State of California (Department of Industrial Relations) (PERB 1299S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PROFESSIONAL 	ENGINEERS 	IN
CALIFORNIA GOVERNMENT,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF 	INDUSTRIAL RELATIONS),
Respondent.
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) 	Case No. 	LA-CE-398-S
PERB Decision No. 	1299-S
November 	2, 	1998
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Appearances; 	Dennis F. 	Moss, 	Attorney, 	for Professional
Engineers 	in California Government; 	State of California
(Department of Personnel Administration) 	by Michael E. 	Gash,
Labor Relations 	Counsel, 	for State 	of 	California 	(Department 	of
Industrial Relations).
Before Caffrey, 	Chairman; 	Johnson and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the 	State 	of 	California 	(Department 	of 	Industrial 	Relations)
(State) 	and the 	Professional 	Engineers 	in California Government
(PECG) 	to a proposed decision by a 	PERB administrative 	law judge
(ALJ). 	The ALJ found that the State violated section 3519(a) 	and
(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by retaliating against
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et seq. 	Section 3519(a) 	and 	(b) 	state, 	in pertinent part:
It 	shall be unlawful 	for the 	state 	to do any
of 	the following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce

employee Michael 	Chevalier 	(Chevalier) 	for his exercise of
protected 	rights.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including the ALJ's proposed decision, 	the hearing 	transcript 	and
the 	filings 	of 	the parties. 	The Board hereby reverses 	the ALJ's
proposed 	decision and dismisses 	the unfair practice 	charge 	and
complaint 	in accordance with 	the 	following discussion.
BACKGROUND
On September 4, 	1996, 	Chevalier was hired on a probationary
basis 	as 	an assistant 	safety engineer 	in 	the 	San Bernardino
Department 	of 	Industrial 	Relations 	Office 	of 	the Division of
Occupational 	Safety and Health 	(DOSH). 	On September 23, 	1996,
Chevalier's direct supervisor, 	the district manager, 	was demoted
and assigned to another office. 	On November 12, 	1996, 	after a
series 	of 	interim district managers, 	David Sullivan 	(Sullivan)
became 	the 	new district manager.
On or around November 20, 	1996, 	Chevalier received his 	first
probationary 	evaluation. 	Because 	Sullivan had 	only 	recently been
appointed, 	the 	report was prepared by the 	senior safety engineer.
Chevalier was 	rated 	standard 	in all 	categories 	and was 	provided
with extensive guidance 	concerning the 	"willingness, 	readiness
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.
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and 	capability 	to work 	effectively and 	efficiently" 	which he
would be 	expected 	to demonstrate 	in order 	to 	successfully
complete probation.
On December 23, 	1996, 	Chevalier was assigned by Sullivan to
assist 	the 	clerical 	staff 	in answering phones 	and doing
paperwork. 	Chevalier questioned the point 	of 	the 	assignment
given his 	other work, 	and questioned whether he would be working
outside 	his 	classification. 	After Sullivan and Chevalier
discussed the assignment, 	Chevalier somewhat 	reluctantly
performed 	it. 	Chevalier also 	contacted his 	PECG representative
who called Sullivan on December 26, 	1996, 	to discuss 	the 	clerical
assignment.
On December 31, 	1996, 	Sullivan sent Chevalier a one-page
memorandum concerning Chevalier's 	performance 	deficiencies, 	which
criticized him 	for not 	seeking 	sufficient 	guidance 	and 	discussing
case problems 	as 	he had been advised 	to do 	in his 	first
probationary report. 	This memorandum contained a 	reference 	to
the 	clerical 	assignment 	and 	the 	call 	from the 	PECG
representative. 	The memorandum stated:
During the past 	two weeks, 	I have asked you
to 	'assist 	clerical' 	during a period of 	time
that part 	of our clerical 	staff was absent.
This 	is a normal 	duty 	for all 	personnel 	in a
CalOSHA District Office, 	and is also
considered an 	essential 	learning 	opportunity
for new employees 	to understand 	some 	of 	the
rudiments 	of 	case-assembly, 	clerical
functions, 	telephone duties, 	etc. 	Normally,
this 	is of 	short duration.
