California State University, Fresno (PERB 0845H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATEWIDE 	UNIVERSITY 	POLICE
ASSOCIATION 	and 	GILBERT A.
WASHINGTON, 	JR.,
Charging 	Parties
v.
CALIFORNIA 	STATE 	UNIVERSITY,
FRESNO,
Respondent.
Case No. 	S-CE-35-H
PERB Decision No. 	845-H
October 4, 	1990
Appearances: 	Mastagni, 	Holstedt & Chiurazzi by Mark R. 	Kruger,
Attorney, 	for 	Statewide 	University 	Police Association and 	Gilbert
A. 	Washington, 	Jr.; 	William B. 	Haughton, Attorney, 	for California
State University, 	Fresno.
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, 	Fresno 	(CSU) 	and Statewide
University Police Association 	(SUPA) 	and Gilbert A. 	Washington,
Jr. 	(Washington) 	to a proposed decision issued by a PERB
administrative 	law judge 	(ALJ). 	The ALJ dismissed the unfair
practice 	charge 	and 	complaint 	alleging 	that 	CSU 	violated 	section
3571(a) 	and 	(b) 	of the Higher Education Employer-Employee
Relations Act 	(HEERA or Act)1 when it unlawfully discriminated
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:
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against Washington because 	of his 	exercise of protected activity.
We have 	reviewed the 	entire 	record, 	including the proposed
decision, 	transcript, 	exhibits, 	exceptions and response, 	and
reverse 	the ALJ's 	dismissal 	for the 	following reasons.
FACTUAL 	SUMMARY
Washington was 	hired as 	a public 	safety officer by 	the
Fresno State Police Department 	(FSPD) 	effective July 	13, 	1987.
This 	position had a 	one 	year probationary period 	ending 	July 	13,
1988. 	Pursuant to a 	subpoena, 	Washington testified on behalf of
a 	fellow campus police officer 	(John Moseley) 	at a PERB 	formal
hearing on June 	22, 	1988. 	Washington was rejected from his
probationary position on June 28, 	1988, 	effective July 	12, 	1988.
Washington alleges 	that his 	rejection was 	due 	to his 	having
testified at the 	PERB 	formal hearing.
Prior to Washington's 	employment at the FSPD, 	Sergeant
(Sgt.) 	Richard Snow 	(Snow) 	of the FSPD conducted a background
investigation. 	The report, 	with regard to previous 	employers and
supervisors, 	was mixed. 	The report 	included the 	fact that
Washington was 	removed 	from the 	canine unit 	in 	1987 	at 	the 	Fresno
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of 	rights
guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by 	this 	chapter.
This 	section was 	subsequently amended, 	effective January 	1, 	1990
This 	change has 	no 	impact on the disposition of this 	case.
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County 	Sheriff's 	Department. 	The 	report 	also 	included reprimands
Washington received in September 	1981, 	December 	1986, 	and
January 	1987 	and a 	report placed 	in Washington's 	file 	on May 	7,
1986, 	regarding poor judgment; 	slow response time to calls; 	late
and 	incomplete reports; 	poor attitude 	in dealing with the public;
failing to 	get overtime authorization; 	and 	failing to 	remain 	in
assigned beat. 	Despite these mixed reports, 	Snow stated 	in his
evaluation that he 	"found no 	significant 	lasting problems." 	He
further 	stated that:
. 	. 	. 	it would appear that Washington is
dependable 	and 	interested 	in helping people.
He 	seems 	sincere 	in his 	desire to assist the
public 	and 	should be well 	suited to 	the
campus 	community 	style 	of police work.
Prior to Chief William Anderson's 	(Anderson) 	decision to
hire Washington, 	he met with Washington. 	During their meeting,
Washington 	informed Anderson 	that 	he 	had 	not passed probation 	at
the 	United 	States 	Marshal's 	Office 	and Washington D.C. 	Police
Department. 	Anderson and Washington also discussed his 	conflicts
with his 	supervisors 	at the 	Fresno County Sheriff's 	Department.
At the FSPD, 	Officer Margie Hernandez 	(Hernandez), 	a
training officer, 	was 	assigned 	to monitor Washington's 	employment
transition from deputy 	sheriff 	to CSU police officer. 	Hernandez
worked 	directly with 	Washington 	for 	approximately 	four weeks.
Any problems 	noted were 	normal 	to 	any 	new officer 	in the
department. 	Hernandez believed that Washington was 	a 	safe 	and
knowledgeable 	officer who had 	a 	good 	rapport with the public.
She 	found him trainable 	and 	open to 	suggestions 	on how to 	improve
W
	3

