Regents of the University of California (University Professional and Technical Employees) (PERB 1263H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

UNIVERSITY PROFESSIONAL AND
TECHNICAL EMPLOYEES, UPTE-CWA,
LOCAL 9119,

~S wH WH

Charging Party, ) Case Nos. LA-CE-423-H
LA-CE-456-H
Vv.
PERB Decision No. 1263-H

YK LH LL

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, ) April 28, 1998
Respondent. )
)
Appearance: Belinda M. Hein, Labor Relations Advocate, for

Regents of the University of California.
Before Johnson, Dyer and Jackson, Members.
DECISION

JOHNSON, Member: This case is before the Public Employment
Relations Board (Board) on appeal by the Regents of the
University of California (University) to an administrative law
judge's (ALJ) proposed decision (attached). The ALJ found that
the University violated the Higher Education Employer-Employee

Relations Act (HEERA) section 3571(a) and (b)* when it imposed

'HEERA is codified at Government Code section 3560 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. Section 3571 provides, 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. For purposes of

reprisals 	on 	employees 	who participated 	in protected 	conduct.
The 	Board has 	reviewed the 	entire 	record, 	including
the ALJ's proposed decision and 	the University's 	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.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law, 	and the 	entire 	record in the 	case, 	the Board finds 	that 	the
Regents 	of 	the University of 	California 	(University) 	has violated
the Higher Education Employer-Employee Relations Act 	(HEERA),
Government Code sections 3571(a) 	and 	(b). 	The University
violated HEERA section 3571(a) 	by: 	(1) 	issuing Gilberto Sandoval
(Sandoval) 	and Ernie Dawn 	(Dawn), 	employees at the University of
California, 	San Diego 	(UCSD), 	disciplinary letters 	in November
1994 	for submitting the 	"potential 	sick leave" 	notices; 	(2)
involuntarily 	transferring 	Sandoval 	from the 	Basic 	Science
Building 	to Elliott 	Field Station on December 1, 	1994; 	(3)
issuing Sandoval 	a disciplinary letter dated December 5, 	1994;
(4) 	ordering a 	five-day suspension of 	Sandoval 	by its 	notice
dated December 20, 	1994; 	and 	(5) 	medically separating Sandoval
from employment by its notice dated April 	3, 	1996. 	These
reprisals 	were 	imposed on Sandoval 	and Dawn because 	of 	their
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

participation 	in the activities 	of 	the University 	Professional
and Technical Employees, 	UPTE-CWA, 	Local 9119 	(UPTE).
Because 	these actions 	had the additional 	effect 	of
interfering with, 	and hence denying, 	the right 	of UPTE to
represent 	its members, 	these actions 	also violated section
3571(b).
The 	allegations 	that 	the University violated 	section 	3571(a)
by 	threatening 	employees 	with 	loss 	of 	jobs 	and by 	laying 	off
James Adamson, 	and all 	other allegations 	are hereby DISMISSED.
Pursuant 	to HEERA section 3563.3, 	it 	is hereby ORDERED that
the University and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against UCSD 	employees 	Sandoval 	and
Dawn because 	they participated 	in activities 	of 	an employee
organization of 	their own 	choosing 	for 	the purpose 	of
representation on matters 	of 	employer-employee 	relations; 	and
2. 	Denying the 	right 	of 	the UPTE 	to 	represent 	its
members 	in 	their 	employment 	relations 	with 	the 	higher 	education
employer by virtue 	of 	the acts 	of 	retaliation against 	its
members.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE HEERA:
1. 	Rescind the November 	1994 	disciplinary 	letters
issued 	to 	Sandoval 	and Dawn 	regarding 	their 	submission 	of
"potential 	sick leave" 	notices.
2. 	Reinstate 	Sandoval 	to his 	animal 	technician
position at 	the 	Basic 	Science Building at UCSD, 	or a 	similar
3

facility with accommodations 	for his 	allergy to 	rabbits
consistent 	with past 	practice.
3. 	Rescind, 	remove and destroy the December 5, 	1994,
disciplinary 	letter 	("Written Warning") 	issued 	to 	Sandoval 	for
falsification of 	animal 	care 	records.
4. 	Rescind, 	remove and destroy the December 20, 	1994,
Notice 	of 	Intent 	to 	Suspend 	(five-day suspension) 	issued 	to
Sandoval 	for 	failing 	to 	follow a 	supervisor's 	directives.
5. 	Rescind the medical 	separation of 	Sandoval 	and
reinstate 	him to his 	former position as 	an animal 	technician with
the Office 	of Animal 	Resources.
6. 	Reimburse 	Sandoval 	for all 	lost wages 	and benefits
he 	incurred due 	to 	the 	five-day 	suspension given 	to him as 	a
result of the December 20, 	1994, 	disciplinary action and due 	to
the April 	3, 	199 6, 	medical separation from employment. 	The
amount 	of 	reimbursement 	is 	to be augmented by 	interest 	at 	the
annual rate of seven 	(7) 	percent.
7. 	Within thirty-five 	(35) 	days 	following the date
this Decision 	is 	no 	longer subject 	to 	reconsideration, 	post at
all 	locations where notices 	to 	employees 	are 	customarily posted,
copies 	of 	the Notice attached hereto as 	the Appendix. 	The Notice
must 	be 	signed by an authorized agent 	for 	the 	University,
indicating 	that 	the 	University will 	comply with 	the 	terms 	of 	this
Order. 	Such posting 	shall 	be maintained 	for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable steps shall be taken to
insure that 	the Notice is not 	reduced in size, 	altered,
44

defaced 	or 	covered by any 	other material.
8. 	Notify the 	San Francisco Regional 	Director of 	the
Public Employment Relations Board, 	in writing, 	of 	the steps 	the
University has 	taken to 	comply with the 	terms 	of 	this 	Order.
Continue 	to 	report 	in writing 	to 	the 	regional 	director
periodically thereafter as 	directed. 	All 	reports 	to 	the 	regional
director 	shall 	be 	served 	concurrently on UPTE.
Members 	Dyer and Jackson 	joined 	in 	this 	Decision.
55

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State of 	California
After a hearing 	in Unfair Practice 	Case Nos. 	LA-CE-423-H and
LA-CE-456-H, 	University Professional 	and Technical 	Employees. 	UPTE-
CWA, 	Local 	9119 v. 	Regents of the University of California, 	in
which all parties had the 	right 	to participate, 	it has been found
that 	the 	Regents 	of 	the University 	of 	California 	(University)
violated 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act
(HEERA), 	Government Code section 3571(a) 	and 	(b). 	The University
violated HEERA by: 	(1) 	issuing Gilberto Sandoval 	(Sandoval) 	and
Ernie Dawn 	(Dawn), 	employees at the University of California, 	San
Diego 	(UCSD), 	disciplinary letters 	in November 1994 	for submitting
the 	"potential 	sick leave" 	notices; 	(2) 	involuntarily transferring
Sandoval 	from the 	Basic 	Science 	Building 	to 	Elliott 	Field Station
on December 1, 	1994; 	(3) 	issuing Sandoval a disciplinary letter
dated December 5, 	1994; 	(4) 	ordering Sandoval 	suspended for five
days by notice dated December 20, 	1994; 	and 	(5) 	medically
separating Sandoval 	from employment by notice dated April 	3, 	1996.
These 	reprisals 	were 	imposed 	on Sandoval 	and Dawn because 	of 	their
participation 	in 	the 	activities 	of 	the University 	Professional 	and
Technical Employees, 	UPTE-CWA, 	Local 9119 	(UPTE).
Because 	these actions 	had the additional 	effect 	of 	interfering
with, 	and hence denying, 	the right 	of UPTE to represent 	its
members, 	these actions also violated section 3571(b).
As 	a result 	of 	this 	conduct, 	we have been ordered to post 	this
Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against 	UCSD 	employees 	Sandoval 	and Dawn
because 	they participated 	in activities 	of 	an employee 	organization
of 	their 	own 	choosing 	for 	the purpose 	of 	representation 	on matters
of employer-employee relations; 	and
2. 	Denying the 	right 	of 	the UPTE 	to 	represent 	its
members 	in their employment 	relations with the higher education
employer by virtue 	of 	the acts 	of 	retaliation against 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	HEERA:
1. 	Rescind the November 	1994 	disciplinary letters
issued 	to 	Sandoval 	and Dawn 	regarding 	their 	submission 	of
"potential 	sick leave" 	notices.
2. 	Reinstate 	Sandoval 	to his 	animal 	technician position
at 	the Basic 	Science Building at UCSD, 	or a 	similar 	facility with
accommodations 	for his 	allergy 	to 	rabbits 	consistent 	with past

practice.
3. 	Rescind, 	remove and destroy the December 5, 	1994,
disciplinary 	letter 	("Written Warning") 	issued 	to 	Sandoval 	for
falsification of animal 	care 	records.
4. 	Rescind, 	remove and destroy the December 20, 	1994,
Notice 	of 	Intent 	to Suspend 	(five-day suspension) 	issued 	to
Sandoval 	for 	failing 	to 	follow a 	supervisor's 	directives.
5. 	Rescind the medical 	separation of 	Sandoval 	and
reinstate him to his 	former position as 	an animal 	technician with
the Office of Animal 	Resources.
6. 	Reimburse Sandoval 	for all 	lost wages and benefits he
incurred 	due 	to 	the 	five-day 	suspension given 	to 	him as 	a 	result 	of
the December 20, 	1994, 	disciplinary action and due to the April 	3,
1996, 	medical 	separation from employment. 	The amount of
reimbursement 	is 	to be augmented by 	interest at 	the annual 	rate 	of
seven 	(7) 	percent.
Dated: 	THE 	REGENTS 	OF THE UNIVERSITY
OF 	CALIFORNIA
By: Authorized 	Agent
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND MUST
NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH ANY OTHER
MATERIAL.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNIVERSITY 	PROFESSIONAL AND
TECHNICAL EMPLOYEES 	- 	UPTE-CWA,
LOCAL 	9119,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
)
) 	Unfair Practice
Case 	Nos. 	LA-CE-423-H
LA-CE-456-H
PROPOSED 	DECISION
(11/5/97)
)
)
)
)
)
)
)
)
)
)
Appearances: 	Jelger Kalmijn, 	University of California at
San Diego 	Chapter 	President, 	for University Professional 	and
Technical Employees 	- UPTE-CWA, 	Local 	9119; 	Belinda Marie Hein,
Labor Relations Advocate, 	and Daniel Wyman, 	Labor Relations
Specialist, 	for Regents of 	the University of 	California.
Before Donn Ginoza, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This case, 	arising out of 	two unfair practice charges,
involves 	allegations 	that 	a 	higher 	education employer 	threatened
employees 	who were 	protesting 	a 	sick 	leave 	policy and
subsequently 	imposed reprisals 	against 	several 	of 	the protesting
employees.
The University Professional 	and Technical 	Employees 	- 	UPTE-
CWA, 	Local 	9119 	(UPTE) 	initiated this action against 	the Regents
of 	the University of 	California 	(University) 	by filing the 	first
unfair practice charge on March 6, 	1995.
The 	Office 	of 	the General 	Counsel 	of 	the 	Public 	Employment
Relations 	Board 	(PERB 	or Board) 	issued a 	complaint 	in the 	unfair
practice charge, 	case number LA-CE-423-H, 	on June 25, 	1995,

alleging 	that 	the 	University 	threatened 	employees 	with 	loss 	of
their 	jobs 	and 	retaliated 	against 	several 	of 	the 	same 	employees
because 	they 	had 	protested 	the 	University's 	sick 	leave 	policy.
By 	these 	acts, 	the 	complaint 	alleges, 	the 	University violated 	the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA 	or 	Act)
section 3571(a) 	and 	(b).1
The 	University 	answered 	the 	complaint 	on 	July 	2 4 , 	1995,
denying 	the 	allegations 	that 	it 	engaged 	in 	unlawful 	threats 	or
retaliation.2 A 	settlement 	conference 	was 	conducted 	by 	PERB
Administrative 	Law 	Judge 	(ALJ) 	W. 	Jean 	Thomas 	on 	September 	8,
1995, 	but 	the 	dispute 	was 	not 	resolved.
Nine 	days 	of 	formal 	hearing 	were 	conducted 	in 	case 	number
LA-CE-423-H between January 	8, 	1996 	and March 2 1 , 	1996, 	on the
campus 	of 	the University of 	California, 	San Diego 	(UCSD), 	in 	La
Jolla, 	California. 	At 	the 	commencement 	of 	the 	hearing, 	UPTE
1 U n l e s s otherwise 	indicated, 	all 	statutory 	references 	are 	to
the 	Government 	Code. 	The 	HEERA 	is 	codified 	at 	section 	3560 	et
seq. 	In 	relevant 	part, 	section 	3571 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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
S i m u l t a n e o u s l y , 	the 	University 	filed 	a 	motion 	to 	dismiss
the 	complaint. 	The 	motion was 	denied on 	September 	26, 	1995.
N	2

indicated that 	it 	wished to 	litigate 	allegations 	of 	subsequently-
occurring reprisals 	related to 	those 	in the 	complaint. 	Due 	to
the 	surprise nature 	of 	the 	claims, 	the undersigned directed UPTE
to 	file 	a 	separate unfair practice 	charge 	for the purpose 	of
litigating the 	additional 	claims.
On May 31, 	1996, 	UPTE 	filed the 	second unfair practice
charge 	in LA-CE-456-H. 	A complaint was 	issued on June 	26, 	1996,
alleging 	that 	the 	University medically 	separated 	an 	employee
named 	in 	the 	first 	complaint 	and 	laid off 	another employee 	not
previously named, 	because 	they had participated 	in 	the 	sick 	leave
policy protest. 	By these acts, 	the complaint alleges, 	the
University violated section 3571(a) 	and 	(b).
The University answered the 	second complaint, 	denying the
allegations 	that 	it 	engaged 	in unlawful 	retaliation.3 After the
informal 	conference was waived, 	the case was assigned to the
undersigned 	for hearing. 	The 	two 	cases 	were 	ordered consolidated
for purposes 	of 	decision. 	Three 	additional 	hearing days were
conducted from February 24, 	through February 26, 	1997.
With receipt of 	the post-hearing briefs on August 	26, 	1997,
the 	case was 	submitted.4
3Respondent 	again filed a motion to 	dismiss 	the 	complaint 	in
case number LA-CE-456-H, 	which motion was 	denied on September 	6,
1996.
4UPTE's 	brief was not 	filed 	in accordance with PERB
regulations on the 	scheduled due date of June 30, 	1997. 	However,
good cause 	for 	late 	submission of 	the 	brief 	was 	found on
August 	26, 	1997, 	and the brief was 	admitted over the objection of
the 	University.
w	3

FINDINGS 	OF 	FACT
jurisdiction
The 	University 	is 	a higher 	education employer within 	the
meaning of 	section 3562(h) 	of 	the HEERA. 	UPTE 	is 	an employee
organization within the meaning of 	3562(g), 	and the exclusive
representative 	of 	a unit 	of 	University employees within 	the
meaning of section 3562(j).
Office 	of Animal 	Resources
The Office of Animal 	Resources 	(OAR) 	at 	the UCSD campus
operates 	facilities 	that 	house 	and care 	for animals utilized 	in
scientific 	experiments. 	This 	animal 	research 	is 	conducted by
researchers of the science departments, 	medical 	school, 	and
veterinary school 	that 	are 	affiliated with UCSD. 	The 	researchers
in charge 	of 	the 	experiments 	are 	referred to as 	Principal
Investigators 	(Pis). 	Collectively, 	the UCSD researchers have
secured research grants 	totaling 	$300 	to 	$400 million. 	The
research projects 	encompass 	a wide 	range 	of 	subjects 	including
human disease, 	orthopedic devices, 	and basic science. 	Typical
laboratory animals include rats, 	mice, 	rabbits, 	primates, 	dogs,
swine, 	and goats.
The 	function of 	OAR is 	to receive 	laboratory animals, 	adapt
them to 	a 	controlled 	environment 	that 	is 	conducive 	to
investigative 	research, 	and maintain the 	animals 	during the 	life
of 	the 	research project. 	The 	animal 	husbandry involved 	in this
operation 	is 	performed principally by the 	classifications 	of
employees 	known as 	animal 	technicians. 	Animal 	technicians
4

perform such tasks as 	feeding, 	watering, 	health checks, 	cage
cleaning, 	and the 	like. 	The 	control 	conditions necessary to
validate 	experimental 	data, 	such as 	the health of 	the 	animals,
their regular 	feeding, 	and the 	temperature of 	the environment,
are 	observed by 	the 	animal 	technicians 	and documented on 	sheets
known as 	animal 	room checklists. 	OAR employs between 25 	and 30
animal 	technicians 	on 	staff.
OAR 	animal 	technicians 	are 	responsible 	for animals 	housed 	in
at 	least 	ten UCSD 	facilities, 	including the Basic 	Science
Building, 	Clinical 	Science Building, 	Surgical Research
Laboratory, 	Medical 	Teaching Facility, 	Clinical 	Teaching
Facility, 	Elliott Field Station, 	McGill Hall, 	Center for
Molecular Medicine 	- 	East, 	Center for Molecular Medicine 	- West,
and 	the 	Engineering 	Building.
Dr. 	Phillip Robinson is the director of OAR. 	Larry
Gustafson, 	Associate Director for Animal 	Care, 	has primary
responsibility for day-to-day operations. 	John Timms, 	Assistant
Manager 	for Animal 	Care, 	is 	a 	supervisor reporting directly to
Gustafson 	and has 	responsibility 	for 	disciplining 	employees.
Pete Willhite, 	Milton Rodriguez, 	and Madison Lowe act 	as 	first
line supervisors.
October 26. 	1994, 	Meeting Regarding Sick Leave 	Policy
UPTE 	filed a petition 	for 	recognition as 	an 	exclusive
representative of Unit 	9, 	a system-wide 	technical 	unit on
March 10, 	1994. 	On June 30, 	1994, 	PERB approved an election
agreement 	between 	the University and UPTE 	calling 	for 	a 	PERB-
5

conducted mail 	ballot 	to 	determine 	whether UPTE 	should represent
Unit 	9. 	The 	election was 	to be 	finalized by a ballot 	count 	on
November 15, 	1994.5
Jelger Kalmijn 	is 	the president 	of 	the UPTE 	chapter at UCSD.
Kalmijn testified that 	over 	some 	months prior 	to October 	1994
numerous 	OAR 	employees 	complained 	about 	difficulties 	regarding
promotion 	and an 	attendance 	policy which they thought 	was 	unfair.
The 	group 	decided that 	the most 	viable 	issue 	to 	address 	through
collective 	action was 	OAR's 	sick 	leave 	policy.
The 	sick 	leave 	policy requires 	that 	an employee 	give 	notice
of his/her intention to use 	sick 	leave 	24 	hours 	in advance. 	The
OAR employees 	felt 	that 	the 	policy was 	irrational 	and
unreasonable 	because 	an employee might 	only become 	ill 	with 	less
than 24 	hours 	before 	the 	next 	work 	shift 	and therefore be
incapable 	of 	giving 	the 	required notice 	in order 	to 	avoid 	a
chargeable 	absence.
OAR's 	sick 	leave policy can be 	described as 	a 	"no-fault"
policy. 	Employees 	are not 	required to provide 	an excuse 	for an
absence 	and the basis 	for the 	absence 	is 	of no 	consequence.
However, 	the written policy provides 	that 	employees with more
than 	10 	absences 	in a year 	(including tardiness 	or early
departure 	from work) 	are 	subject 	to discipline. 	A warning 	is
given after 	the 	tenth unscheduled absence 	in one 	year.
Progressive 	discipline 	is 	imposed 	thereafter with 	dismissal
5Judicial 	notice of 	these 	facts 	from the 	election records 	of
PERB. 	(San Ysidro School District 	(1997) 	PERB Decision No.
1198.)
6

occurring on the 	thirteenth unscheduled absence 	in one year.
There 	is 	a 	"wash-out" 	of 	accumulated absences 	at 	the 	end of 	the
yearly 	accounting 	period.
Larry Gustafson 	testified 	that 	the 	policy was 	administered
progressively. 	He 	noted one 	case 	involving an employee with a
substance 	abuse 	problem 	in which OAR gave 	verbal 	warnings,
letters of warning, 	a suspension, 	and finally termination 	-- 	and
that 	only after more 	than 20 	unscheduled absences.
In response to Kalmijn's 	request, 	the UCSD's Office of
Employee 	and Labor Relations 	scheduled a meeting 	to 	discuss 	the
sick leave policy. 	The meeting was held on October 26, 	1994.
Attending 	for UPTE were 	Kalmijn and 	four 	employee
representatives, 	Jim Moore, 	Ernie Dawn, 	Rudolph Richardson and
Gilberto Sandoval.6
Michael Melman, 	Director of Employee 	and Labor Relations,
Larry Gustafson, 	John Timms, 	Belinda Hein, 	Labor Relations
Advocate, 	and Jenni Liebman, 	Principal Personnel Analyst,
represented 	UCSD.
Initially, 	Kalmijn, 	speaking for the employees, 	stated that
the 	employees 	objected to 	the 	unfairness 	of 	the 	sick 	leave policy
in general 	and the 	24-hour notice 	rule 	in particular. 	Melman,
speaking 	for UCSD, 	asserted that 	the 	sick 	leave policy was
reasonable 	and 	satisfactory 	in management's 	view.
U" PTE	cJPTE gave 	notice 	that 	Albert 	LeClair and Madison Lowe 	would
be 	attending, 	but 	OAR declined to make 	them available.
77