I 	have 	noticed 	that 	you 	have 	exhibited very
little, 	if any, 	enthusiasm or curiosity about
our missions and goals. 	Rather than
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accepting 	the 	opportunity 	to be 	a helper 	to
clerical 	short-staffing, 	I perceived a
'passive-resistance' 	to this duty. 	This was
also 	indicated by your 	continuing 	to 	operate
by your own directions; 	i.e., 	researching
manuals 	and texts 	of 	your own selection.
What 	I 	thought was 	an opportunity 	for you,
was 	apparently taken as 	duty of 	an
unacceptable nature. 	To clarify the matter,
and to 	"set the 	record" 	straight, 	we
conferred in my office on Thursday, 	12-26-96.
According 	to a 	call 	I 	received from Mr.
Stephen Beck, 	our PECG representative, 	you
resented being 	given 	the 	assignment 	and 	saw
no significant value 	in the assignment 	as 	a
training and orientation 	tool.
On January 4, 	1997, 	Chevalier sent a two-page reply to
Sullivan's December 31, 	1996, 	memorandum which, 	among other
things, 	requested 	"specific 	foundational 	just 	cause" 	for some of
Sullivan's 	statements 	included 	in 	the 	"Performance Deficiencies"
memorandum. 	Chevalier 	stated that 	he 	felt 	that 	the problem was
about 	"Personality Conflicts."
On January 13, 	1997, 	Chevalier was given his second
probationary report by Sullivan. 	He was 	rated standard in skill,
knowledge and learning ability, 	but unacceptable 	in the areas 	of
work habits, 	relationships with people and attitude. 	With regard
to Chevalier's work habits, 	Sullivan noted the guidance Chevalier
had been given 	in the 	first probationary report, 	and stated that
Chevalier 	"appeared 	to use 	an 	industrial 	hygienist 	as 	your
principal 	source 	of procedural 	and substantive guidance" 	and
"failed to 	seek me 	out 	for 	clarification and guidance."
Sullivan's 	comments with regard to Chevalier's 	relationships with
people 	stated 	that 	Chevalier's 	relationships 	with his 	safety
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engineer colleagues were unacceptable. 	Sullivan's 	comments with
regard to Chevalier's 	attitude 	stated 	in part:
The 	fact 	that you did not exhibit much, 	if
any, 	enthusiasm or curiosity about 	the
Division's missions and goals, 	and your
attitude with respect 	to the assignment 	to
temporarily assist 	clerical 	and 	gain a
familiarity with their support work, 	resulted
in your unacceptable 	rating 	in 	this
performance area.
Sullivan again 	cited 	the 	call 	he 	received 	from the 	PECG
representative 	concerning 	the 	clerical 	assignment.
Sullivan 	gave 	Chevalier an unacceptable 	rating 	overall,
noting 	that 	such a 	rating 	"would motivate 	an 	immediate 	rejection
of a probationary employee" 	in most 	cases, 	but he stated
Chevalier might 	still 	have 	an opportunity 	to pass 	probation 	if 	he
showed 	"substantial 	improvement" 	in 	the areas 	evaluated as
unacceptable.
On February 4, 	1997, 	Sullivan issued a 	"Performance
Deficiencies" 	memorandum which again 	criticized 	Chevalier 	for
failing 	to 	seek 	the 	appropriate 	advice 	and guidance 	as 	he 	had
been counseled to do in the December 31, 	1996, 	memorandum and the
second probationary report. 	Also, 	on February 4, 	1997, 	Sullivan
issued a 	memorandum 	criticizing 	Chevalier 	for 	"Inattention 	to
Direction." 	Sullivan advised Chevalier that 	certain duties 	were
being 	removed 	from his 	assignment 	"until 	such 	time 	as 	you and 	I
agree that you are capable of following direction. 	. 	. 	."
