State of California (Department of Developmental Services) (Monsoor) (PERB 0228S)

STATE 	OF 	CALIFORNIA
DECISI	DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM THOMAS MONSOOR,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT
OF 	DEVELOPMENTAL 	SERVICES)
Respondent.
Case 	No. 	LA-CE-7-S
PERB 	Decision 	No. 	228-S
July 	28, 	1982
WILLIAM THOMAS MONSOOR,
Appearances:	Appearances: 	William Thomas Monsoor, appearing in pro per and
Alfred 	M. 	Freitas, 	Attorney 	for 	William Thomas 	Monsoor;
Barbara T. 	Stuart, 	Attorney 	(Department 	of 	Personnel
Administration) 	for 	State 	of 	California.
William
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Jensen, 	Members.
DECISION
Before Gluck, Chairperson; Jaeger and Jensen, Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	on 	exceptions 	filed 	by 	Camarillo
State 	Hospital, 	Department 	of 	Developmental 	Services, 	State 	of
California 	(hereafter 	Respondent 	or 	the 	State) 	to 	the 	proposed
decision 	of 	the 	hearing 	officer, 	which 	is 	incorporated 	by
reference 	herein. 	In 	that 	proposed 	decision, 	the 	hearing
officer 	found 	that 	Respondent 	violated 	subsection 	3519(a) 	of
the 	State 	Employer-Employee 	Relations 	Act 	(hereafter 	SEERA or
This case is before the Public Employment Relations Board
STATE OF CALIFORNIA
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__________________ )
Case No. LA-CE-7-S	Charging Party,
v .
STATE OF CALIFORNIA (DEPARTMENT
OF DEVELOPMENTAL SERVICES)
Respondent.
Thomas Monsoor, 	appearing 	in 	pro~ and
Alfred M. Freitas, Attorney for William Thomas Monsoor ;
Barbara T. Stuart, Attorney (Department of Personnel
Administration) for State of California.
(hereafter PERB or Board) on exceptions filed by Camarillo
State Hospital, Department of Developmental Services, State of
California (hereafter Respondent or the State) to the proposed
decision of the hearing officer, which is incorporated by
reference herein. In that proposed decision, the hearing
officer found that Respondent violated subsection 3519 (a) of
the State Employer-Employee Relations Act (hereafter SEERA or
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB Decision No. 228-S
July 28, 1982

the 	Act)	the Act) 1 by rejecting William Thomas Monsoor (hereafter	l 	by 	rejecting 	William Thomas 	Monsoor 	(hereafter
Charging 	Party 	or 	Monsoor) 	from 	employment 	at 	the 	conclusion 	of
his 	probationary 	period 	at 	Camarillo 	State 	Hospital 	(hereafter
Camarillo). 	He 	dismissed 	the 	allegation 	that 	the 	State
violated 	this 	subsection 	by 	evicting Monsoor 	from 	State-owned
employee 	housing 	and 	retaining 	his 	possessions 	seized 	in 	the
eviction 	for 	a 	period 	of 	time 	thereafter. 	Charging 	Party 	does
not 	except 	to 	the 	dismissal 	of 	the 	allegations 	related 	to 	his
eviction.
Charging Party or Monsoor) from employment at the conclusion of
The 	Board 	has 	carefully 	reviewed 	the 	record 	in 	light 	of
Respondent's 	exceptions 	and 	Charging 	Party's 	responses 	thereto,
and 	affirms 	the 	hearing 	officer's 	findings 	of 	fact 	and
conclusions 	of 	law 	only 	to 	the 	extent 	they 	are 	consistent 	with
this 	decision.
The Board has carefully reviewed the record in light of
this decision.
DISCUSSION	DISCUSSION
The 	only 	issue 	remaining 	for 	this 	Board 	to 	decide 	is
1SEERA 	is 	codified 	at 	Goverment 	Code 	section 	3512
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	specified. 	Subsection 	3519(a) 	provides 	as
follows:
The only issue remaining for this Board to decide is
3519. 	It 	shall 	be 	unlawful 	for 	the 	state 	to:	3519. It shall be unlawful for the state to:
(a) 	Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(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.
2
ISEERA is codified at Goverment Code section 3512
2
his probationary period at Camarillo State Hospital (hereafter
Camarillo) . He dismissed the allegation that the State
violated this subsection by evicting Monsoor from State-owned
employee housing and retaining his possessions seized in the
eviction for a period of time thereafter. Charging Party does
not except to the dismissal of the allegations related to his
eviction.
Respondent's exceptions and Charging Party's responses thereto,
and affirms the hearing officer's findings of fact and
conclusions of law only to the extent they are consistent with
et seq. All statutory references are to the Government Code
unless otherwise specified. Subsection 3519 (a) provides as
follows :

whether 	Respondent 	violated 	the 	Act 	by 	rejecting Monsoor 	from
probation. 	As 	noted 	above, 	Monsoor 	did 	not 	except 	to 	the
dismissal 	of 	his 	allegations 	regarding 	eviction 	and 	the 	related
retention 	of 	his 	personal 	property. 	This 	determination
requires 	the 	resolution 	of 	two 	discrete 	sub-issues, 	which 	will
be 	dealt 	with 	in 	turn.
whether Respondent violated the Act by rejecting Monsoor from
Protected 	Activity
The 	threshold 	issue 	is 	whether 	Monsoor 	engaged 	in 	any
activity 	which 	is 	protected 	under 	section 	3515. 	The 	second 	is
whether 	Respondent 	was 	motivated 	to 	reject Monsoor 	from
probation 	because 	of Monsoor's 	protected 	activity, 	or 	whether
Respondent 	would 	have 	rejected 	him 	regardless 	of 	it.
Protected Activity
Monsoor 	alleges 	that 	his 	activities 	in 	organizing
tenant/employees 	residing 	in 	State-owned 	housing 	on 	the 	grounds
at 	Camarillo 	constituted 	such 	protected 	activity. 	With 	respect
to 	Monsoor's 	activity 	regarding 	housing 	issues, 	the 	hearing
officer's 	findings 	of 	fact 	at 	pages 	4-8 	of 	the 	proposed
decision 	are 	free 	of 	prejudicial 	error, 	and 	are 	adopted 	as
those 	of 	the 	Board.
Monsoor alleges that his activities in organizing
2
W
The threshold issue is whether Monsoor engaged in any
2we 	do 	not 	find 	that 	Monsoor 	made 	an 	effort 	to 	"change
employment 	rules 	relating 	to 	new 	employee 	orientation 	and 	work
assignments," 	(proposed 	decision, 	p. 	8) 	by means 	other 	than
unstructured 	and 	individualized 	complaints, 	and 	do 	not 	rely 	on
the 	above-quoted 	finding 	by 	the 	hearing 	officer 	as 	a 	basis 	for
our 	conclusion 	that Monsoor 	engaged 	in 	protected 	activity.
we do not find that Monsoor made an effort to "change
3
probation. As noted above, Monsoor did not except to the
dismissal of his allegations regarding eviction and the related
retention of his personal property. This determination
requires the resolution of two discrete sub-issues, which will
be dealt with in turn.
tenant/employees residing in State-owned housing on the grounds
at Camarillo constituted such protected activity. With respect
to Monsoor's activity regarding housing issues, the hearing
officer's findings of fact at pages 4-8 of the proposed
decision are free of prejudicial error, and are adopted as
those of the Board. 2
activity which is protected under section 3515. The second is
whether Respondent was motivated to reject Monsoor from
probation because of Monsoor's protected activity, or whether
Respondent would have rejected him regardless of it.
employment rules relating to new employee orientation and work
assignments, " (proposed decision, p. 8) by means other than
unstructured and individualized complaints, and do not rely on
the above-quoted finding by the hearing officer as a basis for
our conclusion that Monsoor engaged in protected activity.

Protected 	activity 	under 	SEERA 	is 	defined 	by 	section 	3515,
the 	pertinent 	part 	of 	which 	sets 	forth 	the 	right 	of 	State
employees 	to
Protected activity under SEERA is defined by section 3515,
. form, join, and participate in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
employer-employee relations.
or 	to 	refrain 	from 	such 	activities. 	To 	find 	Monsoor's
employee-tenant 	organizing 	to 	be 	protected 	activity, 	we 	must
find 	that 	the 	aggregation 	of 	employee/tenants, 	which Monsoor
sought 	to 	organize 	and 	in 	which 	he 	actively 	participated,
constituted 	an 	"employee 	organization" 	and 	that 	it 	existed 	for
the 	purpose 	of 	representation 	regarding 	a 	matter 	of
employer-employee 	relations. 	The 	term 	"employee 	organization"
is 	defined 	in 	subsection 	3513(a), 	which 	provides 	that
or to refrain from such activities. To find Monsoor's
"Employee 	organization" 	means 	any
organization 	which 	includes 	employees 	of 	the
state 	and 	which 	has 	as 	one 	of 	its 	primary
purposes 	representing 	such 	employees 	in
their 	relations 	with 	the 	state.
"Employee organization" means any
Defining 	the 	nature 	of 	protected 	organizational 	activity
under 	SEERA 	is 	a 	matter 	of 	first 	impression 	for 	this 	Board.
Cases 	decided 	in 	the 	private 	sector 	provide 	guidance 	in
determining 	whether 	the 	tenant 	organization 	involved 	here
constituted 	a 	"labor 	organization," 	arid 	whether 	the 	housing
concerns 	involved 	were 	matters 	of 	employer-employee
Defining the nature of protected organizational activity
•••
4
the pertinent part of which sets forth the right of State
employees to
employee-tenant organizing to be protected activity, we must
find that the aggregation of employee/tenants, which Monsoor
sought to organize and in which he actively participated,
constituted an "employee organization" and that it existed for
the purpose of representation regarding a matter of
employer-employee relations. The term "employee organization"
is defined in subsection 3513 (a) , which provides that
organization which includes employees of the
state and which has as one of its primary
purposes representing such employees in
their relations with the state.
under SEERA is a matter of first impression for this Board.
Cases decided in the private sector provide guidance in
determining whether the tenant organization involved here
constituted a "labor organization," and whether the housing
concerns involved were matters of employer-employee
form, 	join, 	and 	participate 	in 	the
activities of employee organizations of
their own choosing for the purpose of
representation on all matters of
employer-employee 	relations ••.•