his performance. 	Further, 	she found his report writing
acceptable. 	Hernandez was 	aware of 	some 	conflicts Washington had
with Officer Guadalupe Canales 	(Canales). 	Hernandez 	told
Washington, 	since he was on probation, 	there was not much they
could do 	about 	it. 	Hernandez 	told Washington to 	just bear with
it 	and keep doing his 	job.
Numerous 	officers 	and dispatchers 	testified 	that Washington
was 	an excellent police officer and that 	there was 	no 	legitimate
reason to 	reject him. 	While 	Officer Daniel 	Horsford 	(Horsford)
testified that Washington was 	a 	good police officer, 	he 	also
observed Washington having 	trouble with 	some 	of 	the people with
whom he was working 	(Canales and Sgt. 	Maria Silva). 	Horsford
further testified that, 	in the past, 	he also had problems with
Canales 	and had 	complained 	about her 	attitude.
On October 2, 	1987, 	Washington received his 	first
probationary evaluation from Sgt. 	Larry Foote 	(Foote). 	In all
six 	general 	categories, 	Foote 	noted that Washington 	fully met 	the
expected 	standards. 	The 	comments were positive 	concerning his
organization, 	report writing, 	ability to get along with employees
and 	staff, 	appearance, 	control, 	and rapid adaption to working on
campus. 	There were no negative comments 	in the report.
Prior 	to 	the preparation 	of Washington's 	second probationary
evaluation report, 	Foote became 	ill and was 	replaced by Sgt.
Maria 	Silva 	(Silva). 	Silva had only been Washington's 	supervisor
for a period of 	two to 	four weeks when 	she prepared the 	second
probationary report on January 	14, 	1988. 	According to Silva,
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4

