum,
five day 	suspension without pay." 	In response 	to a question by
SUPA's 	attorney 	regarding whether 	anyone 	suggested 	that 	he 	alter
his 	recommendation, 	Wint replied:
I 	have a 	notation here that 	I 	had 	some
discussions with the recommendation, 	I had
recommended 	that 	for atmospheric, 	I'm going
to 	stop 	saying that, 	based upon the
conclusion that 	I 	had drawn that discipline
up 	to 	and 	including 	termination would 	be
12

appropriate and was 	brought to my attention
that that 	is what 	I was 	saying and that 	I
should 	say 	that 	because 	my 	original
recommendation 	stated 	that 	discipline 	and
action 	should be 	taken 	and 	keeping with
relevant provisions 	of 	the 	union agreement
and 	so 	since my recommendation was 	that
disciplinary 	action up 	to 	and 	including
termination could 	occur 	under 	these
circumstances that I 	should say that, 	and
that's, 	fine, 	I will revise recommendations,
I 	never change conclusions.
(Vol. I, p. 41.)
2. 	Sexual affair rumor.
On July 28, 	1987, 	shortly after 8 p.m., 	Officer Daniel
Horsford 	(Horsford) 	saw Anderson 	in the 	immediate 	vicinity of
Stamp's 	home. 	Horsford told Moseley about 	the 	incident because
he was 	afraid punitive 	action 	could develop because 	he 	had been
off his beat. 	Moseley, 	who was 	about to 	serve his 	five-day
suspension, 	told Jensen, 	the alternate SUPA representative, 	about
the 	incident. 	There 	is 	no testimony or 	statement that Moseley
told 	Jensen he 	suspected an affair between Anderson and 	Stamp.
On August 4, 	1987, 	CSU Fresno Assistant President Lynn Hemink
(Hemink) 	asked Chief Phil Ogden 	(Ogden), 	chief of the police
department at CSU Stanislaus, 	to 	investigate the rumor of 	alleged
sexual 	misconduct between Anderson and Stamp. 	Before he 	started
his 	investigation, 	Ogden received 	letters 	from both Anderson and
Stamp regarding the alleged rumor. 	In both of these 	letters, 	the
writers 	quoted Moseley as 	having made 	statements 	that Anderson
and 	Stamp were having an affair. 	Stamp 	stated 	that Moseley made
certain 	statements 	to 	Horsford and 	Jensen and that Jensen, 	in
turn, 	repeated the 	statements 	to Mendoza. 	Anderson quoted Jensen
13

as 	telling Mendoza 	that Moseley had 	told him that Anderson and
Stamp were having an affair. 	Prior to writing his 	report, 	Ogden
interviewed 	18 	employees 	of 	the Fresno 	State Police 	Department,
including Anderson, 	Stamp, Horsford, Hernandez, Mendoza, Jensen,
and Gilbert A. 	Washington 	(Washington). 	While Moseley appeared
with his 	attorney 	for an interview with Ogden, 	no 	interview was
conducted due 	to 	Ogden's 	refusal 	to provide Moseley with 	all
statements 	that had 	already been taken and 	all 	"memos 	or 	letters
of 	complaint" 	in Ogden's 	possession 	concerning the 	alleged 	rumor.
In his 	report, 	Ogden concluded that there was 	no 	evidence to
substantiate the 	alleged rumor. 	Based on the 	letters 	prepared by
Anderson 	and 	Stamp 	that 	each had talked with 	individuals 	in 	the
department who 	traced the remark to Moseley, 	Ogden concluded 	that
swift punitive 	action should 	follow. 	In his 	recommendation,
Ogden recommended 	that 	a 	formal 	letter 	of 	reprimand 	for Moseley
be 	issued 	citing a violation of the 	Police Department 	Procedural
Manual 	section 	1.2, 	"Unbecoming Conduct." 	However, 	Hemink
testified 	that he 	did not 	issue Moseley 	a 	letter 	of 	reprimand 	as
a 	result of 	this 	report by Ogden.
Insubordination.
1. 	Service of administrative leave.
On the morning of February 5, 	1988, 	King asked Moseley to
step 	into his office. 	When Moseley asked 	if 	it was 	a
disciplinary matter, 	King 	stated that 	it was 	not a disciplinary
matter. 	Once Moseley was 	in his 	office, 	King 	served him with the
notice of administrative 	leave, 	with pay, 	and ordered him to
14

