Regents of the University of California (Cutshall) (PERB 1028H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
DANIEL F. 	CUTSHALL,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Case No. 	LA-CE-308-H
PERB Decision No. 	1028-H
December 9, 	1993
Appearance; 	Daniel F. 	Cutshall, 	on his own behalf.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal by Daniel 	F. 	Cutshall
(Cutshall) 	of a proposed decision 	(attached hereto) 	by a 	PERB
administrative law judge 	(ALJ). 	In that decision, 	the ALJ
dismissed Cutshall's 	charge 	that 	the Regents 	of 	the University of
California 	(University) 	violated section 3571(a) 	of 	the Higher
Education Employer-Employee Relations Act 	(HEERA)1 by terminating
HEERA1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Section 3571 states, 	in pertinent part:
It 	shall 	be unlawful 	for 	the higher education
employer to do any of 	the 	following:
(a) 	Impose or threaten to impose 	reprisals
on employees^ 	to discriminate 	or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.
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his 	employment 	in 	retaliation 	for his 	exercise 	of 	protected
rights.
The 	Board has 	reviewed the 	entire 	record in this 	case,
including the proposed decision, 	hearing transcript, 	exhibits,
briefs 	filed by 	the parties 	and Cutshall's 	statement 	of
exceptions. 	The Board finds 	the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free 	of prejudicial 	error and adopts
them as 	the decision of 	the Board 	itself.2
DISCUSSION
In order to prove a violation of HEERA section 3571(a),
charging party must 	establish 	that 	he participated 	in protected
activity; 	that 	the 	respondent had knowledge 	of 	that
participation; 	that 	the 	respondent 	took action adverse 	to 	the
charging party's 	interest; 	and that 	there was unlawful motivation
for 	that 	action 	such 	that 	the 	respondent 	would not 	have 	acted but
for the protected activity of 	the 	charging party. 	(Novato
Unified School District 	(1982) 	PERB Decision No. 	210; 	California
State University. 	Sacramento 	(1982) 	PERB Decision No. 	211-H.)
Cutshall 	has 	failed to provide 	evidence 	sufficient 	to establish
an unlawful 	motivation by 	the 	University.
On appeal, 	Cutshall 	reiterates many of 	the allegations
included 	in his 	charge and offered during 	the hearing 	in 	this
case. 	He argues 	that 	the evidence relating to his 	taking a
gallon of 	University gasoline 	for use 	in his 	personal 	motorcycle
clearly 	indicates 	that he did not 	intend to 	steal 	the 	gasoline
2The Board declined to order 	oral 	argument 	in this 	case.
2

. .
and planned to 	reimburse 	the University 	for 	its use. 	Therefore,
Cutshall 	asserts 	that 	the 	termination 	of 	his 	employment 	by the
University was 	motivated by 	something 	other 	than 	alleged 	employee
theft. 	Cutshall fails, 	however, 	to provide evidence which
demonstrates 	that 	the University's motivation was 	to 	retaliate
against 	him for his 	exercise 	of protected 	rights.
Cutshall 	points 	to 	the University's 	implementation of 	a
stipulated 	arbitrator's 	award 	resulting 	from a previous 	grievance
as 	evidence 	of 	the University's unlawful motivation. 	As 	noted by
the ALJ, 	however, 	due to the ambiguity of the award language, 	the
University's 	decision with 	regard 	to 	its 	implementation 	is 	not
evidence 	sufficient 	to 	establish 	retaliatory 	intent.
Finally, 	Cutshall. reiterates his assertion that the
University 	official 	who 	took 	the 	termination action against 	him
demonstrated union animus 	and 	retaliatory 	intent. 	Although 	the
record documents 	friction between Cutshall 	and this 	official, 	it
does 	not 	indicate 	that 	the 	official 	or 	the University acted 	in a
manner outside 	of normal 	procedures 	or reflective 	of
discriminatory 	treatment 	of 	Cutshall 	when 	it 	decided 	to pursue
termination as 	a 	result 	of 	his 	alleged theft 	of University
gasoline. 	Therefore, 	this argument 	is also without merit.
ORDER
The unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CE-308-H is hereby DISMISSED.
Chair Blair and Member Garcia 	joined 	in 	this Decision.
33

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DANIEL 	CUTSHALL,
Charging 	Party,
v.
REGENTS 	OF THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-308-H
PROPOSED 	DECISION
(5/27/93)
Appearances: 	Daniel Cutshall, 	in pro per; 	Claudia Cate, 	Esq.,
Office of 	the General 	Counsel, 	for the Regents 	of 	the University
of California.
Proposed Decision by Ronald E. 	Blubaugh, 	Administrative 	Law
Judge.
PROCEDURAL 	HISTORY
A University 	of 	California 	employee 	dismissed 	from his 	job
at 	a 	remote 	research 	station 	contends 	here 	that 	the 	termination
was 	wrongfully motivated by his 	participation 	in protected
activities. 	The University of 	California 	rejects 	this
characterization and asserts 	that 	the 	employee 	was 	terminated 	for
the 	reason stated at 	the 	time, 	theft 	of 	one gallon of gasoline.
Daniel 	Cutshall, 	a building maintenance worker at 	the
University's White Mountain Research Station, 	timely 	filed 	the
charge which commenced this action on January 21, 	1992. 	He 	filed
a first amendment 	to 	the 	charge 	on June 	8, 	1992. 	The general
counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
followed on July 3, 	1992, 	with a complaint against 	the Regents 	of
the University of California 	(University).
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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The 	complaint 	alleges 	that 	the 	University 	retaliated against
Mr. 	Cutshall 	on or about September 3 	and 20, 	1991, 	by terminating
him from employment 	because 	of 	his 	filing 	of 	grievances. 	The
complaint 	alleges 	that 	the 	termination was 	a violation of 	Higher
Education Employer-Employee Relations Act 	section 3571(a).1 The
University filed an answer to the 	complaint 	on August 	12, 	1992,
denying 	that 	it 	had engaged 	in any unfair practice 	in 	the
termination of Mr. 	Cutshall.
A hearing was 	conducted 	in Bishop 	on November 	19 	and 20,
1992, 	and in Los Angeles on January 26 and 27, 	1993, 	before PERB
Administrative Law Judge Allen R. 	Link. 	With the 	filing of
briefs, 	the case was submitted for decision on April 	26, 	1993.2
FINDINGS 	OF 	FACT
The 	Respondent 	University of 	California 	is 	a higher
education employer under HEERA. 	At 	the 	time 	of his 	termination,
1Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the Government 	Code. 	The Higher Education Employer-Employee
Relations Act 	(HEERA) 	is 	found at Government 	Code 	section 3560
et seq. 	In relevant part, 	section 3571(a) 	provides as 	follows:
It 	shall 	be unlawful 	for 	the Higher Education
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise of 	rights
guaranteed by this chapter. 	. 	. 	.
2The 	case was 	transferred 	t. . .o 	the undersigned 	for 	issuance 	of
a proposed decision on May 	17, 	1993. 	The 	transfer was made
pursuant to California Code of Regulations, 	title 	8, 	section
32168(b), 	in order to equalize work loads within the Division of
Administrative 	Law.
22