On February 18, 	1997, 	the chief of DOSH issued Chevalier a
notice of 	rejection during probation. 	The notice 	criticized
Chevalier's 	work habits, 	relationships 	with people and negative
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attitude 	toward some 	of his assignments. 	The notice 	referred to
the clerical assignment, 	stating:
In a memo to you dated December 31, 	1996, 	Mr.
Sullivan 	commented 	on your passive 	resistance
to the above assignment, 	and indicated the
need 	for 	teamwork 	in 	the District 	office.
The notice also 	criticized Chevalier's productivity, 	citing
several 	specific 	assignments 	and cases 	which Chevalier had
handled. 	The 	suggestions 	included in Chevalier's 	first
probationary report, 	the 	concerns 	expressed in Sullivan's
December 31, 	1996, 	memorandum, 	the unacceptable performance
described 	in the 	second probationary report, 	and 	the 	issues
referenced in the two February 4, 	1997, 	memoranda were all
described 	in 	the 	notice 	of 	rejection.
Chevalier appealed his 	rejection 	to 	the 	State 	Personnel
Board 	(SPB). 	A hearing was 	held before an SPB ALJ on April 	29,
June 11 and July 17, 	1997, 	on the appropriateness of the
rejection of 	Chevalier on probation. 	The 	SPB ALJ 	issued his
proposed decision on November 24, 	1997, 	affirming the State's
rejection 	of 	Chevalier 	on probation and denying 	Chevalier's
appeal. 	Chevalier argued to the SPB ALJ that his 	rejection 	in
part 	was 	retaliation by Sullivan because 	of 	the 	call 	Sullivan
received 	from the 	PECG representative. 	The 	SPB ALJ rejected 	that
argument, 	stating:
The 	evidence 	established 	that 	appellant's
problems with Mr. 	Sullivan occurred both
prior to 	[PECG representative] 	Mr. 	Beck's
call and after his 	call. 	Appellant's
allegation of 	retaliation by Mr. 	Sullivan 	for
his 	exercise 	of 	protected activity was 	not
supported by 	the 	evidence.
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The 	SPB 	affirmed and adopted 	the 	SPB ALJ's 	decision 	in December
1997 	and 	subsequently denied 	Chevalier's 	petition 	for 	rehearing
on March 17, 	1998.
PECG 	filed 	the 	underlying unfair practice 	charge 	on
March 24, 	1997. 	On April 15, 	1997, 	the Board's Office of the
General 	Counsel 	issued a complaint 	on the 	charge. 	The 	complaint
alleges 	that 	the State 	issued the December 31, 	1996, 	performance
deficiencies memorandum, 	the unsatisfactory 	second probationary
report, 	and the notice of probationary rejection in retaliation
for Chevalier's 	exercise 	of protected rights, 	and thereby
violated section 3519(a) 	and 	(b) 	of 	the Dills Act. 	PERB held an
informal 	settlement conference on June 	12, 	1997, 	and the ALJ held
a 	formal 	hearing on September 29 	and 30, 	October 1 and
November 3, 	1997. 	The ALJ rendered a proposed decision on
March 16, 	1998, 	finding that 	the State by its 	conduct had
violated 	the Dills Act.
POSITIONS 	OF THE 	PARTIES
PECG alleges 	that 	the 	State 	took 	the 	retaliatory actions
against 	Chevalier because 	he 	contacted his 	exclusive
representative about 	the 	clerical 	assignment, 	questioned the
propriety of 	the assignment, 	and submitted a memorandum in
response 	to 	a 	critical 	performance 	deficiencies 	memorandum he
received 	from Sullivan. 	PECG attacks 	the validity of 	the
unacceptable 	performance 	rating 	and notice 	of 	probationary
rejection received by 	Chevalier, 	and argues 	that 	Chevalier would
not 	have 	been 	rejected had he 	not 	engaged 	in protected activity.
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The 	State 	responds 	that 	it was 	not motivated by Chevalier's
protected activity 	in rejecting him on probation. 	The 	State
further argues 	that 	the decision of 	the SPB, 	denying Chevalier's
appeal 	of 	the probationary rejection, 	should be given collateral
estoppel 	effect 	with 	regard 	to 	this 	PERB proceeding.