Kalmijn 	acknowledged OAR's 	operational 	concerns 	underlying
the 	policy but 	claimed that 	the 	24-hour notice 	was 	arbitrary and
unnecessary to meet 	those 	concerns. 	Near the 	end of 	the meeting,
Kalmijn 	stated 	that 	if 	the 	University were 	unwilling 	to modify
the policy the 	employees might 	choose 	to 	report 	to 	Pis 	that 	OAR's
24-hour notice 	rule was 	forcing employees 	to come 	to work 	sick.
He 	stated 	that 	the 	employees 	felt 	that 	they 	simply had 	to be
honest 	and 	inform the 	Pis 	that 	the 	"animals 	they were 	[caring]
for 	. 	. 	. 	were in danger of becoming sick because a lot of the
employees were going to work with 	. 	. 	. 	various illnesses." 	In
addition, 	Kalmijn asserted that 	the 	animal 	care 	itself was
compromised because 	the 	employees 	were 	not 	functioning 	"at 	100
per cent."
There 	was 	no 	evidence 	offered by UPTE 	to 	support 	the 	extent
to which human 	illnesses 	could be borne 	across 	species 	lines 	to
the animals. 	To the 	contrary, 	Gustafson testified without
contradiction 	that 	most 	human 	illnesses 	cannot 	be 	transmitted 	to
laboratory animals. 	OAR's main concern 	in employees 	reporting to
work 	ill, 	as 	expressed by Gustafson during the hearing, 	was 	the
potential 	compromised 	job performance. 	But 	there was 	no 	evidence
that 	the 	policy was 	actually compelling 	any 	significant 	number of
employees 	to work 	sick to 	avoid discipline.7
7There was 	no evidence 	that 	employees were 	actually
exhausting their available 	sick 	leave 	incidents 	so 	as 	to be 	in
real 	danger of 	disciplinary action 	if 	they 	failed 	to 	report.
According to 	the University, 	no grievances 	challenging the 	sick
leave 	policy had been 	filed under 	the 	University-promulgated
Staff 	Personnel 	Policy grievance 	procedure. 	Kalmijn 	testified
that 	management 	had 	told him of 	only one 	employee 	disciplined
CO	
8

Melman 	responded that 	the 	University's 	policy did 	not
require 	employees 	report 	to work sick, 	nor was 	that 	the
University's desire. 	According to UPTE witnesses Kalmijn, 	Dawn,
and Richardson, 	Melman also 	stated that 	contacting the 	Pis 	"would
not 	be 	a good idea" 	because 	"people 	could 	lose 	their jobs." 	UPTE
witnesses 	were 	generally consistent 	in testifying 	that 	Melman did
not 	elaborate 	on how the 	job 	losses might 	occur.8
In 	the 	hearing, 	Melman denied making any statement 	that 	he
threatened 	to 	terminate 	employees 	or 	shut 	down 	the 	laboratories
if 	the 	employees notified Pis. 	But 	he 	also did not 	deny that 	he
used the phrase 	"employees 	could lose 	their 	jobs." 	Melman
testified that 	he 	stated that 	he did not 	"recommend" 	that 	the
employees 	contact 	Pis because 	it was 	"360 	degrees 	against what
the policy stood 	for." 	Though he 	remembers 	having concerns 	at
the 	time 	that 	the 	threatened action 	could result 	in 	job 	losses
because 	researchers might withdraw funding, 	he 	did not 	recall
articulating those 	concerns 	to 	the 	employees.
Other University witnesses' 	accounts 	of Melman's 	statements
were 	inconsistent with Melman's version and, 	to a degree, 	with
each other. 	Jenni 	Liebman testified that 	Melman stated that 	as 	a
under 	the policy.
UPTE 	introduced a 	copy of 	an electronic-mail 	message 	sent
by Gustafson 	to 	a Massachusetts 	management 	employee 	seeking
advice 	on how to 	discipline 	a unionized workforce 	with attendance
problems. 	In what 	can only be 	construed as 	a boast, 	Gustafson
asserted 	that 	OAR's 	sick 	leave policy was 	successful 	in
terminating 	six employees.
8UPTE 	witness 	Sandoval 	recalled Melman 	stating 	that
employees 	could be 	"fired" 	as 	a consequence.
9

result 	of 	contacting PIs, some 	"employees 	could 	lose 	their 	jobs."
According to Liebman, 	Melman elaborated on this 	statement 	by
explaining 	that 	the 	action 	could 	"affect 	the 	contracts 	and
grants" 	for positions at UCSD. 	She claimed, 	however, 	that Melman
also 	conveyed 	that 	he was 	not 	referring 	specifically to 	OAR
employees, 	but 	rather University employees under 	the 	grants
generally.
Gustafson 	testified 	that 	Melman 	told 	Kalmijn 	that 	he 	did not
appreciate 	Kalmijn's 	threat 	and that 	his plan was 	"not 	a good
idea" 	because 	it 	could affect 	the University's 	research programs.
Gustafson did not 	hear the 	statement, 	"employees 	could 	lose 	their
jobs." 	He believed that Melman may have 	implied that 	all UCSD
employees 	under grants were 	endangered.
As 	to 	this 	conflict 	in 	the 	testimony concerning Melman's
response 	to 	Kalmijn's 	threat 	to notify PIs, I 	find that Melman
did make 	the 	statement 	that 	employees 	"could lose 	their 	jobs."
The 	UPTE witnesses 	were 	credible 	and their 	testimony generally
consistent. 	In contrast, 	on the University side, 	there are
several 	significant 	conflicts. 	Melman himself 	did not 	remember
explaining 	that 	statement 	to mean 	that 	he 	viewed 	the 	potential
consequences 	of 	notification to PIs to 	include 	loss 	of 	grants,
and thereby, 	loss of 	jobs, 	in contrast 	to the testimony of
Liebman and Gustafson. 	Judging also 	from Melman's 	direct 	and
austere demeanor, 	I 	do not believe 	it 	likely that under the
circumstances, 	faced with what 	he viewed to be 	the 	threat 	of 	an
10

unwarranted job action, 	he would qualify his own 	statement 	in the
manner 	suggested by 	either 	Liebman 	or 	Gustafson.
The 	meeting was 	concluded with a promise by the University
to consider the employees' 	concerns 	and evaluate 	the 	sick 	leave
policy in 	light 	of 	those 	concerns. 	OAR subsequently did modify
the policy by reducing the 	advance 	notice 	requirement 	to 	18 	hours
and by providing 	employees 	quarterly notice 	of 	their 	accrued
absences.
"Potential 	Sick Leave" 	Notices 	and the Warning Letters
Following the October 26 meeting, 	the OAR employees 	and
Kalmijn 	decided 	against 	contacting 	the 	PIs 	as 	they had
threatened. 	UPTE offered the 	idea of 	an alternative 	strategy to
continue 	the protest. 	The plan was 	to prepare written 	forms
notifying OAR of 	an employee's 	"potential" 	absence 	due 	to
sickness 	and have 	employees 	collectively 	submit 	them to
supervisors 	on a daily basis 	at 	the 	end of 	the 	day. 	The notice
read:
POTENTIAL 	SICK NOTICE
This 	is to inform you that, 	in the event 	that
I 	am too 	sick to work tomorrow, 	I will be
unable 	to come 	to work. 	Please 	accept 	this
as my twenty-four hour notice, 	as mandated in
the 	OAR departmental 	procedures 	for 	sick
leave.
Thank you in advance for understanding. 	. 	. 	.
Beginning November 2 	and continuing through November 5, 	1994,
several 	OAR employees 	submitted these 	notices 	on 	a 	daily basis,
including Gilberto 	Sandoval, 	Ernie Dawn and Jim Moore. 	After
approximately the 	third occasion, 	the 	employees were verbally
11

warned to 	cease 	submitting the notices. 	Some of 	the 	employees
persisted after 	the verbal 	warning. 	OAR 	responded with 	letters
of 	warning 	issued to 	the 	employees 	at 	their home 	addresses.
Gilberto 	Sandoval 	and Ernie 	Dawn received 	such 	letters.9 The
November 4, 	1994, 	letter from Larry Gustafson to Sandoval
explained the 	sick 	leave policy, 	the University's 	rationale 	for
the 	24-hour notice 	rule, 	and the adverse 	impact 	the notices had
on 	staffing decisions. 	Gustafson warned that 	if 	the 	employees
did not 	cease 	submitting the notices, 	the 	employees would 	face
discipline 	for 	insubordination. 	After 	issuance 	of 	the warning
letter, 	the 	employees 	ceased submitting the notices.
Gustafson asserted 	that 	submission of 	the 	notices 	created
scheduling 	"havoc" 	for OAR. 	However, 	on cross-examination, 	this
claim proved 	to be 	exaggerated. 	Gustafson 	could only 	identify
9The 	complaint 	in 	case 	number LA-CE-423-H alleges 	that 	OAR
animal 	technician 	Jim Moore 	also 	received 	a warning 	letter.
However, 	Moore 	elected not 	to testify in the hearing.
Accordingly, 	this allegation as well 	as 	all 	other allegations of
retaliation 	contained 	in 	the 	complaint 	as 	to Moore 	are 	hereby
dismissed 	for 	failure 	to 	state 	a prima 	facie violation.
The 	complaint 	in case 	number LA-CE-423-H 	also 	alleges 	that
the 	University 	retaliated 	against 	Sandoval 	and Dawn by
misinforming 	them that 	a 	training 	class 	had been 	cancelled. 	The
class 	was 	scheduled to 	include 	a practice 	examination 	for
employees 	seeking 	a 	certification 	from 	a 	particular professional
association, 	which OAR deemed a desirable qualification. 	In 	its
post-hearing brief, 	UPTE did not 	cite 	any of 	the 	evidence
concerning this 	event 	either as 	evidence 	of 	anti-union animus 	or
as 	an 	independent 	act 	of 	retaliation. 	I 	find that 	evidence 	fails
to demonstrate 	that 	an adverse action occurred, 	since OAR
management 	acknowledged 	the 	confusion 	about 	the 	scheduling 	and
permitted employees 	to re-take 	the practice 	examination. 	(Palo
Verde Unified School District 	(1988) 	PERB Decision No. 	689
[requirement 	of proving an adverse 	action].) 	The 	allegation of
retaliation is 	therefore dismissed. 	Moreover, 	I 	find this
evidence 	to be 	inconclusive 	as 	to anti-union animus.
12

one animal 	technician, 	Jim Moore, 	who was reassigned due to the
sensitive nature 	of 	his 	duties 	coupled with his 	submission of 	the
notices. 	Gustafson claimed that 	double 	coverage 	resulted on
other occasions 	due 	to the borrowing of 	"one or two" 	employees 	to
cover the potential 	absence of 	the 	"two or three" 	employees who
submitted the notices. 	It 	is undisputed that no more 	than three
employees persisted 	in submitting the 	notices.10 There was 	no
evidence 	that 	employees 	submitting 	the 	notices 	actually 	failed 	to
report 	to work 	the 	following day.
Adverse 	Actions 	Against 	Gilberto 	Sandoval
Sandoval 	has been employed at UCSD as 	an animal 	caretaker
for approximately 20 years. 	He began employment 	in the 	Pulmonary
Department 	of 	the Medical 	School 	in 	1970 	and continued there
until 	1979. 	After leaving UCSD 	from 1980 	to 1983, 	he 	returned in
October 	1984, 	commencing his 	employment with OAR as 	an Assistant
Animal Technician. 	His 	supervisor at 	the time, 	Stephen Gardella,
rated him 	"more 	than 	satisfactory" 	in both of 	his 	probationary
evaluations. 	His 	regular evaluations 	covering the periods 	from
1985 through 1987, 	1987 through 1988, 	1988 through 1990, 	and 1990
through 1992 	each rated him 	"above expectations" 	overall. 	In his
best 	evaluation, 	for the period ending in 1990, 	Sandoval 	received
"above 	average" 	for both of 	the most 	critical 	job 	function review
categories 	and 	for all 	five of 	the performance 	review categories.
10Gustafson testified that 	Madison Lowe, 	a 	Senior Animal
Technician at 	the 	time, 	who attended the October 26 	meeting,
submitted the 	notices 	but 	was 	not 	disciplined and was
subsequently promoted 	to 	supervisor. 	He 	ceased 	submitting 	the
notices 	after being verbally warned.
13

In two of 	the 	five performance review categories, 	"quality"
(i.e., 	"accuracy, 	completeness, 	and follow-through of work") 	and
"dependability" 	(i.e., 	"punctuality, 	regularity in attendance,
meeting 	deadlines 	and performing work 	without 	close 	supervision")
Sandoval's rating was 	"A+." 	In the 	"comments" 	section, 	Gustafson
offered 	such praise 	as: 	"Your quality of work has 	always 	been
good, 	but your attitude 	and general 	support 	to the 	facilities has
improved greatly this past 	year; 	You have become very dependable
and 	conscientious 	[sic]; 	I 	really appreciate your willingness to
perform extra 	duties 	and volunteering 	to 	assist 	on many 	special
occasions." 	In another of 	the evaluations, 	Sandoval was
described as 	"one of 	the hardest working employees" 	in OAR.11
There was 	no 	evidence 	that 	Sandoval 	had received any written
warnings 	or other 	formal 	disciplinary actions prior 	to 	the
adverse 	actions 	described 	following.
A. 	Transfer to Elliott 	Field Station
On December 1, 	1994, 	OAR management 	decided to transfer
Sandoval 	to 	Elliott 	Field Station 	from his 	existing 	assignment 	at
the 	Basic 	Science 	Building. 	Elliott 	Field Station 	is 	a 	"ranch-
style," 	outdoor facility containing swine, 	rabbits, 	goats, 	and
dogs. 	Unique among the 	facilities, 	it 	is located 17 miles 	from
11In the period 	from January 1993 	through May 1995, 	Sandoval
received only 	"met 	expectations" 	and 	"below expectations" 	ratings
in 	the 	six 	job 	function 	categories 	and 	seven performance 	review
categories. 	The 	"below expectations" 	ratings were 	received in
"record keeping," 	"planning/organizing," 	and
"coordination/cooperation." 	This 	evaluation was 	issued 	in mid-
May 	1995, 	after the 	adverse 	actions 	challenged here 	commenced.
UPTE 	did not 	allege 	in either unfair practice 	charge 	that 	this
evaluation was 	a 	retaliatory action.
14

the 	campus. 	There was only one animal 	technician, 	Albert
LeClair, 	assigned to handle duties 	at 	the 	facility at 	the 	time.
But 	due 	to plans 	to 	increase 	the number of 	animals 	housed there,
another employee was 	needed, 	according to Gustafson.
Sandoval 	testified 	that 	upon 	learning of 	a potential
departmental 	assignment 	to 	Elliott.Field 	Station 	he 	mentioned 	to
Gustafson that 	he 	did not 	want 	to be 	assigned there 	due 	to his
allergic 	reaction to 	rabbits. 	Sandoval 	suffers 	from an allergic
reaction 	to 	rabbit 	hair 	and dander 	that 	may be 	accompanied by an
asthmatic 	attack. 	In some 	cases, 	the 	asthmatic attack can be
life-threatening. 	Sandoval 	has 	a 	confirmed allergic 	sensitivity
to other animals but 	no 	history of 	asthmatic or other
debilitating 	reactions 	to 	any animal 	housed by OAR other 	than
rabbits. 	Gustafson and OAR have known about 	Sandoval's 	condition
for many years. 	Sandoval 	did not want 	the 	Elliott 	Field Station
assignment 	because 	of 	potentially greater exposure 	to 	rabbits 	and
the 	fact 	that 	only two employees were 	assigned there, 	requiring
at 	least back-up coverage of 	rabbits.
Sandoval 	was 	not working with rabbits 	at 	the 	Basic 	Science
Building at 	the 	time 	of 	his 	transfer. 	In the past when rabbit
care was unavoidable, 	Sandoval used a 	face mask. 	He had one
prior 	incident 	of 	an 	on-the-job 	allergic 	reaction 	to 	rabbits
prior to his 	December 	1994 	assignment 	to Elliott 	Field Station.
There was 	a 	history of OAR accommodation 	of 	Sandoval's 	rabbit
allergy. 	In approximately 1988, 	former OAR director Jack
15