Daniel 	Cutshall 	was 	an 	"employee" 	of 	the University as 	defined 	in
section 3562(f). 	He was 	employed as a senior building
maintenance worker at 	the 	University's 	White Mountain Research
Station. 	The 	station, 	which is 	located in eastern Inyo and Mono
Counties, 	is administered out 	of 	the University's 	Los Angeles
campus 	(UCLA). 	During the relevant period, 	the International
Union of Operating Engineers, 	Local 	501, 	was 	the exclusive
representative 	of Unit 	6, 	the 	skilled trades unit at UCLA.
Mr. 	Cutshall 	commenced his 	employment at White Mountain in
January of 	1977. 	He was a permanent, 	full-time employee until he
was 	laid off 	on October 31, 	1988. 	He returned to work on May 31,
1991, 	pursuant 	to a 	stipulated agreement worked out 	with an
arbitrator who was 	hearing a grievance 	about 	the 	1988 	layoff.
When Mr. 	Cutshall 	returned to work in 1991, 	the University
classified him as 	a 	casual 	employee.
The White Mountain Research Station, 	where 	the 	events 	at
issue 	took place, 	comprises 	four separate 	laboratory sites 	in the
White Mountains 	near 	the 	California-Nevada border. 	The 	station
headquarters 	and nearby Owens 	Valley 	Laboratory 	are 	located 	three
miles 	east 	of Bishop. 	These 	facilities, 	which are at an
elevation of 	4,050 	feet, 	are 	operated year-round. 	The 	three
high-altitude 	facilities 	are at 	Crooked Creek, 	elevation 	10,150
feet, 	Mt. 	Barcroft, 	elevation 12,470 feet, 	and White Mountain
Summit 	station, 	elevation 14,246 	feet. 	The primary periods 	of
operation 	for 	the 	high altitude 	facilities 	are May 	through
October, 	depending upon the weather.
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The White Mountain 	laboratories 	are 	the 	highest 	research
facilities 	in North America. 	They are used by 	researchers 	from
all 	University 	of 	California 	campuses 	and various 	other
universities. 	The 	laboratories 	draw 	faculty and 	students
performing 	research 	in cosmology, 	geology, 	archaeology and a
broad group 	of 	biological 	sciences.
Because 	of 	the 	remote 	location, 	high altitude 	and difficult
road conditions, 	travel between the Bishop headquarters 	and the
high altitude 	facilities 	is 	arduous 	and 	time-consuming. 	The
principal 	access 	to 	the high elevation 	facilities 	is 	through Big
Pine, 	some 	15 miles 	south of Bishop. 	From Big Pine 	to Crooked
Creek a 	traveler passes 	over 	28 	miles 	of 	paved 	road and eight
miles 	of dirt 	road. 	From Crooked Creek to Mt. 	Barcroft, 	there
are an additional 	11 miles 	of dirt 	road. 	Travel 	times 	can vary
greatly according 	to 	the weather. 	Various 	witnesses 	estimated
the 	automobile 	travel 	time 	from Big 	Pine 	to 	Crooked 	Creek at 	one
hour and 	15 	minutes 	to two hours. 	They 	estimated an additional
30 	to 45 minutes 	from Crooked Creek to Mt. 	Barcroft.
The University keeps 	a 	supply of 	gasoline 	and diesel 	fuel 	at
Mt. 	Barcroft 	and Crooked Creek. 	The diesel 	at Barcroft
originally was 	used to 	fuel 	generators but 	now 	is used 	for diesel
powered vehicles 	and equipment 	kept 	at 	the high elevations. 	The
gasoline 	is 	used primarily 	to 	fuel 	University vehicles 	kept 	at
the 	high elevations 	throughout 	the 	season and by 	researchers 	who
operate 	their private vehicles 	out 	of 	the mountain 	laboratories.
Gasoline 	also 	is 	sold on occasion to hikers 	or deer hunters who
44