immediately clean out his 	locker. 	At this point, 	King
and 	Sergeant 	James 	Myers 	(Myers) 	accompanie7 d Moseley to 	the
squad room. 	King reached 	inside 	Moseley's 	locker 	and 	removed 	a
weapon. 	He unloaded the weapon and gave 	it to Myers. 	Moseley
became upset because 	the removed weapon was 	his personal weapon.
When Moseley demanded the return of his personal weapon, 	King
refused. 	Moseley then returned to his 	locker, 	pulled out the
department-issued weapon, 	unloaded 	it 	and held 	the barrel 	in his
hand with the butt 	end pointed toward King and 	said, 	"This 	is
your weapon. 	I want mine back." 	Even though Moseley did not
receive his personal weapon, 	Moseley gave the department-issued
weapon to King, 	who then gave 	it to Myers. 	Moseley was upset,
and 	admitted 	in his 	testimony that he 	called King 	a 	"liar" 	and
"thief." 	At one point, 	Moseley 	said he was 	going to 	call his
representative. 	King responded that Moseley was 	insubordinate.
After Moseley 	called his 	representative, 	he 	returned to 	the 	squad
room and 	cleaned out 	his 	locker. 	Although 	King 	claimed 	that
Moseley 	called him a 	"creep" 	and 	"mental problem," 	Moseley denied
making such statements. 	On February 5, 	1988, 	after this
incident, 	King wrote a report to Anderson, 	wherein he recommended
that Moseley be 	terminated 	from his position as 	a public 	safety
. . . .
- 77CSU's 	exception that 	this 	notice was 	served by King and
Myers 	has 	merit. 	The ALJ 	apparently misstated when he 	stated
King 	and 	Snow 	served 	this 	notice 	upon Moseley.
15

officer 	for 	gross 	and 	continuing 	insubordination 	and 	conduct
unbecoming an officer.8
2. 	Sick leave restriction.
On August 	4, 	1987, 	Moseley was placed on sick leave
restriction, 	which required him to 	obtain a doctor's 	report
justifying the use 	of any 	sick 	leave. 	Moseley 	filed a 	grievance
on August 	6, 	1987, 	regarding the 	sick leave restriction due to:
(1) 	the discrepancy between the 	alleged use 	of 	sick 	leave and the
supporting documentation; 	and 	(2) 	the fact that the 	sick leave
usage was 	job related, 	preapproved, 	or used according to the
collective 	bargaining agreement. 	Moseley 	continued 	to 	have
problems 	with 	sick 	leave 	usage 	after 	the 	restriction was 	placed
on him. 	On November 20, 	1987, 	King gave Moseley a suggested
format 	for verifying 	sick 	leave. 	After Moseley used this 	format,
the 	sick 	leave verification 	issue was 	solved. 	On September 	9,
1987, 	Moseley received an annual employee evaluation, 	which
reflected 	an 	"improvement 	needed" 	appraisal 	for 	sick 	leave
16
8CSU 	excepted 	to 	the ALJ's 	finding and 	conclusion that,
based upon the 	fact 	that CSU 	reinstated Moseley 	for 	a period 	of
five days 	before the 	three-month 	suspension became 	effective,
there was 	no 	evidence as 	to why CSU determined that 	it was
necessary 	to 	temporarily 	suspend 	Moseley 	pending 	formal 	notice 	of
disciplinary 	action. 	CSU 	excepted 	to 	this 	finding 	and 	conclusion
on the 	basis 	that 	the 	administrative 	leave 	expired 	either upon
the 	furnishing of 	formal notice of disciplinary action or, 	unless
extended, 	30 days after its commencement, 	whichever first occurs.
CSU's 	exception has 	merit. 	As 	the administrative 	leave was 	not
extended 	and 	no 	formal 	notice 	of 	disciplinary action had been
served, 	the 	administrative notice 	expired and Moseley was
reinstated.

usage.9 Within 	four months, 	Moseley received a 	second annual
employee 	performance 	evaluation which 	again downgraded 	his
performance based on the use of 	sick leave. 	Moseley protested
the 	evaluation. 	Despite these evaluations, 	King testified that
he was 	pleased with 	the 	cooperation he was 	getting 	from Moseley,
and 	that 	Moseley was 	rapidly working towards 	removal 	from 	the
sick 	leave 	restriction.
3. 	SUPA meetings 	during work time.
On October 	13, 	1987, 	Moseley received a memo 	from King
regarding a 	SUPA meeting 	scheduled 	for October 	18. 	The 	memo 	told
Moseley 	that 	SUPA was 	not permitted 	to 	conduct 	meetings 	during
work time. 	On October 	14, 	1987, 	Moseley received a memo from
King 	entitled 	"Letter of 	Warning," 	which 	again 	advised Moseley
that he was 	to 	conduct 	no 	SUPA business 	on work time until prior
clearance had been obtained directly 	from King. 	This 	letter was
placed 	in Moseley's permanent personnel 	file. 	Moseley grieved
the October 	14 	letter. 	On October 21 and 26, 	1987, 	Moseley met
with 	King and 	Snow regarding the 	issue 	of 	conducting 	SUPA
business 	on work time. 	During these meetings, 	Moseley refused to
continue 	the meeting without 	either 	a 	representative present 	or
his 	tape 	recorder on. 	King told Moseley that his 	actions were
insubordinate. 	The disagreement 	regarding SUPA business 	on work
time 	involved 	King 	and Moseley's 	interpretations 	of 	the 	contract.
King 	believed 	that 	the 	contract 	contained 	an absolute 	prohibition
9A11 	of Moseley's 	performance 	evaluations 	prior to 	September
1987, 	contained ratings with a minimum level of 	"meets 	expected
standards."
17

