State of California (Department of General Services) (Strickland) (PERB 1063S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHARLES 	DOUGLAS 	STRICKLAND,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF GENERAL 	SERVICES),
Respondent.
)
) 	Case Nos. 	S-CE-631-S
S-CE-632-S
S-CE-633-S
S-CE-635-S
S-CE-636-S
PERB Decision No. 	1063-S
October 	27, 	1994
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Appearances: 	Charles Douglas 	Strickland, 	on his 	own behalf;
State of 	California 	(Department of 	Personnel Administration) 	by-
Linda A. 	Mayhew, 	Labor Relations Counsel, 	for State of California
(Department of General Services).
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION AND 	ORDER
BLAIR, 	Chair: 	This 	case 	is before the 	Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by Charles
Douglas 	Strickland 	(Strickland) 	to a PERB administrative 	law
judge's 	(ALJ) 	proposed decision 	(attached hereto). 	In his
proposed decision, 	the ALJ dismissed Strickland's 	charge 	in which
he 	alleged 	that 	the 	State 	of 	California 	(Department 	of 	General
Services) 	(State) 	unlawfully denied him a lateral 	transfer to the
Long Beach office 	in violation of 	section 3519(a) 	of 	the Ralph C.
Dills Act 	(Dills 	Act).1
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
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discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including Strickland's 	exceptions 	and 	the 	State's 	response
thereto. 	The Board finds 	the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be without prejudicial 	error and,
therefore, 	adopts 	them as 	the decision of 	the Board itself.
The 	complaint 	and unfair practice 	charges 	in Case
Nos. 	S-CE-631-S, 	S-CE-632-S, 	S-CE-633-S, 	S-CE-635-S and
S-CE-636-S 	are 	hereby DISMISSED.
Members 	Caffrey and Garcia 	joined 	in 	this 	Decision.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHARLES 	STRICKLAND,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF GENERAL SERVICES),
R e s p o n d e n t .
)
) 	Unfair Practice
Case Nos. 	S-CE-631-S
S-CE-632-S
S-CE-633-S
S-CE-635-S
S-CE-636-S 1
PROPOSED DECISION
(10/15/93)
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Appearances; 	Charles Strickland, 	in propria persona; 	Linda A.
Mayhew, 	Labor Relations Counsel, 	Department of Personnel
Administration, 	for the State of 	California 	(Department 	of
General Services).
Before JAMES W. 	TAMM, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On September 16, 	1992, 	Charles Strickland 	(Charging Party or
Strickland) 	filed the above listed unfair practice 	charges
against 	the Department of General 	Services 	(DGS), 	alleging a wide
range 	of 	criminal 	conspiracies 	to 	establish and maintain an
unlawful 	supervisory structure, 	to terminate his employment, 	to
dock his 	pay, 	to 	fraudulently create and release 	evidence 	of
irrational behavior on his part, 	to invade his privacy, 	to
establish racial 	favoritism, 	to violate his 	civil 	rights and to
deny 	him a 	transfer.
On February 19, 	1993, 	the general 	counsel's office of the
Public 	Employment 	Relations 	Board 	(PERB or Board) 	dismissed all
but 	two of 	the allegations 	in the above listed cases. 	A
complaint 	was 	issued alleging 	Strickland was 	unlawfully denied
1The above listed cases were consolidated on March 18, 	1993.
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.

lateral 	transfers 	to 	the Van Nuys and Long Beach offices 	of 	DGS
in violation of 	section 3519(a) 	of 	the Ralph C. 	Dills Act 	(Dills
Act) .2
A settlement 	conference was held, 	however, 	the parties were
unable 	to 	resolve 	their dispute. 	Sixteen days 	of 	formal 	hearing
were held. 	At 	the 	conclusion of 	the hearing, 	the allegation
involving 	the Van Nuys 	transfer was withdrawn. 	The parties
waived transcripts 	and briefs, 	and made 	oral 	arguments 	on 	record.
The 	case was 	submitted for decision on September 2, 	1993.
ISSUE
Was 	Charles 	Strickland denied a 	lateral 	transfer 	to 	Long
Beach due 	to his 	protected activity?
FINDINGS 	OF 	FACT
Regional 	Operations
Charles 	Strickland 	is 	a 	stationary engineer 	in 	the
Los Angeles Metro Region of 	the 	Office 	of 	Building and Grounds
(OBG) 	within DGS. 	OBG is responsible 	for the operation and
maintenance 	of 	state 	office 	facilities 	in the Los Angeles
metropolitan area. 	For most 	of his 	employment, 	Strickland has
been assigned 	to 	the 	state building at 	107 	South Broadway.
2The Dills Act 	is 	codified at Government 	Code 	section 3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	in
this decision are 	to the Government 	Code. 	Section 3519(a)
provides 	that 	it 	shall be unlawful 	for the 	State 	to:
(a) 	Impose 	or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
N	2

Stationary 	engineers 	are 	also 	permanently 	assigned 	to 	other 	large
state 	facilities. 	The small 	facilities however, 	are 	serviced by
a road crew, 	which travels 	from building to building, 	as needed.
Stationary engineers 	on 	the 	road 	crew tend 	to gain 	experience 	in
a wider variety 	of 	heating, 	ventilation and air 	conditioning
(HVAC) systems.
The 	first 	level 	supervisor 	for stationary engineers 	is 	the
Chief 	Engineer II 	(CE 	II). 	During most of 	the time pertinent 	to
this 	complaint, 	CE IIs where Strickland worked, 	reported to
building manager, 	Bobbio Sanchez. 	Sanchez 	reports 	to regional
manager, 	Mel Gilliard.
Until August 30, 	1991, 	Gilliard's responsibility extended
throughout most 	of Southern California. 	At 	that 	time, 	the LA
Metro 	Region was 	separated 	from the 	rest 	of 	Southern California.
Gilliard 	retained authority 	over 	the 	LA Metro Region 	and Richard
Steuber became 	regional manager 	for 	the 	Southern Region. 	Both
Gilliard and Steuber 	report 	to assistant 	chief 	of 	OBG 	in
Sacramento, 	Ron Neal, 	who reports to Rosomond Bolden, 	chief of
OBG.
Sharion Jenkins 	is 	currently 	the 	OBG building manager 	in
Long Beach. 	She 	reports 	to Steuber. 	From October 1989 	until
September 1991, 	Jenkins worked in Los Angeles 	first as an
assistant to Gilliard, 	then Sanchez.
Numerous 	witnesses 	testified 	that 	Gilliard 	retains 	control
over all 	personnel 	decisions 	in the 	LA Metro Region. 	Very 	few
personnel 	decisions, 	such as building or shift assignments 	of
W
£