Vanderlip 	granted Sandoval's 	request 	to work at 	Elliott 	Field
Station and not 	have 	rabbit 	duties.
Sandoval 	testified 	that 	Gustafson 	acknowledged his 	concern
and promised 	that 	a 	transfer 	to 	Elliott 	Field 	Station would not
happen. 	In contrast, 	Gustafson denied any such conversation or
promise. 	Gustafson claimed that 	Elliott 	Field Station 	is
considered 	a 	desirable 	assignment 	by many 	animal 	technicians 	due
to 	its 	setting.
Here 	I 	credit 	Sandoval's 	testimony that Gustafson assured
him that 	he 	would not 	be 	considered 	for 	the 	Elliott 	Field Station
assignment. 	I base 	this on his demeanor throughout 	the hearing,
his 	reputation 	for earnestness, 	and the general 	consistency of
his 	testimony. 	I 	find Gustafson was not 	credible as 	to this 	and
many other 	factual 	disputes. 	He was 	often exaggerated 	in his
direct 	testimony and evasive 	on 	cross-examination. 	Gustafson's
testimony conflicted with 	other witnesses 	having no 	apparent 	bias
or 	interest 	in the 	case 	on a number of 	significant 	points.
Gustafson 	testified 	that 	the 	decision 	to 	transfer 	Sandoval
was 	an operational 	decision of 	the 	department 	made 	by the
management 	team. 	Such reassignments 	are 	commonplace, 	occurring
"weekly," 	he 	testified. 	Gustafson 	stated that 	the 	rationale 	for
choosing 	Sandoval 	was 	because 	he 	had worked there 	in the past 	for
several years 	and was 	familiar with the 	Pis 	there. 	Gustafson
believed 	that 	it 	would be 	necessary to 	retrain any other
employee. 	This was contradicted to some degree, 	however, 	by
Gustafson's 	statement 	that 	Sandoval 	was 	moved 	from Elliott 	Field
16

Station 	following his 	first 	assignment 	there because 	he was
having problems 	with 	some 	of 	the 	PIs 	there 	and needed more 	direct
supervision.
Gustafson 	also 	believed 	that 	the 	outdoor 	environment 	would
be 	an 	improvement 	for Sandoval's 	asthma 	condition. 	He made 	the
decision to 	"accommodate" 	Sandoval's health problem, 	based
largely on 	the 	fact 	that 	Sandoval 	had 	requested the 	outdoor
assignment previously.12 However, 	Barry Niman, 	manager of the
Campus 	Employee 	Rehabilitation 	Program,13 recalled he 	understood
that 	in 	the 	first 	assignment 	OAR arranged 	for Sandoval 	to 	have 	no
contact 	with rabbits 	and to not 	work alone on weekends. 	No 	such
arrangements 	were 	contemplated by OAR 	in making 	the 	1994
assignment.
Immediately upon his 	transfer to Elliott 	Field Station, 	John
Timms 	ordered Sandoval 	to daily rabbit 	care. 	Timms 	explained to
Sandoval 	that 	he 	wanted 	the 	cages 	cleaned before 	the 	PIs 	arrived
for their morning visits. 	LeClair, 	the other Elliott 	Field
Station animal 	technician, 	was working a 	shift 	that 	started one
hour 	later and ended one 	hour 	later than Sandoval's. 	On
December 27, 	less than a month after his assignment, 	Sandoval
suffered an asthmatic 	attack and was 	required to 	see 	a physician.
12Gustafson 	testified that 	rabbits 	were 	at 	Elliott 	Field
Station during 	Sandoval's 	previous 	assignment.
13In the 	late 	1980s, 	Sandoval 	contacted the 	rehabilitation
offices 	to 	seek 	assistance 	in 	finding a position 	that 	would not
involve exposure 	to rabbits. 	He 	later reported to the offices
that 	he 	had 	received 	accommodation by OAR.
17

Shortly thereafter, 	he 	filed a Worker's 	Compensation 	first-
report -of -injury form.
Following his 	attack, 	Gustafson and Dr. 	Robinson met with
Sandoval 	to discuss 	his problem. 	They then assigned LeClair to
handle 	the 	rabbits 	and removed Sandoval 	from weekend coverage.
OAR 	assigned other 	employees 	for weekend 	and back-up 	duty.
Sandoval 	did not 	have 	any other medical 	problems 	thereafter.
B. 	December 5, 	1994, 	Disciplinary Letter
1. 	Basis 	for the Discipline
Sandoval 	had worked his 	regular 	schedule 	at 	the 	Basic
Science 	Building during 	the 	week of 	October 	31 	through November
4, 	1994. 	He volunteered to work on Saturday, 	November 5, 	1994,
at 	the 	"barrier" 	facility at 	the Clinical 	Sciences Building. 	A
"barrier" 	facility is 	a 	sterile 	facility 	for special 	research
animals, 	such as 	immune-compromised species. 	Rules require
employees 	to 	complete 	sanitizing procedures 	before 	entry.
Sandoval 	forgot 	his 	assignment 	and 	failed to 	report 	on November 	5
because 	he began painting his 	apartment 	that 	morning. 	He 	did not
remember 	his 	assignment 	until 	the 	following Monday.
After completing his morning duties 	on Monday, 	Sandoval
approached his 	supervisor, 	Pete Willhite. 	He 	informed Willhite
that 	he 	failed to report 	Saturday.. 	Sandoval 	testified that
Willhite 	responded by 	instructing him to 	go 	to 	the 	barrier
facility, 	check the animals, 	and sign off 	the room checklist 	as
18

if 	he 	had come 	in.14 Sandoval 	testified that Willhite 	then told
him that 	the matter was 	"just 	between you and me."
In his 	testimony, 	Willhite 	acknowledged that 	he 	instructed
Sandoval 	to check the animals 	that 	day, 	but used the phrase
"document 	the weekend" 	to 	describe 	his 	instructions with respect
to 	the 	room checklist. 	Timms 	subsequently noted the 	discrepancy
and 	investigated the 	situation. 	He 	questioned Willhite 	as 	to
whether Sandoval 	had actually come 	in on November 	5. 	Willhite
told him 	that 	Sandoval 	had not 	and had told him 	so 	on Monday,
November 7. 	However, 	Willhite did not explain to Timms that,
after 	instructing Sandoval 	to 	check the 	animals 	on Monday, 	he
told him to "document 	. 	. 	. 	the weekend."
Two 	investigatory meetings 	were 	then held with Sandoval.
The 	first was attended by Timms, 	Gustafson, 	Willhite and
Sandoval. 	Sandoval was 	asked only one question: 	if he had come
in to work on the November 	5. 	He 	admitted that 	he 	had not.
Sandoval 	was 	about 	to volunteer more 	information, 	but 	stopped and
just 	stared at Willhite, 	before 	looking at 	Timms 	and then
Gustafson. 	Willhite 	said nothing. 	Gustafson then terminated the
meeting. 	Sandoval 	did not 	mention that Willhite 	told him to
"sign off" 	the 	form. 	Following the meeting, 	Gustafson, 	Timms and
Willhite 	met 	and 	summarized 	the 	facts 	they had.
14The 	room checklists 	are 	collected monthly. 	The 	animal
technician assigned to duty on 	a particular day 	is 	required 	to
enter 	his/her 	initials 	signifying 	the 	completion of 	typically
five 	or 	six tasks 	as well 	as 	recording data 	such as 	the 	room
temperature 	and health of 	the 	animals.
19

The 	second meeting was 	called to 	find out 	an 	explanation 	for
why Sandoval 	had entered his 	initials 	on November 	5. 	Sandoval
was 	asked 	this 	question and he 	responded that 	he 	did 	so 	at
Willhite's 	direction. 	Willhite denied that 	he 	so 	instructed
Sandoval. 	The meeting again was very brief. 	Gustafson testified
that 	he believed Willhite 	because 	his 	version of 	the 	incident
never 	changed, 	but 	Sandoval's 	did.15 Further he believed that
even 	if Willhite 	had told Sandoval 	to document 	the weekend,
Sandoval 	should have 	known 	from training 	that 	he was 	to have
placed asterisks 	in 	the 	columns 	for 	those 	dates 	and explained 	in
the 	section below reserved 	for 	comments 	that 	his 	observations
occurred 	after-the-fact.
Timms 	issued Sandoval 	the December 5, 	1994, 	written letter
of warning, 	intended as 	a corrective action. 	The 	letter states
that 	the 	basis 	for the 	letter was 	Sandoval's 	falsification of 	the
entries 	on the 	checklist.
2. 	Evidence 	of 	Disparate 	Treatment
In 	an 	attempt 	to 	establish disparate 	treatment 	of 	Sandoval
by OAR, 	UPTE 	offered evidence 	of 	numerous 	discrepancies 	in animal
room checklists 	for which no 	disciplinary 	action 	or 	investigation
had taken place. 	The 	same 	checklist 	indicating Sandoval's
November 	5 	and 	6 	absences 	indicates 	that 	one other employee 	in
addition 	to 	Sandoval 	was 	assigned to 	coverage of 	the barrier
facility during the month of November 	1994. 	On 	five other days
15Willhite 	contradicted Gustafson, 	agreeing on cross-
examination by UPTE, 	that 	Sandoval's 	story did not 	change.
20

in the month of November, 	no coverage was 	indicated 	(i.e., 	none
of 	the boxes were 	initialed). 	At 	least 	three and possibly five
of 	those 	days were 	the responsibility of 	the other employee.
There 	were 	similar discrepancies 	indicated 	in other
checklists. 	For example, 	another animal technician, 	Rudolph
Richardson, 	testified that on one occasion, 	he was 	absent 	from
duty and Timms was 	responsible 	for covering 	for him. 	Upon his
return, 	Richardson noted that 	the 	days were not 	initialed. 	He
testified without 	contradiction that 	he 	raised it with Timms, 	and
Timms 	told him to 	"sign 	it 	off." 	Richardson did not 	because 	he
did not 	know if 	the work was 	actually done.
An October 	1994 	checklist 	for 	the 	Clinical 	Science 	Building
reveals 	apparently two different 	handwritings 	for the 	initials 	of
the 	same 	individual. 	Sandoval 	recognized one of 	the 	signatures
as 	that 	of 	Larry Gustafson, 	but 	credibly claimed that 	the 	other
was 	not 	that 	of 	Gustafson. 	Gustafson testified that 	both
signatures were his, 	but 	that 	the 	first 	did not 	look like his
because 	he 	had broken his 	hand at 	the 	time.16 This 	explanation
was 	not 	credible 	since the 	two 	signatures were 	on consecutive
days.
One 	of 	the 	checklists 	offered by UPTE 	does 	indicate possible
falsification, 	similar and perhaps more 	serious 	than that 	of
Sandoval's. 	In that 	case, 	Sandoval notes 	in the comment 	section
that 	he performed work for rabbits on January 6, 	1995, 	but 	could
16There 	was 	evidence 	that 	Gustafson 	indeed had a broken 	hand,
but 	it was 	in June 	1995.
21

not put 	his 	initials 	in all 	of 	the boxes because 	Senior Animal
Technician Tom Blaze 	had entered his 	initials prior 	to 	that 	day.
Records 	indicate 	that 	on numerous 	occasions 	LeClair 	filled
in 	initials 	on behalf 	of 	Blaze 	who had neglected to 	initial 	that
he 	had done work. 	LeClair noted this 	fact 	in the 	comments
section at 	the bottom of 	the 	form. 	LeClair 	felt 	justified in
correcting these 	omissions 	on his 	own because 	he 	could visually
verify that 	the work 	had previously been done.
As 	to all 	of 	the 	foregoing instances, 	there was no evidence
of 	any 	investigation or 	disciplinary action 	for any of 	these
recordkeeping 	errors. 	Willhite 	acknowledged that 	checklists 	have
been 	filled 	in after the 	fact 	in the past. 	He 	also 	testified
that 	as 	a 	supervisor he 	does 	not 	carefully review the 	checklists,
but 	leaves 	that 	to 	the compliance officer, 	Stephen Gardella.
In rebuttal, 	the University presented two 	incidents 	of
discipline 	for 	recordkeeping 	errors 	by employees 	who 	had not
engaged in protected activity. 	In a December 1994 	incident, 	a
Principal 	Animal 	Technician 	received 	a 	counseling memorandum 	for
incorrectly reading 	a 	high/low thermometer. 	The 	memorandum noted
the 	importance 	of 	an 	employee 	with 	supervisory 	responsibilities
knowing how to 	correctly record data. 	In a 	January 	1995
incident, 	an animal 	technician did not 	report 	to work and was
told to check the animals. 	After doing so, 	he 	initialed as 	if he
had checked on the 	day he was 	absent. 	The 	employee was 	issued a
22

counseling memorandum 	for 	entering 	"incorrect 	data."17 OAR
stresses 	the 	importance 	of 	accurate 	recordkeeping 	in 	annual
trainings 	for animal 	technicians. 	The 	records 	are 	inspected
periodically by 	federal 	regulatory agencies. 	Compliance 	is
necessary to 	insure 	continued 	funding of 	UCSD's 	animal 	program.
C. 	December 20, 	1994, 	Suspension
Sandoval 	testified that on December 5 and 6, 	1994, 	while he
was 	assigned to 	cover 	the 	Salk 	Institute 	rabbit 	colony at 	Elliott
Field Station18, 	he 	recorded temperatures 	from a 	thermometer 	for
the 	ambient 	temperature 	that was not 	the 	type 	traditionally 	in
use. 	Rather than the normal 	fahrenheit 	"high-low" 	type, 	it was a
temporarily 	substituted, 	fahrenheit-and-celsius-reading
thermometer 	recording only the 	current 	temperature. 	Sandoval
read 	the 	fahrenheit 	and Celsius 	figures 	and 	recorded both as 	if
they were 	high-low fahrenheit 	readings. 	He was unaware 	at 	the
time 	that 	he was 	entering 	fahrenheit 	and celsius 	figures. 	The
sheet 	indicates 	that 	Tom Blaze, 	the person previously assigned to
the 	rabbitry 	immediately before 	Sandoval's 	first 	day
(December 5 ) , 	recorded only one temperature and that 	two days
after December 	6, 	a new high-low thermometer was purchased to
replace 	the 	temporary replacement.
17Gustafson could not 	recall 	the 	specific 	circumstances 	of
these 	two disciplinary actions. 	He 	remembered a 	third
disciplinary 	action 	involving 	an 	employee 	who 	had not 	engaged 	in
protected activity. 	That 	employee physically assaulted a
supervisor, 	which resulted in his 	immediate 	termination. 	The
incident 	was 	not 	comparable 	to 	Sandoval's 	case.
18The Salk 	Institute, 	located in La Jolla, 	had recently
contracted with OAR 	for 	rabbit 	care.
23 '

According to Sandoval, 	the 	error was brought 	to his
attention during 	a meeting 	attended by Gustafson 	and Timms. 	They
told Sandoval 	that 	the 	lower 	Celsius 	temperature 	should not 	have
been recorded. 	Gustafson left 	the 	room first, 	leaving Timms 	and
Sandoval 	alone momentarily. 	At 	that 	time, 	Sandoval volunteered
to change it, 	to 	"white it out." 	Timms said, 	"No, 	no. 	You can
take 	care 	of 	that 	tomorrow." 	Timms 	did not 	testify to 	refute
this 	statement. 	Sandoval 	later blacked out 	the 	Celsius 	figures.
Gustafson disputed this 	testimony. 	Gustafson 	testified 	that
he 	and Timms 	had noticed 	that 	Sandoval 	had 	entered 	two
temperatures. 	He 	instructed Timms 	as 	the 	first 	line 	supervisor
to 	investigate. 	Timms 	confronted Sandoval 	in a 	room at 	Elliott
Field Station, 	with Gustafson 	standing 	in the background.19
Timms 	accused 	Sandoval 	of 	entering high/low temperatures 	when 	the
previous 	entries 	were 	single 	temperature 	entries. 	When Sandoval
admitted 	that 	he 	had written 	fahrenheit 	and Celsius 	figures,
Timms 	then 	told Sandoval 	that 	that 	explanation was 	unsatisfactory
because 	if 	56 	fahrenheit was equivalent 	to 17 Celsius, 	then 60
fahrenheit 	could not be 	equivalent 	to 	16 	Celsius. 	Sandoval 	asked
if he 	should correct 	it. 	According to Gustafson, 	Timms 	told
Sandoval 	that 	was 	"the worst 	thing you could do." 	Gustafson
testified that 	Timms 	told him more 	than once not 	to 	change 	it,
adding 	"we 	have 	reasons 	for not 	doing that." 	According to
Gustafson, 	he and Timms 	then left 	together. 	After later learning
that 	Sandoval 	had changed the 	entry, 	Timms 	and Gustafson 	in a
19This was 	the 	same meeting to which Sandoval 	referred.
24

second meeting asked Sandoval 	if 	he 	had changed the 	entry. 	He
admitted 	that 	he 	had.
As a result, 	by letter dated December 20, 	1994, 	Timms
imposed 	a 	five-day 	suspension 	against 	Sandoval 	for
insubordination.
Again, 	I 	credit 	the 	testimony of Sandoval over that of
Gustafson 	for 	the 	reasons 	noted previously.
D. 	September 22, 	1995, 	Suspension20
On the Saturday evening of August 	19, 	1995, 	Sandoval became
ill 	due 	to 	food poisoning. 	He was 	scheduled to perform animal
care duties at Elliott Field Station on August 	20, 	1995, 	the
following day. 	Sandoval 	testified that 	he 	had a 	high 	temperature
and slept most 	of 	the day. 	As 	a consequence, 	he 	failed to call
in to give notice 	that he would not be 	in that 	Sunday. 	The
following day, 	Monday, 	August 	21, 	he remembered he had failed to
call 	in. 	He 	spoke 	to Timms by telephone 	that 	day to 	indicate he
would continue 	to be 	out 	due 	to 	illness. 	After acknowledging
this, 	Timms then stated, 	"I'm sure 	something will 	come out of
this." 	Gustafson was out of town at that time, 	so Timms added,
"Well, 	we'll 	just 	have to wait until 	Larry comes 	into 	town and
then further discuss 	it."
In a meeting on September 13, 	1995, 	Sandoval requested a
meeting to discuss 	the potential 	consequences 	of 	his 	failure 	to
report 	for work on August 	20. 	He 	told Timms 	that 	he was very
20This 	incident 	was 	not 	alleged by UPTE as 	an adverse 	action
and so 	it 	is 	considered only as 	evidence 	of 	unlawful 	intent.
25