against 	SUPA activity during work time. 	Moseley 	insisted 	that
the 	prohibition only 	dealt with 	SUPA meetings 	and 	not 	grievance
or negotiation activities. 	King insisted that, 	if Moseley had
SUPA duties, 	he 	should get permission from his 	supervisor before
conducting his 	SUPA duties. 	Moseley 	insisted that 	such 	approval
was 	only necessary 	if he was 	going to be 	out of 	service 	and
unavailable to take his 	regular radio 	calls.10
4. 	New department policies 	and procedures.
On January 4, 	1988, 	the Fresno State Police Department
promulgated 	a directive 	to 	all 	personnel 	which 	restricted 	student
employees 	from being 	in patrol 	vehicles 	with an officer 	and
restricted officers 	from taking breaks with 	students. 	The 	new
procedures 	also 	stated 	that all 	reports were to be written 	in the
patrol 	vehicle while parked 	in the 	lot where 	the 	officer would be
visible. 	The procedures also 	stated that, 	with the 	exception of
the dormitory officers, 	the officers would remain on patrol 	in
their vehicle until 	dispatched to 	a building. 	Moseley believed
that 	these 	new policies 	and procedures 	were 	a 	thinly disguised
way to restrict his 	access 	to bargaining unit members. 	Even
though he 	told 	another 	sergeant 	that he believed 	the procedures
were 	ludicrous 	and 	constituted harassment 	against 	him 	and 	that 	he
did not 	intend to 	follow such procedures, 	there were 	no 	instances
10In a related case at CSU Sacramento, 	an arbitration
decision 	regarding 	the 	conducting 	of 	SUPA 	business 	during work
hours 	was 	issued by Arbitrator Phillip Tamoush. 	Although this
arbitration decision 	involved 	some 	of 	the 	same 	charges 	against
Moseley, 	the 	arbitration award was 	not 	acknowledged by 	the 	Fresno
State 	Police 	Department when 	it 	sent 	its 	recommendation 	for
Moseley's 	discipline.
18

cited 	in which Moseley 	failed 	to 	follow these 	new rules.
Although 	there 	is 	evidence 	that Moseley 	told Parking Officer 	Greg
Taylor 	and 	Librarian Thomas 	Ebert 	that he was 	prohibited 	from
speaking to 	them, 	both men testified that 	this 	comment was 	made
in the 	context 	of Moseley taking breaks 	and 	lunches 	with them.
5. 	Sergeant Myers7 briefing.
On January 24, 	1988, 	Myers was briefing the oncoming 	shift.
Apparently, 	there was 	some 	sort of misunderstanding regarding who
Myers was 	addressing and, 	allegedly, 	Moseley and Myers 	glared at
each other 	for a moment or two. 	There was 	no 	conversation
between the two men and there was 	no written memorialization of
this 	incident. 	The 	first 	notice that Moseley received of 	this
incident was 	in his 	three-month notice of 	suspension, 	dated
March 4, 	1988.
Psychiatric 	Evaluations
On August 	16, 	1987, 	Moseley received a 	letter from Personnel
Officer Nita 	Kobe, 	ordering him to 	submit to a medical 	evaluation
by psychologist, 	Doctor Gregory Cherney 	(Cherney). 	Cherney was
told 	that 	CSU was 	concerned with Moseley's 	aggressive 	impulses;
his 	inability to get along with his peers, 	co-workers, 	and the
public; 	and the number of 	conflicts 	that the Fresno 	State 	Police
Department Administration had with him. 	However, 	prior to
examining Moseley, 	his 	testimony 	indicates 	that he did not 	ask
for 	or 	review psychiatric 	reports 	from other psychiatrists 	or
psychologists 	and 	that he 	only 	examined 	the 	documents 	that 	CSU
provided him. 	Further, 	he did not ask for or review Moseley's
19