Foote 	had 	advised 	her 	regarding 	some 	negative 	information 	about
Washington's performance, 	but 	she declined to 	include this
information 	in his 	evaluation report 	because 	she 	did 	not
personally witness 	any of 	the 	incidents. 	Once again,
Washington's 	ratings 	in the 	six 	general 	categories were 	all
within the 	"fully meets 	expected 	standard" 	rating; 	some of 	the
markings 	almost 	abutted the 	"consistently 	exceeds 	expected
standards" 	rating area on the 	evaluation form. 	In the narrative
portion of 	the 	evaluation, 	Silva 	included 	several positive
comments 	about Washington's performance, 	including his 	report
writing, 	communication with his 	employees, 	ability to accept
constructive 	criticism, 	ability to work and 	follow through,
ability 	to make 	the 	transition 	from deputy 	sheriff 	to 	campus 	law
enforcement with no problem, 	and ability to make 	sound decisions
in his work. 	Again, 	there were no negative comments 	in the
report. 	This 	report was 	discussed and 	signed by Silva 	and
Washington on February 21, 	1988.
On March 23, 	1988, 	Silva and Washington held a meeting to
discuss 	his performance and an upcoming 	informal 	evaluation. 	In
this 	informal 	evaluation, 	Washington received 	31 	separate
ratings. 	Seventeen of these ratings were in the 	"average" 	range,
11 	in the 	"good" 	range, 	2 	in the 	"excellent" range, 	and 1 rating
in the 	"improvement needed" 	range. 	The 	"improvement needed"
rating was 	for 	"Organization." 	The 	"excellent" 	ratings were 	in
"Knowledge" 	and 	"Relationships with Supervisors." 	The 	narrative
comments 	included both acceptable 	and unacceptable 	traits. 	Silva
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noted Washington was 	an 	"easy going 	individual, 	accepts 	changes
and modifies 	his behavior, 	takes pride 	in his work and
appearance, 	lowest 	sick leave 	for shift, 	orderly." 	She also
stated 	"report writing time 	frame to 	[sic] 	long, 	paperwork 	logs
not turned 	in on time, 	too 	formal 	in report writing." 	In the
general 	comment 	section, 	Silva 	noted Washington's 	"formality 	in
his 	reports 	has 	decreased 	and 	is 	using 	first person writing 	style
more."
In her testimony, 	Silva claimed that originally, 	she had
three or 	four categories 	marked 	"improvement needed" 	in the
informal 	evaluation. 	She 	testified 	she 	changed these markings
after the March 	23, 	1988 meeting with Washington because 	she
thought 	she was 	being too harsh on him. 	However, 	she also
testified that after this 	meeting, 	she determined 	that Washington
was 	untrainable. 	At 	a meeting with Lieutenant 	Steven King
(King), 	Silva asked if 	it was possible to extend Washington's
probationary period. 	King 	told her the probationary period 	could
not be extended. 	Sgt. 	James Myers 	(Myers) 	and Investigator
Michael 	O'Reilly 	testified 	they 	heard Washington 	shouting 	at
Silva during the March 	23, 	1988 	meeting. 	Silva did not mention
to 	King 	that Washington had been verbally abusive. 	When
reporting to 	King 	about the meeting, 	Silva mentioned only 	that
Washington became upset 	and made 	facial 	grimaces. 	King requested
that 	Silva prepare 	a memo documenting the problems with
Washington's 	performance. 	Neither the 	informal 	evaluation nor
memo mention Washington's 	conduct during the March 	23, 	1988
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meeting.
During the beginning of May 	1988, 	Anderson spoke to King
about 	a 	recent 	conversation he had with Washington regarding his
application to work at the Clovis 	Police Department. 	Anderson
told 	King he was 	pleased 	that he 	had been able 	to 	talk Washington
into 	staying with the FSPD. 	At this point, 	King told Anderson
there 	had been 	some difficulties with Washington. 	As Anderson
had been 	assigned 	to 	a 	special 	task 	force 	from January 	to 	May
1988, 	he 	had not been in 	contact with the day-to-day operations
of 	the 	FSPD. 	Anderson told King to 	organize a meeting of 	all 	the
sergeants 	to bring him up 	to 	date 	on Washington's 	probationary
status. 	This meeting was held on June 	6, 	1988. 	As most of the
information received 	in this 	meeting was 	negative, 	Anderson made