are low on fuel. 	On occasion, 	gasoline also is 	sold to
University 	employees 	although 	employee 	use 	is 	discouraged because
of 	the high cost 	of 	transporting 	fuel 	to 	the high altitude
facilities.3 The 	nearest 	gasoline 	station 	is approximately 35
miles 	from Crooked 	Creek.
At about 7 p.m. 	on August 27, 	1991, 	Daniel Cutshall pumped
into 	his 	personal 	motorcycle 	approximately 	one 	gallon of 	gasoline
from the University 	tank at 	Crooked Creek. 	He 	was 	observed 	in
this activity by a 	co-worker, 	Kevin Ball. 	The 	two men exchanged
greetings 	but 	had no 	conversation about 	the 	gasoline.
Mr. 	Cutshall 	did not 	request permission to take 	the gasoline 	in
advance 	and did not make 	a 	notation about 	the gasoline 	in 	the
Crooked Creek 	fuel 	log. 	Neither did Mr. 	Cutshall mention 	that 	he
had 	taken 	the 	gasoline 	in 	subsequent 	radio 	conversations 	with
David Trydahl, 	the superintendent of 	the White Mountain
facilities.
Mr. 	Cutshall 	later told University officials 	that he did not
enter his 	use 	of 	gasoline 	in the 	Crooked 	Creek gasoline 	log
because 	he 	did not 	know where 	it 	was.4 He 	told them he 	had no
3There was 	testimony that 	a 	charge of 	$500 must be paid 	in
addition 	to 	the 	cost 	of 	the 	fuel 	for delivery to 	the mountain
laboratories.
*Mr. 	Cutshall 	testified that 	in lieu of 	entering his 	receipt
of 	fuel 	on the 	station log, 	he entered 	it 	on his personal 	log.
The 	log, 	which was 	placed 	into 	evidence by the University,
contains 	an entry 	in 	the margin 	for August 	27 which states:
"Took approximately 	1 	gal. 	gasoline 	for my motorcycle 	at 	c.c."
I 	do not 	find 	the notation persuasive. 	Its 	location 	in 	the
margin 	suggests 	that 	the 	entry was made after the 	fact. 	Although
other pages 	of Mr. 	Cutshall's 	log also contain notes 	in the
margin, 	the 	other entries 	are 	reflective 	commentary on the
5

intent 	to 	steal 	the 	gasoline and 	intended 	to pay 	for 	it 	on his
next 	trip 	to the Bishop headquarters 	office. 	However, 	he did not
return 	to 	the 	Bishop 	office between when he 	took 	the 	gasoline 	and
when he was 	terminated. 	He 	remained 	in 	the mountains 	over the
Labor Day weekend, 	which occurred between when he 	took 	the
gasoline 	and when he was 	terminated.
entries 	in the body of 	the 	log. 	The 	entry 	for gasoline, 	by
contrast, 	is a factual notation, 	not a commentary.
On August 	31, 	the Saturday of 	the Labor Day weekend,
Mr. 	Cutshall 	also 	took gasoline 	from the University tank at
Barcroft. 	On that 	occasion he 	notified one 	of 	the 	employees 	that
he was 	going 	to 	take 	the gasoline and entered the amount 	on 	the
fuel 	log with the notation 	"bill 	to DC."5
During 	the 	summer of 	1991, 	the gasoline 	log at 	Crooked Creek
was 	kept 	in a 	trailer used as 	an employee 	lounge 	and 	sometime
sleeping quarters. 	The 	log was 	a yellow legal 	tablet 	with lines
drawn on 	it. 	It was 	attached to a 	clipboard and usually could be
found on a 	table 	in the 	trailer. 	There was 	testimony that 	it
occasionally got 	covered with magazines 	and newspapers.
Mr. 	Trydahl 	testified that 	on the day he 	terminated Mr. 	Cutshall
he 	found the 	log 	in the 	employee 	lounge under some books. 	At
some point during the 	summer of 	1991, 	it 	also was 	located beside
a 	telephone 	in 	the main building at 	Crooked Creek.
5There 	is 	one 	significant 	difference 	between 	the 	gasoline
pumps 	at 	Crooked Creek and Mt. 	Barcroft. 	The 	Crooked Creek pump
is 	operated by hand, 	10 	cranks 	to the gallon. 	The Barcroft pump
is 	electrically operated and gives 	exact 	readings 	of 	the amount
of 	fuel 	taken.
66

At 	the 	time 	of 	the gasoline 	incident, 	employees 	at 	Crooked
Creek were working ten-hour days, 	four days 	a week. 	The 	last 	day
of 	the 	four-day shift was Thursday, 	August 	29. 	On that day,
Kevin Ball 	approached a 	co-worker, 	David Lee, 	told him what he
had seen and asked for advice. 	Mr. 	Lee urged Mr. 	Ball 	to report
the incident to their supervisor, 	Mr. 	Trydahl, 	but Mr. 	Ball was
reluctant. 	Mr. 	Ball 	said that although he 	felt 	it was 	theft and
he 	should do 	something, 	he was 	reluctant 	to 	report 	a 	co-worker.
Shortly thereafter, 	Mr. 	Lee went 	to Mr. 	Trydahl 	and told him
about 	the 	incident 	without 	identifying 	the 	informant.
Mr. 	Trydahl guessed that 	it was Mr. 	Ball. 	On learning of the
accusation, 	Mr. 	Trydahl 	contacted John Reese of 	the employee
relations 	department 	at UCLA and asked for advice. 	Mr. 	Reese
told him that 	if 	the witness 	would make a written 	statement,
Mr. 	Trydahl 	should 	terminate 	the 	employee who 	took the gasoline.
Mr. 	Trydahl 	then visited Mr. 	Ball who 	confirmed that 	he had
seen Mr. 	Cutshall 	take the gasoline. 	Mr. 	Trydahl asked if
Mr. 	Ball were willing to make a written statement. 	Mr. 	Ball
asked 	for 	the weekend to 	think 	it 	over. 	The day after Labor Day,
Tuesday, 	September 3, 	Mr. 	Ball provided Mr. 	Trydahl with a
written 	statement.
Mr. 	Trydahl 	again contacted Mr. 	Reese at UCLA who said that
he should terminate Mr. 	Cutshall. 	Mr. 	Trydahl 	raised the 	issue
of 	whether the 	small 	amount 	of 	gasoline had any bearing but
Mr. 	Reese 	replied that 	theft 	is 	theft 	and the value 	is 	not 	an
issue. 	Mr. 	Trydahl went 	to Crooked Creek on September 3,
V
7