personnel 	file. 	As a result of this August 	7, 	1987 	evaluation,
Cherney recommended that,	•
. 	. 	. 	a formal fitness for duty psychological
evaluation 	should only be done 	if 	Officer
Moseley 	engages 	in any one more 	incident
-
which 	is 	deemed 	inappropriate 	by
administrators 	and 	supervisors. 	This would
include 	any 	exhibition 	of 	unnecessary 	anger
or insubordination. 	At that point, 	the
Fitness 	for Duty 	should 	immediately 	be
ordered.
On March 	11, 	1988, 	seven days 	after Moseley was 	served with
his 	three-month notice 	of 	suspension, 	Moseley was 	directed to
submit to a 	Fitness 	for Duty psychological 	evaluation. 	In his
report, 	Cherney 	found that Moseley had numerous problems 	on an
interpersonal 	and 	labor/management 	conflict 	level 	during his 	ten-
year 	employment period. 	Cherney 	also 	stated that 	Moseley
directed 	all 	external 	negativity 	concerning 	himself 	toward 	CSU
'and the Fresno State Police Department. 	Additionally, 	Cherney
found 	that Moseley tended 	to 	get 	very 	subjective 	and 	over
involved 	in various 	causes, 	which he defended 	in a rigid and
guarded or suspicious manner. 	Although Cherney, 	in his 	report,
stated 	that 	Moseley bordered 	on 	a 	loss 	of 	control 	during 	the
interview process 	and had the 	capacity to 	lose 	control 	of 	his
impulses 	if he 	felt 	exasperated when one 	of his 	causes was 	being
confronted, 	there was 	no direct 	evidence of 	any instance of
Moseley 	losing 	control 	in his 	relationship with the public 	in 	the
execution of his police officer duties. 	Finally, 	Cherney's
recommendation was 	that 	Moseley be 	found 	unfit 	for duty based 	on
his 	psychological profile.
20

On June 2, 	1988, 	at the request of his attorney, 	Moseley was
examined by Doctor Arthur Lamb 	(Lamb), 	a Sacramento psychiatrist.
In his 	testimony, 	Lamb 	stated that he took a thorough history
from Moseley, 	reviewed reports 	submitted by psychiatrists who had
examined Moseley 	in the past, 	and reviewed Moseley's 	entire
personnel 	file. 	Lamb noticed that Moseley's 	complexion 	is 	redder
than normal, 	which he attributed to 	capillaries 	that are
distended and his 	skin being thin 	so 	that 	the redness 	shows
through. 	Lamb noted that the 	symptoms 	are often associated with
a person becoming 	agitated 	and 	that 	this 	redness 	in Moseley 	could
be triggered by various 	types 	of 	stimulants, 	such as 	excitement,
apprehension and annoyance. 	In previous 	psychological
examinations 	by Shev and Treat, 	Lamb noted that Moseley 	fell 	into
the 	low to moderate 	risk 	category with respect 	to 	the performance
of his duties. 	In conclusion, 	Lamb found that the allegations
against Moseley had 	little merit. 	Lamb 	stated that 	there were 	no
incidents 	of 	Moseley behaving 	in a way 	that was 	unprofessional 	in
the 	course of his duties 	as 	a police 	officer. 	He noted that
there had been 	confrontations with management 	in his 	role 	as 	a
labor representative, 	but, 	taking everything into consideration,
Lamb 	found absolutely 	no 	evidence 	that 	Moseley was 	impaired with
respect to performing as 	a public 	safety officer. 	Lamb 	found
that Moseley, 	as 	a labor representative, 	has been an assertive
advocate 	for his 	position 	even though he 	may have 	been vehement
or vociferous at times.
21

DISCUSSION
In Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210, 	the Board 	set forth the test 	for discrimination and
retaliation.11 In order to 	establish a prima 	facie 	case, 	the
charging party must prove: 	(1) 	the 	employee engaged 	in protected
activity; 	(2) 	the employer had knowledge of 	such protected
activity; 	and 	(3) 	adverse action was 	taken against the 	employee
as 	a 	result 	of 	such protected 	activity. 	In discrimination and
retaliation cases, 	unlawful motive 	is 	the 	specific 	nexus 	required
to 	establish 	a prima 	facie 	case. 	The Board recognized that
direct proof 	of motivation 	is 	rarely possible, 	and concluded that
unlawful 	motive 	can be 	established by 	circumstantial 	evidence 	and
inferred 	from the 	record as 	a whole. 	To 	justify 	such an
inference, 	the charging party must prove 	that the 	employer had
actual 	or 	imputed 	knowledge 	of 	the 	employee's 	protected 	activity.
The Board has 	found that 	the 	following 	factors 	may 	support 	an
inference of unlawful motivation: 	(1) 	disparate treatment of the
charging party; 	(2) 	proximity of time between the participation
in protected activity and the 	adverse action; 	(3) 	inconsistent or
contradictory explanations 	of 	the employer's 	actions; 	and 	(4)
departure 	from established procedures 	or 	standards. 	(Novato
Unified School District, 	supra, 	PERB Decision No. 	210; 	Regents of
11Under HEERA, 	the Board has 	adopted the test 	in Novato
Unified School District, 	supra. 	PERB Decision No. 	210 for
discrimination and retaliation. 	(California 	State 	University.
Sacramento 	(1982) 	PERB Decision No. 	211-H.)
22