stationary engineers, 	were 	ever delegated 	from Gilliard 	to his
subordinates.
Steuber, 	on the other hand, 	delegates 	those types of
decisions 	to building managers. 	For example, 	when the 	stationary
engineer vacancy occurred 	in Long Beach, 	Steuber played no 	role
in the 	selection process, 	other than approving the 	filling of 	the
vacancy.
Steuber and Gilliard do not 	have 	a 	close working
relationship. 	They do not 	seek each other's advice, 	nor try to
influence 	decisions 	regarding 	each 	other's 	regions.
There was 	no 	credible 	evidence 	that 	Neal 	or Bolden 	involved
themselves 	in the hiring decisions 	in either of 	the 	regions.
Strickland's 	Complaint 	Activity
For most 	of approximately the 	last 	9 	years, 	Strickland has
been engaged 	in a 	consistent 	pattern of 	filing 	complaints3 within
numerous 	forums 	against 	OBG managers 	and supervisors. 	Although
not a 	complete 	list by any means, 	examples 	of 	the 	issues are
listed below.
In 	1984, 	Strickland represented himself 	and several 	other
employees 	in a dispute against Gilliard. 	The employees 	alleged
that 	Gilliard had manipulated 	the 	scheduling 	of 	stationary
engineers 	during 	the 	1984 	Olympics 	in order to deprive 	employees
of 	overtime. 	Strickland also 	claimed 	that 	Gilliard had given
3In 	filing 	complaints, 	Strickland often used the 	state's
standard employee 	grievance 	form. 	Strickland deleted any
reference 	to a union and 	entitled 	the 	grievance 	"Non Union
Complaint Material."
4

orders 	that 	timesheets 	of 	certain 	employees 	should be 	falsified,
and 	then 	later destroyed 	the 	timesheets 	in an attempt 	to 	conceal
the unlawful 	actions.
A grievance was 	filed, 	however, 	the matter was 	not 	settled
to 	Strickland's 	satisfaction. 	Strickland 	continued to pursue 	the
matter by 	filing 	additional 	complaints 	and allegations 	stemming
from this 	incident. 	He alleged fraud, 	corruption and 	criminal
conspiracies 	among Gilliard and 	other 	top 	OBG management.
Strickland 	filed 	these 	additional 	complaints 	and allegations 	with
the State Auditor General, 	the State Attorney General,
Assemblywoman Delane 	Easton, 	the 	California State 	Personnel
Board, 	the 	California State 	Police and the 	Los Angeles District
Attorney. 	None 	of 	those agencies/individuals 	receiving 	the
allegations 	took any action based upon 	the 	information provided
by 	Strickland.
In June 	19 85, 	Strickland ran for the position of union
steward with 	the 	International 	Union 	of 	Operating 	Engineers
(IUOE).4 Although Strickland was unopposed on the ballot, 	he was
never 	officially appointed as 	union 	steward 	for 	reasons 	which are
not 	clear in the record. 	After the election, 	but prior to
learning 	that 	he was 	not 	being appointed as 	steward by the union,
Strickland, 	purporting to be 	the 	IUOE union steward, 	filed at
least 	one grievance.
4The 	IUOE 	is 	the 	exclusive 	representative 	of 	State
Bargaining Unit 	13, 	which 	includes 	stationary engineers.
55

In late 	1985 	and early 	1986, 	Strickland 	filed EEO 	complaints
and 	complaints 	with 	the 	State 	Personnel 	Board concerning 	the
promotion of Gloria Logan to 	the position of 	Chief 	Engineer 	I
(CE 	I ) . 	OBG treats 	the CE 	I position as a lead position within
the bargaining unit. 	Strickland alleged 	that 	OBG management
manipulated the 	hiring process 	to promote 	Logan, 	a black 	female,
over himself, 	a white male, 	for affirmative action policies which
favored black and 	female 	employees. 	Strickland also notified OBG
that 	he would 	file a 	court 	action against 	the department 	if 	he
was 	not 	transferred 	from Logan's 	work 	crew. 	Strickland's
complaint was denied by the State Personnel 	Board, 	however, 	the
department 	did accommodate 	his 	transfer 	request.
In February 1986, 	Strickland felt 	he was being harassed by
his 	immediate supervisor, 	James Jordan. 	Strickland threatened to
sue 	several members 	of management 	(including Gilliard, 	Sanchez,
Jordan and Bolden) 	in Federal 	Court, 	if he was not transferred
from Jordan's 	crew. 	Sanchez met 	with Strickland and arranged a
transfer a 	few days 	later.
In early 1988, 	Strickland's 	supervisor had all 	the 	chairs
removed from the 	stationary engineer's 	office, 	in what 	appeared
to be 	retaliation against 	Strickland. 	Strickland and others
complained and 	the 	chairs 	were 	ordered 	replaced by Gilliard.
In 	1990, 	Jordan removed the dial 	from the 	telephone used by
Strickland, 	in order 	to prevent 	Strickland 	from making 	outgoing
calls 	to 	the 	State 	Personnel 	Board. 	Strickland and others
protested 	to Gilliard, 	who had the dial 	replaced.
6

In early 	1990, 	Strickland was 	told he would be 	temporarily
transferred 	to 	the 	road 	crew 	to help 	cover 	for 	stationary
engineers 	who would be 	on 	jury duty. 	Strickland 	objected,
claiming 	he 	did not 	have 	a valid driver's 	license 	due 	to a DUI
arrest. 	Sanchez 	obtained Strickland's 	driving 	restrictions 	from
the DMV and believed Strickland did not 	have 	the 	restrictions 	as
he had originally claimed. 	Nevertheless, 	the OBG did not
transfer 	Strickland at 	that 	time.
In May of 	1990, 	Strickland was 	one 	of 	several 	employees who
filed 	a 	grievance 	claiming 	that 	they were being 	transferred 	to
new work locations as 	retaliation for, 	among other things,
earlier EEO 	complaints, 	and the 	complaints 	regarding overtime
during 	the 	1984 	Olympics 	referred to above. 	Strickland requested
that 	the 	State 	Personnel 	Board 	investigate 	the matter and hold a
hearing regarding the 	claims 	of 	retaliation, 	as well 	as 	general
claims 	of 	corruption and mismanagement 	within the 	department.
The 	State 	Personnel 	Board declined 	to 	take 	any action.
In May 	1990, 	Strickland received an 	incoming phone 	call 	from
a 	representative 	of 	the 	State 	Personnel 	Board regarding 	one 	of
his earlier complaints. 	When his supervisor, 	James Jordan, 	saw
Strickland on the phone, 	he became 	loud and hostile and began
yelling and 	swearing 	at 	Strickland 	to 	stop using 	the phones.
That 	lead 	to 	an 	extremely angry 	confrontation between Jordan 	and
Strickland, 	which probably would have become violent, 	had not
others 	intervened. 	Strickland 	complained 	to OBG management 	about
the 	incident 	and also 	complained to 	the 	State 	Personnel 	Board
7
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that 	OBG management 	was 	continuing 	to harass 	him. 	The 	State
Personnel 	Board 	took no 	action 	regarding 	Strickland's 	complaint
on 	this matter, 	however Gilliard did provide 	Strickland with
access 	to a 	telephone 	for his 	discussions 	with the 	State
Personnel 	Board.
In August 	of 	1991, 	Strickland attempted to obtain a 	change
of 	address 	form. 	He had moved twice 	in one week and his 	second
request 	for a 	change 	of 	address 	form had been either 	ignored 	or
forgotten by his 	supervisor. 	Unsuccessful 	at 	getting 	the 	form
from his 	supervisor, 	Strickland went 	to Sharion Jenkins 	to
request 	the 	form. 	Jenkins, 	feeling that 	Strickland was using any
excuse he 	could 	think of 	to 	come 	see her and take up her time,
became upset 	with Strickland, 	told him to go 	through proper
channels 	and refused 	to deal 	with the 	issue. 	Strickland then
barged 	into Jenkins 	office 	and 	the 	conversation 	escalated 	into a
very 	loud 	confrontation. 	Jenkins 	called 	Strickland unreasonable
for expecting 	immediate 	responses 	to his 	requests. 	That 	enraged
Strickland who began yelling about 	the 	endless 	stupidity 	of 	the
management 	staff.
Attracted by the 	loud argument, 	others 	intervened to 	try to
end the 	dispute. 	Jenkins 	threatened to 	call 	the State 	Police and
have 	Strickland 	removed 	from her 	office 	if 	he 	did not 	leave.
Strickland did leave, 	but 	later 	filed a 	complaint with the
State 	Police himself. 	Strickland wanted 	the 	State 	Police 	to
inform Jenkins 	that 	she 	could be 	civilly 	liable 	for 	threatening
to 	call 	the 	State 	Police 	to have 	Strickland 	removed 	from her
8