relations.3	relations . 3
Camarillo's 	"Digest 	of 	Hospital 	Rules" 	provides 	that	Camarillo's "Digest of Hospital Rules" provides that
The 	Hospital 	Administrator 	administers 	a
housing 	program 	based 	on 	the 	following
criteria:	criteria: 	(1) 	The 	need 	for 	certain
employees 	to 	reside 	on 	the 	grounds 	to 	handle
emergencies; 	(2) 	As 	an 	inducement 	in
recruiting 	new 	employees.
The Hospital Administrator administers a
The 	record 	indicates 	that 	the 	availability 	of 	on-grounds
housing 	was 	held 	out 	to 	Monsoor 	as 	an 	inducement 	when 	he 	was
recruited 	for 	employment 	at 	Camarillo. 	While 	employees 	are 	not
required 	to 	live 	on 	the 	grounds 	(and, 	in 	fact, 	there 	is
insufficient 	space 	in 	employee 	housing 	to 	accommodate 	them 	all)
only 	employees 	may 	live 	there.
The record indicates that the availability of on-grounds
It 	is 	clear 	from 	the 	face 	of 	the 	State's 	own 	regulations
that 	employee 	housing 	exists, 	in 	part, 	to 	attract 	employees 	to
Camarillo. 	Such 	housing 	is 	an 	inducement 	due 	to 	its
comparatively 	low 	cost 	and 	its 	proximity 	to 	the 	workplace
(which 	translates 	into 	reduced 	commute 	costs). 	As 	such, 	it
should 	be 	viewed 	like 	any 	other 	substantial 	fringe 	benefit.
It is clear from the face of the State's own regulations
Cases 	decided 	by 	the 	National 	Labor 	Relations 	Board 	(NLRB)
and 	federal 	courts 	have 	focused 	on 	whether 	employers 	are
privileged 	to 	unilaterally 	change 	conditions 	regarding
company-provided 	housing 	or 	whether 	such 	matters 	constitute
Cases decided by the National Labor Relations Board (NLRB)
3It is proper for the Board to take guidance from federal
labor 	law 	precedent 	when 	applicable 	to 	public 	sector 	labor
relations 	issues. 	Firefighters 	Local 	1186 	v. 	City 	of Vallejo
(1974) 	12 	Cal.App.3d 	608 	[116 	Cal. 	Rptr. 	507].
31t
55
housing program based on the following
(1) The need for certain
employees to reside on the grounds to handle
emergencies; (2) As an inducement in
recruiting new employees.
housing was held out to Monsoor as an inducement when he was
recruited for employment at Camarillo. While employees are not
required to live on the grounds (and, in fact, there is
insufficient space in employee housing to accommodate them all)
only employees may live there.
that employee housing exists, in part, to attract employees to
Camarillo. Such housing is an inducement due to its
comparatively low cost and its proximity to the workplace
(which translates into reduced commute costs) . As such, it
should be viewed like any other substantial fringe benefit.
and federal courts have focused on whether employers are
privileged to unilaterally change conditions regarding
company-provided housing or whether such matters constitute
is 	proper 	for 	the 	Board 	to 	take 	guidance 	from 	federal
labor law precedent when applicable to public sector labor
relations issues. Firefighters Local 1186 v. City of Vallejo
(1974) 12 Cal. App. 3d 608 [116 Cal. Rptr. 507].

conditions 	of 	employment 	and 	hence 	must 	be 	negotiated. 	It 	has
been 	consistently 	held 	that 	company 	housing
conditions of employment and hence must be negotiated. It has
. is a subject in which employees have
so 	great 	an 	interest 	in 	connection 	with
their 	work 	that 	it 	should 	be 	a 	subject 	of
bargaining 	between 	the 	employer 	and 	the
representatives of the [employees].
•••
NLRB v. Hart Cotton Mills, Inc. (4th Cir. 1951) 190 F. 2d 964,	NLRB 	v. 	Hart 	Cotton Mills, 	Inc. 	(4th 	Cir. 	1951) 	190 	F.2d 	964,
[28 	LRRM 	2435 	at 	2441]. 	Where 	housing 	in 	the 	area 	was 	scarce
and 	the 	employer 	provided 	housing 	at 	nominal 	rates 	near 	its
plant, the NLRB noted that ". . . the privilege of living in a
company-owned dwelling represents an 'emolument of
." in that it saved the employees transportation
costs, 	and 	was 	thus 	a 	condition 	of 	employment. 	Lehigh 	Portland
Cement 	Co. 	(1952) 	101 	NLRB 	1010 	[31 	LRRM 	1097], 	enf'd 	(4th 	Cir.
1953) 	Los 	F.2d 	821 	[32 	LRRM 	2463]. 	See 	also
Granite-Ball-Groves, 	A Joint 	Venture 	(1979) 	240 	NLRB 	1173 	[100
LRRM 	1442]. 	We 	need 	not 	decide, 	for 	purposes 	of 	this 	case,
whether 	the 	housing 	concerns 	herein 	are 	within 	scope 	under
SEERA.	SEERA.4 	Rather, 	we 	need 	only 	determine 	that 	they 	were 	within
the 	much 	broader 	ambit 	of 	"employer-employee 	relations."
Because 	on-grounds 	housing 	constitutes 	a 	substantial 	benefit	Because on-grounds housing constitutes a substantial benefit
the much broader ambit of "employer-employee relations."
44SEERA section 3516 defines the scope of representation
as ". 	. wages, hours, and other terms and conditions of
employment."
sEERA
66
[28 LRRM 2435 at 2441]. Where housing in the area was scarce
and the employer provided housing at nominal rates near its
plant, 	the 	NLRB 	noted 	that" ••• 	the 	privilege 	of 	living 	in 	a
company-owned 	dwelling 	represents 	an 	'emolument 	of
value ' .	value' 	••• " 	in 	that 	it 	saved 	the 	employees 	transportation
costs, and was thus a condition of employment. Lehigh Portland
Cement Co. (1952) 101 NLRB 1010 [31 LRRM 1097], enf'd (4th Cir.
1953) Los F. 2d 821 [32 LRRM 2463]. See also
Granite-Ball-Groves, A Joint Venture (1979) 240 NLRB 1173 [100
LRRM 1442]. We need not decide, for purposes of this case,
whether the housing concerns herein are within scope under
4 Rather, we need only determine that they were within
been consistently held that company housing
is 	a 	subject 	in 	which 	employees 	have
so great an interest in connection with
their work that it should be a subject of
bargaining between the employer and the
representatives 	of 	the 	femployeest.
section 	3516 	defines 	the 	scope 	of 	representation
as" ••• 	wages, 	hours, 	and 	other 	terms 	and 	conaitions 	of
employment."