terminated Mr. 	Cutshall 	and gave him one 	hour to 	secure 	his
belongings 	and 	depart 	from University 	property.
After Mr. 	Cutshall was 	terminated, 	the UCLA employee
relations 	administrators decided that 	since Mr. 	Cutshall 	was 	a
long-term employee, 	he was 	entitled to a pre-termination hearing.
They directed Mr. 	Trydahl 	to revise Mr. 	Cutshall's 	status 	to
investigatory leave. 	Accordingly, 	Mr. 	Cutshall was placed on
investigatory 	leave 	and a 	Skelly6 hearing was 	held 	on October 	23
at UCLA.
The Skelly hearing was 	conducted by Clarence A. 	Hall, 	Jr.,
UCLA dean 	of 	physical 	sciences 	and director 	of 	the White Mountain
station. 	Also present were Mr. 	Cutshall, 	an attorney from
Local 	501 	who 	represented him and a University attorney. 	At 	the
hearing, 	Mr. 	Cutshall's 	attorney argued that 	there was no
evidence 	that Mr. 	Cutshall 	had any intent 	to steal 	the gasoline.
Nevertheless, 	after 	the 	hearing Dean Hall 	directed 	that 	the
termination go 	forward. 	On October 28, 	the dean 	sent a 	letter to
Mr. 	Cutshall 	terminating him for 	theft 	effective 	that 	date.
The 	policy 	on 	employee 	gasoline 	use 	changed 	significantly
after a University investigation and audit 	in 1988. 	Prior to
198 8, 	control 	of gasoline inventories was loose. 	Many gasoline
pumps 	were 	not 	locked and numerous 	keys were 	in 	circulation 	for
the pumps 	that were 	locked. 	Gasoline 	inventories were not
monitored 	and 	there 	was 	no 	system of 	accountability 	for 	the 	use
6See 	Skelly v. 	State 	Personnel 	Board 	(1975) 	15 	Cal.3d 194
[124 Cal.Rptr. 14].
8

of gasoline, 	gasoline 	credit 	cards 	and University vehicles. 	At
least 	one 	employee 	used University gasoline 	with 	regularity.7
The University audit 	was 	triggered at 	least 	in part 	by a
letter sent 	to Director Hall 	by Gail 	Smith, 	then administrative
assistant 	to Mr. 	Trydahl. 	In the letter, 	she raised a number of
complaints 	about Mr. 	Trydahl's 	operation of 	the White Mountain
Research Station. 	The 	subsequent 	audit 	resulted in a 	report
recommending, 	among other things, 	stricter accounting 	for the use
of University vehicles, 	gasoline and gasoline credit 	cards. 	The
report 	recommended 	that 	locks 	be placed 	on gasoline 	pumps 	and
that usage logs be kept 	for all 	gasoline pumps. 	The 	report
recommended 	further 	that 	inventories 	of 	gasoline 	be monitored and
that 	a 	regular 	system of 	reconciliation be 	instituted 	to 	ensure
that 	supply matched usage.
Following the University audit, 	Mr. 	Trydahl 	received a
letter 	of 	reprimand 	for his 	lack 	of 	control 	over accounting 	and
financial matters. 	He was 	directed to 	institute 	control 	systems
necessary 	to address 	the problems 	found by 	the 	audit. 	He also
was 	instructed 	to become 	familiar with and 	to 	follow University
policies. 	Mr. 	Trydahl 	testified that 	five or 10 years ago he
7Dale Sandell, 	a building worker at 	Crooked Creek, 	was given
permission by Mr. 	Trydahl 	to 	fuel 	his motorcycle at 	Crooked
Creek. 	An expert motorcycle rider, 	Mr. 	Sandell 	commuted to the
high elevation 	facilities via Silver Canyon Road, 	a power 	line
access 	trail 	that 	extends up the 	side 	of 	the mountain. 	By
traveling via Silver Canyon, 	Mr. 	Sandell was able to get 	from
Bishop to Crooked Creek in 3 0 	to 45 minutes. 	This arrangement
was 	of 	advantage 	to 	the University because 	it 	freed 	the
University vehicle he 	formerly used for the 	commute. 	Mr. 	Sandell
had 	the arrangement 	from 1984 	to until 	he was 	laid off 	in 	1988.
99

might 	have 	handled 	the accusation of 	gasoline 	theft 	differently
but 	as 	a 	result 	of 	the audit 	he 	follows 	"the 	rules 	and 	the policy
of 	the University as 	I understand them."
After the audit, 	Mr. 	Trydahl 	issued a written policy on 	the
use 	of 	fuel 	directing 	that 	fuel 	dispensed at 	the 	high altitude
facilities be 	entered on a 	fuel 	log 	for miscellaneous vehicles.
However, 	the policy made no 	statement 	about 	employee use 	of 	fuel,
about 	whether employee use was 	to be approved 	in advance 	or how
payment was 	to be made by employees who used 	fuel.
Mr. 	Trydahl 	testified that 	the unwritten policy was 	that
employees 	wishing 	to use University 	fuel 	check with 	someone 	at
the station first 	or if possible, 	contact him. 	He said
employee-purchased 	fuel 	was 	to be 	entered on 	the 	fuel 	usage 	logs
and employees were 	to pay for it, 	preferably at 	the 	time 	it was
used or later 	in Bishop.
No witnesses 	disagreed with Mr. 	Trydahl's 	testimony that
employee use 	of University 	fuel 	was 	to be 	entered on 	the 	fuel
logs. 	However, 	Mr. 	Cutshall and two of his witnesses, 	Casey Wack
and Don Buser, 	all 	testified that 	they were unaware 	of 	any
requirement 	that 	employee use 	of 	fuel 	be pre-authorized. 	They
similarly 	testified 	that 	they knew of 	no 	rule 	setting 	the 	time 	or
method 	for payment.
The 	evidence 	establishes 	that 	employee use 	of 	University
fuel 	has been slight 	since 	1988. 	Other than the 	incident
resulting in Mr. 	Cutshall's 	termination, 	there was 	evidence of
only 	two 	other occasions 	when 	employees 	used University 	fuel.
10