office. 	The State Police, 	however, 	did not accommodate
Strickland's 	request.
In September of 	1991, 	the 	IUOE union steward, 	Sharon Hayden,
filed a grievance 	on behalf 	of 	Strickland, 	alleging 	that
Strickland's 	shift 	had been 	changed 	from the 	day 	shift 	to 	the
early a.m. 	shift 	in a 	deliberate 	attempt 	to 	restrict 	Strickland's
ability 	to 	file 	complaints 	with OBG management.
In December 	1991, 	Strickland 	represented himself 	and 	several
other 	employees 	in protesting 	the 	department's 	posting 	of
employee home 	telephone numbers. 	OBG eventually agreed 	to
discontinue 	the practice.
Over 	the years, 	Strickland has 	filed numerous 	health and
safety violation 	claims 	against 	the department. 	Some 	examples,
which are 	not meant 	to be 	constitute an exhaustive 	list, 	are
described 	below.
In September 19 84, 	Strickland objected to a sludge 	removal
assignment, 	which Strickland 	felt 	could 	contain bacteria 	and
toxic 	chemicals. 	Instead of 	completing 	the work as 	assigned,
Strickland 	contacted 	the 	toxic 	substances 	division of 	the
California Department 	of 	Health 	Services 	and 	requested 	that 	they
investigate 	the 	substance.
Strickland 	once 	contacted 	the 	State 	Fire Marshal's 	office
because he was upset 	about 	how repairs 	to 	fire dampers were being
handled. 	The 	Fire Marshal 	temporarily 	stopped 	the 	repair work
until 	the 	department 	demonstrated 	that 	the 	repairs 	were being
done 	in accordance with manufacturing 	specifications.
9

In 	1991, 	Strickland 	filed a 	complaint 	alleging unlawful
asbestos 	abatement practices.
Strickland 	filed 	numerous 	complaints 	that 	OBG management 	was
ignoring 	evidence 	that 	the water 	system at 	the 	Los Angeles 	state
building 	at 	107 	South Broadway was 	contaminated with poisonous
chemicals. 	This 	particular 	issue 	seemed 	to 	trigger more
conflicts 	between Strickland and OBG 	than all 	the 	others
combined. 	There were 	a 	series 	of 	angry disputes 	about whether
the 	water was 	safe 	and whether enough was 	being done 	to 	locate
and 	fix the 	cause 	of 	any 	contamination. 	Strickland 	tried 	to
raise 	the 	issue with anyone who would 	listen to him, 	as well 	as
some supervisors, 	such as Sanchez, 	who were tired of 	listening to
him. 	For a short period of 	time, 	bottled water was provided to
state 	employees 	in the building.
As building manager of 	107 	South Broadway, 	Sanchez had
primary responsibility for the problem. 	In his 	testimony, 	which
was 	contradictory and not 	credible, 	he maintained the problem was
never as 	great 	as 	Strickland made 	it 	out 	to be and was 	corrected
without hazard to state employees. 	Strickland, 	on the other
hand, 	envisioned a 	complex ongoing 	criminal 	conspiracy on 	the
part of Sanchez, 	Gilliard, 	Jenkins and Neal 	to cover up an
extremely hazardous, 	ongoing condition.
Over the years, 	Strickland has 	also engaged in a
longstanding dispute about 	the 	status 	of 	CE 	Is. 	When PERB 	issued
10

its unit determination decision in 1981,5 CE 	Is were held not 	to
be 	supervisors 	and were 	included 	in the unit. 	The Board 	found
that 	since building managers made actual 	hiring decisions, 	CE 	I
participation 	in 	the process 	which was 	limited 	to 	evaluating 	the
technical 	qualifications of applicants, 	did not establish
supervisory authority. 	The 	Board also 	determined 	that 	CE 	Is
would 	regularly 	oversee 	the 	assignment 	of 	work 	to 	other
employees, 	but, 	that 	this 	responsibility did not entail 	the
independent 	judgement 	required by 	the Dills Act 	in 	order 	to
exclude 	them from the bargaining unit 	as 	supervisors.
Strickland continued to believe, 	however, 	that CE Is were
being 	used 	in a 	supervisory 	role 	and 	should be 	excluded 	from the
unit. 	He 	objected to 	taking direction 	from any member of 	his 	own
bargaining unit 	and 	raised the 	issue 	on numerous 	occasions. 	For
example, 	in 1989, 	Strickland filed a 	complaint against Gilliard
with DGS 	and the Attorney General. 	The 	complaint 	alleged
corruption and abuse 	of 	authority, 	and argued that 	Gilliard was
creating 	a privileged 	class 	of 	non-management 	level 	employees,
who were 	allowed to harass 	and abuse 	others. 	This 	complaint was
based upon DGS's use of 	CE 	Is as 	lead persons.
In 1991, 	Strickland 	claimed his 	privacy was being 	invaded
because pay warrants 	were 	being distributed 	to 	employees 	by
5In the matter of: 	Request 	for Reconsideration and
Supplemental 	Decision and Order. 	Unit Determination 	for the 	State
of California 	(1981) 	PERB Decision No. 	110-d-S 	(State Unit
Determination).
11