fearful 	of 	being 	suspended 	and proposed 	that 	the 	meeting 	take
place without 	UPTE 	representation. 	In the meeting he 	stated he
had 	"screwed up" 	and was 	ready to 	"take 	his medicine."
On September 22, 	1995, 	Gustafson issued Sandoval 	a notice of
intent 	to 	suspend for ten days. 	The 	letter warned Sandoval 	to
"immediately 	follow 	the 	OAR policy of 	reporting 	in 	to your
supervisor on days you cannot 	report 	due 	to 	illness 	or other
reasons." 	Gustafson 	said that 	if 	the 	employee's 	situation were
dire 	or unexpected, 	such as 	an 	injury in an automobile 	accident,
he would excuse 	the 	failure 	to report. 	His practice was
generally not 	to question an employee's 	claim of 	illness. 	He
contended that 	Sandoval's 	situation did not 	fall 	into 	the
category of 	an 	excusable 	failure 	to 	notify his 	supervisor,
because 	Sandoval 	admitted that 	he was 	able 	to call. 	Though he
admitted 	that 	Sandoval 	told him that 	he 	had had a hard time 	just
making 	it 	to the bathroom, 	Gustafson nevertheless 	concluded that
Sandoval 	could have used that 	opportunity to call 	in. 	Sandoval
credibly 	testified that 	he 	told Gustafson he 	was 	unable 	to 	get
out 	of bed all 	day.21
Claiming 	that 	he 	had 	acted 	leniently with Sandoval 	on 	this
occasion, 	Gustafson believed that 	Sandoval's 	absence was 	serious
enough to have warranted dismissal, 	citing the 	Staff 	Personnel
Policy section 	allowing 	for 	immediate 	dismissal 	in 	serious 	cases,
21It 	was 	apparent 	that 	Sandoval's 	failure 	to 	report 	did not
justify 	suspension under 	the 	no-fault 	sick 	leave 	policy because
Sandoval 	had only six recorded absences 	and 	the 	policy does 	not
permit 	a 	suspension until 	the 	twelfth unscheduled absence.
26

such as 	for dishonesty, 	theft 	or misappropriation of University-
property, 	fighting on the job, 	insubordination, 	acts endangering
others. 	Gustafson also maintained that 	the 	suspension was 	simply
part 	of 	the 	graduated pattern of 	progressive 	discipline 	of
Sandoval.
E. 	Medical 	Separation
1. 	Sandoval's Medical 	History and OAR'S Justification
Following 	the 	transfer 	of 	rabbit 	duties 	to other employees
at Elliott 	Field Station, 	Sandoval performed his duties 	there
without 	further medical 	incident. 	Nevertheless, 	based on medical
reports by Sandoval's own treating physician, 	Dr. 	Reuben Falkoff
and the University's examining physician, 	Dr. 	Jonathan
Greenberger, 	Gustafson made 	the 	decision 	first 	to place 	Sandoval
on 	involuntary medical 	leave 	for a period of 	12 	weeks beginning
on December 16, 	1995,22 and subsequently to medically separate
him from employment on April 	3, 	1996.
Sandoval's 	assignment 	to handle 	rabbits 	at 	the beginning of
his 	reassignment 	to Elliott 	Field Station 	in early December 	1994
caused him to 	suffer 	the 	asthmatic 	attack 	on December 	27.
Sandoval 	sought 	treatment 	from Dr. 	Falkoff, 	who had been treating
him 	for his 	allergic 	condition to 	animals 	since 	1986. 	On
January 4, 	1995, 	Falkoff wrote the 	first of 	two advice 	letters
addressed to 	Sandoval 	explaining his 	condition.
The 	first 	letter noted 	that 	in 	1986 	he 	determined 	Sandoval's
condition had been caused by a 	"severe" 	exposure 	to rabbits 	but
22UPTE 	failed to allege 	this 	action as 	a 	retaliatory act.
27

that 	it was 	subsequently controlled as 	a 	result 	of 	arrangements
at work limiting his 	exposure. 	Addressing Sandoval, 	Falkoff
concluded 	that 	"it 	would certainly be 	preferable 	if 	you 	could
arrange 	to 	totally avoid working with rabbits." 	After presenting
this 	letter to Gustafson 	in an attempt 	to have 	his 	assignment 	to
the 	rabbitry changed, 	Gustafson responded 	in writing that 	he
questioned whether 	Sandoval's 	continued 	employment 	with 	OAR was
viable. 	He 	also accused Sandoval 	of 	failing to wear his
respirator 	consistently while 	working with 	rabbits.23
In response 	to this 	letter, 	Falkoff wrote 	the 	second letter
to Sandoval 	dated January 10, 	1995. 	Falkoff explained to
Sandoval 	that 	he 	could continue 	to work 	in OAR:
. 	. 	. 	as long as your supervisors do not
contrive 	to make 	your work 	conditions
medically unacceptable. 	Your own
observations have taught you, 	over the years,
what 	animals you 	can work with 	routinely
without 	significant 	allergic problems, 	and
which ones 	cause 	problems 	when 	the 	exposure
becomes 	significant.
Although acknowledging cases 	such as 	Sandoval's 	where 	skin 	tests
reveal 	the potential 	for allergies 	to numerous 	types of 	animals,
Falkoff 	stated that 	the 	body may tolerate 	these 	animals 	due 	to
the presence of 	allergic 	antibodies, 	or 	"blocking antibodies."
Sandoval 	shared this 	second letter with Gustafson 	as 	well.
23Gustafson 	testified 	that 	he 	had heard 	some 	reports 	that
Sandoval 	did not 	always wear his mask. 	He 	did not 	elaborate.
Sandoval, 	on his Worker's Compensation form, 	charged that his
face mask was 	eight 	years 	old and he believed it 	to be 	defective.
There 	was 	credible 	evidence 	that 	Sandoval 	resisted OAR's 	attempts
to 	fit 	him with a 	full-face 	respirator, 	but 	that was 	after his
rabbit 	duties were 	removed.
28

Gustafson 	responded 	to 	Falkoffs 	two 	letters 	in his 	own 	to
Falkoff dated February 7, 	1995, 	stating:
We 	disagree with 	[Sandoval's] 	contention that
he 	can be 	full 	time 	employed here 	in OAR and
have no contact with rabbits. 	We have a
variety of 	animal 	species 	at 	most 	OAR
facilities many of which 	include 	rabbits.
Accommodating 	[Sandoval's] 	restrictions 	in
working with only certain 	species 	is 	very
difficult, 	and we 	can in no way guarantee
that 	he will 	not 	come 	into 	contact with
rabbits, 	rabbit hair, 	or dander. 	This simply
is not possible.
Gustafson 	then propounded 	seven questions, 	including whether 	an
asthmatic 	attack 	could be 	life-threatening 	to 	Sandoval 	and
whether 	it was possible 	to offer assurance 	that 	Sandoval 	"would
not 	die 	or 	suffer permanent 	damage 	from 	incidental 	and
unavoidable 	exposure 	on the 	job."
In responding to the 	former question in a February 15, 	1995,
letter, 	Falkoff stated:
Yes, 	it could be 	[life-threatening], 	but
[Sandoval] 	has 	the good sense 	to try to avoid
prolonged or 	intensive 	exposures 	to 	the
conditions 	which would result 	in 	such a
severe attack. 	It would be nice 	if you would
cooperate 	and help 	him avoid 	such exposures.
In response 	to 	the 	question regarding permanent 	injury, 	Falkoff
stated:
Yes, 	it 	is possible to offer assurance that
incidental 	exposure will 	not 	result 	in
permanent damage. 	In terms of unavoidable,
that depends on your definition. 	If, 	as you
indicated 	in the 	earlier part 	of your 	letter,
you cannot 	accommodate Mr. 	Sandoval's
restrictions 	and 	intend 	to 	expose 	him heavily
to rabbit 	dander, 	then you can arrange 	for
bad things to happen. 	I, 	however, 	would not
consider that 	to be 	reasonable 	definition of
unavoidable 	or 	incidental.
29

Falkoff 	concluded 	his 	letter by 	expressing 	his 	dismay 	that
Gustafson would 	show 	so 	little 	enthusiasm 	for 	attempting 	to
accommodate 	Sandoval 	and to assert 	that 	it was 	"impossible" 	to
accommodate 	"what 	should probably be 	considered 	a 	minor medical
handicap. "24
At 	the request of Gustafson, 	Dr. 	Greenberger evaluated
Sandoval 	in May 1995. 	Greenberger noted Sandoval's 	documented
allergy to various 	animals 	and thought 	it was 	"amazing" 	that
Sandoval 	had been able 	to work as 	an animal 	technician 	for as
long as 	he 	had. 	He 	recommended a work preclusion to 	avoid any
exposure 	to rabbits, 	based in part on anticipated guidelines 	of
the 	California 	Industrial 	Medical 	Council 	counseling 	that
individuals 	who 	have 	asthma 	due 	to 	allergic 	sensitivities 	be
removed 	from that 	environment. 	Greenberger believed 	that 	a
respirator would be 	ineffective 	because 	even a 	small 	amount 	of
allergin could cause 	an asthmatic 	attack. 	He did note 	that
Sandoval's 	asthmatic 	condition 	could have 	been progressing 	to 	a
"baseline" 	status based on Sandoval's 	symptoms 	after 	four months
without 	exposure 	to 	rabbits. 	He 	recommended a 	follow-up
examination in two months. 	But 	none was 	ever conducted. 	At 	the
time of 	the 	letter, 	Greenberger predicted that 	Sandoval, 	if he
24Gustafson was 	particularly agitated 	in 	testifying 	regarding
this 	letter 	from Falkoff. 	He was 	indignant 	that 	Falkoff 	refused
an 	invitation to 	inspect 	the 	facilities. 	He 	claimed that 	Falkoff
insulted 	his 	intelligence 	by 	implying 	that 	OAR would 	arrange
Sandoval's working conditions 	so as 	to 	intensify his 	exposure 	to
rabbits. 	Yet, 	that 	is 	in fact what 	OAR did in assigning him to
rabbit 	care 	duties 	at 	Elliott 	Field Station.
30

were 	to continue working, 	would require 	a permanent preclusion
from rabbit 	exposure.
Gustafson 	testified 	that 	Sandoval's 	inability 	to 	work with
rabbits was 	the basis 	for his 	decision to medically separate
Sandoval. 	He 	believed that 	liability 	issues 	required 	this
decision 	and 	that 	OAR 	could no 	longer 	accommodate 	Sandoval's
medical 	condition. 	Gustafson repeated his 	contention that
Sandoval 	refused 	to wear 	the 	respirator which OAR had provided
him.
Asked whether 	it 	would have been possible 	to place 	Sandoval
in an assignment 	not 	requiring exposure 	to rabbits, 	Gustafson
stated:
Well, 	yes and no. 	We have 	facilities 	that do
not 	have 	rabbits but 	those people work 	in
other 	facilities 	and 	are 	responsible 	for
weekend 	coverage 	which 	involves 	working with
rabbits, 	so we don't have any place where we
could assign him where 	he 	would not 	be 	in
contact with rabbits.
Barry Niman 	testified 	that 	he 	understood OAR's 	rationale 	to
be based on medical opinions, 	primarily Dr. 	Falkoff's, 	that
Sandoval's 	condition would worsen over 	time. 	He 	believed 	that
this 	type 	of 	animal 	allergic 	reaction was 	one 	that 	naturally
progressed in severity over time. 	However, 	Niman appeared to
have no medical 	training 	to validate 	such a 	conclusion.
Gustafson 	testified 	that 	three 	other 	employees 	had 	asthmatic
reactions 	to rabbits 	and left 	employment. 	Two of 	them had
attacks 	that 	required emergency medical 	care. 	Both 	left
employment 	on their own volition. 	A third employee, 	a
31

veterinarian, 	was 	medically separated 	"after a 	long period of
treatment 	and accommodations."
Following his medical 	separation, 	Sandoval 	found employment
at 	other veterinary 	facilities 	and 	encountered no 	health problems
during that 	time.
2. 	PAR'S Ability to Accommodate
Madison Lowe, 	a supervisor in OAR, 	testified that 	the
Clinical 	Science Building, 	which he supervises, 	has never housed
rabbits 	and 	that 	Sandoval 	could have 	performed 	the 	duties 	of
animal 	technician there. 	In addition, 	he testified that 	rabbits
had not 	been housed at 	the 	Center 	for Molecular Medicine 	- 	West,
Center 	for Molecular Medicine 	- 	East 	and the Engineering Building
for 	the 	one-year period preceding 	the 	date 	he 	testified 	in
February 1997.
Rudolph Richardson, 	whom Lowe 	supervises, 	testified that he
had worked at 	the 	Clinical 	Science 	Building 	since August 	1996.
He 	corroborated Lowe's 	testimony that 	there were 	no 	rabbits
there. 	Testifying also 	in February 1997, 	he 	stated that 	he had
no weekend duties 	involving 	rabbits 	at 	the 	Clinical 	Science
Building, 	Engineering Building, 	or Psychology Building.25 He
stated that 	there were no 	rabbits 	at 	the 	Engineering Building,
nor had he 	seen any there 	since 	1987. 	He 	also had not 	seen
rabbits 	at 	the 	Psychology Building 	since 	1986.
^Richardson 	is 	the 	only person assigned 	to 	the 	Engineering
Building. 	It 	is not a full-time position, 	however. 	Most of the
duties 	are 	completed on a Wednesday, 	with one two hours 	on the
remaining days.
32

Emily Peale 	is 	an animal 	technician who has worked at 	the
same 	facilities 	as 	Richardson 	in 	the 	year preceding her 	February
1997 	testimony. 	She 	had no 	contact with rabbits 	on days 	or
weekends 	during that 	period.26
Principal Animal 	Technician Jody Rodriques 	at 	the 	Center 	for
Molecular Medicine 	- 	West 	did not work with rabbits, 	even on
weekends, 	nor did her two 	subordinates. 	She believed that
Sandoval 	could perform the 	duties 	of 	her 	two 	subordinates 	and all
of her work, 	except 	that of 	supervision.
The 	work assignments 	of 	the 	four animal 	technicians 	at 	the
Center 	for Molecular Medicine 	- 	East 	were 	the 	same with respect
to the 	absence 	of 	rabbit 	duty at 	the 	time 	of 	the 	hearing 	in
February 	1997. 	According to 	Senior Animal 	Technician Tom Blaze
only mice 	have 	been housed at 	this 	facility 	for 	the 	last 	three
years.27 Blaze believed Sandoval 	could perform his 	duties. 	This
opinion was 	shared by Lowe. 	Two of 	his 	Blaze's 	coworkers 	had not
had 	contact 	with rabbits 	in 	the year preceding 	the 	February 	1997
hearing.
26Pete Willhite 	acknowledged the 	absence 	of 	rabbit 	duties,
but 	claimed 	that 	Sandoval 	could not 	perform Peale's 	duties
because 	Peale 	did 	come 	into 	contact 	with other 	employees 	who
cared 	for 	rabbits 	and Sandoval 	could be 	exposed 	to 	hair and
dander on 	their clothing. 	He 	could not 	remember 	such 	indirect
contact 	ever causing an allergic reaction 	in Sandoval, 	however.
Sandoval 	admitted 	that 	he 	could 	suffer an 	attack 	even outside 	the
presence of 	rabbits, 	but 	only in the 	context 	of 	a 	fairly strong
exposure 	like washing rabbit 	cages.
27Willhite 	corroborated this 	in part, 	stating that 	the
facility had not 	had rabbits 	during 	its 	two years 	of 	operation.
33

Milton Rodriguez, 	an OAR supervisor, 	testified that 	the only
facilities with rabbits 	in February 1997 	were 	the 	Basic 	Science
Building, 	Clinical Teaching Facility, 	and Elliott 	Field
Station.28
Gustafson 	disputed 	the 	testimony 	that 	Sandoval 	could be
assigned 	to 	any of 	the positions 	noted above 	that 	did not 	entail
care 	of 	rabbits. 	When asked 	if 	Sandoval 	could be 	assigned to
Center for Molecular Medicine 	- 	East, 	Gustafson's 	response was as
follows:
A: 	It would be 	-- 	okay. 	It would be 	-- 	I
would have 	to 	discuss 	that 	with my boss
because 	it would be 	a more 	dangerous
situation 	for him than 	some 	other 	things.
Q: 	Why?
A: 	They wear 	face masks 	in that 	facility
because 	of 	the 	requirements 	in there 	and 	from
what 	I understand, 	the 	face mask could be,
the 	type 	he 	likes 	to wear could be 	a problem.
Q: 	What 	type 	is 	that?
A: 	Well, 	he's 	tried various different 	types
and he doesn't wear them, 	so 	I don't know if
he would wear one 	in the 	facility or not.
Q: 	No 	-- 	no. 	You said there was 	a problem
about 	the 	type of 	face mask he 	likes 	to wear.
What 	type 	is that?
A: 	He has 	gone 	out 	and bought 	his 	own with a
purchase 	order 	from the 	university. 	I'd have
to 	look at 	it 	to see exactly what 	he has.
Q: 	Would that 	particular 	face mask be 	a
problem? 	Is 	that 	what 	you're 	saying?
28Rodriguez 	guessed that 	there were 	rabbits 	at 	Center 	for
Molecular Medicine 	- West. 	However, 	since his knowledge was not
first-hand and 	is 	contradicted by other witnesses, 	that 	assertion
is rejected.
34

A: 	I 	don't know. 	I 	know that his asthma 	is
aggravated by certain types 	of 	environments.
At 	no point 	in 	this 	line 	of 	questioning did Gustafson directly
assert 	that 	exposure 	to 	rabbits was 	a problem for Sandoval 	at
Center for Molecular Medicine 	- 	East, 	or that Sandoval was not
qualified to perform the 	duties 	of 	an 	animal 	technician 	there.
When 	asked 	generally whether 	Sandoval's 	allergic 	condition
could be 	accommodated by assigning him to 	facilities 	without
rabbits 	and by reassigning rabbit 	coverage among the 	25 	to 3 0
animal technicians, 	Gustafson stated:
That would be a nightmare. 	No, 	its not
possible. 	. 	. 	Again, 	people get ill. 	People
go on vacation. 	Things 	happen. 	He would be
exposed to 	rabbits.
Construed most 	generously, 	Gustafson's 	justification was 	that 	he
could not 	"guarantee" 	that 	Sandovai 	would have 	absolutely no
contact 	with rabbits 	or rabbit 	dander.29
Gustafson 	also 	questioned 	Sandoval's 	versatility 	as 	compared
to other employees, 	raising reservations about 	his 	ability to
handle primates. 	However, 	an August 	1994 	letter of 	commendation
from a PI, 	Jaime A. 	Pineda, 	Assistant 	Professor of Cognitive
Sciences, 	states that 	in caring for squirrels and monkeys,
Sandoval 	has been one 	of 	the 	"best 	caretakers 	in recent 	memory"
29As 	noted previously, 	Sandoval 	was 	referred to Barry Niman,
the University's manager of 	rehabilitation programs. 	Niman
concurred in the need for a medical 	separation. 	However, 	he did
not 	independently assess 	OAR's 	ability to 	accommodate 	Sandoval 	so
as 	to 	avoid exposure 	to 	rabbits 	and was 	never 	informed about
facilities 	where 	rabbits 	had not 	been housed 	for a 	long 	time 	or
some buildings 	that 	had never housed rabbits. 	Niman 	saw no
problem with 	Sandoval 	continuing 	to work with other animals.
35

and that 	Sandoval 	is recommended for care of 	"rodents, 	primates,
or other 	species." 	In a 	letter of 	recommendation addressed 	to
Gustafson, 	another PI 	vouched 	for Sandoval's work with primates
as well 	as 	his 	conscientiousness 	and dedication. 	Gustafson did
acknowledge 	that 	Sandoval 	was 	qualified to work 	at 	any of 	the
facilities 	"in 	some 	capacity."
Layoff 	of 	James Adamson
James Adamson was 	employed as 	a 	development 	technician
by the University for 23 years, 	most of those in OAR. 	His
principal 	duties 	in OAR 	involved the 	repair of 	cage 	equipment,
such as 	automatic watering 	systems 	and cage washers. 	He 	also
advised OAR with respect 	to 	the 	design of 	equipment, 	prepared
blueprints, 	consulted on cost 	estimates, 	and did some minor
electrical 	wiring work.
Adamson participated 	in 	the 	submission of 	the 	"potential
sick leave" 	notices. 	After submitting the 	first, 	he was 	told by
Timms 	that 	the 	sick 	leave policy did not 	apply to him. 	Adamson
exhibited his 	support 	of 	UPTE's 	campaign 	for 	recognition by
allowing his name, 	picture, 	and a quote to be published in an
organizational 	flyer. 	Stephen Gardella, 	the 	compliance officer
and 	a 	former OAR 	supervisor, 	took 	issue 	verbally with Adamson's
belief 	that 	a union was necessary. 	Based on the 	entire 	record, 	a
reasonable 	inference may be 	drawn 	that 	Gustafson was 	aware 	of 	the
flyer.
The 	School 	of Medicine 	has budgetary oversight 	for OAR.
Annual 	budget 	meetings 	take place under 	the 	supervision of 	the
36