the University of California 	(Berkeley) 	(1985) 	PERB Decision
No. 	534-H.)
In the present case, 	there 	is no dispute that Moseley
engaged 	in protected activity. 	He was 	the chairman of 	SUPA's
Fresno 	chapter, 	filed grievances, 	represented bargaining unit
members 	in their grievances, 	and 	conducted SUPA business 	on work
time. 	CSU, 	through its Fresno State Police Department, 	was aware
of 	these protected activities. 	Moseley 	kept a high profile 	and
certainly did not 	hide 	the 	fact 	that he was 	the 	chairman of 	SUPA
at 	CSU Fresno 	and 	involved 	in protecting 	the 	rights 	of 	the
bargaining unit members. 	The 	crucial 	question is whether the
adverse 	actions 	were 	motivated by Moseley's 	participation 	in
protected 	activity.
In determining whether CSU was 	unlawfully 	motivated when 	it
disciplined Moseley, 	the Board must examine the 	four 	factors
listed in Novato. 	With regard to the disparate treatment, 	the
unrebutted testimony 	shows 	that 	almost all 	of 	the officers, 	both
male 	and 	female, 	engaged 	in telling 	sexual 	jokes 	and making
sexual comments. 	On March 	12, 	1986, 	Moseley and six other
officers 	sent 	a 	letter to the president 	of 	CSU Fresno regarding
the 	sergeant examination process. 	Mendoza, 	Jensen and Horsford
testified that 	the 	letter was 	not 	aimed at 	Silva personally. 	In
addition, 	Wint admitted 	in his 	testimony that no one was 	singled
out 	in the 	letter regarding the 	sergeant 	examination process.
Silva was 	the 	only person who believed that 	this 	letter was 	a
personal 	attack. 	Despite the 	fact that 	other officers 	told
23

sexual 	jokes 	and 	signed 	the 	letter 	regarding the 	sergeant
examination process, 	only Moseley was 	singled out 	in the
investigation of the 	sexual harassment 	charge. 	Disparate
treatment 	is 	also 	evident 	in Moseley's 	report writing. 	Testimony
by Moseley, 	Ronda Hambrock, 	Lisa Trevino, 	Hernandez, 	Mendoza,
Washington and 	Jensen 	indicate 	that 	Moseley's 	performance was
under 	close 	scrutiny due 	to his 	position and 	involvement with
SUPA.
Proximity 	of 	time 	between the participation 	in protected
activity 	and 	adverse 	action 	exists 	as 	Moseley's 	protected
activity 	and discipline 	occurred during 	the 	same period. 	In
fact, 	the 	letter of 	reprimand 	and 	five-day 	suspension directly
followed 	instances 	of Moseley's 	protected 	activity 	on 	July 	2 	and
3, 	1987 	(i.e., 	Level 	1 grievance meeting and Jensen investigatory
interview). 	Both the 	letter of 	reprimand and the 	suspension
notice 	explicitly 	state 	that 	the 	discipline was 	based 	on
Moseley's 	conduct at the Level 	1 	grievance meeting, 	confrontation
with King 	following the Level 	1 	grievance meeting and 	the 	Jensen
investigatory 	interview.
In the 	area 	of 	inconsistent or 	contradictory 	explanations,
testimony 	at 	the hearing demonstrates 	that 	the 	allegations 	of
sexual harassment against 	Silva are not based on gender, 	but 	on
nongender concerns. 	Specifically, 	the allegation that the
March 	12, 	1986 	letter 	from Moseley and 	six other officers 	to 	the
president 	of CSU Fresno, 	regarding the 	1986 	sergeant 	examination
process, 	was 	a personal 	attack on Silva was 	refuted by testimony
24