CE 	Is 	and 	that 	a CE 	I 	had hand-delivered a private unsealed
document 	to 	Strickland, 	which had been 	faxed 	to 	Strickland 	from
the DGS 	office 	in Sacramento.
The most 	recent 	incident 	involved DGS' 	long 	standing
practice 	of having 	CE 	Is 	participate 	on 	interview panels 	as
technical 	experts. 	This 	incident will 	be more 	fully discussed
later 	in this decision.
Typically, 	when Strickland's 	complaints were not 	resolved to
his 	satisfaction 	in a 	timely manner, 	he made additional
complaints 	against management, 	claiming 	that 	they were 	engaging
in acts 	of 	criminal 	conspiracy. 	Often Strickland 	threatened 	to
hold 	those 	involved 	civilly liable 	in 	court 	if 	they would not
accede 	to his 	demands. 	Strickland also 	typically requested a
"Right 	to 	Sue Release" 	from the 	California Department 	of
Personnel 	Administration, 	which 	Strickland believed would allow
him to 	file a tort 	action against DGS. 	As 	a general 	pattern,
each 	round 	of 	communication 	from Strickland became more vitriolic
than the previous 	one.
All 	of 	these 	complaints/allegations 	were well 	documented
with 	copies 	usually 	served on OBG 	supervisors 	and managers.
Strickland's 	Interpersonal 	Skills
Strickland was 	described by witnesses 	as 	tenacious,
persistent, 	single minded, 	unrelenting and uncompromising 	in his
desire 	to achieve his 	goals 	and pursue his 	complaints. 	Along
with his persistence, 	however, 	the record is 	overwhelmed with
evidence 	from almost 	a dozen 	credible 	witnesses 	called by
12

Strickland himself, 	that 	Strickland was 	emotionally erratic 	and
routinely verbally abusive 	of 	co-workers, 	supervisors and
managers. 	Strickland 	frightened 	other workers 	by engaging 	in
yelling matches 	with his 	supervisors 	and actions 	such as 	slamming
his 	fist 	down on 	the 	table 	or barging 	into offices 	with his
demands. 	On more 	than one occasion, 	Strickland came perilously
close 	to physical violence, 	although there 	is no evidence 	that he
ever 	crossed that 	line, 	or that 	he 	ever deliberately provoked
such an 	incident.
In September 1991, 	a series 	of 	letters written by Strickland
to Neal, 	Gilliard, 	Sanchez and Jenkins, 	alarmed OBG enough that
they had Strickland 	referred 	to a psychiatrist 	for a 	Fitness 	for
Duty Evaluation. 	The most prominent 	of 	the 	letters 	was written
in 	free 	form blank verse 	and was 	referred 	to 	in 	the 	hearing 	as
the 	"Dragon Slayer" 	letter. 	The 	rather disjointed letter refers
to Gilliard as 	a dragon and 	to Strickland as 	Saint 	Chuck. 	It
ends as 	follows:
We will 	learn to 	communicate 	or 	comes 	the
16th, 	Mel 	[Gilliard] 	and I will play some
"Dragon Slayer" 	games, 	and that me buckos 	is
God's 	own truth.
Strickland 	explained 	the 	letter as 	a badly misunderstood
attempt 	at 	humor.
It 	should also be noted, 	however, 	that 	Strickland could be
as personable, 	interesting and charming as he was 	rude, 	abusive
and obnoxious. 	He 	occasionally sent 	flowers 	to 	female 	employees
because he 	felt 	he may have 	frightened them. 	Furthermore, 	he did
not 	engage 	in offensive behavior 	in a vacuum. 	Many of 	his
13

outbursts were escalated, 	if not deliberately provoked, 	by
supervisors 	and/or managers.
Work 	Atmosphere
Numerous 	witnesses 	testified about 	the 	work atmosphere 	where
Strickland was 	employed. 	The picture painted is 	a workplace
seething 	with 	tension 	and 	lack 	of 	respect 	between and among
employees, 	supervisors and managers. 	Arguments 	laced with
profanity as well 	as 	threats 	of physical violence appear 	to be
common occurrences. 	Bomb 	threats 	have been made against 	certain
supervisors, 	and fist 	fights have occurred. 	Supervision of
employees 	appears 	to be 	either 	inconsistent 	or non-existent.
Supervisors 	are 	routinely undermined by both 	employees 	and upper
management. 	Upper management 	is 	also 	routinely undermined by
supervisors 	and employees. 	There 	seems 	to be almost 	unanimous
agreement 	among witnesses 	employed at 	that 	location that 	it 	is
simply a 	horrible place 	to work.
Relationship 	Between 	Strickland 	and 	Jenkins
Jenkins 	came 	to 	Los 	Angeles 	OBG 	in approximately October
1989. 	She was an assistant 	to Gilliard until August 	1990, 	when
she became an assistant 	to Bobbio Sanchez. 	She 	remained 	in that
assignment until 	September 1991, 	when she was promoted into 	the
position 	she 	now holds 	in Long Beach. 	At various 	times 	during
her 	stay 	in Los Angeles, 	Jenkins 	had responsibility over certain
EEO 	issues, 	some health and safety areas, 	and occasionally filled
in 	for Sanchez 	or Gilliard 	in their absence. 	Jenkins 	worked with
14

Strickland on numerous 	issues, 	including 	some health and safety
issues, 	training, 	EEO, 	and some of Strickland's grievances.
Jenkins 	testified that 	she 	felt 	that 	at 	least 	half 	the 	time
Strickland's 	claims 	on health and 	safety 	issues 	had potential
merit, 	so 	she 	tried to give him the benefit 	of 	the doubt whenever
he 	raised an issue. 	At 	the hearing, 	Strickland sought 	to 	show
that 	his 	ongoing 	complaints 	about 	contaminated water 	reflected
badly upon Jenkins, 	who at 	the time was an assistant 	to Gilliard
and Sanchez. 	Jenkins 	did not 	appear to be particularly upset 	at
Strickland for raising the 	issue, 	however, 	because she 	felt 	it
was 	not within her area 	of 	expertise 	or responsibility. 	She 	also
testified 	that 	she 	often 	agreed with Strickland's 	health and
safety complaints. 	At one point, 	she even tried to talk
Strickland 	into 	serving 	on 	a 	health and 	safety 	committee.
She also 	felt, 	however, 	that 	Strickland would use any excuse
he 	could 	think 	of 	to 	spend 	time with her 	for his 	own personal
reasons. 	She 	testified that 	for a while 	it 	seemed that 	she 	had a
homing device 	on her, 	because every time 	she made a move,
Strickland was 	there trying to see her. 	According to Jenkins, 	if
she went 	for coffee, 	Strickland came up to her in the 	cafeteria.
If 	she went 	into the hall, 	Strickland was waiting for her. 	If
she 	went 	to 	the 	restroom, 	Strickland would be waiting around 	the
corner 	for her when she 	came 	out.
Several 	witnesses 	testified 	that 	they 	felt 	Strickland was
paying an 	inordinate 	amount 	of 	attention 	to Jenkins 	because 	he
was 	attracted 	to her 	rather 	than 	for work 	related 	concerns.
15