Dean 	for Scientific Affairs 	in the 	School 	of Medicine. 	Deborah
McGraw-Block, 	Assistant Dean for Fiscal Affairs 	in the 	School 	of
Medicine, 	coordinates 	the annual 	budget 	deliberations 	for the
School of Medicine. 	These meetings 	include 	the deans 	of 	the
various divisions, 	including Dr. 	George Palade, 	Dean of
Scientific Affairs, 	and Roger Meyer, 	Associate Dean for
Administration. 	The 	OAR animal program falls under their
purview. 	When 	the 	School 	of Medicine directs 	that 	reductions be
made 	it 	is 	usually the result 	of 	a 	joint 	decision by Palade,
Meyer, 	McGraw-Block, 	and her staff.
During 	the 	budget 	meetings 	held to 	discuss 	the 	1995-96
budget, 	sometime 	in early 1995, 	the 	School of Medicine budget
committee 	directed 	the OAR animal 	program to 	reduce 	the 	rates
charged 	to 	PIs 	and 	their 	sponsoring 	institutions 	for 	housing
laboratory mice. 	The 	School 	of Medicine had determined that
OAR's 	rates were 	too high to remain 	competitive with 	16 	other
institutions housing mice. 	These rates, 	referred to as 	"per
diem" 	rates, 	constitute 	a primary source of 	operating revenue 	for
OAR. 	OAR was 	instructed to reduce 	the 	rates by approximately 2 0
percent, 	based on research completed by Smith 	showing that 	such a
reduction would bring UCSD's 	rates 	within 	the middle 	of 	the 	range
of 	rates 	of 	the 	other competing 	institutions.
Based on 	the 	assumption 	that 	the mouse per diem rates 	would
be 	reduced, 	the 	1995-96 	proposed budget 	generated by Smith
indicated a projected year-end deficit 	of 	$118,000 	for OAR. 	This
deficit 	reflected a 	total 	operating 	income 	increase 	of 	12 	percent
37

and total 	expense 	increase of 	15 percent. 	The 	largest
expenditure 	line 	item 	increase was 	for 	staff 	salaries 	in 	the
amount 	of 	approximately $184,000. 	Smith's projections 	also
indicated that 	implementing a 	20 	percent 	cut 	in the 	"mice barrier
micro" 	rate 	and 18.4 	percent 	cut 	in the 	"mice micro" 	rate would
result 	in a projected revenue 	loss 	of 	$102,271. 	Both projections
incorporated 	assumptions 	that 	the 	reduced 	rates 	would 	increase
the volume of 	contracts, 	by 173 	percent 	for 	"mice barrier micro,"
and 	6 	percent 	for 	"mice micro." 	Smith projected that 	the
anticipated overall 	revenue 	loss 	could be made 	up 	through
increased contracts, 	but 	that 	the 	additional 	contracts would
concomitantly 	increase OAR's 	expenses 	in maintaining 	the
additional populations.30
During the budget meetings, 	Smith recalls 	that 	the
discussion about 	reducing 	the 	per diem rates 	included 	the 	need to
offset 	the 	loss 	through other reductions. 	She 	recalls noting
that 	the OAR Machine Shop, 	to which Adamson was 	assigned,
appeared 	to be 	an expensive 	operation and that 	its 	elimination
was 	suggested as 	a possible 	action.31 She 	recalled that 	several
options 	were 	initially proposed 	including 	cuts 	in 	the 	Machine
30The 	record does 	not 	permit 	a quantification of 	the
additional 	expense 	associated with 	the 	projected 	increase 	in mice
contracts. 	However, 	it 	is clear that economies of 	scale do
operate, 	resulting in less 	than a directly proportional
relationship 	between 	increased volume 	and expenses.
31McGraw-Block 	recalls 	noting what 	she 	thought 	was 	the 	high
expense 	of maintaining the Machine 	Shop. 	But 	she 	did not 	suggest
eliminating 	it 	and does not 	recall 	the proposal 	for 	its
elimination being brought 	up 	in the budget meetings 	at 	the 	dean's
level.
38

Shop, 	delays 	in hirings, 	and attrition of employees 	in the OAR
Diagnostic 	Laboratory. 	Adamson's 	name was never mentioned
specifically in the 	discussions.
Dr. 	Robinson has ultimate 	responsibility for the budget 	of
the UCSD animal program. 	He 	concluded that 	cuts would be
required to eliminate 	the 	$118,000 	deficit, 	in part because OAR
is not permitted to end the year with a deficit. 	If 	it 	does, 	it
is 	required to expend its own funds 	to eliminate 	it. 	Robinson
instructed Gustafson and Dr. 	Phillip Richter, 	Senior Veterinarian
in the Office 	of 	Campus Veterinary Services, 	who also reports 	to
him, 	to propose areas 	for reduction.
The Office 	of 	Campus Veterinary Services 	includes 	the
Diagnostic 	Laboratory. 	The 	Diagnostic 	Laboratory 	investigates
disease 	outbreaks 	in 	the 	animal program and performs 	assays 	for
PIs. 	In September 	1995, 	Robinson directed Richter to prepare 	an
analysis 	showing the 	cost 	savings 	of 	closing the 	Diagnostic
Laboratory, 	including estimates 	of 	the 	cost 	of 	out-sourcing the
services. 	Richter 	responded 	and ultimately proposed 	the 	layoff
of Holly Henkelmann, 	an Animal 	Health Technician 	III. 	Her layoff
was to be effective November 1, 	1995. 	She, 	too, 	was an UPTE
member.32 Richter 	testified 	credibly 	and without 	contradiction
that 	the 	layoff 	of Henkelmann resulted 	in net 	savings 	to 	the
animal program, 	despite 	the need to 	contract 	out 	and shift 	the
ongoing 	diagnostic 	work.
32Henkelmann had a 	terminal 	medical 	condition and 	took 	a
disability 	leave 	to 	avoid being 	laid off.
39

Gustafson 	discussed 	the 	options 	with Robinson 	and 	together
they came 	up with the 	decision 	to 	eliminate 	the Machine 	Shop.
Gustafson estimated 	that 	savings would amount 	to 	a 	total 	of
$50,000 	to 	$70,000. 	This 	factored in the 	cost 	of out-sourcing
the 	services 	previously provided by Adamson. 	Adamson 	testified
that 	he 	was 	not 	approached prior 	to 	his 	layoff 	with 	concerns
about 	excessive costs 	in the Machine 	Shop.
The 	1995-96 	proposed budget 	estimated that 	the 	total 	outlays
for the Machine 	Shop would be 	$114,319, 	of which labor costs
amounted 	to 	$81,639.33 Supplies 	and expenses were 	estimated 	to
be 	$27,080, 	and the 	remaining expenses 	amounted to 	$5,600.
In the 	layoff 	justification documents 	submitted 	for 	approval
to UCSD Employee 	and Labor Relations, 	Gustafson noted that 	the
total 	cost 	of 	operating 	the 	Machine 	Shop was 	approximately
$114,000 	and 	the 	cost 	of 	replacement 	labor would yield an
estimated savings of 	$50,000, 	as he had earlier predicted. 	He
attached 	a 	contract 	proposal 	with 	Sterilizer Technical
Specialists 	(STS) 	at 	approximately $18,800 per year, 	labor only.
- . .
Following 	submission of 	the 	formal 	layoff 	request, 	Gustafson
negotiated contracts with STS 	and another outside vendor, 	Edstrom
Scientific Company.34 In Gustafson's 	estimation, 	the Edstrom
33This 	included 	the 	cost 	of 	hiring an 	additional 	part-time
employee 	to 	assist Adamson. 	The part-time position was 	added in
response 	to Adamson's 	health condition, 	which precluded overtime
work on his part.
34STS 	Corporation handled maintenance 	of 	the 	cage washers 	and
autoclaves. 	Edstrom maintained the watering machinery. 	The 	UCSD
campus machine 	shop was 	also enlisted to handle 	small 	repairs.
40

contract 	covered three-fourths 	of Adamson's work. 	The 	original
Edstrom contract was negotiated as 	a 	"labor only" 	contract, 	for
$9,000, 	with parts billed as needed. 	The contract was 	later
substituted with 	a 	comprehensive 	parts 	and 	labor 	contract 	for
$16,400. 	The 	first 	STS 	contract 	for the 	1996-97 year was
negotiated for 	$18,800 per year, 	per the original proposal.35
The 	UCSD 	animal 	program ended 	the 	1995-96 	year with a budget
surplus 	of approximately $12,000. 	This was 	due 	to two
unanticipated events: 	a merit 	increase 	to employees 	in the
bargaining unit 	represented by UPTE 	being withheld 	resulting 	in 	a
$30,000 	windfall, 	and a 	special project 	financed by the Dean's
office generating a 	$60,000 	to 	$70,000 windfall.36
Some 	of Adamson's work was 	shifted to other employees 	in
OAR. 	OAR supervisors were 	assigned to check the 	sterilizers,
though not 	as 	frequently as Adamson had. 	Supervisors 	and non-
supervisory 	employees 	checked 	the 	automatic 	watering 	systems 	and
cage washers 	on a daily basis.
Further attempting 	to 	show that Adamson's 	layoff was
pretextual, 	UPTE 	submitted evidence 	showing that 	in January 1997,
35Contrary to UPTE's 	claim, 	OAR did not 	appear to 	suffer 	in
terms 	of 	slower response 	times 	due 	to use 	of 	the 	outside
contractors. 	UPTE also asserted that 	OAR's 	failure 	to have
negotiated contracts 	in place with Edstrom and STS prior to 	the
layoff 	is 	suspicious. 	However, 	I 	reject 	any such implication
since 	it 	appears 	the parties 	had informal 	"pay-as-you-go"
arrangements 	for the balance of 	the 	1995-96 	fiscal year, 	before
negotiating one-year 	formal 	agreements.
36UPTE 	asserts 	that 	the 	surplus would have 	been closer to
$81,000 	had the 	School 	of 	Medicine 	not 	unexpectedly recouped
revenue 	of 	$79,000 	in the 	form of 	a 	special 	user 	surcharge.
41

OAR posted 	a vacancy 	for 	a 	new position 	entitled Quality
Assurance 	Specialist with a 	salary range 	of 	$33,000 	to 	$41,600.
The 	job description 	indicates 	similarities 	to Adamson's 	position,
such 	as 	responsibility 	for 	renovation 	and 	construction projects.
However, 	an overall 	representation of 	the 	job reflects 	an
emphasis 	on administrative duties, 	especially the 	role of 	liaison
between OAR and the 	School 	of 	Medicine 	in 	the planning 	and
implementation of 	new projects 	and work 	sites. 	Adamson admitted
that 	he 	did not 	have 	experience 	in 	several 	of 	the 	areas 	required
by the 	job, 	though he 	claimed he 	could perform 	"at 	least 	one-
half" 	of 	the 	job. 	Gustafson estimated it as 	less than one-
quarter. 	From this, 	UPTE conservatively estimates 	that 	$7,800 	in
labor 	costs 	had merely been 	shifted 	and not 	recouped.
ISSUES
1. 	Did the University interfere with employee 	rights 	under
the 	HEERA by threatening employees with loss 	of 	their 	jobs, 	and
thereby violate section 3571(a) 	and 	(b), 	as a result of Melman's
statement 	during the October 26, 	1994 	meeting?
2. 	Did the University impose 	reprisals 	on Sandoval 	and
Dawn because 	of 	their protected activities 	involving protest 	of
the 	sick 	leave policy, 	and thereby violate 	section 3571(a) 	and
(b), 	by issuing them the November 1994 	disciplinary letters?
3. 	Did the University 	impose 	reprisals 	on Sandoval 	because
of 	his protected activities, 	and thereby violate 	section 3571(a)
and (b), by:
42

(a) 	transferring 	him 	to 	Elliott 	Field 	Station 	on
December 1, 	1994;
(b) 	issuing him the December 5, 	1994, 	disciplinary
letter;
(c) 	imposing the December 20, 	1994, 	suspension; 	and
(d) 	medically 	separating 	him 	from 	employment 	on
April 	3, 	1996?
4. 	Did 	the 	University 	impose 	reprisals 	on Adamson 	because
of 	his 	protected 	activities 	involving 	protest 	of 	the 	sick 	leave
policy 	and 	support 	for 	the 	recognition 	drive 	of 	UPTE 	by 	laying
him off, 	and 	thereby violate 	section 	3571(a) 	and 	(b)?
DISCUSSION
Alleged Threat 	By Melman 	in October 	26, 	1994, 	Meeting
HEERA 	section 	3571 	makes 	it 	unlawful 	for 	a 	higher 	education
employer 	to 	"threaten 	to 	impose 	reprisals 	on 	employees" 	because
of 	their 	exercise 	of 	representational 	or 	organizational
activities. 	Threats 	are 	deemed 	to 	be 	interference 	with protected
rights 	because 	they 	tend 	to 	or 	do 	result 	in 	harm 	to 	employee
rights. 	(Clovis Unified 	School 	District 	(1984) 	PERB 	Decision No.
389.) 	Proof 	of 	unlawful 	intent 	to 	deprive 	employees 	of 	their
protected 	rights 	is 	not 	required. 	(Carlsbad Unified 	School
District 	(1979) 	PERB Decision No. 	89.) 	In 	interference 	cases,
the 	employer 	is 	permitted 	to 	demonstrate 	competing 	interests
which 	are 	then 	balanced 	against 	the 	degree 	of 	harm 	to 	employee
rights 	in 	determining 	whether 	an 	unfair 	practice 	has 	occurred.
(Ibid.)
43

Consistent 	with the 	notion 	that 	the 	exercise 	of 	protected
rights 	must 	be 	balanced against 	the 	employer's 	right 	to maintain
its 	operations under Carlsbad, 	section 3571.3 	of 	the HEERA
specifically acknowledges 	the 	higher 	education 	employer's 	right
of 	free 	speech.37 Cases 	construing the 	employer's 	right 	of 	free
speech establish 	that 	a 	statement 	containing a 	threat 	of 	reprisal
loses 	its protection, 	and will 	be 	found unlawful 	if 	the 	employer
shows 	no 	overriding operational 	necessity 	justifying 	it.
(University of 	California 	(1983) 	PERB Decision No. 	366-H.)
The 	first 	issue with regard to Melman's 	statement 	that
employees 	"could lose 	their 	jobs" 	if 	they took 	their protest 	to
PIs is whether the 	statement 	reasonably conveyed the 	notion, 	as
UPTE contends, 	that 	employees would be 	terminated as 	a result,
or, 	as the University contends, 	that 	the action would precipitat
a 	chain of 	events 	that would cause 	them to 	lose 	their jobs 	for
reasons beyond the University's 	control, 	such as 	the 	loss of
funding.38
e
37Section 3571.3 	states:
The expression of any views, 	arguments, 	or
opinions, 	or the dissemination thereof,
whether in written, 	printed, 	graphic, 	or
visual 	form, 	shall not constitute, 	or be
evidence of, 	an unfair labor practice under
any provision of 	this 	chapter, 	unless 	such
expression contains 	a threat 	of 	reprisal,
force, 	or promise of benefit; 	provided,
however, 	that 	the 	employer shall 	not 	express
preference 	for one 	employee 	organization over
another 	employee 	organization.
38Even 	the 	latter meaning would not 	necessarily be 	lawful,
however. 	An employer's prediction of possible 	adverse
consequences 	is 	unlawful 	where 	its 	statement 	is 	not 	supported by
44