(as 	evidenced 	by 	the 	state's 	admission 	that 	it 	is 	a 	recruiting
inducement) 	we 	find 	that 	it 	directly 	affects 	the 	employment
relationship 	and 	should 	therefore 	be 	properly' considered 	a
matter 	of 	employer-employee 	relations 	as 	contemplated 	by
section 	3515.
(as evidenced by the State's admission that it is a recruiting
This 	Board 	has 	not, 	to 	date, 	been 	called 	upon 	to 	apply 	the
term 	"employee 	organization" 	as 	defined 	in 	subsection 	3513(a).
Cases 	decided 	by 	the 	NLRB 	provide 	guidance 	in 	determining
whether 	a 	given 	aggregation 	of 	employees 	constitutes 	a 	labor
organization. 	That 	board 	has 	not 	required 	that 	groups 	be
formally 	constituted, 	have 	formal 	membership 	requirements, 	hold
regular 	meetings, 	have 	constitutions 	or 	by-laws, 	or 	in 	any
other 	manner 	conform 	to 	the 	common 	definition 	of 	an
"organization." Rather, the central focus has been whether the
group 	has, 	as 	a 	central 	purpose, 	the 	representation 	of
employees 	on 	employment-related 	matters. 	In 	Ohio 	Oil 	Company
(1951) 	92 	NLRB 	1597, 	[27 	LRRM 	1288], 	the 	NLRB 	found 	that 	two
employees 	acting 	in 	concert 	to 	present 	greviances 	over 	cutbacks
in 	overtime 	and 	attendant 	loss 	of 	job possibilities 	had
constituted 	themselves 	a 	labor 	organization, 	because 	they 	had
come 	together 	to 	represent 	unit 	employees 	concerning 	working
conditions.	conditions. 	Similarly, 	in 	J. 	P. 	Stevens 	& Co. 	(1959) 	125 	NLRB
1354, 	[45 	LRRM 	1255], 	an 	employee 	committee 	in 	the 	"doffers"
shop 	that 	met 	to 	discuss 	actions 	employees 	should 	take
This Board has not, to date, been called upon to apply the
7
inducement) we find that it directly affects the employment
relationship and should therefore be properly considered a
matter of employer-employee relations as contemplated by
section 3515.
term "employee organization" as defined in subsection 3513(a) .
Cases decided by the NLRB provide guidance in determining
whether a given aggregation of employees constitutes a labor
organization. That board has not required that groups be
formally constituted, have formal membership requirements, hold
regular meetings, have constitutions or by-laws, or in any
other manner conform to the common definition of an
"orga'nization." 	Rather, 	the 	central 	focus 	has 	been 	whether 	the
group has, as a central purpose, the representation of
employees on employment-related matters. In Ohio Oil Company
(1951) 92 NLRB 1597, [27 LRRM 1288], the NLRB found that two
employees acting in concert to present greviances over cutbacks
in overtime and attendant loss of job possibilities had
constituted themselves a labor organization, because they had
come together to represent unit employees concerning working
Similarly, in J. P. Stevens & Co. (1959) 125 NLRB
1354, [45 LRRM 1255], an employee committee in the "doffers"
shop that met to discuss actions employees should take

regarding 	wages 	and 	working 	conditions 	was 	found 	to 	be 	a 	labor
organization, 	even 	though 	it 	lacked 	a 	formal 	structure. 	InIn
accord 	is 	Arkay 	Packaging 	Corporation 	(1975) 	221 	NLRB 	99
[90 	LRRM 	1728] 	in 	which 	a 	committee 	founded 	by 	employees 	to
deal 	with 	management 	regarding 	working 	hours, 	overtime,
lateness 	and 	absenteeism was 	held 	a 	statutory 	labor
organization. 	As 	the 	administrative 	law 	judge 	noted 	in 	Arkay,
with 	NLRB 	approval
regarding wages and working conditions was found to be a labor
Board 	and 	court 	cases 	are 	legion 	holding
that 	similar 	employer 	and 	shop 	committees
are 	labor 	organizations 	under 	the 	[NLRA],
even 	though 	they 	collect 	no 	dues, 	have 	no
treasury, 	no 	constitution 	or 	by-laws, 	no
membership 	requirements, 	or 	other 	indicia 	of
the 	conventional 	labor 	organization.
(Citations 	omitted.) 	Arkay, 	supra, 	at 	105.
Board and court cases are legion holding
In 	reliance 	on 	the 	above 	cases 	and 	others 	cited 	by 	the 	hearing
officer 	in 	the 	proposed 	decision, 	at 	pages 	21-23, 	we 	find 	that
it 	is 	unnecessary 	for 	a 	group 	of 	employees 	to 	have 	a 	formal
structure, 	seek 	exclusivity, 	or 	be 	concerned 	with 	all 	aspects
of 	the 	employment 	relationship 	in 	order 	to 	constitute 	a
was in its formative	statutory 	labor 	organization.
In reliance on the above cases and others cited by the hearing
5it 	While 	it 	was 	in 	its 	formative
stages, 	had 	no 	formal 	structure, 	and 	pursued 	only 	concerns	stages, had no formal structure, and pursued only concerns
55Cases cited by Respondent are factually
distinguishable. 	In 	Center 	for 	United 	Labor 	Action 	(1975) 	219
NLRB 	873 	[85 	LRRM 	1485] 	the 	NLRB 	found 	the 	entity 	involved
therein 	(CULA) 	not 	to 	be 	a 	statutory 	labor 	organization 	because
it was not selected by employees to present or resolve their
work-related 	complaints 	and 	because 	it 	did 	not 	exist, 	even 	in
part, 	for 	the 	purpose 	of 	dealing 	with 	the 	employer. 	Rather,
cases
8
organization, even though it lacked a formal structure.
accord is Arkay Packaging Corporation (1975) 221 NLRB 99
[90 LRRM 1728] in which a committee founded by employees to
deal with management regarding working hours, overtime,
lateness and absenteeism was held a statutory labor
organization. As the administrative law judge noted in Arkay,
with NLRB approval
that similar employer and shop committees
are labor organizations under the [NLRA] ,
even though they collect no dues, have no
treasury, no constitution or by-laws, no
membership requirements, or other indicia of
the conventional labor organization.
(Citations omitted. ) Arkay, supra, at 105.
officer in the proposed decision, at pages 21-23, we find that
it is unnecessary for a group of employees to have a formal
structure, seek exclusivity, or be concerned with all aspects
of the employment relationship in order to constitute a
statutory labor organization.5 While
cited 	by 	Respondent 	are 	factually
distinguishable. In Center for United Labor Action (1975) 219
NLRB 873 [85 LRRM 1485] the NLRB found the entity involved
therein (CULA) not to be a statutory labor organization because
it. was 	not 	selected 	by 	employees 	to 	present 	or 	resolve 	their
work-related complaints and because it did not exist, even in
part, for the purpose of dealing with the employer. Rather,

related 	to 	employee 	housing, 	the 	tenant 	employee 	group 	in 	which
Monsoor 	was 	active 	existed 	for 	the 	purpose 	of 	furthering 	the
interests 	of 	employees 	by 	dealing 	with 	the 	employer 	on 	a 	matter
of 	employer-employee 	relations.
related to employee housing, the tenant employee group in which
Thus, 	because 	Monsoor 	formed, 	joined, 	and 	participated 	in
the 	activities 	of 	that 	group, 	we 	find 	that 	he 	engaged 	in
protected 	activity 	within 	the 	meaning 	of 	section 	3515.
Thus, because Monsoor formed, joined, and participated in
Discharge	Discharge
We 	have 	reviewed 	the 	entire 	record 	in 	this 	case 	and 	affirm 	the
hearing 	officer's 	findings 	of 	fact 	regarding Monsoor's
rejection 	from 	probation 	only 	to 	the 	extent 	consistent 	herewith.
We have reviewed the entire record in this case and affirm the
CULA, 	as 	one 	aspect 	of 	its 	activities, 	merely 	aided 	unions 	in
leafleting 	and 	picketing 	to 	further 	a 	stated 	goal 	of 	improving
conditions 	for 	workers 	in 	general. 	Respondent's reliance on	Respondent's 	reliance 	on
Northeastern 	University 	(1978) 	235 	NLRB 	858, 	[98 	LRRM 	1347] 	is
similarly misplaced. 	The 	ALJ 	in 	that 	case 	prefaced 	his
discussion 	of 	"9to5" 	the 	entity 	involved 	therein, 	with 	the
express 	caveat 	that 	the 	determination 	to 	whether 	it 	was 	a
statutory 	labor 	organization 	was 	wholly 	inessential 	to 	the
outcome 	of 	the 	case 	and 	was 	undertaken 	for 	background 	purposes
only. 	He 	noted 	further 	that 	none 	of 	the 	parties 	contended 	that
9to5 	was 	a 	labor 	organization. 	Citing 	CULA, 	supra, 	he 	then
gratuitously 	expresses 	the 	dicta 	that 	9to5 	is 	not 	a 	statutory
labor 	organization 	because 	it 	exists 	for 	the 	purpose 	of
addressing 	amorphous, 	quasi-political 	issues 	in 	society 	at
large, 	and 	not 	to 	represent 	particular 	employees 	vis-a-vis
their 	particular 	employer 	regarding 	work-related 	matters.
CULA, as one aspect of its activities, merely aided unions in
Neither 	CULA nor 	Northeastern 	University persuade 	us 	as 	to
the 	validity 	of 	Respondent's 	contention 	that 	the 	tenant 	group
herein 	was 	not 	a 	section 	3513(a) 	employee 	organization.
Neither CULA nor Northeastern University persuade us as to
99
Monsoor was active existed for the purpose of furthering the
interests of employees by dealing with the employer on a matter
of employer-employee relations.
the activities of that group, we find that he engaged in
protected activity within the meaning of section 3515.
hearing officer's findings of fact regarding Monsoor's
rejection from probation only to the extent consistent herewith.
leafleting and picketing to further a stated goal of improving
conditions for workers in general.
Northeastern University (1978) 235 NLRB 858, [98 LRRM 1347] is
similarly misplaced. The ALJ in that case prefaced his
discussion of "9to5" the entity involved therein, with the
express caveat that the determination to whether it was a
statutory labor organization was wholly inessential to the
outcome of the case and was undertaken for background purposes
only. He noted further that none of the parties contended that
9to5 was a labor organization. Citing CULA, supra, he then
gratuitously expresses the dicta that 9to5 is not a statutory
labor organization because it exists for the purpose of
addressing amorphous, quasi-political issues in society at
large, and not to represent particular employees vis-a-vis
their particular employer regarding work-related matters.
the validity of Respondent's contention that the tenant group
herein was not a section 3513 (a) employee organization.