Jenkins 	was 	often approached by 	other 	employees 	who 	suggested
that 	she put up with too much abuse 	from Strickland. 	One
employee 	offered, 	only half 	in jest, 	to supply Jenkins with a
stun gun 	to keep Strickland away 	from her. 	For a while, 	Jenkins
was 	even 	removed 	from Strickland's 	chain of 	command 	in 	order 	to
eliminate 	his 	need 	to 	contact 	her. 	This move appeared to be 	only
marginally 	successful 	in 	diverting 	Strickland's 	attention 	from
Jenkins. 	Jenkins 	testified that, 	after a while, 	they were able
to 	resolve 	the 	issue 	of 	Strickland paying personal 	attention 	to
her, 	and 	their 	relationship 	then 	continued on a professional
basis.
The 	evidence 	supports 	a 	finding 	that, 	while Jenkins may not
have 	respected Strickland as 	an employee, 	and was 	frustrated by
his 	inappropriate personal 	attention and 	the 	abusive manner 	in
which he 	often presented his 	complaints, 	she does 	not personally
dislike him and holds 	no personal 	grudge against 	him. 	In 	fact,
with very 	few exceptions, 	such as 	the 	time Jenkins 	threatened to
call 	the 	state police 	to 	have 	Strickland removed 	from her 	office,
Jenkins 	demonstrated a willingness 	to put 	up with more 	from
Strickland 	than anyone 	else who had 	to deal 	with him on a 	regular
basis.
The 	Long 	Beach Transfer
When Jenkins 	assumed her new position 	in the 	Long Beach
office 	in September of 	1991, 	she became 	responsible 	for the
maintenance program in the 	Long Beach 	state 	office building and
nine 	other 	state 	facilities 	located 	from Bellflower 	to 	Long
16

Beach. 	When Jenkins 	arrived, 	the hiring process 	for a stationary
engineer vacancy was 	already under way. 	The position had been
vacant 	for some time due 	to a hiring 	freeze, 	but 	filling the
opening had 	recently been approved. 	Jenkins 	received an
eligibility 	list 	and 	contacted 	the 	candidates 	in 	the 	top 	five
ranks 	to determine 	their 	interest 	in the position.
Jenkins 	was 	looking 	for a 	candidate with dependability,
flexibility, 	strong 	inter-personal 	skills 	and technical 	skills
with a 	strong emphasis 	on electrical matters. 	She 	testified 	in a
convincing manner 	that 	those 	traits 	were 	desired because 	Long
Beach had a very 	small 	staff 	and 	teamwork was 	essential 	to
success. 	The 	individual 	selected would be 	interacting with
numerous 	high 	ranking 	officials 	in 	the 	ten 	state 	office
facilities 	they serviced. 	Furthermore, 	the 	electrician in Long
Beach was 	ranked high 	on 	the promotional 	list 	for 	stationary
engineer and was 	likely to be promoted 	in the near 	future.6 If
the 	electrician was promoted away 	from Long Beach, 	and the 	job
could not be backfilled due 	to budget 	constraints, 	Jenkins
particularly 	needed 	a 	stationary 	engineer with 	strong 	electrical
skills 	to help 	fill 	in for any vacant 	electrician position.
Four candidates 	on the promotional 	list, 	and Strickland, 	a
lateral 	transfer request, 	expressed an 	interest 	in the 	Long Beach
6Stationary 	engineer 	is 	a higher 	rated 	classification 	than
electrician.
17

position.7 All 	five 	of 	the 	interviews were 	conducted 	in the 	same
manner by Jenkins 	and Robert 	Langley, 	the 	CE 	I at 	Long Beach.
All 	candidates 	were 	asked 	the 	same 	structured questions.
Questions 	regarding 	technical 	issues 	had been prepared by
Langley.
When Strickland 	first 	learned of 	the 	opening, 	he 	called
Jenkins 	to 	indicate his 	interest 	in the position. 	At 	that 	time,
Jenkins 	questioned whether 	they 	could 	successfully work 	together,
but 	she did 	indicate her willingness 	to 	interview him. 	Jenkins
informed Strickland 	that 	if 	he 	transferred to Long Beach, 	he
would be 	taking direction 	from a 	CE 	I. 	She 	also 	told Strickland
that 	a 	CE 	I 	would be participating 	on 	the 	interview panel 	as 	her
technical 	expert. 	Jenkins 	told Strickland to submit 	an
application, 	which he did.
Strickland's 	cover 	letter 	attached 	to his 	application
indicated he was 	making a 	"qualified" 	request 	to be 	considered
for the 	transfer. 	He 	strenuously objected to the use 	of 	CE 	Is 	in
the 	interview process. 	He stated that any role of a CE 	I 	outside
of 	a 	"purely assistive 	nature 	related directly 	to particular
engineering problems" 	was 	unlawful. 	Strickland stated that
unless 	he was 	given 	"a 	specific 	showing of 	lawful 	authority"
allowing 	the CE 	I any input 	into his 	transfer request, 	he would
not 	submit 	to 	the 	interview. 	Strickland felt his 	experience had
already been 	established and was 	not 	open 	to 	evaluation by any
7The past practice 	of DGS 	allows building managers 	to 	select
candidates 	from promotional 	lists 	or lateral 	transfers. 	Neither
are 	given any preference 	over 	the 	other.
18

member of 	the 	IUOE. 	Strickland reiterated at 	least 	a half-dozen
times 	that 	CE 	I participation on the 	interview panel 	was 	illegal.
Jenkins 	did not 	respond to Strickland's 	letter, 	other 	than
to 	schedule 	an interview and send Strickland a notice 	of 	the
interview.
On February 3, 	1992, 	Strickland sent a complaint 	to Jenkins
indicating 	that 	she 	left 	him no 	other 	recourse 	than 	to proceed
with a civil 	tort action to protect his 	rights. 	The 	same
complaint 	also requested a 	"Right 	to Sue Release" 	from the
California Department 	of 	Personnel 	Administration.
After 	Strickland's 	earlier 	conversation with 	Jenkins
regarding CE 	I participation in the 	interview panel, 	he 	filed a
complaint 	with OBG. 	Strickland argued 	that 	allowing 	CE 	I's 	any
influence 	at 	all 	in 	the 	interview process 	would make 	them defacto
supervisors. 	This, 	according to Strickland, 	was a violation of
state 	law, 	which prohibited supervisors 	from being 	in his
bargaining unit. 	Strickland sought 	to have all 	the 	interviews
involving CE 	Is voided. 	The 	15-page 	complaint 	also 	contained
some vintage Strickland vitriol, 	as 	follows:
. 	. 	. 	[CE I's] 	may be outstanding people with
superior skills, 	and I do not have knowledge
otherwise; 	but 	they are not 	"supervisors,"
and 	I 	have no 	intention of 	allowing Sharion
Jenkins 	or anyone 	to self 	create 	"Bosses" 	who
can control 	my 	career on a 	level 	of 	slavery,
because 	she 	is 	impressed with a grandiose
title.
Jenkins 	has 	suggested 	such 	condition 	should 	I
seek employment 	in Long Beach, 	and any
conception that 	I will 	submit 	to such
conditions 	of employment, 	or will merely
allow my State 	career 	to be 	held 	in limbo
19

because 	a Building Manager wishes 	to 	exceed
her authority, 	is 	in error on both counts.
If my superiors 	wish 	to make 	the 	Chief
Engineer I employees, 	full supervisors,
kindly 	remove 	them 	from my Union.
If Jenkins wishes 	to make 	"Bosses," 	I can
only suggest she move to Mississippi, 	and
turn 	the 	clock back a hundred years.
On the 	day of 	Strickland's 	scheduled 	interview, 	Langley
called in sick, 	so no interview was held. 	When Strickland
arrived 	for the 	interview, 	he and Jenkins 	went 	to 	the 	cafeteria
and had coffee 	together. 	At 	that 	time, 	she made 	it 	clear to
Strickland that 	the 	department's 	long 	standing practice was 	to
have CE 	Is 	sit 	on interview panels as 	technical 	experts, 	and that
Langley would participate 	in 	Strickland's 	interview.
Strickland's 	interview was 	rescheduled 	for a date 	in
February 	for 	Strickland's 	convenience.8 At 	the 	start 	of 	his
February 	interview, 	Strickland handed Jenkins 	and Langley a
letter 	indicating 	that he 	had no 	intention of bringing 	any legal
action against 	either 	of 	them personally and 	that 	any 	civil
liabilities 	that might 	occur due 	to CE 	I participation 	in the
interview process, 	would be 	limited 	to senior managers 	and union
officials.
8The 	long standing practice 	of DGS 	is 	to require 	employees
interviewing 	for lateral 	transfers 	to do 	so on their own time.
Strickland had exhausted his 	leave balances, 	so Jenkins 	agreed 	to
hold off 	her decision 	for approximately a month, 	until 	Strickland
could build up 	enough 	leave 	time 	to 	attend 	the 	interview without
suffering a 	loss 	of pay.
20