A statement 	with 	alternative 	meanings 	will 	be 	analyzed by an
objective test, 	considering the 	impact 	the 	statement was 	likely
to 	have 	on 	the 	employer 	and recognizing 	that 	employees 	may be
more 	susceptible 	to 	intimidation. 	(Chula Vista 	City School
District 	(1990) 	PERB Decision No. 	834.) 	The outcome does not
depend on whether 	the 	employee 	actually 	felt 	threatened. 	(Ibid.)
In general, 	whether particular comments 	constitute 	an unlawful
threat 	depends 	on the 	circumstances 	in which they occurred. 	(See
Los Angeles Unified School District 	(1987) 	PERB Decision No.
611.) 	A 	statement 	may be 	considered an 	implied threat 	of 	adverse
action, 	depending the manner 	in which 	it 	was 	delivered and other
surrounding 	circumstances. 	(Los Angeles Unified School 	District
(1988) 	PERB Decision No. 	659.)
I 	conclude 	that 	the 	employees 	could reasonably have 	inferred
that Melman's 	statement 	carried the 	threat 	of dismissal. 	I 	base
this on the 	fact 	that Melman, 	as 	the director of UCSD Employee
and Labor Relations, 	spoke 	for OAR. 	He would be 	reasonably
perceived by the 	employees 	to be 	speaking 	in his 	role 	as 	a
labor/management 	authority39 rather 	than 	as 	the 	operational
manager of 	OAR 	responsible 	for 	grant 	funding and 	compliance
demonstrably predictable 	consequences 	beyond 	the 	employer's
control. 	(Rio Hondo Community College District 	(1980) 	PERB
Decision No. 	128, 	citing NLRB v. 	Gissel Packing Co. 	(1969) 	395
U.S. 	575 	[71 LRRM 2481] 	[employer predicted that 	recognition of
the union 	"could" 	result 	in the 	loss of 	jobs]; 	Modesto City
Schools 	(1983) 	PERB Decision No. 	291.)
39UPTE 	offered evidence 	that 	Melman had the 	authority to
initiate 	disciplinary 	investigations 	against 	employees. 	Melman
testified 	that 	he 	did not 	generally 	initiate 	disciplinary
actions, 	but 	also did not 	rule 	out 	the possibility.
45

issues. 	Furthermore, 	in stating that 	going to the PIs would be
"360 	degrees 	against what 	the policy stood 	for," 	he 	conveyed his
view that 	the 	job action would be 	a breach of 	loyalty, 	and
presumably therefore, 	grounds 	for termination. 	He 	said nothing
to disabuse 	the 	employees 	of 	the notion that 	dismissal 	was 	one
possible 	consequence. 	He never elaborated on his 	statement 	or
attempted to 	qualify 	it.
Despite 	having 	found 	that 	Melman's 	statement 	had a 	tendency
to coerce employees, 	I 	find that Melman's statement was not
unlawful 	because 	it was 	excusable under the 	circumstances. 	PERB
has 	held that 	an 	"employee's 	right 	to 	engage 	in concerted
activity may permit 	some 	leeway for 	impulsive behavior, 	which
must 	be 	balanced against 	the 	employer's 	right 	to maintain order
and respect." 	(Rio Hondo Community College District 	(1982) 	PERB
Decision No. 	260.) 	An activity loses 	is protected character,
when the activity is 	"opprobrious, 	flagrant, 	insulting,
defamatory, 	insubordinate, 	or fraught with malice." 	(Mt. 	San
Antonio Community College District 	(1982) 	PERB Decision No. 	224.)
Melman's 	statement 	came 	in direct 	response 	to 	Kalmijn's
threat 	that 	employees 	would 	inform PIs that 	the 	animals 	were 	in
danger of 	contracting diseases borne by the 	employees.40
Kalmijn's 	statement 	lost 	its 	protected character because 	it 	was
reckless 	and 	inflammatory. 	There was 	no 	credible 	evidence 	that
46
'°	40The	The 	plan 	for employees 	to 	attempt 	to 	solicit 	the 	support 	of
PIs must 	be 	considered protected activity. 	(See 	McPherson v.
Public Employment Relations Bd. 	(1987) 	189 Cal.App.3d 293, 	309
[234 Cal.Rptr. 	428].)

the policy was 	forcing employees 	to work while 	sick. 	Few human
diseases 	are 	transmitted 	to 	laboratory animals 	and 	there 	was 	no
indication 	that 	care 	was 	actually 	compromised because 	employees
were 	ill 	while working. 	An employer may expect 	that 	employee
activity be 	carried out 	in a 	lawful 	manner through the pursuit 	of
law means. 	(Konocti Unified School 	District 	(1982) 	PERB Decision
No. 	217 	[discipline 	of bus 	driver lawful where 	he 	stopped bus 	at
an unauthorized point 	to 	solicit 	student 	support 	for 	a 	strike].)
In this case, 	Kalmijn's 	statement 	crossed the line of
reasonableness.
Furthermore, 	Melman's 	statement was a one-time occurrence,
not 	repeated, 	and made 	in the heat 	of 	a confrontational meeting.
(See Culver City Unified School District 	(1990) 	PERB Decision No.
822 	[angry response 	of 	administrator 	implying a 	threat 	of 	harm
was 	a 	reasonable 	response 	to 	a perceived attack 	on 	the
administrator's 	integrity].) 	Melman was 	not 	an expert 	in animal
care 	and was 	likely to have 	accepted at 	face 	value 	Kalmijn's
statement 	that 	animals were 	susceptible 	to human diseases.
Melman's 	spontaneous 	response, 	to the extent 	it was 	designed to
impede the 	threatened harm, 	was 	therefore excusable.
Accordingly, 	this allegation is dismissed.
Retaliation Against Sandoval, 	Dawn, 	and Adamson
A. 	Legal 	Framework
In order to prevail 	on a claim of 	retaliation, 	the 	charging
party must 	establish that 	he 	engaged 	in protected activity, 	that
the 	activity was 	known to the employer, 	and that 	the 	employer
47

took 	adverse 	action 	because 	of 	such 	activity. 	(Novato 	Unified
School 	District 	(1982) 	PERB 	Decision N o . 	210.) 	The 	adverse
action must 	involve 	actual, 	rather 	than merely 	speculative, 	harm;
it 	must 	satisfy 	an 	objective, 	"reasonable 	man" 	standard
considering 	the 	impact 	on 	the 	employee's 	conditions 	of
employment. 	(Palo Verde 	Unified School 	District, 	supra, 	PERB
Decision N o . 	689; 	Newark Unified 	School 	District 	(1991) 	PERB
Decision N o . 	864.) 	Unlawful 	motivation 	is 	essential 	to 	the
charging 	party's 	case. 	Motivation 	may 	be 	proven 	by 	both 	direct
and 	circumstantial 	evidence. 	In 	the 	absence 	of 	direct 	evidence,
the 	unlawful 	purpose 	or 	intent 	may be 	established 	by 	inference
from 	the 	entire 	record. 	(Carlsbad Unified 	School 	District,
supra. 	PERB Decision No. 	89.)
Types 	of 	circumstantial 	evidence 	probative 	of 	unlawful
intent 	include 	(1) 	timing 	of 	the 	adverse 	action 	(North 	Sacramento
School District 	(1982) 	PERB Decision N o . 	2 6 4 ) , 	(2) 	inadequate,
inconsistent, 	shifting 	justification 	for 	the 	adverse 	action
(Novato Unified School District, 	supra, 	PERB Decision N o . 	2 1 0 ) ,
(3) 	disparat
11
e 	treatment 	of 	the 	employee 	(State 	of 	California
(Department of Transportation) 	(1984) 	PERB Decision No. 	4 5 9 - S ) ,
(4) 	departure 	from 	standard procedures 	(Santa 	Clara 	Unified
School District 	(1979) 	PERB Decision N o . 	1 0 4 ) , 	(5) 	cursory
investigation 	(State 	of 	California 	(Department 	of 	Parks 	and
Recreation) 	(1983) 	PERB Decision N o . 	3 2 8 - S ) , 	and pattern of
antagonism 	toward 	the 	union 	(Cupertino 	Union 	Elementary 	School
District 	(1986) 	PERB Decision N o . 	5 7 2 ) .
48

Once 	the 	charging party establishes 	unlawful 	motivation 	for
the adverse 	action, 	the burden of proof 	shifts 	to the employer to
establish that 	the 	action 	"would have 	occurred 	in 	any event,"
regardless of 	the protected activity. 	Stated conversely, 	the
action will 	be 	deemed an unfair practice 	only 	if 	the 	employee
establishes 	that 	he would not 	have 	been disciplined 	"but 	for" 	his
protected activities. 	(Novato Unified School District, 	supra,
PERB Decision No. 	210; 	Martori Brothers Distributors v.
Agricultural Labor Relations Bd. 	(1981) 	29 Cal.3d 721, 	730 	[175
Cal.Rptr. 	626].)
B. 	Sandoval 	and Dawn Disciplinary Letters
UPTE 	contends 	that 	Sandoval 	and Dawn 	engaged 	in protected
activity by participating in the October 26, 	1994, 	meeting and by
later 	submitting the 	"potential 	sick 	leave" 	notices.
Relying on Konocti Unified School District, 	supra, 	PERB
Decision No. 	217, 	the University contends 	that 	the 	submission of
the 	sick 	leave notices was not protected, 	because 	the protest was
pursued through improper means. 	In Konocti, 	PERB cited the
following 	language 	in the 	National 	Labor Relations 	Board decision
of Elk Lumber Co. 	(1950) 	91 NLRB 336 	[26 LRRM 1493]41:
41In Elk Lumber Co., 	carloaders 	reduced the number of 	cars
loaded per day in response 	to changes made by the 	employer. 	The
employer's 	termination of 	the 	employees was 	found to be
justified. 	In a 	similar case, 	NLRB v. 	Local 	Union 	122,
International 	Brotherhood of 	Electrical Workers 	(1953) 	346 U.S.
464 	[33 	LRRM 2183], 	television technicians handed out 	flyers 	that
attacked 	the 	quality of 	the programming on 	the 	station 	they were
striking. 	There, 	the termination of 	the employees was upheld
because 	it 	constituted disloyalty.
49

[N]ot 	every 	form of 	activity that 	falls
within the 	letter of 	this provision 	is
protected. 	The 	test 	. . . 	is whether 	the
particular activity 	is 	so 	indefensible 	as 	to
warrant 	[disciplinary action]. 	Either an
unlawful 	objective 	or 	the 	adoption of
improper means 	of 	achieving 	it 	may deprive
employees 	engaged 	in concerted activities 	of
the protection of the Act. 	. 	. 	.
As 	noted previously, 	PERB 	has 	held that 	an 	"employee's 	right
to 	engage 	in 	concerted activity may permit 	some 	leeway 	for
impulsive behavior, 	which must 	be balanced against 	the 	employer's
right 	to maintain order and respect." 	(Rio Hondo 	Community
College District, 	supra. 	PERB Decision No. 	260.)
I 	find that 	the 	submission of 	the notices was 	protected.
Gustafson and Timms 	participated 	in 	the 	October 	26 	meeting and 	so
the protest 	did not 	come 	as 	a 	complete 	surprise 	to 	them. 	They
were aware of 	the employees' 	objections 	to the 	sick 	leave policy
and their 	intention 	to 	take 	some 	further 	collective 	action 	in
protest 	of 	the policy. 	Though not 	explicitly so 	informed by
UPTE, 	they could reasonably 	infer that 	the 	strategy chosen was 	an
alternative 	to 	contacting the PIs, since 	the PIs were 	not 	in 	fact
contacted. 	Beginning on 	the 	first 	day and 	continuing 	for 	each
successive day 	(for a 	total 	of approximately three 	to 	five days),
until 	the 	submission of 	the 	notices 	ceased 	in response 	to 	the
disciplinary letters, 	each of 	the 	employees who 	submitted the
notices 	did report 	to work. 	The 	total 	number of participants was
no more 	than six.42
42The 	University contends 	that 	the 	employees 	resorted 	to
unlawful 	"self 	help" 	and 	should have pursued proper
"administrative 	channels," 	suggesting that 	grievances 	could have
50

While 	Gustafson claimed that 	the 	notices 	created
administrative 	"havoc," 	it 	is 	belied by the 	facts. 	Only one
employee was 	actually reassigned as 	a 	result 	of 	the protest. 	A
few employees 	were 	essentially placed on 	alert 	for a potential
need 	for 	coverage.
Dawn 	and 	Sandoval 	received disciplinary 	letters 	because 	they
persisted 	in 	submitting 	the 	notices 	after being verbally warned.
In this case, 	there 	is no need to resort 	to circumstantial
evidence 	to 	connect 	the 	disciplinary action with the protected
activity. 	That 	is, 	there 	is no need to demonstrate 	that 	the
disciplinary action was 	merely a pretext 	for punishing 	some 	other
protected activity. 	The University contends 	UPTE must 	establish
that 	the 	University 	imposed discipline 	for 	the 	submission of 	the
notices, 	as 	a pretext 	for punishment 	for participation in the
October 26 meeting. 	This 	is unnecessary. 	The University admits
.that 	the 	letters 	were 	issued because 	the 	employees 	disobeyed 	the
directives 	of 	their 	supervisors 	to 	cease 	submitting 	the 	notices
-- 	an act 	they characterize 	as 	insubordination. 	The only real
issue 	in this 	case 	is whether the 	submission of 	the notices was
protected activity, 	or exceeded the bounds 	of proper protest.
For the 	reasons 	stated, 	I 	find the 	activity to be within the
bounds of protection. 	Accordingly, 	I 	find that by this conduct,
the University violated section 3571(a) 	of 	the 	HEERA.
. . . .
been 	filed under 	the 	Staff 	Personnel 	Policy, 	employer-promulgated
grievance policy. 	Employee protests 	do not 	lose 	their protected
status merely because 	the 	employer views 	them as 	disruptive 	or
because 	other alternatives 	are 	available.
51

C. 	Sandoval Adverse Actions
1. 	Transfer to Elliott 	Field Station
Sandoval 	engaged 	in protected 	activity by participating 	in
the October 26, 	1994, 	meeting and by submitting the 	"potential
sick leave" 	notices 	thereafter. 	Gustafson and Timms both
attended the October 26, 	1994, 	meeting. 	Gustafson issued
Sandoval 	the November 4, 	1994, 	warning letter regarding
submission of the notices. 	Timms was also aware that 	employees
were 	submitting the notices. 	Therefore, 	both Gustafson and Timms
had knowledge 	of 	Sandoval's 	protected 	activity.
Sandoval 	suffered an adverse 	action when he 	was 	reassigned
from the 	Basic 	Science Building to Elliott 	Field Station. 	He was
not 	working with rabbits while 	at 	the 	Basic 	Science 	Building.
The 	Elliott 	Field Station position was 	one 	he 	specifically
requested that 	he not 	be 	assigned. 	Gustafson admitted that
employees 	do not 	like 	"change." 	Involuntary transfers 	or
reassignments 	have 	been 	found to be 	adverse 	actions 	even 	though
they are 	not 	accompanied by loss 	of pay or benefits. 	(Pleasant
Valley School District 	(1988) 	PERB Decision No. 	708; 	Santa Paula
School District 	(1985) 	PERB Decision No. 	505; 	Santa Clara Unified
School District 	(1985) 	PERB Decision No. 	500.) 	The 	lack of 	any
loss 	of pay or benefits 	is 	not 	an 	impediment 	to 	finding that
Sandoval 	suffered an 	adverse 	action.
The 	decision 	to 	transfer 	Sandoval 	was 	announced
approximately five weeks after the October 26, 	1994, 	meeting and
approximately 	four weeks 	after 	the 	submission of 	the 	"potential
52

sick leave" 	notices. 	The timing of 	the 	involuntary transfer
constitutes 	circumstantial 	evidence 	of 	intent 	to 	retaliate
against 	Sandoval 	for his protected activities. 	(Santa 	Clara
Unified School District, 	supra, 	PERB Decision No. 	500
- -
[reassignment 	three 	weeks 	after protected activity].)
Evidence 	of 	an 	inadequate 	justification also 	supports 	a
showing of 	retaliatory motive. 	(See 	San Leandro Unified School
District 	(1983) 	PERB Decision No. 	288 	[insubstantial
justification 	for 	transfer].) 	The University's 	justification 	for
the 	transfer was 	suspect 	for a number of 	reasons. 	The 	additional
animal 	technician 	at 	Elliott 	Field Station was 	needed because 	of
increased animal populations, 	including a new project 	involving
rabbits 	from the 	Salk 	Institute. 	Gustafson testified that
Sandoval 	was 	familiar with 	the PIs and the 	facilities 	at 	Elliott
Field Station as 	a 	result 	of 	his 	assignment 	there 	in the 	1980s.
He 	felt 	it would be necessary to 	retrain another 	individual. 	Yet
the 	record as 	a whole 	does 	not 	indicate 	any high degree 	of
specialization of 	skills 	among animal 	technicians 	nor 	that
retraining was 	a 	substantial 	issue 	for OAR. 	Many animal
technicians 	are 	cross-trained to handle 	a variety of 	species.
Gustafson admitted 	that 	Sandoval 	could work 	in any of 	the 	UCSD
facilities 	"in 	some 	capacity." 	It would not 	have been difficult
to 	fill 	the position with one 	of 	the 	other 25 	or more 	animal
technicians. 	This ground was 	at best 	expedient 	-- 	certainly not
compelling.
53

Gustafson 	contradicted his 	own 	claim that 	Sandoval 	was 	a
good 	fit 	with 	the PIs when he 	asserted 	that 	the 	reason Sandoval
was 	moved 	from Elliott 	Field Station 	following his 	first 	stint
there 	was because 	some PIs had expressed reservations 	about 	him.
Gustafson 	also 	claimed 	that 	he 	believed the 	assignment 	would
be 	welcomed by 	Sandoval 	because 	Sandoval 	had 	requested 	the
Elliott 	Field Station position 	in 	the 	late 	1980s 	for health
reasons, 	and was accommodated at 	that 	time. 	But 	Sandoval
credibly 	testified 	that 	he 	informed Gustafson of 	his 	desire 	not
to be 	transferred to Elliott 	Field Station. 	Then, 	immediately
upon his 	transfer, 	Timms 	assigned Sandoval 	to work directly with
rabbits 	on a daily basis.43
Several 	factors 	also 	suggest 	that 	Gustafson had ample 	motive
to make 	Sandoval's 	job more unpleasant. 	The October 26 meeting
in which 	Sandoval 	participated became 	a 	high profile 	matter
involving the 	UCSD's 	director of 	Employee 	and Labor Relations 	and
its 	legal 	staff. 	The 	"potential 	sick leave" 	campaign was vexing
to OAR. 	And Gustafson's 	electronic-mail 	response 	to the 	inquiry
from the 	Massachusetts 	management 	employee 	seeking 	advice 	on 	how
to discipline 	a unionized workforce, 	in which Gustafson boasted
that 	the 	OAR 	sick 	leave policy had resulted 	in 	six terminations,
belies his 	claim of 	strict 	neutrality.
Finally, 	the 	fact that 	Sandoval was 	subject 	to a series 	of
at 	least 	four subsequent 	adverse actions 	over the next 	12 	months,
43In 	its post-hearing brief, 	the University argues 	that 	the
Elliott 	Field 	Station offered 	the 	least 	amount 	of 	exposure 	to
rabbits. 	The weight of 	evidence 	establishes 	otherwise.
5 4 •

discussed in detail 	below, 	adds 	further weight 	to the prima 	facie
showing with respect 	to 	this 	transfer.
The 	timing, 	inadequate and inconsistent 	justification, 	and
anti-union animus 	on Gustafson's part 	supports 	a 	finding 	that
Sandoval's 	transfer 	to Elliott 	Field Station was 	made 	for
retaliatory 	reasons.
The 	University's 	business 	justification 	for 	the 	transfer has
been noted, 	but 	is 	rejected. 	The decision to select 	Sandoval 	for
the position based on his 	familiarity with the 	Pis 	and OAR's
desire 	to 	avoid 	retraining another 	individual 	is 	comparatively
weak. 	Even 	if Gustafson's 	reasons 	for the transfer were mixed,
the preponderance 	of 	the 	evidence 	supports 	the 	conclusion that
Gustafson would not 	have 	transferred 	Sandoval 	but 	for 	Sandoval's
high level 	of participation 	in the 	sick 	leave policy protest.
Thus, 	I 	find that by this conduct, 	the University violated
section 3571(a) 	of the HEERA.
2. 	December 5, 	1994, 	Disciplinary Letter
Evidence 	supporting 	the 	claim that 	the 	December 	5
disciplinary 	letter was 	issued 	for 	retaliatory 	reasons 	include
the timing of 	the 	letter, 	disparate 	treatment of Sandoval, 	and
OAR's 	exaggerated 	justification 	for 	the 	disciplinary action.
The 	letter 	citing Sandoval 	for 	falsifying 	completion of
weekend work was 	issued 	approximately 	six weeks 	after 	the 	October
26, 	1994, 	meeting. 	It was also issued four days after the
decision to 	reassign Sandoval 	to Elliott 	Field Station. 	The
December 	5 	letter was 	the 	third of 	four adverse 	actions 	occurring
55

within eight 	weeks 	of 	Sandoval's protected activity. 	OAR could
point 	to 	no 	instance 	of 	formal 	disciplinary action 	against
Sandoval 	prior 	to his 	protected activity.44 Sandoval's
evaluations 	prior 	to his 	protected 	activity 	indicate 	that 	he 	was
an 	above-average 	employee who was 	valued by OAR 	for his
conscientiousness. 	Some PIs had written glowing 	recommendations
on his behalf.
The 	record supports 	a 	finding that 	Sandoval 	was 	treated 	in a
disparate manner because 	he was 	singled out 	for discipline 	for a
recordkeeping 	error 	and was 	not 	afforded progressive 	discipline.
Sandoval 	was 	cited for 	"falsifying" 	records, 	when the 	only other
employee 	shown 	to 	have been disciplined 	for 	a 	similar 	error was
only cited 	for entering 	"incorrect 	data." 	Significantly, 	Rudolph
Richardson 	testified without 	contradiction 	that 	Timms 	instructed
him to 	"sign off" 	the 	sheet 	for Timms' 	shift, 	which he had not
actually 	completed, 	showing that 	similar 	errors 	had been 	condoned
in the past.
The 	animal 	room 	checklists 	offered by UPTE 	reflect 	numerous
discrepancies. 	There was 	evidence 	that 	other animal 	technicians
failed to 	annotate 	changes 	on the 	checklist 	in the 	comments
section at 	the bottom of the 	form without consequences, 	which, 	if
done by Sandoval 	in this 	case, 	would have 	avoided any discipline.
In one case of 	apparent 	falsification, 	it 	appears 	that 	another
individual 	other 	than Gustafson entered his 	initials.
44Although Willhite 	testified 	that 	Sandoval 	had been verbally
counseled in the past, 	it 	did not 	involve 	recordkeeping
responsibilities.
56