The 	hearing 	officer 	stated, 	at 	page 	4, 	proposed 	decision,
footnote 	2, 	that
The 	record 	in 	this 	matter 	is 	replete 	with
conflicts 	in 	testimony 	between 	witnesses 	for
Monsoor 	and 	witnesses 	for 	the 	Department.
Unless 	specifically 	stated 	otherwise 	in 	this
proposed 	decision, 	conflicts 	in 	testimony
are 	left 	unresolved 	since 	the 	testimony 	in
question 	is 	not, 	in 	the 	hearing 	officer's
opinion, 	crucial 	to 	the 	decision, 	and 	it 	is
therefore 	not 	relied 	upon.
The hearing officer stated, at page 4, proposed decision,
Contrary 	to 	his 	stated 	intention, 	we 	find 	that 	the 	hearing
officer 	failed 	to 	resolve 	conflicts 	in 	testimony 	which 	were
"crucial 	to 	the 	decision." 	The 	findings 	of 	fact 	which 	follow
are 	based 	upon 	resolution 	of 	crucial 	credibility 	conflicts
which 	the 	Board 	has 	made 	based 	upon 	our 	reading 	of 	the
transcript 	and 	the 	record 	as 	a 	whole.
Contrary to his stated intention, we find that the hearing
Monsoor 	was 	employed 	as 	a 	probationary 	psychiatric
technician 	at 	Camarillo 	from 	September 	1, 	1978 	to
February 	16, 	1979, 	at 	which 	time 	he 	was 	rejected 	from
probation. 	His 	duties 	involved 	patient 	care 	and 	caretaking 	of
emotionally 	disturbed 	adolescent 	and 	pre-adolescent 	male 	and
female 	children.
Monsoor was employed as a probationary psychiatric
His 	housing-related 	protected 	conduct 	has 	been 	summarized,
supra. 	Uncontroverted 	record 	testimony 	indicates 	clearly 	that
persons 	at 	all 	levels 	of 	Respondent's 	supervisory 	and
administrative 	heirarchy, 	from 	first 	level 	supervisors 	through
Executive 	Director 	Rust, 	had 	knowledge 	of 	these 	activities.
His housing-related protected conduct has been summarized,
10
The record in this matter is replete with
10
footnote 2, that
officer failed to resolve conflicts in testimony which were
"crucial to the decision." The findings of fact which follow
are based upon resolution of crucial credibility conflicts
which the Board has made based upon our reading of the
transcript and the record as a whole.
technician at Camarillo from September 1, 1978 to
February 16, 1979, at which time he was rejected from
probation. His duties involved patient care and caretaking of
emotionally disturbed adolescent and pre-adolescent male and
female children.
supra. Uncontroverted record testimony indicates clearly that
persons at all levels of Respondent's supervisory and
administrative heirarchy, from first level supervisors through
Executive Director Rust, had knowledge of these activities.
conflicts in testimony between witnesses for
Monsoor and witnesses for the Department.
Unless specifically stated otherwise in this
proposed decision, conflicts in testimony
are left unresolved since the testimony in
question is not, in the hearing officer's
opinion, crucial to the decision, and it is
therefore not relied upon.

During 	his 	six-month 	probationary 	period, 	Monsoor 	had
numerous 	work-related 	problems. 	We 	find 	the 	hearing 	officer's
summary 	thereof 	to 	be 	free 	of 	prejudicial 	error, 	and 	adopt 	that
summary, 	contained 	at 	pp. 	8-12 	of 	the 	proposed 	decision, 	as 	the
findings 	of 	the 	Board.
During his six-month probationary period, Monsoor had
Monsoor 	testified 	that, 	during 	a 	telephone 	conversation
initiated 	by 	him on 	or 	about 	December 	8, 	1978, 	acting
Director 	Mamie 	Davis 	threatened 	that 	he 	would 	not 	clear
probation 	and 	would 	be 	terminated 	if 	he 	persisted 	in 	pressing
his 	housing-related 	complaints. 	According 	to Monsoor, 	he
responded 	that 	he 	would 	not 	desist 	from 	pursuing 	those
concerns, 	and 	that 	she 	then 	hung 	up 	on 	him. 	He 	testified,
further, 	that 	during 	early 	January 	of 	1979 	he 	was 	called 	to 	a
meeting 	with 	John 	Foster 	(assistant 	program manager), 	Don 	Burns
(program director) 	and 	Rocky Galgagno 	(nursing 	coordinator).
The 	purpose 	of 	this 	meeting 	was 	to 	discuss 	with 	Monsoor 	the
results 	of 	an 	investigation 	concerning 	alleged 	sexual
misconduct 	by Monsoor.
Monsoor testified that, during a telephone conversation
According 	to 	Monsoor, 	he 	was 	told 	by 	Burns 	or 	Foster,
during 	the 	course 	of 	that 	meeting, 	that 	pressure 	was 	being
brought 	to 	bear 	upon 	program management 	by 	unnamed 	individuals
in 	higher 	levels 	of 	management 	to 	reject Monsoor 	from 	probation
in 	retaliation 	for 	his 	tenant 	activities. 	He 	was 	allegedly
told 	that 	these 	lower-level 	managers 	did 	not 	want 	to 	reject 	him
but 	that 	there 	was 	pressure 	to 	do 	so 	from 	"higher 	up." 	Also
According to Monsoor, he was told by Burns or Foster,
11	11
numerous work-related problems. We find the hearing officer's
summary thereof to be free of prejudicial error, and adopt that
summary, contained at pp. 8-12 of the proposed decision, as the
findings of the Board.
initiated by him on or about December 8, 1978, acting
Director Mamie Davis threatened that he would not clear
probation and would be terminated if he persisted in pressing
his housing-related complaints. According to Monsoor, he
responded that he would not desist from pursuing those
concerns, and that she then hung up on him. He testified,
further, that during early January of 1979 he was called to a
meeting with John Foster (assistant program manager ) , Don Burns
(program director) and Rocky Galgagno (nursing coordinator) .
The purpose of this meeting was to discuss with Monsoor the
results of an investigation concerning alleged sexual
misconduct by Monsoor.
during the course of that meeting, that pressure was being
brought to bear upon program management by unnamed individuals
in higher levels of management to reject Monsoor from probation
in retaliation for his tenant activities. He was allegedly
told that these lower-level managers did not want to reject him
but that there was pressure to do so from "higher up. " Also

12
according 	to 	his 	account, 	he 	was 	discouraged 	from 	filing 	a	according to his account, he was discouraged from filing a
grievance 	over 	the 	investigative 	report 	because 	it 	would 	onlygrievance over the investigative report because it would only
"make matters worse." The next day, Monsoor was presented with	"make 	matters 	worse." 	The 	next 	day, 	Monsoor 	was 	presented 	with
a 	written 	counseling 	report, 	referred 	to 	at 	p. 	12 	of 	the	a written counseling report, referred to at p. 12 of the
proposed 	decision, 	and 	transferred 	to 	an 	all-male 	ward.
According 	to 	his 	testimony, 	Burns 	again 	advised 	him 	not 	to 	file
a 	grievance 	because 	it 	might 	just 	make 	matters 	worse.
proposed decision, and transferred to an all-male ward.
Monsoor 	received 	three 	probationary 	reports 	during 	his
tenure 	at 	Camarillo. 	The 	first 	covered 	the 	period 	of 	September
and 	October 	of 	1978. 	The 	second 	covered 	the 	period 	of 	November
and 	December 	1978. 	The 	third 	and 	final 	report 	covered 	the
month 	of 	January 	1979. 	The 	hearing 	officer's 	summary 	of 	the
contents 	of 	those 	reports 	at 	pages 	12-14 	of 	the 	proposed
decision, 	is 	free 	of 	prejudicial 	error 	and 	is 	adopted 	as 	the
findings 	of 	the 	Board.
Monsoor received three probationary reports during his
The 	record 	reflects 	that 	Monsoor 	was 	rated 	on 	his
probationary 	reports 	by 	John Magallanes, 	a 	second-level
supervisory 	psychiatric 	technician, 	who 	considered 	input 	from
first-level 	supervisors 	and 	direct 	observation. 	Magallanes
testified 	that 	he 	came 	to 	the 	decision 	to 	reject Monsoor 	from
probation 	independently. 	Neither 	Rust, 	Burns, 	Foster, 	Davis,
Personnel 	Officer 	JoAnne 	Newton, 	or 	any 	other 	person 	instructed
him 	to 	recommend 	that Monsoor 	be 	rejected 	from 	probation, 	or
attempted 	to 	influence 	him 	to 	so 	recommend. 	According 	to
Magallanes, 	he 	based 	this 	decision 	upon 	his 	observation 	of
The record reflects that Monsoor was rated on his
12
According to his testimony, Burns again advised him not to file
a grievance because it might just make matters worse.
tenure at Camarillo. The first covered the period of September
and October of 1978. The second covered the period of November
and December 1978. The third and final report covered the
month of January 1979. The hearing officer's summary of the
contents of those reports at pages 12-14 of the proposed
decision, is free of prejudicial error and is adopted as the
findings of the Board.
probationary reports by John Magallanes, a second-level
supervisory psychiatric technician, who considered input from
first-level supervisors and direct observation. Magallanes
testified that he came to the decision to reject Monsoor from
probation independently. Neither Rust, Burns, Foster, Davis,
Personnel Officer JoAnne Newton, or any other person instructed
him to recommend that Monsoor be rejected from probation, or
attempted to influence him to so recommend. According to
Magallanes, he based this decision upon his observation of