by Mendoza, 	Jensen, 	Horsford and Wint. 	The 	issue of Silva's
competence was 	based on a 	specific 	incident 	involving 	another
officer, 	Lisa Trevino, 	who was 	injured while on duty with Silva.
There 	is 	also 	evidence 	that 	complaints 	had been 	filed against
Silva 	in the past regarding her performance 	as 	a public 	safety
officer. 	However, 	other witnesses 	testified that these 	incidents
occurred 	five 	to 	seven years 	ago and that 	Silva's performance had
improved. 	The 	fact that 	there were 	legitimate 	concerns 	about
Silva's 	performance 	in the past 	and as 	a 	sergeant 	indicates 	that
the 	concerns 	about 	Silva's 	competence 	cannot be 	solely attributed
to gender.
Inconsistent 	or 	contradictory 	explanations 	are 	also 	evident
regarding the 	issue 	of 	conducting 	SUPA business 	during work 	time.
On October 	13, 	1987, 	Moseley received a memo from King regarding
a 	SUPA meeting 	scheduled 	for October 	18, 	during Moseley's work
time. 	On October 	14, 	1987, 	Moseley received a 	"Letter of
Warning," 	which was placed 	in Moseley's personnel 	file. 	The
letter 	advised 	Moseley 	that 	no 	SUPA business 	should 	be 	conducted
on work time without prior clearance 	from King. 	Moseley met with
King and Snow on October 21 	and 2 6 	to discuss 	this 	issue and the
parties 	disagreed on the 	interpretation of 	the 	contract 	language.
Inadequate 	investigation is 	evident 	in Wint's 	report 	as 	it
failed to 	state any 	incidents 	of 	sexual harassment. 	In his
testimony at the hearing, 	Wint referred to the terms 	"pattern of
practice" 	or 	"atmospheric 	sexual harassment." 	Wint 	testified
that he did not 	include all 	of 	the 	information he 	obtained 	from
25

his 	interviews 	because he was 	not 	investigating a 	union matter
and. did not have to put everything into the report. 	The
information Wint did not 	include 	in his 	report were 	statements 	by
officers 	that would rebut the 	charges 	of 	sexual 	and 	racial
harassment 	(i.e., 	Officers Gil Franco and Hernandez). 	His
failure 	to 	contact 	certain employees 	who 	might 	have 	information
that would benefit Moseley 	also 	indicates 	that 	the 	investigation
was 	inadequate 	and the report was 	conclusory 	(i.e., 	Officer Lisa
Trevino 	and CSU police 	escorts). 	Wint's 	testimony and an
examination of his 	report demonstrates 	that the 	finding of 	sexual
harassment 	is 	not based on any specific 	facts. 	Rather, 	the
findings 	of 	sexual 	harassment 	are based on 	"atmospheric 	sexual
harassment."
The 	investigation 	into 	the 	sexual 	affair 	rumor 	also
demonstrates 	a 	lack of an adequate 	investigation and 	is 	another
example 	of 	inconsistent 	explanations 	used by CSU 	in 	its 	decision
to 	discipline Moseley. 	Although Ogden's 	report 	concludes 	that
the rumor was 	traced to Moseley, 	there 	is 	no direct 	evidence to
support that conclusion. 	Rather, 	Ogden reaches 	this 	conclusion
based on the written 	statements 	by Anderson and Stamp, 	which
contained 	only hearsay 	statement
affair between Anderson and 	Stamp
. s 	that 	Moseley 	commented 	about 	an
. 	Although Ogden's 	report
recommended 	that 	a 	letter of 	reprimand be placed 	in Moseley's
file, 	Anderson testified that after reading the report, 	he
decided he would not 	follow the 	recommendation. 	Until 	the 	three-
26

month 	suspension notice, 	Moseley was 	unaware that 	the 	alleged
affair rumor would be 	the 	basis 	of 	any disciplinary 	action.
Under Novato. 	the 	evidence 	clearly 	indicates 	that 	SUPA has
met 	its 	burden of proving that CSU had an unlawful 	motive 	in 	its
discipline of Moseley.12 Once SUPA meets 	its burden, 	the burden
shifts 	to CSU 	to prove that 	its 	actions would have occurred 	in
the absence of Moseley's protected activities. 	CSU argues 	that
its 	conduct with 	regard 	to Moseley was 	based on a 	legitimate
operational purpose: 	to 	solving a 	serious 	employment 	relations
problem. 	CSU relies on: 	(1) 	the three alleged acts 	of
insubordination on July 2 and 3, 	1987; 	(2) 	sexual harassment of
Silva; 	(3) 	investigation of the Anderson/Stamp affair 	finding
Moseley responsible 	for the rumor; 	and 	(4) 	other acts 	of
insubordination 	(as discussed in the 	facts 	above).
During the hearing, 	SUPA called numerous witnesses 	to 	the
stand 	to 	testify. 	Except 	for a brief 	cross-examination of
Moseley, 	CSU did not cross-examine any witnesses. 	In 	its
defense, 	CSU called three witnesses to testify: 	Snow; 	King; 	and
Anderson. 	CSU also 	briefly recalled Hemink.
While 	Snow, 	King and Anderson testified under direct
examination regarding the 	reasons 	for disciplining Moseley, 	their
testimony 	during 	cross-examination 	demonstrated 	inconsistencies
12Although 	the ALJ 	relied on comments 	made by 	officers 	at
CSU Fresno and other CSU campuses 	to 	find anti-union animus, 	we
find that these 	comments 	are not probative. 	The testimony
regarding these random comments 	is 	hearsay. 	Additionally, 	there
is 	no 	evidence 	that 	other CSU campuses were 	involved 	in the
discipline of Moseley. 	Therefore, 	comments made by officers 	at
CSU Fresno and other CSU 	campuses 	are 	irrelevant.
27