There were 	numerous 	instances where no 	initials were
entered. 	Either an animal 	technician 	failed to 	report 	for duty
or completed the work but 	failed to 	fill 	in 	the 	form. 	Whatever
the 	case, 	OAR provided no evidence 	that 	these 	omissions 	either
prompted 	an 	investigation or 	resulted 	in 	corrective 	action. 	Even
when 	Sandoval 	alerted management 	to 	Tom Blaze's 	entering 	his
signature 	in 	advance 	of 	his 	duty day and his 	repeated 	failure 	to
document 	his work by entering notations, 	no 	investigation
occurred.45 The 	policy regarding 	disciplinary 	consequences 	for
recordkeeping 	errors 	was 	ill-defined 	and 	inconsistently 	applied.
(State of California 	(Department of 	Parks and Recreation), 	supra,
PERB Decision No. 	328-S.)
Instead 	of 	merely counseling 	Sandoval 	verbally 	in 	keeping
with OAR's policy of progressive discipline, 	Timms 	showed
Sandoval 	no 	leniency when he 	issued the 	formal 	letter of
discipline. 	No 	credit was 	given 	for Sandoval's 	lengthy and
unblemished 	service 	record 	and the 	fact 	that 	Sandoval 	had
voluntarily admitted his 	failure 	to 	report 	for 	the 	weekend duty.
The 	investigation of 	Sandoval's 	alleged 	falsification 	of
records also exhibits a tellingly adversarial, 	cursory, 	and
technical 	character. 	(Ibid, 	[insubstantial 	or technical
allegations 	may raise 	inference 	of 	unlawful 	motivation].)
45The 	fact 	that 	some 	checklists, 	including the one which
contains 	Sandoval's 	error, 	contain no 	initials 	on weekends 	and
holidays 	suggests 	that 	OAR was 	also 	lax in policing 	lapses 	in
coverage at those times. 	That, 	in turn, 	suggests that Sandoval's
failure 	to 	come 	in on the December 	5 weekend did not 	seriously
compromise 	the 	experiments 	with the 	animals 	affected.
57

•
Initially, 	when Sandoval volunteered his own failure 	to report,
Willhite's 	response was 	casual. 	He 	did not 	criticize 	Sandoval
for potential 	harm befalling 	the 	animals 	who went 	without 	weekend
care. 	Though Willhite 	did not 	remind Sandoval 	to annotate 	his
entry 	in the 	comments 	section at 	the bottom of 	the 	form after
telling him, 	in his words, 	to 	"document 	the weekend," 	OAR later
assumed 	that 	Sandoval 	deliberately 	ignored 	his 	training 	in 	an
effort 	to cover up 	the 	fact 	that 	he 	had not 	reported.
The 	disciplinary 	letter did not 	issue 	until 	one 	month after
Sandoval 	reported his 	absence. 	When Timms 	first 	investigated, 	he
and Gustafson met 	with Sandoval 	and 	asked him 	only one 	question:
whether he had come 	in or not. 	Then, 	rather than promptly asking
Sandoval 	for 	an explanation 	for why he 	entered his 	initials 	when
Sandoval 	admitted not 	coming 	in 	as 	would 	likely have 	been done 	in
a normal 	counseling situation, 	they concluded the meeting.
Sometime 	later 	a 	second 	formal 	meeting 	occurred 	and 	only 	then was
Sandoval 	asked 	for 	an explanation. 	Gustafson ultimately credited
Willhite's version 	in the 	dispute 	about 	what he 	instructed
Sandoval 	to 	do by claiming 	that 	Sandoval's 	explanation had
changed. 	Yet, 	in fact, 	it had not 	-- 	Gustafson assumed that
because 	Sandoval 	had not 	volunteered an 	explanation at 	the 	first
meeting, 	his 	explanation at 	the 	second meeting was 	a belated
fabrication of 	an excuse. 	Furthermore, 	Gustafson apparently
never 	questioned Willhite 	closely because 	he 	never professed
knowledge 	that 	Willhite 	had 	told 	Sandoval 	to 	"document 	the
weekend" 	-- 	a statement 	that would have at 	least 	raised a
5 8 •

question 	about 	Sandoval's 	intent 	to 	deliberately 	falsify
information.
The 	University 	failed 	to present 	sufficient 	evidence 	to
rebut 	the 	claim of 	disparate 	treatment 	though 	it 	attempted to 	do
so by showing 	comparable 	levels 	of 	discipline 	for 	similar
misconduct 	by employees 	who 	had not 	engaged 	in protected
activities. 	OAR provided only one 	comparable 	instance 	of
disciplinary action 	for 	a 	recordkeeping 	error,46 involving 	an
unidentified employee. 	And 	that 	employee was 	charged with a
lesser offense 	and received a 	lesser 	form of 	punishment.
The 	preponderance 	of 	the 	evidence 	establishes 	that 	Sandoval
would not have been issued the December 5, 	1994, 	disciplinary
letter but 	for his participation in protected activities. 	Thus,
I 	find that 	by this 	conduct, 	the University violated 	section
3571(a) 	of the HEERA.
3. 	December 20. 	1994, 	Suspension
Evidence 	supporting the 	claim that 	OAR's December 20, 	1994,
suspension 	for 	Sandoval's 	alleged 	insubordination 	for 	crossing
out 	temperatures, 	include the timing of 	the discipline,
inadequate 	justification, 	and disparate 	treatment of Sandoval.
46The 	other 	two 	instances 	of 	disciplinary action 	taken
subsequent 	to 	the 	October 	26 	meeting 	involving employees 	not
engaged 	in protected activity were not 	comparable. 	The
termination of 	the 	employee 	for 	assaulting a 	supervisor 	involves
highly serious misconduct, 	which according to University Staff
Personnel 	Policy may be 	grounds 	for 	immediate 	termination.
Progressive 	discipline principles 	do 	not 	apply according 	to 	the
written policy. 	The 	employee 	charged with 	failure 	to 	accurately
read thermometers was 	a 	supervisor, 	who was 	expected to conform
to a higher 	standard of 	competence 	than those 	in Sandoval's
classification.
59

The 	suspension 	for 	crossing out 	the 	Celsius 	temperature
readings 	when 	only the 	fahrenheit 	temperatures 	should have 	been
recorded was 	imposed 	approximately 	eight 	weeks 	after 	the
October 26, 	1994, 	protest meeting. 	The December 20 	suspension
was 	the 	fourth of 	four adverse 	actions 	occurring within 	eight
weeks of 	Sandoval's protected activity. 	Again, 	as noted above,
there was 	no 	record of 	any 	formal 	discipline 	imposed on 	Sandoval
prior 	to his protected activity. 	Suspicious 	timing of 	the
discipline 	has been 	shown.
Gustafson's 	justification 	for 	the 	disciplinary action was
suspect 	for 	several 	reasons. 	(See 	San Joaquin Delta 	Community
College District 	(1982) 	PERB Decision No. 	261 	[unsubstantiated
claims 	of 	insubordination].) 	He 	appeared to greatly exaggerate
the 	significance 	of 	Sandoval's 	relatively 	inconsequential 	error
of 	recording both the 	fahrenheit 	and Celsius 	temperatures. 	If
the 	temperatures were 	that 	critical 	to 	the welfare 	of 	the
animals, 	the 	traditional 	high-low thermometer would have been
procured and put 	in place without 	delay. 	The 	temperatures 	which
Sandoval 	actually 	recorded were 	consistent 	with 	the 	other
temperatures 	recorded during 	that 	week while 	the
fahrenheit/celsius 	thermometer was 	in use. 	The 	only temperature
readings 	of 	significance 	that 	fit 	this pattern were 	the
fahrenheit 	readings 	recorded by Sandoval. 	By crossing out 	the
celsius 	figures, 	Sandoval 	only rendered the 	consistency of 	the
readings 	more 	apparent 	to 	the 	reader.
60

It 	is 	reasonable 	to 	infer 	from the 	escalating level 	of
adverse 	actions 	against 	Sandoval 	that 	he was 	especially 	fearful
of 	the 	consequences 	of 	another 	error being 	identified by
management. 	It 	is 	therefore 	entirely plausible 	that 	Sandoval
would have 	asked Timms 	if 	he 	could 	"white 	out" 	the 	redundant
temperature 	readings. 	Why Timms would have 	told Sandoval 	that 	he
could 	"take 	care of 	that 	tomorrow" 	is 	curious. 	He 	could have
made 	the 	statement 	either absentmindedly or with 	the 	conscious
design of 	entrapping Sandoval 	into 	a more 	serious 	infraction of
insubordination. 	Whatever Timms's motivation, 	OAR's 	subsequent
justification was 	completely undermined 	after 	Timms 	granted
Sandoval 	permission to cross out 	the 	readings.
As 	noted previously, 	there was 	scant 	evidence produced by
the 	University to 	establish that 	the 	kind of 	recordkeeping errors
committed by 	Sandoval 	had warranted 	similar 	discipline 	of 	other
employees 	who 	had not 	engaged 	in protected activity. 	The
University's 	attempt 	to 	characterize 	this 	error as 	well 	as 	the
error 	resulting 	in 	the December 	5 	disciplinary 	letter as
deliberate 	acts 	of 	sabotage only serves 	to 	accentuate 	the
exaggerated, 	pretextual nature of the discipline.
The 	preponderance of 	the 	evidence 	establishes 	that 	Sandoval
would not have been suspended on December 20, 	1994, 	but 	for his
participation in protected activities. 	Thus, 	I 	find that by this
conduct, 	the University violated section 3571(a) 	of 	the HEERA.
61

4. 	Medical 	Separation
Evidence 	supporting 	the 	claim that 	OAR's 	decision 	to
medically 	separate 	Sandoval 	was 	made 	for 	retaliatory 	reasons
include 	the 	timing of 	the decision, 	departure 	from 	standard
procedures, 	and the exaggerated nature of 	OAR's 	justification.
While 	the 	decision 	to medically 	separate 	Sandoval 	did not
occur until April 	3, 	1996, 	or approximately one year and five
months after Sandoval's protected activity, 	it 	relates back to
Gustafson's assertion in his February 7, 	1995, 	letter to Dr.
Falkoff 	that 	it was 	no 	longer possible 	for OAR to 	continue
accommodating Sandoval's 	allergy to 	rabbits. 	Gustafson adopted
this 	position within weeks 	of 	Sandoval's 	severe 	allergic 	reaction
to 	the 	rabbits 	at 	Elliott 	Field Station.47
In addition, 	the decision must be 	considered in context with
the pattern of 	the 	repeated adverse 	actions 	against 	Sandoval.48
The 	element 	of 	timing has 	therefore 	been established.
Departure 	from 	standard procedures 	in 	retaliation 	typically
involves 	the 	failure 	to abide by formal 	written procedures 	for
47What 	followed was 	simply 	further 	communication between
Gustafson and Falkoff, 	review of 	Sandoval's 	condition by the
University's physician, 	Dr. 	Greenberger, 	and finally a period
ostensibly of 	assessment.
48The placement 	of 	Sandoval 	on 	involuntary leave 	is not
included 	in either of 	the 	complaints 	as 	an adverse 	action. 	It
was 	not 	included 	in the unfair practice 	charge 	(or complaint 	in
LA-CE-456-H) 	presumably because 	it 	would have been untimely.
Although 	its 	circumstances were 	litigated, 	this 	adverse 	action
will 	not 	be 	amended 	into 	the 	complaint 	to 	conform to proof
because UPTE had ample opportunity to 	include 	it 	in the 	unfair
practice 	charge 	filed 	in LA-CE-456-H prior 	to 	the 	expiration of
the 	six-month statute 	of 	limitations.
62

disciplining 	employees 	or 	implementing 	some 	other 	administrative
action deemed to be 	adverse. 	(See Woodland Joint Unified School
District 	(1987) 	PERB Decision No. 	628 	[standard personnel
procedures].) 	However that 	term is 	also appropriate 	for
describing a deviation 	from an 	informal 	practice 	applied 	to 	a
single 	individual. 	In this case, 	OAR had a history of
accommodating Sandoval with his 	allergic 	reaction to rabbits. 	In
the 	1980s, 	following his 	first 	severe allergic 	reaction to
rabbits, 	Sandoval 	appealed to Jack Vanderlip 	for permission 	to
transfer 	to Elliott 	Field Station, 	a 	site 	Sandoval 	had concluded
at 	that 	time would be better 	suited to his 	condition. 	That
request was granted. 	In December 1994, 	Gustafson transferred
Sandoval 	to Elliott 	Field Station, 	against his 	expressed wishes,
and assigned him to work with rabbits 	on a daily basis. 	This
assignment 	directly precipitated the 	asthmatic 	attack, 	on which
Gustafson 	relied 	in 	justifying 	his 	decision 	to medically 	separate
Sandoval.
Gustafson's 	justification 	for OAR's 	inability to 	continue
accommodating Sandoval was 	exaggerated. 	As 	Sandoval's physician,
Dr. 	Falkoff noted, 	Sandoval's work history demonstrated that 	he
was 	able 	to 	avoid 	asthmatic 	attacks 	by 	avoiding prolonged or
severe 	exposures 	to 	rabbits. 	The 	claimed necessity to 	remove
Sandoval 	both because 	of 	his 	potential 	for an asthmatic 	reaction
to rabbits 	and his allergies 	to other animals 	-- 	none of which
evidenced any potential 	for medical 	problems 	-- 	rang hollow
throughout 	Gustafson's 	testimony. 	After 	Sandoval's 	rabbit 	duties
63

at 	Elliott 	Field Station were 	transferred to Albert 	LeClair, 	he
suffered no 	further 	allergic 	reactions.
Gustafson's 	letter 	responding 	to 	Falkoff 	betrayed 	any 	sense
of 	objectivity on his part, 	particularly the way he 	twisted
Falkoff's 	advice 	to 	Sandoval 	to 	suggest 	that OAR was 	required to
eliminate 	"all" 	contact with rabbits. 	His attempt 	to rebut 	the
claim that 	Sandoval 	could have 	worked at 	the 	Center 	for Molecular
Medicine 	- West, 	a facility not housing rabbits, 	was evasive and
unpersuasive. 	Gustafson's 	assertion that 	attempting to
accommodate 	Sandoval 	to 	avoid contact 	with rabbits 	would be 	a
"nightmare" 	was 	simply not 	supported by any credible 	evidence.
OAR's 	attempt 	to 	invoke 	the potential 	liability of 	a 	life-
threatening 	attack 	as 	an operational 	necessity defense 	is
rejected. 	Despite the obvious 	appeal 	of 	the claim in theory, 	I
find that 	the preponderance 	of 	the 	evidence 	establishes 	that 	the
decision 	to 	cease 	accommodating 	Sandoval 	was 	not 	one 	that 	would
have been made but 	for his participation 	in the 	sick 	leave
protest. 	Gustafson pointed to 	three 	instances where 	other
employees 	with 	the 	same 	allergic 	reaction 	to 	rabbits 	were
separated from the University. 	In only one of 	those 	cases, 	the
case of 	the veterinarian, 	did it 	appear that 	the employee was
removed 	involuntarily. 	No 	facts 	were 	elicited 	from which a 	fair
assessment 	could be made 	of 	the 	underlying medical 	profiles 	of
that 	employee 	as 	compared to 	that 	of 	Sandoval.
While Dr. 	Greenberger rendered an opinion to 	the University
supporting the need 	for separation of 	Sandoval, 	I 	find his
64

opinion to be 	subjective 	as 	compared to 	that 	of 	Falkoff. 	Falkoff
examined 	Sandoval's 	work 	history around 	rabbits 	rather 	than
forming 	a 	conclusion 	simply based on 	the 	literature 	and
Sandoval's medical 	condition 	in the 	abstract.
As 	the medical 	examiner chosen by the University, 	it 	is 	also
appropriate 	to 	scrutinize 	Greenberger's 	opinion more 	closely.
Greenberger's 	opinion 	in May 1995, 	despite 	expressing amazement
that 	Sandoval 	had been able 	to work as 	long with his 	condition,
acknowledged that 	there 	had been no 	repeat 	of 	the 	December
incident 	and 	that 	Sandoval 	could be 	progressing 	toward 	a more
stable 	condition. 	He 	recommended 	follow-up 	examinations 	at 	a
future 	time, 	which never occurred. 	Gustafson's purported
reliance 	on Greenberger's 	opinion, 	without 	any 	follow-up
investigation, 	and on Falkoff's opinion, 	which contradicts the
notion that 	Sandoval 	required a 	complete 	preclusion 	from
exposure, 	suggests 	a decision that was pretextual.
Finally, 	the 	fact 	that 	the December 	1994 	asthmatic 	attack
forming 	the 	basis 	for Greenberger's 	opinion would not 	have
occurred had Gustafson not 	participated 	in 	a 	decision 	that 	led
directly to 	repeated and 	intense 	exposure 	to 	rabbits 	further
belies 	any pretense 	that 	the 	decision 	to medically 	separate
Sandoval 	was 	a 	dispassionate 	one 	based 	simply on medical 	science.
The 	preponderance 	of 	the 	evidence 	establishes 	that 	Sandoval
would 	not 	have 	been medically 	separated but 	for 	his 	participation
in protected activities. 	Thus, 	I 	find that by this conduct, 	the
University violated 	section 	3571(a) 	of 	the HEERA.
65