.
One 	occasion 	took place 	just prior 	to Mr. 	Cutshall's 	termination
in 	1991 and the 	other occurred in 	1992. 	In both 	instances,
employees 	found 	themselves 	short 	of 	fuel 	when they got 	to 	the
high altitude 	facilities. 	In both instances, 	Mr. 	Trydahl was
contacted prior to 	the employee usage 	of 	the 	fuel 	and on both
occasions 	the 	employees 	paid 	for the 	fuel 	promptly 	thereafter.
.
The parties 	stipulated that Mr. 	Cutshall 	joined Local 	501 	on
or about November 7, 	1988, 	and that 	on or about 	the 	same date he
filed a 	grievance 	against 	the 	University under 	the 	Local 	501
collective bargaining agreement. 	This 	grievance 	resulted 	in a
stipulated arbitrator's 	award dated October 	16, 	1990, 	under which
Mr. 	Cutshall 	received back pay of 	$15,000 	and under which he was
rehired in the 	spring of 	1991. 	The parties 	stipulated that 	in
July of 	1991, 	Mr. 	Cutshall made a request 	for information
concerning 	the 	terms 	and 	conditions 	of 	his 	employment 	and 	that 	of
other 	employees 	at White Mountain.
In addition to these 	stipulations, 	the 	evidence also
establishes 	that Mr. 	Cutshall 	led an attempt by building workers
at 	White Mountain 	to 	have 	their positions 	reclassified 	to 	a
higher pay status. 	He also 	challenged his 	reappointment 	as 	a
casual 	rather than permanent 	employee 	in 	1991. 	The 	evidence
establishes 	that Mr. 	Trydahl knew of Mr. 	Cutshall's grievances,
request 	for 	information and his 	role 	in 	the 	attempted
reclassification. 	However, 	there 	is no evidence 	that all 	of 	the
UCLA administrators 	who 	participated 	in 	the 	firing 	decision 	also
knew of Mr. 	Cutshall's protected activity.
11

Mr. 	Trydahl 	had been dissatisfied with the 	job performance
of Mr. 	Cutshall 	for some time prior to the gasoline 	incident.
Although he 	had 	found Mr. 	Cutshall's 	job performance very good 	in
the 	early 	1980's 	he 	testified 	that 	it 	had 	started to 	slip 	in 	the
two years before Mr. 	Cutshall was laid off 	in 1988. 	Mr. 	Trydahl
believed Mr. 	Cutshall 	was 	not 	working 	to his 	capacity and he 	had
received 	reports 	that Mr. 	Cutshall 	was 	constantly 	complaining
about 	him to 	researchers 	and others. 	He 	also received reports
that Mr. 	Cutshall 	was 	not 	a team player and did not work well
with others.
The 	evidence also establishes 	that Mr. 	Cutshall 	did not
like Mr. 	Trydahl 	and was 	free 	in letting his views be known.
Mr. 	Cutshall 	told many people 	that White Mountain would be better
off without Mr. 	Trydahl. 	Mr. 	Cutshall kept a daily log
containing his 	observations 	about 	activities 	and people 	at 	White
Mountain. 	He 	testified 	that 	the 	log 	"certainly does" 	contain
references 	to mistakes he believed Mr. 	Trydahl 	had made. 	On one
occasion in June of 19 88, 	Mr. 	Cutshall 	took a picture of
Mr. 	Trydahl 	operating a Caterpillar tractor. 	He 	testified that
the vehicle 	was 	not 	equipped with a 	roll-over protective 	system
and he 	took the picture 	to 	show a violation of 	the 	safety 	code.
On this occasion, 	Mr. 	Trydahl warned Mr. 	Cutshall 	that he could
fire him for taking the picture. 	Mr. 	Trydahl 	testified that 	he
believed Mr. 	Cutshall 	should have been doing his 	own job and not
worrying about what Mr. 	Trydahl was doing. 	Mr. 	Cutshall 	never
used the picture and nothing more 	came 	of 	the 	incident.
12

Mr. 	Cutshall 	attempted to establish retaliatory intent by-
introducing 	evidence 	of 	anti-union 	statements made by Mr. 	Trydahl
and past 	retaliatory conduct. 	Both Mr. 	Cutshall 	and his witness,
Mr. 	Wack, 	testified that 	they had heard Mr. 	Trydahl make negative
comments 	about unions. 	Specifically, 	they testified that 	he had
bragged about 	keeping a union out 	at 	his prior work place, 	that
he 	said he did not 	like unions, 	and that 	Local 	501 would not
assist 	them in 	the 	attempted 	reclassification.
Just prior to his 	employment with the University in 	19 81,
Mr. 	Trydahl 	had worked as 	a 	"project manager" 	at 	a Caterpillar
dealership 	in Riverside. 	In that position he 	led the employer's
campaign 	to 	defeat 	an organizing 	attempt 	by 	the 	Teamsters 	Union.
He acknowledged 	that 	his 	role 	in defeating 	the 	Teamsters 	"may
have 	come up" 	in conversation with employees during his 	first
years 	at White Mountain. 	Mr. 	Trydahl 	denied that he had said he
did not 	like unions 	but 	only that 	he 	did not 	like 	the 	Teamsters
Union.8 Regarding his 	comments 	about 	the 	reclassification,
Mr. 	Trydahl 	testified that 	he 	told 	the 	employees 	seeking 	the
reclassification 	that 	he would be 	surprised 	if 	Local 	501
supported 	their 	effort.
Mr. 	Cutshall 	also 	finds 	retaliatory intent 	in two University
actions 	in 1991: 	1) 	the decision to rehire him and Mr. 	Wack as
casual 	rather than permanent 	employees 	after the arbitration, 	and
2) 	the work schedule 	they were given upon reemployment. 	Prior to
8Mr. 	Trydahl 	also 	testified that 	he 	had belonged to 	six
different 	labor unions 	in his 	career and had 	15 	years 	of 	total
union membership.
13