After Jenkins 	and Langley 	conducted 	the 	interviews 	and
evaluated 	the 	results, 	both Langley and Jenkins 	agreed that 	one
candidate was 	clearly 	far superior 	to all 	the 	others. 	He had the
best 	qualifications 	due 	to extensive 	experience 	in HVAC and
electrical 	systems. 	He had once been an 	instructor and an
inspector 	in the 	field. 	He was 	in the 	fifth rank on 	the
eligibility list, 	however, 	and was not 	reachable because the
first 	three 	ranks 	had not 	yet been 	cleared.
Jenkins' 	second choice was Augustine Gabilan, 	who was at
that 	time 	the 	Long Beach 	electrician Jenkins 	was 	worried about
losing 	through a promotion to a different 	location. 	Gabilan had
a bachelor's 	degree 	in 	electrical 	engineering 	from the
Philippines. 	During his 	tenure at Long Beach, 	Gabilan was
constantly taking night 	courses 	regarding HVAC 	systems. 	He was
seen as a perennial 	student, 	always 	seeking to 	increase his work
knowledge. 	He also had a proven record of 	dependability and
inter-personal 	skills, 	having already established working
relationships with the very clients 	he would have 	to 	service as 	a
stationary engineer. 	Gabilan had also 	regularly proven his
flexibility and 	commitment 	to 	the 	job by his 	willingness 	to
adjust 	his 	work 	schedule 	to meet 	work emergencies 	whenever 	they
arose. 	Gabilan was 	in the 	third rank and was 	therefore
reachable.9
9Several 	times 	during 	the hearing, 	Strickland argued 	that
Gabilan did not 	meet 	minimum eligibility 	requirements 	to
interview for the position. 	Strickland's arguments were,
however, 	based entirely upon his 	own speculation and were 	not
supported by a 	shred of evidence. 	Therefore, 	no 	additional 	time
21

In evaluating Strickland's 	technical 	expertise, 	Langley
rated Strickland as his 	last 	choice. 	There 	is no evidence of any
bias 	against 	Strickland on 	the part 	of 	Langley. 	Langley
testified 	that 	he 	and 	Strickland had worked 	together 	only very
briefly some 	time ago. 	Although Strickland had a 	reputation of
being a 	thorn 	in everyone's 	side, 	Langley recalled that
Strickland seemed like a nice guy at 	the 	time, 	and that
Strickland 	had 	treated him 	fairly 	and 	honestly.10
Based upon her 	recollection of 	Strickland's 	work 	in Los
Angeles, 	Jenkins 	felt 	that 	Strickland tended to make excuses 	for
not being able 	to 	complete 	tasks, 	had not 	shown an ability or
willingness 	to adjust 	to 	changes 	in work assignments, 	had very
poor 	inter-personal 	skills 	and had very 	limited 	field 	experience.
Strickland's 	lack of 	field 	experience 	on 	the 	road 	crew was
significant 	to Jenkins because 	the work in Long Beach, 	being so
spread out with a 	limited number of 	staff, 	requires
troubleshooting 	experience 	on a wide 	range 	of 	HVAC 	systems.
will 	be 	spent 	dealing' with this 	claim in the discussion section
of 	this decision.
10Although 	the Van Nuys 	allegations 	were withdrawn at 	the
conclusion of 	the hearing 	and 	therefore 	not 	reviewed 	in 	this
decision, 	Strickland's 	technical 	expertise was 	also 	rated very
low in the Van Nuys 	interview, 	consistent with Langley's 	opinion.
The 	CE 	I participating 	in the Van Nuys 	interview felt 	Strickland
had trouble answering even 	the most basic 	of 	technical 	questions.
The purpose 	of 	this 	finding 	is not 	to decide 	if 	Langley was
correct about Strickland's 	lack of 	technical 	expertise, 	but 	only
if 	there 	is 	evidence 	to conclude that 	the low opinion of
Strickland's 	skills was 	arrived at 	due 	to his protected
activities. 	I 	therefore make no 	finding about 	Strickland's
technical 	skills, 	only that 	Langley's 	low opinion of 	Strickland's
skills 	seem to be 	sincere and based upon Strickland's 	performance
in his 	interview.
22

Jenkins 	was 	also 	aware 	that 	Strickland had no 	sick 	leave 	or
vacation 	time balances. 	She 	judged that 	to be 	an 	indication 	that
he was often absent 	from work and, 	therefore, 	less dependable.
She 	was 	unaware 	that 	Strickland had 	recently had 	three 	operations
and was being 	treated 	for stress, 	thus 	exhausting his 	leave
balances.
Jenkins 	had worked with both Gabilan and 	Strickland 	and
rated Gabilan 	superior 	to 	Strickland 	regarding 	work 	experience,
training, 	dependability, 	flexibility, 	and inter-personal skills.
Furthermore, 	given Strickland's 	history of 	seeking 	to dominate
Jenkins 	attention, 	along with his pre-announced refusal 	to accept
any CE 	I 	authority over his 	conditions 	of 	employment, 	Jenkins
feared 	Strickland would 	once 	again use 	any 	excuse 	to bring 	issues
directly 	to her. 	Jenkins 	worried 	that 	Strickland might 	dominate
her time, 	rather than working 	through a 	chain of 	command.
Jenkins 	did not 	discuss 	the application or qualifications 	of
any of the candidates with Steuber, 	Neal, 	Bolden, 	or Gilliard,
prior to her decision to select Gabilan. 	Nor is 	there any
credible 	evidence 	that any of 	these 	individuals 	tried 	in any way
to 	influence Jenkins 	decision not 	to hire 	Strickland.
Strickland 	testified 	that 	in 	1990 	he 	indicated 	to OBG
management 	that he was planning on retiring when he 	turned 50.
Later, 	Strickland determined that 	the amount 	of 	his 	retirement
would be 	insufficient, 	therefore, 	he changed his mind. 	Neither
Strickland's 	announced intention to retire, 	nor his 	change 	of
23