Monsoor's 	job-related 	problems 	and 	the 	reports 	of 	such 	problems
relayed 	to 	him 	by 	others. 	After 	preparing 	the 	final
probationary 	report, 	Magallanes 	had 	it 	reviewed 	by 	his 	program
director, 	Donald 	Burns, 	who 	was 	the 	reviewing 	officer 	on
Monsoor's 	reports. 	Then, 	because 	he 	had 	never 	rejected 	an
employee 	before 	and 	wanted 	to 	be 	certain 	that 	the 	report 	was
properly 	prepared 	and 	fully 	documented, 	he 	asked 	Executive
Director 	Rust 	to 	review 	it. 	Rust 	did 	so 	and 	told 	Magallanes
that 	it 	was 	sufficient. 	After 	double-checking 	the 	report 	with
Burns 	and 	Rust, 	Magallanes 	informed 	Monsoor 	that 	he 	would 	be
rejected 	on 	his 	final 	probation 	report 	and 	advised 	him 	that 	he
could 	contact 	a 	union 	representative 	if 	he 	so 	desired.
Monsoor's job-related problems and the reports of such problems
Monsoor 	testified 	that, 	when Magallanes 	informed 	him 	that
he 	would 	be 	rejected 	from 	probation, 	Magallanes 	also 	told 	him
that 	Rust 	had 	instructed 	him 	not 	to 	reconsider 	the 	decision 	to
reject 	him. 	He 	further 	testified 	that 	Magallanes 	told 	him 	that
he 	would 	write 	down 	comments 	that 	would 	be 	favorable 	to Monsoor
and 	that Monsoor 	could 	then 	successfully 	appeal 	to 	the 	State
Personnel 	Board 	and 	be 	reinstated. 	Magallanes' 	testimony
directly 	conflicts 	with 	Monsoor's 	in 	this 	regard.
Monsoor testified that, when Magallanes informed him that
Regarding 	the 	claim 	by Monsoor 	that Mamie 	Davis, 	acting
director, 	threatened 	in 	early 	December 	of 	1978 	that 	he 	would 	be
rejected 	from 	probation 	if 	he 	persisted 	in 	pressing
housing-related 	complaints, 	Davis 	testifed 	that 	she 	was
Regarding the claim by Monsoor that Mamie Davis, acting
13	13
relayed to him by others. After preparing the final
probationary report, Magallanes had it reviewed by his program
director, Donald Burns, who was the reviewing officer on
Monsoor's reports. Then, because he had never rejected an
employee before and wanted to be certain that the report was
properly prepared and fully documented, he asked Executive
Director Rust to review it. Rust did so and told Magallanes
that it was sufficient. After double-checking the report with
Burns and Rust, Magallanes informed Monsoor that he would be
rejected on his final probation report and advised him that he
could contact a union representative if he so desired.
he would be rejected from probation, Magallanes also told him
that Rust had instructed him not to reconsider the decision to
reject him. He further testified that Magallanes told him that
he would write down comments that would be favorable to Monsoor
and that Monsoor could then successfully appeal to the State
Personnel Board and be reinstated. Magallanes' testimony
directly conflicts with Monsoor's in this regard.
director, threatened in early December of 1978 that he would be
rejected from probation if he persisted in pressing
housing-related complaints, Davis testifed that she was

contacted 	by Monsoor, 	and 	invited 	him 	to 	meet 	with 	her 	again
regarding 	the 	regulations 	he 	wanted 	changed. 	Monsoor 	told 	her
he 	had 	met 	with 	her 	once 	and 	didn't 	want 	to 	meet 	with 	her
again.	again. 	Davis 	denied 	that 	she 	told 	Monsoor 	not 	to 	pursue
housing 	complaints, 	that 	he 	should 	not 	attempt 	to 	get 	others
involved, 	or 	that 	he 	would 	be 	evicted 	from 	employee 	housing 	or
fired 	if 	he 	didn't 	drop 	the 	matter.
contacted by Monsoor, and invited him to meet with her again
Donald 	Burns, 	program 	director 	for 	the 	children's 	program
in 	which Monsoor 	was 	employed, 	acted 	as 	reviewing 	officer 	on
Monsoor's 	probationary 	reports. 	He 	was 	involved 	in 	determining
what 	course 	of 	action 	should 	be 	taken 	regarding 	the 	allegations
of 	sexual 	harassment 	made 	by 	a 	patient 	against 	Monsoor. 	After
consultation 	with 	Personnel 	Officer 	JoAnne 	Newton, 	Burns
determined 	that 	Monsoor 	should 	receive 	a 	written 	counseling 	and
be 	transferred 	to 	an 	all-male 	ward. 	Burns 	met 	with Monsoor,
Foster, 	and 	Galgano 	on 	January 	2 and 	3, 	and 	informed 	Monsoor 	of
the 	written 	counseling 	and 	transfer. 	Burns 	testified 	that 	at
no 	time 	during 	those 	meetings 	did 	he, 	Foster, 	or 	anyone 	else
tell Monsoor 	that 	higher 	administration was 	pressuring 	them 	to
reject 	Monsoor 	from 	probation 	in 	retaliation 	for 	his 	housing
complaints. 	He 	further 	denies 	that 	he 	or 	anyone 	else 	told
Monsoor 	that 	he 	should 	not 	file 	a 	grievance.
Donald Burns, program director for the children's program
On 	about 	January 	28, 	1979, 	Burns 	became 	aware 	of 	the
special 	incident 	report 	(proposed 	decision, 	p. 	12) 	regarding
Monsoor's 	failure 	to 	return 	the 	medication 	keys 	to 	the 	next
On about January 28, 1979, Burns became aware of the
14	14
regarding the regulations he wanted changed. Monsoor told her
he had met with her once and didn't want to meet with her
Davis denied that she told Monsoor not to pursue
housing complaints, that he should not attempt to get others
involved, or that he would be evicted from employee housing or
fired if he didn't drop the matter.
in which Monsoor was employed, acted as reviewing officer on
Monsoor's probationary reports. He was involved in determining
what course of action should be taken regarding the allegations
of sexual harassment made by a patient against Monsoor. After
consultation with Personnel Officer JoAnne Newton, Burns
determined that Monsoor should receive a written counseling and
be transferred to an all-male ward. Burns met with Monsoor,
Foster, and Galgano on January 2 and 3, and informed Monsoor of
the written counseling and transfer. Burns testified that at
no time during those meetings did he, Foster, or anyone else
tell Monsoor that higher administration was pressuring them to
reject Monsoor from probation in retaliation for his housing
complaints. He further denies that he or anyone else told
Monsoor that he should not file a grievance.
special incident report (proposed decision, p. 12) regarding
Monsoor's failure to return the medication keys to the next

shift 	upon 	leaving 	the 	ward. 	He 	discussed 	this 	report 	and 	the
earlier 	sexual 	misconduct 	report 	with 	Newton, 	and 	they 	jointly
concluded 	that 	rejecting Monsoor 	from 	probation 	would 	be 	an
appropriate 	course 	of 	conduct 	at 	that 	time. 	Either 	January 	29
or 	30, 	Burns 	reviewed 	the 	final 	probation 	report 	prepared 	by
Magallanes, 	and 	approved 	the 	recommendation 	that 	Monsoor 	be
rejected 	from 	probation. 	Burns 	had 	not 	contacted Magallanes
regarding 	his 	consultation 	with 	Newton, 	nor 	in 	any 	other 	manner
influence Magallanes' 	recommendation.
shift upon leaving the ward. He discussed this report and the
The 	testimony 	of 	Foster, 	assistant 	program manager,
corroborates 	Burns' 	testimony 	to 	the 	effect 	that 	neither
Foster, 	Burns 	nor 	anyone 	else 	told Monsoor 	that 	higher
administration 	was 	pressuring 	them 	to 	reject 	him 	from 	probation
due 	to 	his 	tenant 	activity, 	or 	that 	he 	should 	not 	file 	a
grievance.
The testimony of Foster, assistant program manager,
Newton's 	testimony 	corroborates 	that 	of 	Burns' 	regarding
consultations 	relating 	to Monsoor's 	misconduct.
Newton's testimony corroborates that of Burns' regarding
The 	hearing 	officer 	makes 	reference 	to 	a 	memo 	bearing 	the
signature of I. H. Perkins to Jack Gallisdorfer, chief of
hospital 	services 	at 	the 	State 	level, 	regarding 	follow-up 	of
the 	investigation 	of 	alleged 	sexual 	harassment 	of 	a 	patient 	by
Monsoor. 	That 	memo, 	dated 	January 	23, 	1979, 	indicates 	to
Gallisdorfer 	that, 	as 	a 	result 	of 	his 	review 	of 	the
investigation 	and 	follow-up, 	" 	. after intervention by the
The hearing officer makes reference to a memo bearing the
15	15
earlier sexual misconduct report with Newton, and they jointly
concluded that rejecting Monsoor from probation would be an
appropriate course of conduct at that time. Either January 29
or 30, Burns reviewed the final probation report prepared by
Magallanes, and approved the recommendation that Monsoor be
rejected from probation. Burns had not contacted Magallanes
regarding his consultation with Newton, nor in any other manner
influence Magallanes' recommendation.
corroborates Burns' testimony to the effect that neither
Foster, Burns nor anyone else told Monsoor that higher
administration was pressuring them to reject him from probation
due to his tenant activity, or that he should not file a
grievance.
consultations relating to Monsoor's misconduct.
signature 	of 	I. 	H. 	Perkins 	to 	Jack 	Gallisdorfer, 	chief 	~f
hospital services at the State level, regarding follow-up of
the investigation of alleged sexual harassment of a patient by
Monsoor. That memo, dated January 23, 1979, indicates to
Gallisdorfer that, as a result of his review of the
investigation and follow-up, 	• 	after 	intervention 	by 	the