arrangements 	to assign Washington to 	two weeks 	of 	field 	training
under the 	supervision of Myers.
On June 	7, 	1988, 	Anderson wrote a memo to Washington
indicating the 	reasons 	for the 	two-week training. 	This 	memo was
based 	on 	negative 	information 	supplied 	to Anderson by 	Lieutenant
King and Sgts. 	Silva and Snow during the June meeting. 	This
information 	included 	allegations 	that 	Washington was 	sleeping 	on
patrol, 	playing a personal 	radio when it had been forbidden by
the 	sergeant, 	responding to radio calls 	in a 	slow manner, 	and
failing to 	call 	in on the 	radio when making 	traffic 	stops. 	There
was 	also 	an allegation that Washington had been rude 	to
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dispatcher Deborah Stamp 	(Stamp).2 At 	a briefing by 	secret
service 	agents 	prior to 	then Vice-President 	Bush's 	visit 	to 	the
campus, 	Washington allegedly 	interrupted the briefing with 	either
laughter or 	loudly whispered comments. 	Finally, 	in 	late May
1988, 	Washington allegedly made belittling and disrespectful
comments 	regarding 	Silva.
From June 	13 through June 24, 	1988, 	Washington was under the
direct 	supervision of Myers. 	Myers 	filed a daily observation
report, 	grading Washington in 30 	separate categories. 	On an
average, 	12 	to 	14 	of these categories were not observed in any
one day. 	Most of Myers' 	ratings 	of Washington were at the
acceptable 	level. 	Washington received 	several high marks 	for his
"General Appearance." 	He 	received 	seven 	low marks 	during this
ten-day period 	involving 	his 	"Acceptance 	of 	criticism:
verbal/behavior." 	The 	narrative 	comments 	do not 	explain the
basis 	for this 	rating. 	Four of his 	negative ratings 	had to do
with the 	completion of 	forms 	and/or report writing. 	The 	only
explanation of 	these 	criticisms was 	that minor 	corrections were
needed or an 	incorrect 	category was 	used 	in a 	report. 	The 	only
other two 	negative ratings 	concerned 	"Officer 	Safety: 	General."
In one instance, 	Washington was 	accused of 	setting out 	"a poorly
designed 	flare pattern at 	the 	scene of 	a drunk-auto." 	In the
other, 	during 	"a traffic 	stop, 	Washington positioned himself 	in
22Charging parties' 	exception that there 	is 	no direct
evidence 	supporting 	the ALJ's 	finding 	that Washington was 	rude
over the radio to Stamp has no merit. 	In his testimony,
Washington admitted that, 	on one occasion, 	he had been rude to
Stamp 	over 	the 	radio 	and 	later 	apologized 	to 	Stamp.
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an unsafe position with 	the driver of 	the vehicle." 	In the
narrative comment portion of the reports, 	Washington received
many positive 	comments 	regarding his 	relationship with 	the
civilians he 	contacted while 	on campus. 	There were 	also 	frequent
comments 	about 	the 	slowness 	of 	the 	activity on campus 	during this
ten-day time period. 	In addition, 	there were a number of
comments 	such as, 	"On the mechanics of the 	job, 	Officer
Washington is 	a good officer, 	but there are other areas he needs
to work on." 	There was 	no 	further explanation of 	these 	comments.
After 	the 	ten-day 	field 	training 	session was 	completed,
Anderson met with 	the 	involved 	supervisory personnel. 	Myers
concluded 	that 	Washington 	"cannot 	function 	independently 	at 	this
time and recommended rejection." 	Sgts. 	Silva and Snow, 	as well
as 	Lieutenant King, 	all recommended Washington's 	rejection from
probation.
On June 28, 	1988, 	Washington received his third formal
evaluation, 	which was marked as 	"improvement needed to meet
expected standards" 	in his abilities, 	work habits, 	attitude and
adaptability. 	On the same date, 	Washington received his 	notice
of rejection from probation, 	effective July 	12, 	1988.
DISCUSSION
In Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210, 	the Board 	set forth the test for discrimination and
retaliation.3 In order to 	establish a prima 	facie 	case, 	the
3In California State University. 	Sacramento 	(1982) 	PERB
Decision No. 	211-H, 	the Board found the test in Novato Unified
School District, 	supra, 	PERB Decision No. 	210, 	for discrimination
•
----------· 	- 	-·
9