the layoff, 	Mr. 	Cutshall was a permanent 	employee at White
Mountain. 	The 	stipulated arbitrator's 	award 	stated 	that 	the 	two
men 	"shall be 	recalled from layoff 	on May 1, 	1991, 	or the 	spring
reopening of 	the Barcroft 	facility, 	whichever is 	earlier." 	The
award makes 	no mention of 	whether 	the 	employees 	would be 	rehired
as 	casual 	or permanent.
When Mr. 	Cutshall and Mr. 	Wack returned to work 	in May of
1991, 	they were asked to sign rehire documents which listed them
as 	"casual" 	employees.9 They at 	first 	refused to 	sign the
documents but ultimately, 	on the advice of 	an attorney for
Local 	501, 	they did sign with the notation 	"under protest."
Mr. 	Cutshall's 	status as 	casual 	employee 	remained in dispute 	at
the 	time 	of 	his 	termination with 	the union attempting 	to 	take 	the
matter 	to 	arbitration.
Mr. 	Trydahl 	testified that 	all 	employees 	at 	Crooked Creek
during the summer of 	1991 were 	casual. 	He 	testified that because
of 	a 	large 	construction 	job 	the University had undertaken 	to
improve 	facilities at 	the 	site, 	the 	only employees 	needed were
construction workers. 	Since 	the 	need 	for 	them would not be
long-term, 	only casual employees were hired. 	Since 1988, 	the
9During his 	reemployment 	interview, 	Mr. 	Cutshall 	attempted
to record the meeting. 	When Mr. 	Trydahl 	objected, 	Mr. 	Cutshall
stated 	that 	he 	had been 	told by Sandra 	Rich 	of 	the 	UCLA labor
relations 	office 	that 	this was permissible. 	Based upon that
representation, 	Mr. 	Trydahl 	consented to the tape 	recording.
Later, 	he was 	told by Ms. 	Rich that 	she had not 	given permission
for the conversation to be recorded. 	On May 13, 	Mr. 	Trydahl 	sent
Mr. 	Cutshall 	a 	"written warning" 	which accused Mr. 	Cutshall 	of
dishonesty and warned 	that 	future 	dishonesty 	could 	result 	in
termination. 	Mr. 	Cutshall 	testified that he had been given
permission but 	had misidentified 	the person who gave 	it.
14

White Mountain 	Station has 	employed only 	three permanent,
year-round employees, 	Superintendent Trydahl, 	his administrative
assistant 	and a 	caretaker.
Finally, 	Mr. 	Cutshall presented evidence that when he and
Mr. 	Wack were 	rehired in May of 	1991, 	they 	initially were 	told
they had to make a daily commute 	to Crooked Creek. 	Mr. 	Cutshall
said 	this 	would have meant 	a 	four-hour daily commute. 	Since 	the
Crooked Creek 	construction 	crews 	worked 	four 	10 	hour days 	each
week, 	this would have 	required 14 	hour days. 	It also would have
required 	two daily altitude 	changes 	of 	6,000 	feet 	with
accompanying physiological 	effects.
The daily commute requirement was not unique 	to Mr. 	Cutshall
and Mr. 	Wack. 	All 	employees 	at 	Crooked Creek were assigned the
same 	schedule. 	Mr. 	Trydahl 	testified that he ordered the daily
commute 	to avoid the potential 	that 	the University might 	be
required 	to provide a daily per diem allowance 	of 	$25 	to
employees 	required to 	stay overnight. 	The White Mountain 	center
previously had been 	found 	in violation of 	Fair 	Labor 	Standards
Act 	requirements 	because 	it 	had not 	provided per diem allowances
for employees 	required to 	stay overnight 	on the mountain. 	The
daily 	commute 	requirement 	met 	with widespread dissent 	among 	all
workers 	and 	it 	was 	abandoned. 	Employees 	were 	told they 	could
stay overnight 	at 	Crooked Creek 	if 	they desired but 	that 	since 	it
was 	at 	their own option, 	no per diem allowance would be provided.
As a result, 	employees brought 	sleeping equipment, 	including
personal 	tents, 	to Crooked Creek for use 	throughout 	the season.
15

LEGAL 	ISSUE
Did 	the University of 	California 	terminate 	Daniel 	Cutshall
in retaliation 	for protected activities, 	and thereby violate
section 	3571(a)?
CONCLUSIONS 	OF 	LAW
Higher 	education 	employees 	have 	the protected 	"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 	. 	. 	. 	. "10 Under section 3571 (a) , 	it is unlawful for a
higher education employer to 	"[i]mpose 	. 	. 	. 	reprisals on
employees, 	to discriminate 	. . . 	or otherwise to 	interfere with,
restrain, 	or coerce employees because of 	their exercise of
[protected] 	rights 	. 	. 	. 	."
In order to prove an allegation of discrimination, 	the
charging party must 	first 	demonstrate 	that 	the 	aggrieved 	employee
engaged 	in protected 	conduct. 	The 	charging party must 	then 	show
101HEERA section 	3565 	provides 	in 	its 	entirety as 	follows
Higher education employees 	shall 	have 	the
right 	to 	form, 	join and participate 	in the
activities 	of 	employee 	organizations 	of 	their
own 	choosing for 	the purpose 	of
representation on all 	matters 	of
employer-employee 	relations 	and 	for 	the
purpose 	of meeting and conferring. 	Higher
education employees 	shall 	also have 	the 	right
to 	refuse 	to join employee 	organizations 	or
to participate 	in the activities 	of 	these
organizations 	subject 	to 	the 	organizational
security provision 	permissible 	under 	this
chapter.
16