PECG 	responds 	that 	collateral 	estoppel 	should not 	apply 	in
this 	case, 	and that 	the State has 	failed to demonstrate 	that 	it
would have 	rejected Chevalier 	regardless 	of 	his 	participation 	in
protected 	conduct.
DISCUSSION
Collateral 	Estoppel
As 	the 	Board noted 	in California Union of 	Safety Employees
v. 	State 	of 	California 	(Department 	of Developmental 	Services)
(1987) 	PERB Decision No. 	619-S at pp. 	13-15, 	the doctrine of
collateral 	estoppel 	precludes 	a party 	to an action 	from
relitigating 	in a 	second proceeding, 	matters 	litigated and
decided 	in a prior proceeding. 	(People v. 	Sims 	(1982)
32 Cal.3d 468, 	477 	[186 Cal.Rptr. 	77] 	(People v. 	Sims).)
Collateral 	estoppel 	is an aspect of, 	but not 	co-extensive with,
the broader concept 	of 	res 	judicata. 	"Where res 	judicata
operates 	to prevent 	relitigation of a 	cause 	of action once
adjudicated, 	collateral estoppel operates 	. 	. 	. 	to obviate the
need 	to 	relitigate 	issues 	already adjudicated 	in 	the 	first
action." 	(Lockwood v. 	Superior Court 	(1984) 	160 	Cal.App.3d 667,
671 	[206 	Cal.Rptr. 	785].) 	The purpose of the doctrine 	is 	"to
promote 	judicial 	economy by minimizing 	repetitive 	litigation, 	to
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prevent 	inconsistent 	judgments 	which undermine 	the 	integrity of
the judicial 	system, 	[and] 	to protect against vexatious
litigation." 	(Ibid.)
Collateral 	estoppel 	traditionally has 	barred 	relitigation 	of
an issue 	if: 	(1) 	the issue 	is 	identical 	to one necessarily
decided at a previous proceeding; 	(2) 	the previous proceeding
resulted in a 	final 	judgment 	on the merits; 	and 	(3) 	the party
against 	whom collateral 	estoppel 	is 	asserted was 	a party or 	in
privity with a party at 	the prior proceeding. 	(People v. 	Sims 	at
p. 	484.)
At 	issue 	here 	is whether collateral 	estoppel 	effect 	should
be 	given 	to 	the SPB decision 	in which Chevalier's 	appeal 	of 	his
probationary 	rejection was 	denied.
The 	specific 	issue before 	the 	SPB 	in 	that 	proceeding was
whether 	there was 	substantial 	evidence 	to 	support 	the 	reason or
reasons 	given by 	the 	State 	for 	rejecting 	Chevalier during
probation, 	or whether that 	rejection was made 	in 	fraud or bad
faith. 	In PERB's proceeding, 	the specific 	issue 	is whether
Chevalier was 	rejected during probation because 	he 	engaged 	in
conduct protected by the Dills Act. 	While 	the 	consideration of
both of 	these 	issues 	involves 	the review of 	the parties' 	conduct
leading 	to Chevalier's probationary rejection, 	the 	issues 	are not
identical. 	They involve 	the application of 	different 	statutory
provisions, 	and significantly different 	legal 	standards.
The 	State points 	to 	the 	statement by the 	SPB ALJ that
Chevalier's 	allegation 	of 	retaliation 	for protected 	conduct 	was
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not 	supported by the evidence. 	However, 	a review of 	the SPB
ALJ's 	decision reveals 	that 	the 	issue 	of 	the alleged 	retaliation
against 	Chevalier 	for Dills Act 	protected 	conduct 	was 	not 	fully
litigated in the SPB proceeding. 	It 	is 	clear that 	the 	issue
considered by 	the SPB 	is 	not 	identical 	to 	the 	issue before 	PERB,
and the 	first 	element 	of 	the 	standard 	for 	collateral 	estoppel
established in People v. 	Sims has not been met. 	Therefore, 	the
Board 	concludes 	that 	collateral 	estoppel 	effect 	can not 	be 	given
to 	the SPB proceeding 	in 	this 	case.