in their direct testimony. 	For example, 	Snow stated that he was
unable to complete the Jensen interview, 	yet admitted that, 	in
his 	report, 	he did not mention that his 	investigation was
incomplete due 	to Moseley's 	alleged 	interference. 	While 	King
testified that he was 	trying to work with Moseley, 	he 	also
testified that, 	after the grievance meeting on July 2, 	1987, 	he
saw no 	need 	to 	respond 	to 	Moseley's 	question regarding 	the
purpose 	of 	the meeting when ordering Moseley back 	into 	his
office. 	Although he expected Moseley to be upset, 	King testified
that he 	had 	the 	notice 	of 	administrative 	leave 	the day before 	he
served Moseley at work, 	but decided, 	nonetheless, 	to 	serve the
administrative 	leave 	notice 	at work 	so 	that Moseley's 	locker
would be 	cleaned 	out 	and 	state property 	returned. 	King
confiscated 	Moseley's 	personal 	weapon 	from his 	locker 	and 	refused
Moseley's 	demand 	for its 	return. 	These 	actions 	are not
consistent with his 	statement 	that 	he was 	trying to work with
Moseley. 	Finally, 	Anderson, 	in testifying as to the reasons why
he 	recommended Moseley's 	termination, 	admitted that 	there 	are 	two
factions 	at the Fresno State Police Department. 	During cross-
examination, 	Anderson stated that 	there were prior problems 	with
Moseley, 	but 	"they 	just weren't documented." 	However, 	during
1987 	and 	1988, 	the administrators 	and officers 	at the Fresno
State 	Police 	Department 	documented 	numerous 	instances 	of
"insubordination," 	conducted 	investigations 	involving
sexual/racial harassment and a 	sexual affair rumor, 	and 	sent
28

Moseley 	to 	a 	consultation and 	fitness 	for duty 	examination with
Cherney.
While 	CSU may have 	had 	a 	legitimate 	operational 	purpose 	in
taking disciplinary 	action against Moseley, 	CSU 	failed to present
any 	credible 	evidence.13 Generally, 	the 	testimony of 	SUPA's
witnesses 	is 	unrebutted and uncontradicted. 	In contrast, 	the
direct testimony of 	Snow, 	King and Anderson is 	subject to doubt
after the cross-examination. 	Thus, 	CSU has 	failed to present
credible 	evidence 	that CSU would have taken the disciplinary
action against Moseley 	in the 	absence of 	his protected activity.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire record in this 	case, 	the Public 	Employment
Relations 	Board finds that the Trustees 	of the California 	State
University violated section 3571(a) 	and 	(b) 	of the Higher
Education Employment 	Relations 	Act.
It 	is 	hereby ORDERED that California 	State 	University 	and
its 	representatives 	shall:
13	13 While CSU argued 	in its 	exceptions 	that Moseley's
obstruction of 	the 	grievance process was 	one of 	the major aspects
of CSU's 	business 	necessity defense, 	CSU 	failed to raise 	this
argument 	in its post-hearing brief. 	Additionally, 	the
disciplinary notices 	fail 	to 	state 	that Moseley's 	alleged
obstruction of the grievance process was 	one of the reasons 	for
the 	disciplinary 	action. 	Although 	there was 	testimony 	regarding
Moseley's 	use of the grievance process, 	the 	fact that CSU did not
base 	its 	disciplinary actions 	on this 	conduct 	and 	failed 	to
include this 	fact 	in 	its 	post-hearing brief 	leads 	to 	the
conclusion that this 	argument has 	no merit.
29