5. 	Cumulative 	Evidence 	of 	Unlawful 	Intent
Although not 	alleged as 	an adverse 	action, 	the 	September 22,
1995 	ten-day 	suspension 	appears 	to 	have 	been unlawfully-
motivated,49 fitting 	the pattern of 	pretextual 	discipline 	against
Sandoval 	for 	recordkeeping 	errors.50 Given 	the 	strong 	showing of
unlawful 	intent 	against 	Sandoval 	based on 	the previous 	incidents,
it 	is 	reasonable 	to conclude, 	based on the totality of 	the
evidence, 	that 	Sandoval was 	singled out 	for removal 	from the OAR
staff 	because of 	his protected activity. 	The 	three 	instances 	of
disciplinary 	action 	against 	Sandoval 	for 	recordkeeping 	errors
cannot 	simply be 	viewed 	in 	isolation 	from each other but 	must 	be
considered as 	a pattern. 	Though Gustafson 	testified that 	each
escalating penalty was 	simply part 	of 	a pattern 	of 	progressive
discipline, 	viewed in the 	larger context, 	the recordkeeping
disciplinary actions 	appear 	to 	have 	been 	a 	concerted attempt 	to
dismiss 	Sandoval 	for disciplinary reasons. 	The 	record permits
the 	inference, 	again, 	based on the totality of the evidence, 	that
when 	it 	became 	apparent 	to OAR that 	a 	termination 	for
recordkeeping errors 	alone would not 	occur or be 	justifiable, 	OAR
49Sandoval 	had never previously been 	disciplined 	for 	failing
to report 	for work. 	In the case of 	the November 5 	and 6, 	1994,
absences, 	Willhite 	essentially overlooked the 	same omission. 	The
room checklists 	shows 	absences on weekends 	and holidays, 	when
coverage was 	apparently on a volunteer basis, 	yet 	there was 	no
evidence 	of 	investigation or discipline.
50Again, 	although fully litigated, 	this adverse action will
not 	be 	amended 	into 	the 	complaint 	to 	conform to proof 	because
UPTE was 	provided 	the 	opportunity to 	allege 	this 	incident 	in 	the
LA-CE-456-H unfair practice 	charge but 	failed to 	do 	so until 	the
event 	became 	untimely.
66

pursued 	its 	other option of 	terminating 	Sandoval 	for medical
reasons.
D. 	Adamson Layoff
Adamson 	engaged 	in 	protected 	activity by participating 	in
the 	"potential" 	sick leave notice 	action. 	He also was 	a member
of 	UPTE 	during 	its 	organizational 	campaign and was 	visibly
supportive 	as 	evidenced by his 	picture 	and quote 	in a widely
circulated UPTE 	organizing 	campaign 	flyer. 	Timms 	had knowledge
of 	his participation 	in the 	"potential 	sick 	leave" 	notice action.
The University did not 	deny that 	Gustafson was 	aware 	of 	this
activity 	and the 	record reflects 	that 	the 	collective 	job 	action
was of great 	concern to him, 	despite 	the 	fact 	that 	Timms 	told
Adamson 	that 	the 	sick 	leave policy did not 	apply to 	him.
Although 	the 	University denied 	the 	decisionmakers 	in Adamson's
layoff 	had knowledge 	of 	the 	campaign 	flyer, 	Stephen Gardella was
aware 	of 	it. 	Based on his 	association with OAR management 	it 	is
reasonable 	to 	infer that Gustafson was 	aware of 	it. 	There 	is no
evidence 	that 	Dr. 	Phillip Robinson, 	who ordered Gustafson to make
cuts 	in the Machine 	Shop was 	aware 	of Adamson's protected
activity.
UPTE 	contends 	that Adamson's 	layoff was 	a decision made
solely by Gustafson and 	that 	Gustafson's 	motive 	was 	to 	retaliate
against 	Adamson 	for 	his 	protected activity. 	Adamson's 	protected
activity occurred 	in November 	1994. 	The budget 	planning process
for the 	1995-96 year began 	in the early months of 	1995. 	Some
kind of preliminary decision 	to 	target 	savings 	from the Machine
67

Shop was 	made by Robinson prior 	to 	the 	commencement 	of 	the 	fiscal
year, 	although the 	record 	is 	not 	clear precisely when that
decision was made. 	Gustafson developed the proposal 	to 	layoff
Adamson, 	which was 	submitted to 	the Office 	of Employee 	and Labor
Relations approximately one year later, 	in November 	1995.51 Thus
there 	is 	some evidence 	in this 	case 	that 	the 	timing of 	the
decision supports a retaliatory motive, 	but 	it 	is weak. 	(See
University of California 	(1984) 	PERB Decision No. 	403-H 	[six-
month lapse 	in time].) 	However, 	timing alone 	is 	insufficient 	to
sustain a 	finding of 	unlawful 	intent. 	(Charter Oak Unified
School District 	(1984) 	PERB Decision No. 	404.)
UPTE's principal 	contention 	is 	that 	the 	decision to 	layoff
Adamson was 	pretextual 	because 	the 	purported justification of 	the
need to 	reduce 	expenses was without 	foundation. 	UPTE 	argues 	that
the 	layoff 	was 	not 	necessary 	financially because 	OAR's 	revenues
increased 	in 	1995-96 	and because 	OAR did not 	save 	money as 	a
result 	of 	shifting Adamson's 	functions 	to 	other employees 	and
outside 	contractors. 	Such a 	theory would provide 	evidence 	of 	an
unlawful 	motive 	because 	inadequate 	or 	inconsistent 	justifications
are 	considered probative. 	(Novato Unified School 	District,
supra, 	PERB Decision No. 	210.)
51Since 	the 	budget 	deliberations 	resulted 	in 	a 	decision 	to
eliminate 	the Machine 	Shop entirely, 	it 	is unlikely that
Gustafson could have made, 	or did make, 	the decision to lay off
Adamson unilaterally, 	as UPTE contends. 	Nevertheless, 	despite
the 	fact 	that 	there 	is no 	evidence 	from which it 	may be
reasonably 	inferred 	that 	Robinson knew of 	Gustafson's 	protected
activity, 	the 	inquiry does 	not 	end here 	since Gustafson would be
expected to 	analyze 	the proposal 	and reject 	it 	if 	it 	were
imprudent.
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However, 	the 	factual premise 	for UPTE's argument 	is 	lacking.
Gustafson's 	estimate 	of 	the projected 	savings 	resulting 	from the
elimination 	of 	the 	Machine 	Shop 	and Adamson's position was
supported by the 	evidence. 	The 	budget 	deficit 	projected 	for
1995-96 	was 	approximately $114,000. 	Gustafson estimated that 	the
elimination of 	the Machine 	Shop would result 	in 	savings 	of
$50,000 	on an annual 	basis. 	This 	estimate was 	supported by
savings 	calculated on the 	basis 	of 	substituting 	the 	Edstrom and
STS 	contracts. 	The 	total budgeted annual 	labor costs 	for the 	in-
house operation was 	$82,000. 	The 	labor-only figures 	for the
outside 	contractors 	were 	$9,000 	for 	the 	Edstrom 	contract 	and
$18,800 	for the STS 	contract, 	or a total of 	$27,800. 	The
difference between 	labor 	costs 	of 	the 	in-house 	operation 	and 	the
outside 	contractors was 	$54,200, 	showing Gustafson's 	estimate of
$50,000 to, 	if anything, 	be slightly conservative.
UPTE 	sought 	to undermine 	these 	figures by pointing to work
not 	covered by the 	two 	contracts 	that 	were 	shifted to 	other
employees 	in OAR, 	primarily the animal 	technicians. 	There was
evidence 	that 	animal 	technicians performed some 	of 	the 	routine
maintenance 	duties 	previously performed by Adamson 	including
checking 	instrument 	readings 	and refilling chemicals 	in
machinery. 	There was 	no evidence 	that 	they performed any
maintenance 	duties 	of 	a mechanical 	or 	skilled nature. 	This 	cost
shift was 	subtle at best. 	Moreover, 	in anticipation of 	increased
mouse populations, 	it was prudent 	from a budget 	standpoint 	to
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retain 	animal 	technicians 	who 	would 	support 	increased 	revenue
generation.52
UPTE 	also 	argues 	that 	the 	University attempted 	to 	ignore 	the
budget 	totals 	at 	the 	end of 	the 	1995-96 	fiscal years 	that
reflected a 	revenue 	increase 	of 	2 	percent 	and an expense 	decrease
of 	5 percent, 	resulting in a budget 	surplus of 	$11,977. 	Adding
the 	new 	surcharge 	imposed by the 	School 	of 	Medicine 	to 	recoup
excess revenue, 	the 	total 	revenue 	surplus 	for the year was
$81,646. 	These 	figures 	have 	little 	if 	any probative value 	in
proving unlawful 	motive 	because 	the 	decisions made 	to 	reduce
expenditures 	in 	the proposed 	1995-96 	budget 	were 	based on
projections 	of 	revenue 	likely to be 	lost 	in 	the 	coming year,
which in turn, 	were due 	largely to the 	lowering of 	the mouse per
diem fees. 	The 	fiscal decisions 	involving reductions 	in staff 	in
OAR were 	made 	in an anticipatory posture. 	The budget management
process 	requires 	that 	some 	cuts be made 	going 	into 	the new fiscal
year based on anticipated shortfalls, 	as well 	as making cuts
during the year due 	to unanticipated shortfalls. 	The 	actual
budget 	surplus 	would only be probative 	if 	they were 	so
extraordinary as 	to 	imply that 	the 	original 	projections 	were
intentionally manipulated. 	There 	is 	no 	such evidence 	in the
record.
52UPTE points 	to 	the 	addition of 	five 	animal 	technicians
following Adamson's 	departure 	and 	claimed 	that 	portions 	of 	this
additional 	labor costs belied the need to 	lay off Adamson. 	But
the 	simple 	showing of 	additional 	expense 	ignores 	the 	fact 	that
these 	additional 	expenses 	were 	contemplated as 	necessary to
support 	the 	increased revenue production.
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The 	University 	also 	successfully 	rebutted 	any 	claim of
disparate 	treatment 	by showing that 	another UPTE member, 	Holly
Henkelmann, 	was 	selected for lay off. 	Although Adamson's
participation in protected activities was greater, 	the
significant point 	is 	that 	Gustafson, 	who 	I 	have 	found did harbor
unlawful motives, 	did not 	orchestrate Adamson's 	layoff by
himself. 	He was directed by Dr. 	Robinson to propose 	reductions
and the Machine 	Shop had been 	identified by 	several 	others 	as 	an
appropriate 	target.
UPTE 	has 	failed to present 	sufficient 	evidence 	to
demonstrate 	a prima 	facie 	violation of 	unlawful 	retaliation
against Adamson. 	Accordingly, 	this allegation is dismissed.
REMEDY
Under the HEERA, 	the Board has 	the authority to 	issue 	a
decision 	and 	order 	directing 	an offending party 	to 	cease 	and
desist 	from the 	unfair practice 	and 	to 	take 	such affirmative
action as will 	effectuate 	the purposes of 	the Act. 	(Sec.
3563.3.)
. . . .
It 	has 	been 	found that 	the University unlawfully retaliated
against 	(1) 	Sandoval 	and Dawn by 	issuing them the 	disciplinary
letters 	in November 	1994 	for 	submitting the 	"potential 	sick
leave" notices, 	and 	(2) 	Sandoval alone by 	(a) 	involuntarily
transferring 	him 	from 	the 	Basic 	Science 	Building 	to 	Elliott 	Field
Station on December 1, 	1994, 	(b) 	issuing him the disciplinary
letter dated December 5, 	1994, 	(c) 	ordering him suspended for
five days by its notice dated December 20, 	1994, 	and 	(d)
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medically 	separating 	him 	from employment 	by 	its 	action 	effective
April 	3, 	1996. 	These 	reprisals were 	imposed on Sandoval 	and Dawn
because 	of 	their participation 	in protected conduct.
The 	appropriate 	remedy 	in a 	case 	involving unlawful
retaliation under 	the 	HEERA is 	to 	order 	the University to 	rescind
its punitive 	actions, 	remove and destroy the 	letters 	evidencing
the disciplinary actions, 	and restore 	the 	employees 	to the
positions 	they held before 	the unlawful 	action. 	(Compton Unified
School District 	(1989) 	PERB Decision No. 	784; 	Mt. 	San Antonio
Community College District, 	supra, 	PERB Decision No. 	224.) 	It is
also 	appropriate 	that 	the 	University be 	required 	to post 	a notice
incorporating the 	terms of 	the order. 	Posting of 	such notice,
signed by an authorized agent 	of 	the University, 	will 	provide
employees 	with notice 	that 	the University has 	acted 	in 	an
unlawful 	manner, 	is 	being required to 	cease 	and desist 	from this
activity, 	and will 	comply with the order. 	It effectuates 	the
purposes 	of 	the HEERA that 	employees be 	informed of 	the
resolution of 	this 	controversy and the 	University's 	readiness 	to
comply with the 	ordered remedy. 	(Placerville Union School
District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing findings of 	fact, 	conclusions of 	law, 	and
the entire record in this 	case, 	it 	is 	found that 	the Regents of
the University of 	California 	(University) 	has violated Government
Code 	section 	3571(a) 	of 	the 	Higher Education Employer-Employee
Relations Act 	(Act). 	The University violated the Act 	by 	(1)
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issuing Gilberto Sandoval 	and Ernie Dawn, 	employees 	at 	the
University of California, 	San Diego 	(UCSD), 	the disciplinary
letters 	in November 	1994 	for submitting the 	"potential 	sick
leave" 	notices, 	and 	(2) 	involuntarily transferring Sandoval
from the 	Basic 	Science 	Building to 	Elliott 	Field Station 	on
December 1, 	1994, 	(3) 	issuing Sandoval the disciplinary letter
dated December 5, 	1994, 	(4) 	ordering Sandoval suspended for five
days by its notice dated December 20, 	1994, 	and 	(5) 	medically
separating Sandoval 	from employment 	by 	its 	notice 	dated April 	3,
1996. 	These 	reprisals were 	imposed on Sandoval 	and Dawn because
of 	their participation in the 	activities 	of 	the University
Professional 	and Technical Employees 	- 	UPTE-CWA, 	Local 	9119
(UPTE).
Because 	these 	actions 	had the 	additional 	effect 	of
interfering with, 	and hence denying, 	the right of UPTE to
represent 	its members, 	through the discipline of UPTE members 	and
supporters, 	the disciplinary actions 	against 	Sandoval 	and Dawn,
as well 	as 	the 	transfer and medical 	separation of 	Sandoval 	also
violated section 3571(b).
The 	allegations 	that 	the 	University violated 	section 	3571(a)
by threatening employees 	with loss 	of 	jobs 	and by 	laying 	off
James Adamson, 	and all other allegations 	are hereby DISMISSED.
Pursuant 	to section 3563.3 	of the Government 	Code, 	it 	is
hereby ORDERED that 	the University, 	UCSD, 	its Office of Animal
Resources, 	and its representatives shall:
73

A. 	CEASE AND DESIST FROM:
1. 	Retaliating against UCSD employees 	Sandoval 	and
Dawn, 	because 	they participated 	in activities 	of 	an employee
organization of 	their own 	choosing 	for 	the purpose 	of
representation on matters 	of 	employer-employee 	relations; 	and
2. 	Denying the 	right 	of UPTE to represent 	its members
in 	their 	employment 	relations 	with 	the 	higher education employer
by virtue 	of 	the 	acts 	of 	retaliation against 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Within ten 	(10) 	workdays of 	service of 	a final
decision 	in this matter, 	rescind the November 1994 	disciplinary
letters 	issued to 	Sandoval 	and Dawn 	regarding their 	submission of
"potential 	sick leave" 	notices.
2. 	Within ten 	(10) 	workdays of 	service of a final
decision in this matter, 	reinstate Sandoval 	to his animal
technician position at 	the Basic 	Science Building at UCSD, 	or
similar 	facility with accommodations 	for his 	allergy to 	rabbits
consistent 	with past 	practice.
3. 	Within ten 	(10) 	workdays of 	service of a final
decision in this matter, 	rescind, 	remove and destroy the
December 	5, 	1994, 	disciplinary letter 	("Written Warning") 	issued
to Sandoval 	for 	falsification of 	animal 	care 	records.
4. 	Within ten 	(10) 	workdays of 	service of a final
decision in this matter, 	rescind, 	remove and destroy the
December 20, 	1994, 	Notice of 	Intent to Suspend 	(five-day
74

suspension) 	issued to 	Sandoval 	for 	failing 	to 	follow a
supervisor's directives.
5. 	Within ten 	(10) 	workdays of 	service of 	a final
decision 	in this matter, 	rescind the medical 	separation of
Sandoval 	and reinstate 	him to 	his 	former position 	as 	an animal
technician with the Office 	of Animal 	Resources.
6. 	Within thirty 	(30) 	workdays of service of a final
decision in this matter, 	reimburse 	Sandoval 	for all 	lost wages
and benefits 	he 	incurred due 	to 	the 	five-day suspension given 	to
him as a result of the December 20, 	1994, 	disciplinary action and
due to the April 	3, 	1996, 	medical 	separation from employment.
The 	amount 	of 	reimbursement 	is 	to be 	augmented by interest 	at 	the
annual rate of 	seven 	(7) 	percent.
7. 	Within ten 	(10) 	workdays of 	service of a final
decision in this matter, 	post 	at all 	locations where notices 	to
employees are 	customarily posted, 	copies 	of 	the Notice 	attached
thereto 	as 	the Appendix. 	The Notice must 	be 	signed by an
authorized agent 	for 	the University, 	indicating that 	the
University will 	comply with the 	terms 	of 	this Order. 	Such
posting 	shall 	be 	maintained 	for a period of 	thirty 	(30)
consecutive 	calendar days. 	Reasonable 	steps 	shall be 	taken to
insure that 	the Notice is not 	reduced in size, 	altered, 	defaced
or 	covered by any other material;
8. 	Within ten 	(10) 	workdays of 	service of a 	final
decision 	in this matter, 	notify the 	San Francisco Regional
Director of 	the Public Employment Relations Board, 	in writing, 	of
75

the 	steps 	the 	employer has 	taken to 	comply with the 	terms 	of 	this
Order. 	Continue 	to report 	in writing to 	the Regional 	Director
periodically thereafter as 	directed. 	All 	reports 	to 	the 	Regional
Director 	shall 	be 	served 	concurrently on 	the 	Charging 	Party.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision 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. Proc. 	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. 	(See Cal. 	Code of Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
DONN GINOZA
Administrative 	Law 	Judge
76