Executive 	Director 	and 	myself 	a 	decision 	has 	been 	made 	to
terminate 	Thomas 	Monsoor 	from 	his 	temporary 	appointment."
Executive Director and myself a decision has been made to
Perkins, 	the 	acting 	medical 	director, 	testified 	that 	he 	did
not 	recall 	writing 	or 	signing 	that 	memorandum, 	and 	that 	in 	any
event 	he 	did 	not 	become 	involved 	in 	or 	intervene 	with 	program
management 	in 	any 	manner 	regarding 	Monsoor's 	rejection 	from
probation.
Perkins, the acting medical director, testified that he did
Clinton 	Rust, 	the 	executive 	director 	of 	Camarillo,
testified 	that 	he 	became 	aware 	of Monsoor's 	employment 	at
Camarillo during 	the 	fall 	of 	1978, 	after 	seeing 	his 	name 	in 	an
employee 	newsletter. 	He 	was 	dismayed 	when 	he 	became 	aware 	of
this 	because 	he 	had 	prior 	first-hand 	experience 	with 	Monsoor
while 	he 	was 	personnel 	officer 	at 	Napa 	State 	Hospital 	in 	1971.
According 	to 	his 	testimony, 	it 	had 	been 	Rust's 	responsibility
at 	that 	time 	to 	evict Monsoor 	from 	employee 	housing, 	which
Monsoor 	had 	apparently 	obtained 	under 	false 	pretenses, 	while
not 	employed 	at 	Napa. 	Rust 	recalled 	that Monsoor 	had 	been
rejected 	by 	a 	hiring 	panel 	at 	Napa 	State 	Hospital 	on 	at 	least
one 	occasion. 	Because 	of 	his 	prior 	adverse 	experience 	with
Monsoor, 	Rust 	decided 	to 	engage 	in 	his 	own 	check 	of 	Monsoor's
references. 	According 	to 	Rust's 	testimony, 	he 	was 	told 	that
Monsoor 	had 	quit 	a 	job 	at 	Plainsfield 	School due 	to 	inability
to 	get 	along 	with 	other 	counselors 	and 	that 	he 	had 	resigned
from 	a 	CETA 	funded 	project 	a 	month 	before 	the 	project's
conclusion. 	He 	was 	told 	by 	a 	contact 	at 	Sonoma 	State 	Hospital
Clinton Rust, the executive director of Camarillo,
16	16
terminate Thomas Monsoor from his temporary appointment."
not recall writing or signing that memorandum, and that in any
event he did not become involved in or intervene with program
management in any manner regarding Monsoor's rejection from
probation.
testified that he became aware of Monsoor's employment at
Camarillo during the fall of 1978, after seeing his name in an
employee newsletter. He was dismayed when he became aware of
this because he had prior first-hand experience with Monsoor
while he was personnel officer at Napa State Hospital in 1971.
According to his testimony, it had been Rust's responsibility
at that time to evict Monsoor from employee housing, which
Monsoor had apparently obtained under false pretenses, while
not employed at Napa. 	Rust recalled that Monsoor had been
rejected by a hiring panel at Napa State Hospital on at least
one occasion. Because of his prior adverse experience with
Monsoor , Rust decided to engage in his own check of Monsoor's
references. According to Rust's testimony, he was told that
Monsoor had quit a job at Plainsfield School due to inability
to get along with other counselors and that he had resigned
from a CETA funded project a month before the project's
conclusion. He was told by a contact at Sonoma State Hospital

that Monsoor 	had 	been 	employed 	there 	for 	a 	time 	and 	had 	left
under 	unspecified 	"unfavorable 	circumstances."
that Monsoor had been employed there for a time and had left
Rust 	felt 	that Monsoor 	should 	have 	listed 	his 	prior
employment 	at 	Sonoma 	State 	Hospital 	on 	his 	application 	and 	that
his 	failure 	to 	do 	so 	reflected 	adversely 	on 	him. 	In 	light 	of
all 	of 	the 	above 	factors, 	Rust 	concluded 	that 	Monsoor 	would 	not
be 	a 	good 	State 	employee 	at 	some 	point 	during 	late 	fall 	of
1978. 	However, 	according 	to 	his 	testimony, 	he 	did 	not
intervene 	or 	contact 	program management 	in 	an 	attempt 	to
influence 	their 	decision 	regarding 	Monsoor. 	He 	felt 	that
Monsoor 	would 	likely 	have 	job-related 	problems 	during 	his
probationary 	period, 	and 	that 	program management 	would 	likely
reject 	him 	on 	their 	own. 	Although 	his 	testimony 	was 	that 	he
intended 	to 	intervene 	if 	it 	was 	not 	the 	decision 	of 	program
management 	to 	reject Monsoor, 	it 	was 	not 	necessary 	for 	him 	to
do 	so. 	His 	first 	involvement 	in Monsoor's 	rejection 	from
probation 	was 	his 	review, 	at 	Magallanes' 	invitation, 	of
Monsoor's 	probation 	report, 	which 	he 	approved.
Rust felt that Monsoor should have listed his prior
Rust 	became 	aware 	of Monsoor's 	signature 	on 	a 	petition
regarding 	housing 	issues 	during 	mid-December, 	following 	his
check 	of Monsoor's 	references 	and 	after 	formulating 	his 	opinion
that 	Monsoor 	woul9 	not 	make 	a 	good 	State 	employee. 	Upon 	seeing
Monsoor's 	name, 	which 	was 	near 	the 	top 	of 	the 	list, 	he 	assumed
that 	Monsoor 	may 	have 	been 	active 	in 	preparing 	the 	petition.
He 	took 	no 	action 	in 	response 	to 	the 	housing 	petition.
Rust became aware of Monsoor's signature on a petition
17	17
under unspecified "unfavorable circumstances."
employment at Sonoma State Hospital on his application and that
his failure to do so reflected adversely on him. In light of
all of the above factors, Rust concluded that Monsoor would not
be a good State employee at some point during late fall of
1978. However, according to his testimony, he did not
intervene or contact program management in an attempt to
influence their decision regarding Monsoor. He felt that
Monsoor would likely have job-related problems during his
probationary period, and that program management would likely
reject him on their own. Although his testimony was that he
intended to intervene if it was not the decision of program
management to reject Monsoor, it was not necessary for him to
do so. His first involvement in Monsoor's rejection from
probation was his review, at Magallanes' invitation, of
Monsoor's probation report, which he approved.
regarding housing issues during mid-December, following his
check of Monsoor's references and after formulating his opinion
that Monsoor would not make a good State employee. Upon seeing
Monsoor's name, which was near the top of the list, he assumed
that Monsoor may have been active in preparing the petition.
He took no action in response to the housing petition.

Regarding 	the 	memo 	from 	Perkins 	to 	Gallisdorfer, 	referenced
above, 	Rust 	testified 	that 	he 	did 	not 	become 	aware 	of 	it 	until
after 	he 	reviewed Monsoor's 	rejection 	from 	probation 	prepared
by Magallanes 	and 	signed 	the 	letter 	of 	rejection 	prepared 	by
the 	Attorney General.
Regarding the memo from Perkins to Gallisdorfer, referenced
Monsoor 	appealed 	his 	rejection 	from 	probation 	to 	the 	State
Personnel 	Board 	(SPB), 	which 	held 	a 	hearing 	on Monsoor's 	appeal
on May 	22, 	1979, 	at 	which 	Monsoor 	testified 	on 	his 	own 	behalf.
At 	the 	SPB 	hearing, 	Monsoor 	did 	not 	make 	reference 	to 	his
tenant 	activity. 	He 	did 	not 	testify as 	to 	the 	threat 	allegedly
made 	by 	Davis 	that 	he 	would 	be 	terminated 	if 	he 	persisted 	in
his 	housing-related 	activities. 	He 	did 	not 	testify 	as 	to 	the
alleged 	statement 	by 	Burns 	or 	Foster 	that 	higher 	administration
had 	pressured 	them 	to 	terminate 	him 	because 	of 	his 	tenant
activity. 	He 	did 	not 	present 	any 	evidence 	or 	himself 	testify
to 	any 	reason 	why 	management 	harbored 	animus 	against 	him 	for
organizing 	or 	for 	any 	other 	reason.
Monsoor appealed his rejection from probation to the State
organizing or for any other reason.
The 	SPB 	rejected 	Monsoor's 	appeal, 	finding 	that 	he 	was
rejected 	due 	to 	his 	"defective 	performance."
The SPB rejected Monsoor's appeal, finding that he was
As 	noted 	above, 	the 	hearing 	officer 	failed 	to 	render
crucial 	credibility 	resolutions. 	The 	Board must 	thus 	render
such 	resolutions 	without 	benefit 	of 	observation 	of 	the
testimonial 	demeanor 	of 	the 	witnesses. 	Based 	upon 	a 	close 	and
careful 	reading 	of 	the 	testimony 	in 	the 	case 	we 	find 	Monsoor's
testimony 	to 	be 	internally 	inconsistent, 	exaggerated, 	coached,
As noted above, the hearing officer failed to render
18	18
above, Rust testified that he did not become aware of it until
after he reviewed Monsoor's rejection from probation prepared
by Magallanes and signed the letter of rejection prepared by
the Attorney General.
Personnel Board (SPB) , which held a hearing on Monsoor's appeal
on May 22, 1979, at which Monsoor testified on his own behalf.
At the SPB hearing, Monsoor did not make reference to his
tenant activity. He did not testify as to the threat allegedly
made by Davis that he would be terminated if he persisted in
his housing-related activities. He did not testify as to the
alleged statement by Burns or Foster that higher administration
had pressured them to terminate him because of his tenant
activity. He did not present any evidence or himself testify
to any reason why management harbored animus against him for
rejected due to his "defective performance."
crucial credibility resolutions. The Board must thus render .
such resolutions without benefit of observation of the
testimonial demeanor of the witnesses. Based upon a close and
careful reading of the testimony in the case we find Monsoor's
testimony to be internally inconsistent, exaggerated, coached,