that 	the 	employer knew of 	the 	employee's 	protected act11 and 	that
the 	employer took an adverse action against 	the 	employee. 	The
adverse 	action 	cannot 	be 	speculative but must be 	an actual 	harm.
(Palo Verde Unified School District 	(1988) 	PERB Decision
No. 	689.)
Upon a 	showing of protected conduct 	and adverse 	action, 	the
party 	alleging 	discrimination must 	then make 	a prima 	facie
showing of 	unlawful motivation. 	Under Novato Unified School
District 	(1982) 	PERB Decision No. 	210, 	unlawful motivation occurs
where 	an employer's 	action against 	an 	employee 	was 	motivated by
the 	employee's 	participation 	in protected 	conduct.12 Motivation
is 	determined by a 	review of 	direct 	and 	circumstantial 	evidence
to see whether, 	but 	for the exercise of protected rights, 	the
disputed action would not 	have been 	taken against 	the 	employee.13
11Moreland Elementary School District 	(1982) 	PERB Decision
No. 227.
12Indications of 	unlawful 	motivation have been 	found 	in many
aspects 	of 	an employer's 	conduct. 	Words 	indicating 	retaliatory
intent 	can be persuasive evidence 	of unlawful motivation. 	(Santa
Clara Unified School 	District 	(1979) 	PERB Decision No. 	104.)
Other 	indications 	of 	unlawful 	motivation have been 	found 	in an
employer's: 	failure to follow usual procedures 	(Ibid.); 	shifting
justifications 	and 	cursory 	investigation 	(State 	of 	California
(Department 	of 	Parks and Recreation) 	(1983) 	PERB Decision
No. 	328-S); 	disparate treatment of a union adherent 	(State of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S); 	timing of the action 	(North Sacramento School
District 	(1982) 	PERB Decision No. 	264); 	and pattern of antagonism
toward 	the 	union 	(Cupertino 	Union 	Elementary 	School 	District
(1986) PERB Decision No. 572). 	:
13See Martori 	Brothers Distributors v. 	Agricultural 	Labor
Relations Board 	(1981) 	29 	Cal.3d 721, 	727-730 	[175 	Cal.Rptr.
626]; Wright Line. 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM 1169]
enf., 	in relevant part, 	(1st Cir. 	1981) 	662 	F.2d 899 	[108 LRRM
2513]. 	This 	test was adopted for higher education employees 	in
17

California State University 	(1982) 	PERB Decision No. 	211-H.
After 	the 	charging party has made 	a prima 	facie 	showing
sufficient 	to 	support 	an inference 	of unlawful motive, 	the burden
shifts 	to 	the 	respondent 	to produce 	evidence 	that 	the 	action
"would have 	occurred 	in any event." 	(Martori 	Brothers
Distributors v. 	Agricultural 	Labor Relations Bd., 	supra.
29 	Cal.3d at 	730.) 	Once employer 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. 	(Ibid.)
It 	is undisputed that Mr. 	Cutshall 	engaged 	in protected
activity. 	He 	led an attempted 	job 	reclassification 	in 	1988. 	He
joined Local 	501 	and 	filed a grievance 	in 	1988 	under 	the 	Local
501 	collective bargaining agreement 	with 	the University. 	This
grievance 	led 	to 	a 	stipulated arbitrator's 	award 	granting
Mr. 	Cutshall back pay of 	$15,000. 	He also challenged the
University's 	decision 	to 	rehire him as 	a 	casual 	employee when he
returned 	to work 	in 	1991 	after 	the 	arbitrator's 	stipulated award.
Finally, 	Mr. 	Cutshall made a request 	for information in 1991
concerning 	the 	terms 	and 	conditions 	of 	his 	employment 	and that 	of
other employees 	at White Mountain.
It 	is undisputed that Mr. 	Trydahl knew of Mr. 	Cutshall's
role in the reclassification attempt, 	his grievances, 	the
arbitrator's award and the 	request 	for information. 	It 	is
18

self-evident 	that Mr. 	Cutshall 	suffered 	real 	harm when he was
terminated by the University on October 28, 	1991.
The key question here 	is 	whether the 	termination of
Mr. 	Cutshall 	occurred because of his protected activities. 	The
primary 	evidence 	of 	unlawful 	motivation 	can be 	found 	in
indications 	of 	animus 	toward unions 	on the part 	of Mr. 	Trydahl
and 	other possibly discriminatory acts.14 Indications 	of 	animus
arguably may be 	found 	in 	spoken words 	and a past 	history 	of
opposition 	to unions. 	Other possibly discriminatory acts 	include
Mr. 	Trydahl's decision to reinstate Mr. 	Cutshall 	as a casual
employee 	after 	the 	stipulated award 	of 	the 	arbitrator and 	the
burdensome 	commute 	requirement placed on Mr. 	Cutshall 	and
Mr. 	Wack after they returned to duty 	in May of 	1991.15
The 	University 	contends 	that 	not 	all 	persons who
participated 	in the 	decision 	to 	terminate Mr. 	Cutshall 	knew of
14Mr. 	Cutshall also argues 	that he was 	the victim of
disparate 	treatment 	in 	that 	he 	was 	fired 	for 	taking 	gasoline
whereas 	the 	University 	freely allows 	researchers 	to 	take
gasoline. 	This 	contention misstates 	the 	rationale given by the
University for the 	firing. 	The University fired Mr. 	Cutshall
because 	he 	allegedly 	took 	the 	gasoline 	without 	any 	intent 	of
paying for it, 	i.e., 	stole it. 	There is no evidence that
researchers 	were 	allowed to 	take 	gasoline without paying 	for 	it.
15In his brief, 	Mr. 	Cutshall lists a series of grievances and
other disputes 	he has 	had with the University as 	evidence 	of
discrimination. 	Some 	of 	these 	items 	are barely touched 	in 	the
record, 	others are remote 	in time, 	others 	involve events which
have 	occurred after 	the 	termination. 	The 	evidence at 	the 	hearing
focused upon Mr. 	Trydahl's 	statements 	and supposed past 	history
of opposition to unions, 	the rehiring of Mr. 	Cutshall and
Mr. 	Wack as 	casual 	employees 	after 	the 	arbitration award and 	the
daily 	commute 	requirement 	imposed upon Mr. 	Cutshall 	after his
return to work. 	These events provide 	the 	central 	evidence 	of
discrimination and 	this decision will 	focus upon 	them.
19