Retaliation 	Allegation
In 	order 	to 	establish 	that 	an 	employer has 	engaged 	in
unlawful 	retaliation in violation of Dills Act 	section 3519, 	the
charging party must 	demonstrate 	that 	the 	employee 	engaged 	in
protected activity; 	the employer was 	aware of 	that activity; 	the
employer took action adverse 	to 	the 	employee; 	and the 	employer's
conduct 	was motivated by 	the 	employee's 	protected 	conduct.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210
(Novato).
In this 	case, 	it 	is 	clear that Chevalier engaged in
protected conduct 	of which the State was 	aware, 	and that 	the
State 	took adverse action against 	Chevalier. 	Therefore, 	this
case 	turns 	on the question of whether the 	State's 	action was
motivated by 	Chevalier's 	protected 	conduct.
Direct proof 	of unlawful motivation is not 	often present.
As 	a 	result, 	the 	Board reviews 	the 	record as a whole 	to determine
if 	the 	inference 	of unlawful motive 	should be drawn. 	Factors
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which may support 	such an 	inference 	include 	the 	timing 	of 	the
employer's 	adverse 	action 	in relation 	to 	the 	employee's 	protected
conduct 	(North Sacramento School District 	(1982) 	PERB Decision
No. 	264); 	the employer's disparate treatment of the employee
(State of California 	(Department of Transportation) 	(1984) 	PERB
Decision No. 	459-S); 	the employer's departure from established
procedures 	(Santa Clara Unified School District 	(1979) 	PERB
Decision No. 	104); 	and the employer's 	inconsistent or shifting
justification 	for 	the 	conduct 	(State 	of 	California 	(Department 	of
Parks and Recreation) 	(1983) 	PERB Decision No. 	328-S).
The 	record here 	supports 	the 	inference 	of unlawful
motivation by the State. 	Clearly, 	there 	is 	substantial
demonstration of 	the 	temporal 	proximity 	of 	Chevalier's 	protected
conduct 	and the State's actions. 	Chevalier's 	call 	to PECG
occurred 	only days 	before 	he 	received a performance 	deficiencies
memorandum from Sullivan. 	Additionally, 	the 	fact 	that 	the
memorandum and 	Chevalier's 	second probationary 	report 	made
specific 	reference 	to the 	contact with PECG suggests 	a
retaliatory motivation. 	While 	the 	evidence 	of unlawful
motivation is 	limited, 	the Board concludes 	that 	it 	is 	sufficient
to 	infer 	that 	the 	State's 	actions 	against 	Chevalier may have been
motivated by his 	exercise 	of 	protected activity.
In retaliation cases, 	once an inference of unlawful
motivation is 	drawn, 	the burden shifts 	to the 	employer to
establish that 	it would have 	taken the action regardless 	of 	the
employee's protected conduct. 	(Novato.) 	Participation in
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protected activity does 	not 	insulate 	or 	immunize 	an 	employee
against 	decisions made by the 	employer, 	including adverse
employment actions. 	(Martori 	Brothers Distributors v.
Agricultural 	Labor Relations Bd. 	(1981) 	29 	Cal.3d 721
[175 	Cal.Rptr. 	626] 	(Martori Brothers Distributors^.) 	The Board
will 	find the 	employer's 	conduct 	to be unlawful 	if 	it 	determines
that 	the 	action would not 	have been 	taken but 	for 	the 	employee's
protected conduct. 	(Id. 	at p. 	730.)
Chevalier's 	first probationary report, 	which is dated
November 20, 	1996, 	prior to the contact with PECG, 	contains
extensive 	guidance 	concerning 	the 	performance 	expected 	of 	him 	in
order 	to 	successfully complete probation. 	Chevalier was 	advised
of 	specific 	actions 	he was 	expected to 	take 	to demonstrate his
"willingness, 	readiness 	and capability to work effectively and
efficiently 	during 	a 	period when mandated work 	exceeds 	resource
capacity" 	and 	successfully 	complete 	probation.