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 	the employer had actual
or 	imputed knowledge of 	the 	employee's protected activity. 	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 action; 	(4) 	departure from
established procedures or standards; 	and 	(5) 	an inadequate
investigation. 	(Novato Unified School District, 	supra, 	PERB
Decision No. 	210; 	Regents of the University of California
(Berkeley) 	(1985) 	PERB Decision No. 	534-H; 	see also Baldwin Park
Unified School District 	(1982) 	PERB Decision No. 	221.)
In the present case, 	there is 	no dispute that Washington
engaged 	in protected activity when he 	testified 	at 	a 	PERB 	formal
hearing on June 22, 	1988. 	As Anderson was present during this
hearing, 	CSU was 	aware of this protected activity.. 	In finding
and 	retaliation applicable 	to 	cases 	arising under 	HEERA.
10

CSU was 	aware 	of Washington's 	protected activity, 	the ALJ 	also
noted 	that Washington's 	employment problems 	with the 	FSPD
predated his 	testimony, 	but not the 	issuance of 	the 	subpoena 	on
April 	26, 	1988. 	CSU excepts to this 	finding and argues CSU did
not become aware of 	the 	subpoena until 	it was 	served on May 	16,
1988.4 CSU argues 	the May 	3, 	1988 	meeting between Anderson and
King, 	wherein King briefed Anderson regarding Washington's
problems 	on probation, 	allegedly was 	the beginning of 	the FSPD's
actions 	against Washington based on his 	performance while 	on
probation. 	Therefore, 	CSU argues, 	the FSPD's actions predated
its 	knowledge 	of Washington's 	protected 	activity.
Even 	if 	this 	briefing 	occurred before CSU had 	knowledge 	that
Washington was 	going to testify at the PERB 	formal hearing, 	the
outcome of 	this 	briefing did not decide Washington's 	status 	on
probation. 	Rather, 	as a result of this briefing, 	Anderson
decided 	to 	hold 	a 	management 	meeting with 	King and 	all 	the
sergeants 	regarding Washington's probationary 	status. 	After 	this
meeting, 	held on June 6, 	1988, 	Anderson decided to place
Washington on a 	two-week 	field training assignment with Myers.
4Washington testified 	he was 	served with 	the 	subpoena 	on the
day of 	the 	Bush briefing. 	Anderson testified that he became
aware of Washington's 	subpoena on or about May 	16, 	1988, 	the day
of 	the 	Bush briefing. 	Anderson 	stated he was 	put 	in the position
of 	having to 	serve the 	subpoenas 	on the police officers. 	King
testified 	that 	he 	became 	aware 	of 	Washington's 	subpoena 	the 	first
week of May.
During 	Silva's 	testimony, 	she 	confirmed the ALJ's 	assumption that
"everybody at the CSU, 	Fresno knew that the hearings were 	going
on and there was 	a 	lot of discussion about who was 	testifying and
who 	said what and 	all 	that 	sort 	of 	thing."
11

From June 	13 through June 24, 	1988, 	Washington was under the
direct 	supervision of Myers. 	As part of this 	training, 	Myers
filed 	a 	daily observation report 	grading Washington 	in 	several
separate categories. 	As 	is 	obvious 	from the dates, 	the training
was 	not 	completed 	or 	discussed until 	after Washington had 	engaged
in protected 	activity. 	Although the 	grades 	and 	comments were
generally 	satisfactory and 	favorable, 	Myers 	concluded 	that
Washington 	could 	not 	function 	independently 	and 	recommended
rejection. 	At 	a 	second management 	meeting held 	after Washington
testified at the PERB hearing, 	Sgts. 	Silva and Snow and
Lieutenant 	King 	recommended 	Washington's 	rejection 	during
probation.
On June 28, 	1988, 	Washington received his third formal
evaluation. 	This 	evaluation evidenced a dramatic 	drop 	in
Washington's performance as 	a police officer at the FSPD. 	As 	the
previous 	evaluations were good or, 	at the very minimum,
satisfactory, 	this 	evaluation seems 	suspect. 	This 	is 	especially
true 	in 	light of 	the 	fact 	that 	this 	evaluation was 	given only 	six
days 	after Washington testified at 	the PERB 	formal 	hearing. 	On
the 	same day, 	Washington received his 	notice of 	rejection from
probation, 	effective July 	12, 	1988.5 Thus, 	the actual date that
CSU had knowledge of 	the 	subpoena does 	not 	change 	the 	fact 	that
Washington was 	given his 	third 	formal 	evaluation and 	notice 	of
rejection 	six days 	after he testified at 	the PERB 	formal 	hearing.
5It 	is 	interesting to 	note that the 	notice 	of 	rejection was
dated June 27, 	1988, 	one day before Washington's 	third formal
evaluation.
12

On this 	basis, 	the Board 	finds 	that the proximity of 	time between
the 	participation 	in protected 	activity 	and Washington's
rejection 	from probation 	support 	an 	inference 	that 	there was 	a
causal 	relationship 	between these 	two 	circumstances.
In determining whether there was disparate treatment, 	there
is 	no 	evidence 	in the record of 	other probationary 	employee
evaluations. 	Therefore, 	it is 	impossible to compare Washington's
evaluations 	with other probationary 	employee 	evaluations.
The FSPD did, 	however, 	give inconsistent or contradictory
explanations 	for its 	evaluations 	of Washington. 	While Washington
received uniformally positive 	evaluations 	for 	the 	first 	nine
months 	of 	his 	twelve-month probation period, 	the 	FSPD 	insisted
that he was 	guilty of 	a 	series 	of 	egregious 	and 	inappropriate
actions during the 	same time period. 	However, 	none of these
actions 	were 	either 	documented 	or 	discussed with Washington 	until
the 	last month or 	six weeks 	of his 	probationary period. 	Even
Anderson was 	under the 	impression as 	late 	as 	mid-May 	1988 	that
Washington was 	successfully 	completing 	his 	probationary period.
Another 	inconsistency 	involves 	the 	high 	level 	of 	support 	given 	to
Washington by other employees 	of 	the FSPD. 	Both 	sworn and
nonsworn 	long-term 	employees 	of 	the 	FSPD 	believed 	that Washington
was 	a 	good police 	officer 	and did 	nothing 	to warrant 	rejection.
This 	testimony 	lends 	support 	to the 	contention that 	the 	rejection
was 	the 	result of 	anti-union animus 	rather than an honest
appraisal 	of Washington's 	skills 	as 	a police officer.
With 	regard 	to 	any departure 	from 	established procedures 	or
13