A. 	CEASE AND DESIST FROM:
1. 	Imposing or threatening to 	impose reprisals,
discriminating or threatening to discriminate 	against, 	or
otherwise 	interfering with, 	restraining or 	coercing 	employees
because 	of 	their 	exercise 	of 	rights 	guaranteed by the Act.
2. 	Issuing to Officer John Moseley punitive 	actions
based upon activities protected by the Act, 	including the 	letter
of 	reprimand dated July 	7, 	1987, 	five-day 	suspension notice dated
July 	16, 	1987, 	and three-month 	suspension notice dated March 	4,
1988.
3. 	Denying to 	the 	Statewide 	University Police
Association rights 	guaranteed to 	it by the Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYMENT RELATIONS ACT:
1. 	Rescind and destroy the 	letter of 	reprimand dated
July 7, 	1987, 	five-day suspension notice dated July 	16, 	1987, 	and
three-month 	suspension notice dated March 4, 	1988.
2. 	Delete 	from Officer John Moseley's 	personnel 	file
any reference to: 	(1) 	the 	sexual harassment investigation and
report by Doctor Arthur Wint; 	(2) 	the 	sexual affair rumor
investigation and report by Phil Ogden; 	(3) 	any reports 	or
memoranda under the 	control 	of CSU which 	it used to 	support 	its
letter of reprimand, 	its 	five-day 	suspension, 	or three-month
suspension of 	Officer 	John Moseley.
3. 	Pay to Officer John Moseley the 	salary that he 	lost
as 	a 	result of 	the unlawful 	suspensions. 	Such retroactive 	salary
30

award 	shall 	include 	interest at the rate of 	ten 	(10) 	percent per
annum.
4. 	Make Officer John Moseley whole 	for any other
losses, 	such as benefits, 	seniority credit(s), leave credit(s),
and 	reasonably 	expected 	overtime 	salary 	opportunities 	that 	he 	may
have 	suffered as 	a 	result 	of 	the unlawful 	conduct by the 	Trustees
of the California State University, 	its 	agents 	and
representatives.
5. 	Within thirty-five 	(35) 	days 	following the date the
Decision is 	no 	longer subject to reconsideration, 	post at all
work 	locations 	where 	notices 	to 	employees 	customarily 	are placed,
copies 	of 	the Notice 	attached as 	an Appendix hereto, 	signed by an
authorized 	agent of 	the 	employer. 	Such posting 	shall 	be
maintained 	for a period of thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be taken to 	insure that this 	Notice 	is 	not
reduced 	in size, 	defaced, 	altered or covered by any material.
6. 	Written notification of 	the actions 	taken to 	comply with
this 	Order 	shall be made 	to 	the Los Angeles 	Regional 	Director of
the 	Public 	Employment Relations 	Board 	in accordance with his/her
instructions.
Members 	Shank and Camilli 	joined 	in this 	Decision.
31

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case Nos. 	S-CE-32-H 	and
S-CE-33-H, 	State University Police Association v. 	Trustees 	of the
California 	State 	University, 	in which all parties 	had the 	right
to participate, 	it has 	been found that the California 	State
University 	violated 	the 	Higher 	Education 	Employer-Employee
Relations Act 	(Act) 	section 3571(a) 	and 	(b).
As 	a result of this 	conduct, 	we have been ordered to post
this 	notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Imposing or threatening to 	impose 	reprisals
discriminating or threatening to discriminate 	against, 	or
otherwise 	interfering with, 	restraining 	or 	coercing 	employees
because 	of 	their 	exercise of 	rights 	guaranteed by the Act.
2. 	Issuing to Officer John Moseley 	(Moseley) 	punitive
actions 	based upon activities 	protected by the Act, 	including the
letter of reprimand dated July 7, 	1987, 	five-day 	suspension
notice dated July 	16, 	1987, 	and three-month suspension notice
dated March 4, 	1988.
3. 	Denying to 	the 	Statewide 	University Police
Association rights 	guaranteed 	to 	it by the Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYMENT RELATIONS ACT:
1. 	Rescind and destroy 	the 	letter of 	reprimand dated
July 7, 	1987, 	five-day suspension notice dated July 	16, 	1987, 	and
three-month 	suspension notice dated March 4, 	1988.
2. 	Delete 	from Officer John Moseley's personnel 	file
any reference to: 	(1) 	the 	sexual harassment investigation and
report by Doctor Arthur Wint; 	(2) 	the 	sexual affair rumor
investigation and report by Chief Phil Ogden; 	(3) 	any reports 	or
memoranda under the 	control 	of 	the 	Trustees 	of 	the California
State 	University which 	it used to 	support 	its 	letter of
reprimand, 	its 	five-day suspension, 	or three-month suspension of
Officer 	John Moseley.
3. 	Pay to Officer John Moseley the 	salary that he 	lost
as 	a result of 	the unlawful 	suspensions. 	Such retroactive 	salary

award 	shall 	include 	interest at the rate of 	ten 	(10) 	percent per
annum.
4. 	Make 	Officer John Moseley whole 	for any other
losses, 	such as benefits, 	seniority credit(s), leave credit(s),
and 	reasonably 	expected 	overtime 	salary 	opportunities 	that 	he 	may
have 	suffered as 	a 	result of 	the unlawful 	conduct by 	the 	Trustees
of the California State University, 	its 	agents 	and
representatives.
Dated: 	TRUSTEES 	OF 	THE 	CALIFORNIA
STATE 	UNIVERSITY
By
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
N2