The December 31, 	1996, 	performance deficiencies memorandum
from Sullivan 	to 	Chevalier 	references 	the 	first 	probationary
report, 	and 	indicates that 	Chevalier had not 	sought 	sufficient
guidance 	from Sullivan and his 	safety engineer 	colleagues, 	as 	he
had been advised 	to 	do. 	Sullivan also 	chastised Chevalier 	for
his 	resistance 	to 	the clerical 	assignment.
The 	second probationary 	report 	in which Chevalier was 	rated
unacceptable overall, 	also references 	the 	expectations described
in the 	first 	report. 	Again, 	Chevalier was 	criticized for not
seeking 	the 	appropriate 	clarification and guidance 	in performing
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his duties, 	and for his 	resistance 	to the 	clerical 	assignment,
which 	had 	occurred 	during 	the 	second probationary 	rating 	period.
This 	report 	also 	encouraged Chevalier 	to 	continue 	his 	"recently
exhibited apparent 	interest 	and 	enthusiasm 	for 	the 	Division's
goals 	and objectives" 	and 	indicated that 	failure 	to 	improve 	in
the 	cited areas 	would result 	in probationary rejection.
The 	two February 4, 	1997, 	counseling memoranda 	from Sullivan
continue 	this pattern of 	criticism of 	Chevalier's performance.
Finally, 	the notice of rejection dated February 18, 	1997,
reiterates 	the 	concerns 	expressed 	in 	the prior probationary
reports 	and memoranda, 	and provides 	specific examples 	of
Chevalier's 	casework which 	contributed 	to 	the 	State's 	decision 	to
reject 	him during probation.
This 	evidence 	indicates 	that 	the 	State's 	expectations 	for
Chevalier's 	successful 	performance 	as 	an assistant 	safety
engineer were 	thoroughly and 	consistently 	explained 	and
documented 	throughout 	the probationary period, 	including 	the
portion of 	the period prior 	to 	the 	contact 	with 	PECG on
December 26, 	1996. 	Similarly, 	the State's concerns with
Chevalier's 	performance 	were 	expressed 	thoroughly 	and
consistently. 	The 	fact 	that 	Sullivan's performance 	deficiencies
memorandum and 	the 	second probationary 	report 	refer 	to
Chevalier's 	contact 	with 	PECG does 	not 	undermine 	the validity of
the 	consistent 	performance 	standards 	on which the 	evaluations 	of
Chevalier are based, 	standards which were 	explained to Chevalier
both before and after his 	contact with PECG. 	As 	noted above,
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Chevalier's 	protected activity does 	not 	insulate 	him against
adverse 	employment 	actions by the 	employer. 	(Martori 	Brothers
Distributors at pp. 	728-729.)
While 	the 	SPB decision denying Chevalier's appeal 	of 	his
probationary 	rejection 	is 	not 	afforded 	collateral 	estoppel 	effect
in this 	PERB proceeding, 	it 	forms a part 	of 	the record before the
Board. 	The SPB 	enforces 	the 	statutes 	governing California's
civil 	service 	system, 	and reviews 	the propriety of 	disciplinary
actions 	and probationary rejections. 	As 	a 	result 	of 	its 	thorough
review of 	the State's actions, 	the SPB 	found substantial 	evidence
supporting 	the 	probationary 	rejection 	and 	concluded 	that
Chevalier had been 	rejected primarily because 	he 	failed 	to 	follow
the 	instructions 	of his 	supervisor. 	The Board's 	review of 	the
evidence 	in this 	case leads 	it 	to the 	same 	conclusion.
Based on a review of 	the 	record as a whole, 	the Board
concludes 	that 	the 	State's 	actions 	in 	sending 	Chevalier a
performance 	deficiencies memorandum, 	rating him unacceptable 	on
his 	second probationary 	report, 	and 	rejecting him on probation
were 	not 	motivated by Chevalier's 	protected activity, 	and would
have 	occurred irrespective 	of 	it. 	Therefore, 	the State by its
conduct did not violate section 3519(a) 	and 	(b) 	of 	the Dills Act.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CE-398-S 	are DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Johnson and Amador 	joined 	in 	this 	Decision.
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