and 	inherently 	incredible 	in 	certain 	instances.	and inherently incredible in certain instances. We further 	6 	We 	further
note 	that 	his 	testimony 	is 	uncorroborated. 	Where 	his 	testimony
conflicts 	with 	that 	of 	Respondent's 	witnesses 	in 	areas 	referred
to 	below, 	we 	credit 	the 	internally 	consistent, 	inherently
credible, 	and 	independently 	corroborated 	testimony 	of
Respondent's 	witnesses.
note that his testimony is uncorroborated. Where his testimony
?h 	Thus, 	we 	do 	not 	find 	that 	Davis
For example, Monsoor characterized his tenant conduct as	6For 	example, 	Monsoor 	characterized 	his 	tenant 	conduct 	as
"forming 	a 	union", 	"forming 	an 	organization", 	"participating 	in
the 	activities 	of 	forming, 	you 	know, 	an 	employee 	organization",
parroting 	statutory 	language 	and 	"buzz 	words" 	in 	a 	manner 	which
was 	exaggerated 	and 	coached. 	At 	one 	point 	he 	testified 	that 	he
was 	warned 	not 	to 	file 	a 	grievance 	over 	being counseled 	and
transferred 	following 	the 	accusation 	of 	sexual 	harassment
because 	it 	would 	only 	intensify 	higher 	management's 	desire 	to
, reject 	him 	from 	probation 	because 	of 	his 	tenant 	activism, 	and
at 	another 	point 	indicated 	that 	the 	reason 	he 	was 	told 	not 	to
file 	a 	grievance 	was 	because 	it 	was 	not 	a 	matter 	which 	fell
within 	the 	grievance 	procedure.
"forming a union", "forming an organization", "participating in
His 	testimony 	regarding 	his 	conversation 	with 	Magallanes
informing 	him 	of 	his 	rejection 	from 	probation 	is 	inherently
incredible. 	He 	first 	stated 	that 	Magallanes 	initially 	told 	him
that 	he 	could 	tear 	up 	the 	counseling 	reports 	which 	provided
part 	of 	the 	documentation 	supporting 	the 	rejection 	from
probation. 	Then, 	he 	stated 	that 	Magallanes 	told 	him 	that 	he
should 	not 	tear 	up 	the 	counseling 	sheets. 	Instead, 	according
to Monsoor, 	Magallanes 	told 	him 	to 	write 	down 	comments
regarding 	the 	counseling, 	and 	that 	he 	(Magallanes) 	would 	sign
those 	comments 	and 	add 	comments 	favorable 	to Monsoor.
His testimony regarding his conversation with Magallanes
Then, 	according 	to Monsoor, 	Magallanes 	told 	him 	that, 	with
those 	comments 	attached, 	Monsoor 	would 	appeal 	his 	rejection 	to
the 	SPB and 	would 	win 	his 	appeal.
Then, according to Monsoor, Magallanes told him that, with
77As 	an 	additional 	basis 	for 	discrediting 	Monsoor, 	we 	note
his 	failure 	to 	raise 	the 	alleged 	expressions 	of 	threats 	or
animus 	before 	the 	SPB. 	We 	recognize 	that 	the 	issues 	before 	the
SPB 	were 	different, 	and 	that 	it 	would 	theoretically 	be 	possible
for 	him 	to 	be 	successful 	in 	his 	SPB 	appeal 	by 	simply proving
that 	the 	allegations 	of 	misconduct 	against 	him 	were 	without
merit. 	Thus, 	it 	is 	possible 	that 	he 	chose 	not 	to 	raise 	the
alleged 	threats 	and 	animus 	against 	him 	before 	the 	SPB 	for
As an additional basis for discrediting Monsoor, we note
19	19
conflicts with that of Respondent's witnesses in areas referred
to below, we credit the internally consistent, inherently
credible, and independently corroborated testimony of
Respondent's witnesses. 7 T us, we do not find that Davis
the activities of forming, you know, an employee organization",
parroting statutory language and "buzz words" in a manner which
was exaggerated and coached. At one point he testified that he
was warned not to file a grievance over being counseled and
transferred following the accusation of sexual harassment
because it would only intensify higher management's desire to
reject him from probation because of his tenant activism, and
at another point indicated that the reason he was told not to
file a grievance was because it was not a matter which fell
within the grievance procedure.
informing him of his rejection from probation is inherently
incredible. He first stated that Magallanes initially told him
that he could tear up the counseling reports which provided
part of the documentation supporting the rejection from
probation. Then, he stated that Magallanes told him that he
should not tear up the counseling sheets. Instead, according
to Monsoor, Magallanes told him to write down comments
regarding the counseling, and that he (Magallanes) would sign
those comments and add comments favorable to Monsoor.
those comments attached, Monsoor would appeal his rejection to
the SPB and would win his appeal.
his failure to raise the alleged expressions of threats or
animus before the SPB. We recognize that the issues before the
SPB were different, and that it would theoretically be possible
for him to be successful in his SPB appeal by simply proving
that the allegations of misconduct against him were without
merit. Thus, it is possible that he chose not to raise the
alleged threats and animus against him before the SPB for

threatened Monsoor 	with 	discharge 	if 	he 	persisted 	in 	his
housing 	complaints. 	we 	further 	conclude 	that 	neither 	Foster,
Burns 	nor 	any 	other 	management 	representative 	told Monsoor 	that
higher 	administration 	was 	pressuring 	him 	to 	terminate 	Monsoor,
or 	that 	if 	he 	filed 	a 	grievance 	it 	would 	make 	matters 	worse.
threatened Monsoor with discharge if he persisted in his
In 	sum, 	we 	find 	that, 	as 	noted 	above, 	Monsoor 	engaged 	in
protected 	conduct 	and 	that 	the 	employer 	had 	knowledge 	thereof.
We 	find 	further, 	however, 	that 	Monsoor 	engaged 	in 	numerous
violations 	of 	working 	rules 	and 	evidenced 	poor 	judgment 	on
numerous 	occasions 	during 	his 	six-month 	probationary 	period.
At 	least 	two 	of 	these 	transgressions 	were 	of 	such 	a 	serious
nature 	that 	incident 	reports 	regarding 	them 	reached 	high-level
administrators 	of 	the 	hospital, 	including 	Executive 	Director
Rust.	Rust. 	One 	of 	these 	involved 	alleged 	sexual 	abuse 	of 	a 	patient,
and 	the 	other 	involved 	failure 	to 	pass 	the 	medication 	room 	keys
along 	to 	the 	next 	shift, 	resulting 	in 	a 	delay 	in 	receipt 	of
necessary 	medicines 	by 	patients.
In sum, we find that, as noted above, Monsoor engaged in
The 	hearing 	officer 	found 	that 	the 	discharge 	of Monsoor 	was
not 	accomplished 	through 	ordinary 	channels. 	He 	based 	this
finding 	solely on 	his 	determination 	that 	Rust 	involved 	himself
The hearing officer found that the discharge of Monsoor was
tactical 	reasons. 	However, 	evidence 	of 	threats 	and 	animus
would 	certainly 	have 	been 	helpful 	to 	him 	before 	the 	SPB
because, 	if 	credited, 	it 	would 	have 	at 	least 	demonstrated 	bias
on 	the 	part 	of 	the 	employer's 	witnesses. 	We 	find 	his 	failure
to 	raise 	such 	evidence 	before 	the 	SPB 	renders 	his 	testimony
regarding 	it, 	raised 	for 	the 	first 	time 	before 	PERB, 	somewhat
suspect.
tactical reasons. However, evidence of threats and animus
20	20
housing complaints. We further conclude that neither Foster,
Burns nor any other management representative told Monsoor that
higher administration was pressuring him to terminate Monsoor,
or that if he filed a grievance it would make matters worse.
protected conduct and that the employer had knowledge thereof.
We find further, however, that Monsoor engaged in numerous
violations of working rules and evidenced poor judgment on
numerous occasions during his six-month probationary period.
At least two of these transgressions were of such a serious
nature that incident reports regarding them reached high-level
administrators of the hospital, including Executive Director
One of these involved alleged sexual abuse of a patient,
and the other involved failure to pass the medication room keys
along to the next shift, resulting in a delay in receipt of
necessary medicines by patients.
not accomplished through ordinary channels. He based this
finding solely on his determination that Rust involved himself
would certainly have been helpful to him before the SPB
because, if credited, it would have at least demonstrated bias
on the part of the employer's witnesses. We find his failure
to raise such evidence before the SPB renders his testimony
regarding it, raised for the first time before PERB, somewhat
suspect.