standards, 	the FSPD's 	inaccurate preparation of Washington's
evaluation reports was 	a departure 	from 	established procedures.
The purpose 	of probationary performance 	evaluations 	is 	to 	(1)
force 	the 	supervisor 	into 	a periodic 	evaluation of 	the 	employee's
progress 	towards 	successful 	completion of 	a probationary period;
and 	(2) 	inform the 	employee of 	such progress 	and 	allow him
sufficient time 	to discuss 	and 	correct 	any deficiencies. 	In this
case, 	neither of these purposes were met as 	the evaluations
failed 	to properly 	represent 	the 	FSPD's 	honest 	opinion 	of
Washington's 	progress 	towards 	completing his 	probationary period.
Further, 	the FSPD held at 	least two management meetings 	to
discuss 	and decide Washington's 	status 	on probation. 	Such
meetings 	were 	a departure 	from established procedures. 	King
testified 	it was 	not part of CSU's 	normal practice 	to discuss
probationary 	employees 	in 	such meetings.
Finally, 	the 	investigation of Washington's 	capabilities 	and
potential value to the FSPD was 	inadequate. 	The 	investigation
was 	confined to 	the 	last 	30 	days 	of 	his 	employment 	and 	completed
in a hurried nature. 	The 	combination of 	the timing of
Washington's 	rejection 	from probation, 	inconsistencies 	in the
FSPD's actions, 	departure from established procedures, 	and
inadequacies 	of 	the 	investigation of Washington's 	performance
lead 	to 	the 	conclusion that 	the 	charging parties 	presented 	a
prima 	facie 	case of discrimination.
The 	charging parties' 	exceptions 	challenge the ALJ's
conclusion that 	CSU had 	an operational 	justification 	for
14

rejecting Washington 	from his 	probation. 	In 	finding 	operational
justification, 	the ALJ 	stated:
Even 	if 	the 	comments 	from both Canales 	and
Silva 	from one 	side, 	and 	from Jensen and
Mendoza 	from the other, 	are disregarded as
being 	the product 	of 	their pro 	or 	anti-SUPA
stances, 	the FSPD still has evidence of a
probationary employee who 	(1) 	was 	rejected 	in
probation from two previous 	employers, 	(2)
has 	[sic] 	mixed 	"recommendations" 	from his
previous 	supervisors, 	(3) 	had a series of
Internal Affairs 	incidents when 	[he was] 	with
the Sheriff's office, 	(4) 	engaged in a loud
confrontation with 	his 	supervisor when
discussing a performance report, 	(5)
embarrassed the 	FSPD 	by 	twice 	disrupting 	an
important security briefing, 	and 	(6) 	Chief
Anderson believes, 	not only referred to his
supervisor 	in the most derogatory of 	terms,
but 	consistently 	lied about 	it. 	(Proposed
Decision, p. 28)
Although the ALJ 	recognized that 	the 	"FSPD 	failed 	to 	meet
the 	most 	minimum of 	standards 	in documenting Washington's 	police
officer performance 	throughout his 	employment" 	and the 	"employees
are divided 	into 	two distinct 	groups 	or cliques," 	he 	nonetheless
concluded 	that 	the 	FSPD 	demonstrated 	an 	operational 	justification
for 	its 	rejection of Washington 	from probation.
The 	charging parties' 	exception to the ALJ reliance upon
information 	or 	incidents 	occurring during Washington's 	prior
employment to 	find operational 	justification has 	merit. 	In this
case, 	it was 	improper for the ALJ and CSU to rely upon
Washington's 	employment 	history as 	justification 	for his
rejection from probation, 	especially 	since this 	information was
available during the background 	investigation. 	In 	fact, 	the
background 	investigation 	report 	specifically 	included 	conflicting
15