plans, 	appear to have made much of an impact, 	one way or the
other, 	on any of 	the 	supervisors 	or managers at OBG.
On February 25, 	1992, 	IUOE Business Representative Lloyd
Ramirez, 	wrote to Gilliard on Strickland's behalf, 	inquiring
about 	what 	criteria Jenkins 	used 	to promote 	an electrician 	into
the vacancy, 	rather than giving it 	to Strickland, 	who was a
lateral 	transfer. 	Gilliard responded on March 16, 	1992, 	that
Article XIII 	of 	the 	Collective 	Bargaining Agreement 	allowed 	for
the 	selection process 	used 	to 	fill 	the vacant 	Long Beach
position.
DISCUSSION AND 	CONCLUSION
In order to prove a prima 	facie violation, 	the Charging
Party must prove: 	(1) 	that he engaged in protected activity; 	(2)
that 	OBG management 	had knowledge 	of 	his protected activity; 	(3)
that OBG took adverse action against 	him and 	(4) 	that 	OBG took
the 	adverse 	action against 	him because he 	had engaged 	in 	that
protected activity. 	(Novato Unified School District 	(1982) 	PERB
Decision No. 	210; 	Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89; 	State of California 	(Department 	of Developmental
Services) 	(1982) 	PERB Decision No. 	228-S.)
Once 	the Charging Party has 	done 	that, 	the burden then
shifts 	to DGS 	to prove 	that 	it would have denied Strickland the
transfer to Long Beach regardless 	of 	any protected activity. 	If,
however, 	the Charging Party has not proven a prima 	facie 	case,
the burden does 	not 	shift 	to DGS 	and 	it 	is under no obligation to
24

put 	forth any evidence. 	I will briefly review the 	elements 	of
Charging 	Party's 	case.
Protected 	Activity
The 	first 	requirement 	is 	that 	Strickland engaged 	in
protected activities. 	There 	is ample evidence 	to support a
finding 	that 	Strickland 	engaged 	in protected activity. 	Although
many of 	Strickland's 	complaints, 	such as 	those 	filed with the
State Personnel Board, 	the Attorney General, 	Los Angeles District
Attorney, 	etc., 	might not be protected by SEERA,11 much other
activity, 	such as 	filing health and safety complaints, 	grievances
regarding overtime, 	complaints of 	retaliatory transfers, 	disputes
over 	confidentiality of 	home 	telephone 	numbers 	and pay warrants,
etc., 	are clearly protected.
There was 	a 	tremendous 	overlap between Strickland's
protected and unprotected conduct. 	For example, 	filing a
grievance 	regarding 	the denial 	of 	overtime 	for the 	1984 	Olympics
is protected. 	However, 	when he 	filed complaints based upon the
same 	incident 	with 	the attorney general 	and 	the 	Los 	Angeles
district 	attorney, 	seeking broad based 	investigations 	into
"criminal 	acts," 	Strickland's 	activity probably 	crossed 	the 	line
into areas unprotected by the Dills Act. 	However, 	ample evidence
was 	presented 	to 	conclude 	that 	Strickland would have 	been 	denied
11San Diego Unified School 	District 	(1991) 	PERB Decision No.
885, 	pp. 	74-75 	(filing Equal 	Employment Opportunity Commission
complaint unprotected); 	Regents of the University of California
(Yeary) 	(1987) 	PERB Decision No. 	615-H 	(filing a California
Department 	of 	Fair 	Employment 	and Housing 	claim not 	protected
activity).
25

the 	transfer regardless 	of any protected activity. 	Therefore, 	I
find it unnecessary, 	with one exception, 	to articulate the
dividing 	line 	between his 	protected and unprotected 	conduct.
That 	exception 	is 	Strickland's 	activity 	regarding
CE 	Is. 	There are two issues here. 	The 	first 	involves
CE 	I participation as 	technical 	experts 	on interview panels. 	In
State Unit Determination, 	supra. 	the same decision which placed
CE 	Is 	in the bargaining unit, 	PERB held that 	it was 	not 	improper
for bargaining unit members 	to participate 	on 	interview panels.
(See also 	Foothill DeAnza Community College District 	(1977) 	EERB12
Decision No. 	10 	and San Rafael 	City Schools 	(1977) 	EERB Decision
No. 	32.) 	However, 	in at least a half dozen places on
Strickland's 	"qualified" 	request 	to transfer, 	he 	indicated that
any CE 	I 	participation in 	the 	interview process 	would be
considered by him to be 	a violation of 	the 	law. 	In his
February 	3 	letter to Jenkins, 	Strickland 	stated that 	he 	saw no
recourse 	open 	to 	him other 	than 	to proceed with a 	civil 	tort
action.
The 	second issue 	regarding CE 	Is, 	was 	Strickland's 	objection
to any role 	for a CE 	I 	other 	than 	"a purely assistive nature
related directly 	to particular engineering problems." 	PERB 	has
clearly decided that 	it was 	not 	improper 	for CE 	Is 	to oversee 	the
work assignments, 	to some degree, 	of other bargaining unit
employees.
12Prior to 1978, 	PERB was known as 	the Educational 	Employment
Relations 	Board.
26

Thus, 	while 	it may have been protected 	for Strickland 	to
advocate 	the 	removal 	of 	CE 	Is 	from the bargaining unit, 	his
stated 	intention 	to proceed with a 	civil 	tort 	action 	regarding
CE 	I 	involvement 	on 	the 	interview panel 	and his 	refusal 	to 	take
direction from a CE 	I, 	are not protected by the Dills Act.
OBG 	Knowledge
The 	second element 	that 	Strickland must 	prove 	is 	that
management had knowledge 	of his 	protected activity. 	This 	element
wa	
!	s also proven. 	As a general practice, 	Strickland meticulously
brought 	his 	complaints 	to 	the 	attention of 	the 	entire OBG
management, 	along with any supervisors 	involved.
Adverse 	Action
The 	third element, 	that adverse action occurred, 	was not
disputed by the 	state. 	Counsel 	for DGS 	conceded that 	the denial
of 	the 	transfer 	impacted Strickland's 	ability to move 	to 	Long
Beach and/or his 	commute.
Nexus
The 	final 	element 	that 	Strickland must prove 	is 	that 	the
state was motivated, 	at 	least 	in part, 	by his protected activity.
Since 	an 	employer's 	motivation 	can 	seldom be 	proven by 	direct
evidence, 	unlawful motivation can often be 	inferred 	from
circumstantial 	evidence. 	Here, 	however, 	Strickland has 	failed to
prove by 	either direct 	or 	circumstantial 	evidence 	that 	Jenkins
denied him the 	transfer due 	to 	his 	protected activity. 	There was
no 	evidence 	of 	disparate 	treatment 	against 	Strickland 	or a
departure 	from established practices. 	There was 	no 	credible
27