all 	of his protected activities. 	Moreover, 	the University-
argues, 	the evidence establishes 	that Mr. 	Cutshall knew of 	the
University's policies 	on 	the personal 	use 	of 	fuel 	but 	did not
follow them. 	This would support a conclusion, 	the University
continues, 	that Mr. 	Cutshall did not 	intend to pay for the
gasoline. 	Finally, 	the University argues, 	Mr. 	Cutshall's
protected 	conduct 	was 	remote 	in 	time 	from his 	termination and no
anti-union bias 	or prior discriminatory activity on 	the part 	of
Mr. 	Trydahl was established.
The University makes 	the more persuasive argument. 	The
evidence of Mr. 	Trydahl's 	opposition to unions 	is 	remote 	in time
to 	the 	events 	at 	issue. 	He has been employed by the University
since 	1981 	and his 	involvement 	in a 	campaign against 	the
Teamsters 	Union predates 	his 	University employment. 	Comments
that Mr. 	Trydahl made about 	keeping 	the Teamsters 	out 	of 	the
Caterpillar dealership date 	from his 	early years 	at 	the
University, 	long before 	1991. 	There is no evidence Mr. 	Trydahl
ever made 	a negative 	comment 	about 	Local 	501 	and his 	comment
about 	the 	reclassification 	request 	was 	nothing more 	than a
statement 	of 	opinion.
The 	evidence 	of past 	conduct 	is 	similarly unpersuasive.
That Mr. 	Cutshall 	and Mr. 	Wack were 	rehired as 	casual 	employees
is 	consistent 	with the 	status 	of 	all 	other employees working at
Crooked Creek 	in 1991. 	The 	stipulated arbitration award, 	while
directing that Mr. 	Cutshall be 	rehired, 	was 	silent about whether
his 	status 	would be 	casual 	or permanent. 	The award did not
20

direct 	that Mr. 	Cutshall 	be 	reinstated 	immediately but 	rather
that he be 	returned 	to White Mountain the next 	season. 	One 	could
infer 	from the 	return date 	that 	it 	was 	understood 	the 	job was 	to
be 	seasonal. 	Alternatively, 	one 	likewise 	could infer 	from the
back pay award that Mr. 	Cutshall 	was 	to be 	returned to 	the 	same
permanent 	status 	he held before 	the 	1988 	layoff. 	Because 	of 	the
. .
ambiguity in the 	stipulated award, 	I 	cannot 	find 	in the
University's 	decision to rehire Mr. 	Cutshall 	as 	a 	casual 	employee
evidence 	sufficient 	to 	establish 	retaliatory 	intent.
Finally, 	I 	find no evidence 	of 	retaliatory motivation in the
initial 	requirement 	that Mr. 	Cutshall 	commute to his 	job at
Crooked Creek 	in 	1991. 	The 	requirement 	was 	not 	placed 	solely on
Mr. 	Cutshall and Mr. 	Wack. 	All 	employees working at Crooked
Creek were 	directed to make 	the 	commute. 	The 	rule 	that 	all
employees make 	the 	commute 	is 	consistent with the University's
contention 	that 	the 	decision was made 	solely 	to 	avoid a 	Fair
Labor Standards Act 	requirement 	for per diem pay. 	There was 	no
disparate 	treatment.
The 	parties 	argue vigorously over whether 	the 	alleged 	theft
of 	gasoline was 	the 	true motivation 	for 	the 	termination of
Mr. 	Cutshall. 	Mr. 	Cutshall 	sees 	the alleged theft as a bogus
justification 	to 	remove 	him as 	an active participant 	in protected
activities. 	The University contends 	that 	theft 	is 	theft 	and
under UCLA policies, 	the University had no alternative 	course.
There 	could have been any of 	a number of motivations 	for 	the
firing, 	including suspicion of 	theft, 	that would not violate 	the
21

HEERA. 	Mr. 	Trydahl might 	simply have wanted to get 	rid of an
employee who 	criticized him regularly to 	others, 	told others 	that
the White Mountain station would be better off 	without 	him, 	took
pictures 	of Mr. 	Trydahl 	in supposed safety violations 	and kept 	a
log 	in which Mr. 	Trydahl's 	supposed mistakes were 	recorded. 	Or
Mr. 	Trydahl might have fired Mr. 	Cutshall because he believed
Mr. 	Cutshall's 	job performance was unsatisfactory, 	that he was a
loner when a 	team player was 	what 	was 	needed 	to 	complete 	the
construction at 	Crooked Creek. 	Or, 	as 	the University asserts,
Mr. 	Trydahl might have 	fired Mr. 	Cutshall 	for theft of gasoline
because 	theft-- 	no matter what 	the 	amount-- 	is 	considered 	so
serious 	at 	UCLA that 	termination 	is 	the 	only alternative.
It 	is 	not 	necessary here 	to decide whether the alleged theft
of 	gasoline was 	the 	true motivation 	for the 	firing 	or 	to 	choose
among various 	other possible motivations 	for 	the 	termination.
Nor am I 	entitled to weigh, 	as would an arbitrator, 	the 	issue of
whether the University had just 	cause 	to 	terminate Mr. 	Cutshall.
The 	only question 	in these proceedings 	is whether the 	true
motivation was because of Mr. 	Cutshall's protected conduct. 	On
the 	evidence 	in this 	record, 	I 	cannot 	conclude 	that but 	for his
protected activity Mr. 	Cutshall 	would not 	have been 	fired. 	Since
. . .
PERB does not have authority, 	like an arbitrator, 	to decide 	that
termination 	is 	too harsh a punishment 	for the 	theft 	of 	a gallon
of 	gasoline, 	I have no authority to do anything but dismiss 	the
complaint.
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. .
Accordingly, 	the 	complaint 	and the 	companion unfair practice
charge must 	be 	dismissed 	for 	failure 	to 	establish a prima 	facie
case. 	It 	is unnecessary, 	therefore, 	to consider other University
defenses.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and the 	entire 	record 	in this matter, 	unfair practice 	charge
LA-CE-3 08-H, 	Daniel 	Cutshall v. 	Regents of the University of
California, 	and 	the 	companion PERB 	complaint 	are 	hereby
DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decisio. . n and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with 	the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within 	20
days 	of 	service 	of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the 	record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" 	when
actually 	received before 	the 	close 	of business 	(5:00 	p.m.) 	on 	the
last day set 	for 	filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the 	last 	day set 	for 	filing 	. . . " 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must 	be 	served
concurrently with 	its 	filing upon each party 	to 	this 	proceeding.
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Proof 	of 	service 	shall 	accompany each 	copy 	served 	on a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
RONALD E. 	BLUBAUGH
Administrative 	Law Judge
. . 
. .
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