recommendations 	from Washington's 	previous 	supervisors 	and 	the
internal 	affairs 	incidents 	with the 	Fresno County 	Sheriff's
Department. 	Anderson testified that, 	prior to his 	decision to
hire Washington, 	Washington informed Anderson that he had 	not
passed probation at 	the 	United 	States 	Marshal's 	Office 	and
Washington D.C. 	Police 	Department. 	Anderson and Washington also
discussed his 	conflicts with his 	supervisors 	at the 	Fresno County
Sheriff's 	Department.
In its response to the charging parties' 	exceptions, 	CSU
states 	the 	"incidents which 	occurred during 	the period 	of
Washington's 	employment with 	respondent were 	the 	sole basis 	for
his 	rejection during probation." 	CSU 	states 	that 	these 	incidents
included 	(1) 	the 	loud confrontation Washington had with his
supervisor when discussing a performance evaluation; 	(2) 	the
disrupting 	of 	an 	important 	security briefing on 	two 	occasions;
and 	(3) 	Chief Anderson's 	good 	faith belief 	that Washington had
consistently 	lied 	about 	referring 	to 	his 	supervisor 	in derogatory
terms. 	It 	is 	interesting to note that CSU does 	not address 	the
ALJ's 	reliance on the prior employment history. 	In fact, 	CSU
states 	the 	record 	clearly demonstrates 	that 	facts 	known 	to 	CSU
regarding Washington's 	past 	employment 	history were 	not 	used 	by
CSU as 	the basis 	for 	its 	decision to 	reject him during probation.
In reading charging parties' 	exception and CSU's 	response,
it 	appears 	the parties 	are 	in agreement that 	it would be 	improper
for CSU to 	rely upon Washington's 	employment history, 	known by
CSU prior to his 	employment, 	as 	a basis 	for his rejection during
16

probation. 	If the Board disregards 	these 	factors, 	then CSU's
reasons 	for Washington's 	rejection are 	even more unpersuasive.
Although 	Washington 	allegedly 	engaged 	in 	a 	loud 	confrontation
with 	Silva during his 	informal performance 	evaluation, 	Silva 	did
not make 	a report of 	this 	incident. 	Silva discussed the 	informal
evaluation with 	King 	and 	asked King 	if 	Washington's 	probationary
period 	could be 	extended. 	King told her 	the probationary period
could not be 	extended and 	requested 	that 	Silva prepare 	a 	memo
documenting 	the problems with Washington's performance. 	There 	is
no 	reference 	in either the 	informal 	evaluation or memo 	to
Washington's 	alleged 	"loud 	confrontation."
With regard 	to 	the 	alleged disruption of 	the 	security
briefing, 	the 	testimony 	is 	inconsistent.6 Washington testified
that he did 	not really 	laugh, 	but was 	smiling after the 	secret
service 	agent had 	finished the briefing. 	Washington also
testified 	that 	he was 	talking 	and 	laughing before 	the 	briefing.
Again, 	this 	incident was 	not 	included 	in Washington's performance
evaluations.
Finally, 	Anderson's 	belief 	that Washington had 	lied 	about
referring to 	Silva 	in derogatory terms 	involves 	a 	credibility
determination by Anderson. 	Anderson chose to believe Jones'
report to 	Silva 	rather than Washington's 	denial. 	Throughout 	the
hearing, 	Washington denied making any 	such 	comments. 	Washington
testified that he heard other officers 	making comments, 	laughing
6In his proposed decision, 	the ALJ did not make any
credibility 	determinations 	based 	on 	the 	testimony.
17