evidence 	of 	shifting 	justifications 	by the 	employer. 	There was
no 	evidence 	that 	Jenkins 	based her decision upon 	inadequate
information or 	that 	she made 	a 	final 	decision prior 	to 	completing
Strickland's 	interview.
There was 	no 	evidence whatsoever 	of 	bias 	against 	Strickland
on 	the part 	of 	Langley. 	Rather evidence 	indicates 	that 	Langley
based his 	evaluation 	on a 	sincere belief 	that 	Strickland 	lacked
technical 	competence 	compared to other candidates. 	Strickland
had 	limited experience 	on a 	road 	crew and did not 	have 	as 	strong
a background 	in electrical 	work as 	Gabilan.
Jenkins 	had a 	reasonable 	fear 	that 	Strickland would not 	work
well with the 	CE 	I. 	Strickland's 	announced refusal 	to 	take
direction 	from a 	CE 	I was 	not 	protected conduct 	and was 	a
legitimate 	factor 	to be 	taken 	into 	consideration by Jenkins.
Strickland 	also 	had 	a 	long 	standing 	and 	relatively 	consistent
history 	of 	an 	inability 	to 	develop 	constructive 	working
relationships 	with 	supervisors.
Finally, 	Jenkins 	had 	first 	hand knowledge 	of 	Strickland's
lack of 	inter-personal 	skills. 	She had personally experienced
his 	rude 	and abusive behavior.
In summary, 	the evidence supports Jenkins' 	testimony that
she 	did not 	find 	Strickland 	to be 	a very 	good 	candidate 	when
compared 	to 	either her 	first 	or 	second 	choice.
Strickland also argues 	a 	theory 	that 	the decision 	to 	deny
him the 	transfer was 	controlled by Gilliard, 	not Jenkins. 	This
theory 	is 	based upon undisputed 	evidence 	that 	Gilliard
28

controlled, 	absolutely, 	all personnel 	decisions within his
authority. 	Strickland believes 	that 	this 	theory 	is 	also
supported by Gilliard's March 16, 	1992, 	response to the 	IUOE's
inquiry regarding the appropriateness 	of 	Jenkins' 	interview
process. 	According to Strickland, 	if Gilliard was not 	exercising
control 	over Jenkins 	he would not 	have 	responded 	to 	the 	IUOE
about 	the 	selection process 	Jenkins 	used.
This 	theory is unconvincing, 	however. 	Once the Southern
California Region was 	divided, 	creating 	the 	LA Metro Region,
Gilliard 	no 	longer had any 	control 	or 	influence 	over 	Long 	Beach
or Jenkins. 	Gilliard's March 16 	reply to the 	IUOE does 	not
indicate 	control 	over the 	selection decision, 	but 	rather only
that 	Gilliard 	felt 	the process 	was 	consistent with 	the 	collective
bargaining agreement. 	After all, 	Strickland was one of
Gilliard's 	employees 	and 	the 	IUOE 	did ask Gilliard 	for a
response. 	I 	do not 	conclude 	that Gilliard controlled an out-of-
region hiring 	decision 	simply because 	he 	responded 	to 	an 	inquiry
about 	the hiring process.
The 	last 	reason this 	theory is unconvincing 	is 	that 	I 	am
convinced, 	that, 	if Gilliard had had any influence over the
decision at all, 	he would have done everything 	in his power to
have 	Strickland transferred out 	of 	his 	region. 	Strickland
speculates 	that 	Gilliard denied him the 	transfer 	in an effort 	to
get 	him to quit, 	knowing 	that 	he had at 	one 	time 	considered
retiring. 	However, 	this 	speculation is unsupported by any
evidence.
29

I 	therefore 	conclude 	that 	Strickland has 	failed 	to prove
that 	he was 	denied 	the 	transfer due 	to his 	protected activity.
However, 	even 	if 	Strickland had proven a nexus between his
protected activity and the adverse action, 	or if his 	CE 	I
protests were protected, 	I 	find that 	the employer has proven it
would have 	taken 	the 	same 	action despite 	the protected activity.
I 	base 	this 	ruling upon a 	finding 	that 	Gabilan better met 	the
stated needs 	of 	Long Beach. 	He 	had a 	strong electrical
background, 	proven 	flexibility and dependability, 	and had already
established a 	good working 	relationship 	with 	the 	clients 	he 	would
be 	servicing 	as 	a 	stationary 	engineer.
Finally, 	even if Strickland's technical skills, 	experience,
education, 	flexibility and dependability had been 	far 	superior 	to
Gabilan's, 	the 	employer could legitimately have 	rejected
Strickland based 	solely upon his 	lack 	of 	inter-personal 	skills
and his 	erratic 	and abusive behavior. 	An applicant 	has 	no 	right
to 	expect 	that 	a history of 	abusive behavior will 	be 	disregarded
simply because 	the 	offensive behavior may have, 	on occasion,
occurred 	in pursuit 	of 	legitimate 	and possibly protected 	issues.
For all 	of 	the above reasons, 	this 	complaint must be
dismissed.
CONCLUSION
Charles 	Strickland 	engaged 	in protected activity 	over 	the
past nine years. 	The 	employer was aware 	of his protected
activity 	and 	took adverse 	action against 	him by denying 	him a
transfer to Long Beach. 	Strickland has not proven, 	however, 	that
30

the 	transfer was 	denied because 	of 	his protected activity. 	Even
if 	Strickland had proven 	that 	the 	adverse 	action had been
motivated, 	in part, 	by protected activity, 	the employer would
have 	come 	to 	the 	same 	decision despite 	his 	protected activity.
Jenkins 	chose 	another 	candidate because 	that 	applicant 	was
considered more 	dependable, 	flexible and possessed better 	inter-
personal 	and 	technical 	skills. 	Strickland properly 	could have
been rejected 	for 	the position based 	simply upon his 	history 	of
erratic 	and abusive 	behavior.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and 	the 	entire 	record in this 	case, 	it 	is hereby ordered that 	the
entire 	complaint 	is 	dismissed.
Pursuant 	to California Code of Regulations, 	title 	8, 	section
32305, 	this 	Proposed Decision and Order shall become 	final 	unless
a party 	files 	a 	request 	for an extension of 	time 	to 	file
exceptions 	or a 	statement 	of 	exceptions with the Board 	itself.
This 	Proposed Decision was 	issued without 	the production 	of
a written transcript 	of 	the 	formal 	hearing. 	If a transcript 	of
the hearing 	is needed for 	filing exceptions, 	a 	request 	for an
extension 	of 	time 	to 	file 	exceptions must be 	filed with the Board
itself 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132). 	The request for
an 	extension 	of 	time must be 	accompanied by a 	completed
transcript 	order form 	(attached hereto). 	(The 	same 	shall 	apply
to any 	response 	to 	exceptions.)
31

In accordance with PERB 	regulations, 	the 	statement 	of
exceptions must be 	filed with 	the Board 	itself within 20 	days 	of
service 	of 	this Decision or upon service 	of 	the 	transcript 	at 	the
headquarters 	office 	in Sacramento. 	The 	statement 	of 	exceptions
should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of the record, 	if any, 	relied upon for such exceptions. 	(Cal.
Code of Regs., 	tit. 	8, 	sec. 	323 00.) 	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 	. 	. 	." 	(Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	32135; Cal. Code of 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. 	Proof 	of 	service 	shall 	accompany each 	copy
served on a party or filed with the Board itself. 	(Cal. 	Code 	of
Regs., 	tit. 	8, 	secs. 	32300, 	32305 and 32140.)
James W. Tamm
Administrative 	Law 	Judge
3
James 	w,-_----,,T~a~nnn;;;;----------
2