and 	joking 	about 	Silva. 	Washington talked with the 	other police
officers 	and 	tried to 	find 	an excuse 	or 	reason 	for her behavior.
Washington testified his 	comments 	were 	not demeaning.
Based 	on 	the 	inconsistent 	testimony 	and the 	FSPD's 	failure
to 	meet 	the 	most minimum of 	standards 	in documenting Washington's
performance throughout his probationary period, 	the Board 	finds
CSU 	failed 	to present 	credible 	evidence 	of 	an operational
justification 	for Washington's 	rejection 	from probation.
Accordingly, 	the Board finds 	the charging parties proved, 	by a
preponderance of the evidence, 	that Washington's 	rejection 	from
probation was 	due 	to 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 	California 	State 	University,
Fresno, 	violated section 3571(a) 	and 	(b) 	of the Higher Education
Employer-Employee 	Relations 	Act.
Pursuant 	to 	section 	3563.3 	of 	the Higher Eduction Employer-
Employee Relations Act, 	it 	is hereby ORDERED that California
State University, 	Fresno, 	and its representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Imposing or threatening to 	impose reprisals,
discriminating or threatening to discriminate 	against, 	or
otherwise 	inferring with, 	restraining or 	coercing 	employees
because 	of 	their exercise 	of 	rights 	guaranteed by the Act.
2. 	Denying to the 	Statewide University Police
18

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. 	Reinstate Officer Gilbert A. 	Washington, 	Jr., 	as a
public 	safety officer at 	the Fresno 	State Police 	Department.
2. 	Rescind 	and destroy 	the 	third 	formal 	evaluation
dated June 	28, 	1988, 	and notice of rejection from probation dated
June 27, 	1988.
3. 	Delete from Officer Gilbert A. 	Washington, 	Jr.'s,
personnel 	file, 	any reports 	or memoranda under the 	control 	of
California State University, 	Fresno, 	which it used to 	support 	its
third formal evaluation dated June 	28, 	1988, 	and notice of
rejection from probation dated June 27, 	1988.
4. 	Pay to Officer Gilbert A. 	Washington, 	Jr., 	the
salary that he 	lost 	as 	a 	result of 	the unlawful 	rejection 	from
probation. 	Such retroactive 	salary award 	shall 	include 	interest
at the rate of ten 	(10) 	percent per annum.
5. 	Make Officer Gilbert A. 	Washington, 	Jr., 	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 California State University, 	Fresno, 	its agents and
representatives.
6. 	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,
19

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.
7. 	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 	her 	instructions.
Members 	Shank and Camilli 	joined 	in this 	Decision.
20

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case Nos. 	S-CE-35-H,
State 	University Police Association and Gilbert A. 	Washington.
Jr. 	v. 	California State University. 	Fresno, 	in which all parties
had the 	right to participate, 	it has been found that the
California State University, 	Fresno, 	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 	inferring with, 	restraining or 	coercing 	employees
because 	of 	their 	exercise 	of 	rights 	guaranteed by the Act.
2. 	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. 	Reinstate Officer Gilbert A. 	Washington, 	Jr., 	as a
public 	safety 	officer at 	the 	Fresno 	State 	Police 	Department.
2. 	Rescind 	and destroy 	the 	third 	formal 	evaluation
dated June 	28, 	1988, 	and notice of rejection from probation dated
June 27, 	1988.
3. 	Delete from Officer Gilbert A. 	Washington, 	Jr.'s,
personnel 	file, 	any reports 	or memoranda under the 	control 	of
California State University, 	Fresno, 	which it used to 	support 	its
third formal 	evaluation dated June 	28, 	1988, 	and notice of
rejection from probation dated June 	27, 	1988.
4. 	Pay to Officer Gilbert A. 	Washington, 	Jr., 	the
salary that he 	lost 	as 	a 	result 	of 	the unlawful 	rejection 	from
probation. 	Such retroactive 	salary award 	shall 	include 	interest
at the rate of 	ten 	(10) 	percent per annum.
5. 	Make Officer Gilbert A. 	Washington, 	Jr., 	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
e

the California State University, 	Fresno, 	its agents 	and
representatives.
Dated: 	CALIFORNIA 	STATE 	UNIVERSITY,
FRESNO
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.
22