in 	the 	decision 	to 	terminate Monsoor, 	and 	that 	this 	involvement
was 	in 	retaliation 	for 	Monsoor's 	housing-related 	protected
conduct.
in the decision to terminate Monsoor, and that this involvement
We 	conclude, 	on 	the 	contrary, 	that 	Magallanes 	came 	to 	an
independent 	decision 	to 	reject Monsoor 	from 	probation, 	based
entirely 	upon 	work-related 	factors. 	We 	find 	that 	neither 	Rust
nor 	any 	other 	representative 	of 	management 	intervened 	in 	the
formulation 	of 	this 	decision. 	It 	is 	quite 	likely 	that, 	had
Magallanes 	not 	recommended 	that Monsoor 	be 	rejected 	from
probation 	on 	or 	about 	January 	28, 	1979, 	either 	Burns, 	Newton,
or 	Rust 	would 	have 	countermanded 	his 	decision 	and 	attempted 	to
reject 	Monsoor. 	However, 	because 	Magallanes 	determined 	himself
that Monsoor 	should 	be 	terminated, 	it 	became 	unnecessary 	for
anyone 	to 	intervene.
We conclude, on the contrary, that Magallanes came to an
In 	Novato 	Unified 	School 	District 	(4/30/82) 	PERB 	Decision
No.	No. 	210, 	we 	clarified 	the 	test 	for 	violation 	of 	subsection
3543.5(a) 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA)
210, we clarified the test for violation of subsection
In Novato Unified School District (4/30/82) PERB Decision
8
88EERA 	is 	codified 	at 	section 	3540 	et 	seq. 	of 	the
Government 	Code. 	Subsection 	3543.5(a) 	provides 	as 	follows:
EERA is codified at section 3540 et seq. of the
3543.5. 	It 	shall 	be 	unlawful 	for 	a 	public
school 	employer 	to:
3543.5. It shall be unlawful for a public
school employer to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, to discriminate or threaten to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(a)
21	21
was in retaliation for Monsoor's housing-related protected
conduct.
independent decision to reject Monsoor from probation, based
entirely upon work-related factors. We find that neither Rust
nor any other representative of management intervened in the
formulation of this decision. It is quite likely that, had
Magallanes not recommended that Monsoor be rejected from
probation on or about January 28, 1979, either Burns, Newton,
or Rust would have countermanded his decision and attempted to
reject Monsoor. However, because Magallanes determined himself
that Monsoor should be terminated, it became unnecessary for
anyone to intervene.
8
Government Code. Subsection 3543.5(a) provides as follows:
Impose or threaten to impose reprisals
on 	em~loyees, 	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.
3543.5 (a) of the Educational Employment Relations Act (EERA)

in 	cases 	in 	which 	it 	is 	alleged 	that 	the 	employer 	has 	taken
reprisals 	against 	employees 	in 	retaliation 	for 	exercise 	of
protected 	activity. 	Stated 	simply, 	the 	charging 	party must
demonstrate 	that 	the 	employer 	would 	not 	have 	so 	acted 	but 	for
the 	employee's 	participation 	in 	protected 	activity.
in cases in which it is alleged that the employer has taken
9
Recognizing 	that 	the 	charging 	party 	can 	seldom demonstrate 	this
by 	direct 	evidence 	of 	proscribed 	motivation, 	we 	indicated 	the
manner 	by 	which 	this 	may 	be 	proven.
Recognizing that the charging party can seldom demonstrate this
Under 	the 	test 	of 	Novato, 	supra, 	a 	party 	alleging 	a
violation 	of 	subsection 	3519(a) 	has 	the 	burden 	of 	making 	a
showing 	sufficient 	to 	support 	the 	inference 	that 	protected
conduct 	was 	a 	motivating 	factor 	in 	the 	employer's 	decision 	to
take 	adverse 	personnel 	action. 	Such 	a 	nexus 	between 	protected
activity 	and 	the 	personnel 	action 	taken 	may 	be 	demonstrated 	by
circumstantially-raised implication. Novato, supra, at p. 6;
Republic 	Aviation 	Corp. 	v. 	NLRB 	(1945) 	324 	U.S. 	793 	[16 	LRRM
620]. 	If 	this 	nexus 	is 	demonstrated, 	the 	employer 	has 	the
burden 	of 	demonstrating 	that 	it 	would 	have 	taken 	the 	same
action 	regardless 	of 	the 	employee's 	participation 	in 	protected
activity.
Under the test of Novato, supra, a party alleging a
9	In California State University, Sacramento (4/30/82)
PERB 	Decision 	No. 	211-H, 	we 	held 	that 	the 	same 	test 	was
applicable 	to 	such 	cases 	arising 	under 	subsection 	357l(a) 	of
HEERA. 	We 	hold 	that 	the 	same 	test 	applies 	to 	the 	identical
language 	of 	subsection 	3519(d) 	of 	SEERA.
1n
22	22
reprisals against employees in retaliation for exercise of
protected activity. Stated simply, the charging party must
demonstrate that the employer would not have so acted but for
the employee's participation in protected activity.9
by direct evidence of proscribed motivation, we indicated the
manner by which this may be proven.
violation of subsection 3519 (a) has the burden of making a
showing sufficient to support the inference that protected
conduct was a motivating factor in the employer's decision to
take adverse personnel action. Such a nexus between protected
activity and the personnel action taken may be demonstrated by
circumstantially-raised 	implication. 	Novato, 	supra, 	at 	p. 	6~
Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793 [16 LRRM
620]. If this nexus is demonstrated, the employer has the
burden of demonstrating that it would have taken the same
action regardless of the employee's participation in protected
activity.
California 	State 	University, 	Sacramento 	(4/30/82)
PERB Decision No. 211-H, we held that the same test was
applicable to such cases arising under subsection 3571 (a) of
HEERA. We hold that the same test applies to the identical
language of subsection 3519 (d) of SEERA.

A threshold 	element 	of 	the 	charging 	party's 	burden 	is 	the
demonstration 	that 	the 	employer 	had 	knowledge 	of 	the 	protected
activity. 	NLRB 	v. 	south 	Shore 	Hospital 	(1st 	Cir. 	1978) 	571
F.	F.2d 	677 	[97 	LRRM 	3004]. 	Here, 	as 	noted 	above, 	Monsoor 	has
demonstrated 	that 	he 	engaged 	in 	protected 	activity, 	and 	that
Respondent 	was 	aware 	of 	it. 	However, 	he 	has 	not 	shown
sufficient 	other 	elements 	to 	justify drawing 	the 	inference 	that
Respondent 	was 	unlawfully 	motivated 	in 	its 	decision 	to 	reject
him 	from 	probation. 	Factors 	such 	as
A threshold element of the charging party's burden is the
23
••• 	timing 	of 	the 	employer's 	conduct 	in
relation 	to 	the 	employee's 	performance 	of
protected 	activity, 	the 	employer's 	disparate
treatment 	of 	employees 	engaged 	in 	such
activity, 	its 	departure 	from 	established
procedures 	and 	standards 	when 	dealing 	with
such 	employees, 	and 	the 	employer's
inconsistent 	or 	contradictory 	justifications
for 	its 	actions 	are 	facts 	which 	may 	support
the 	inference 	of 	unlawful 	motive. 	Novato,	Novato,
supra, 	at 	p. 	7.
timing of the employer's conduct in
Further, 	credible 	evidence 	of 	anti-organizational 	animus 	would
support 	the 	drawing 	of 	such 	an 	inference. 	Our 	findings 	of 	fact
indicate 	the 	absence 	of 	suspicious 	timing. 	There 	is 	no
evidence 	that Monsoor 	engaged 	in 	any 	tenant 	activity 	following
his 	eviction 	from 	employee 	housing 	on 	December 	20, 	1978. 	He
was 	rejected 	from 	probation 	on 	about 	January 	28, 	1979, 	which
was 	at 	least 	six 	weeks 	after 	Rust 	and 	others 	in 	hospital
administration 	learned 	of 	his 	tenant 	activity. 	There 	was 	no
evidence 	that 	Respondent 	had 	retained 	other 	employees 	who 	had
committed 	the 	same 	type 	and 	number 	of 	work-related 	violations
Further, credible evidence of anti-organizational animus would
23
demonstration that the employer had knowledge of the protected
activity. NLRB v. South Shore Hospital (1st Cir. 1978) 571
2d 677 [97 LRRM 3004]. Here, as noted above, Monsoor has
demonstrated that he engaged in protected activity, and that
Respondent was aware of it. However, he has not shown
sufficient other elements to justify drawing the inference that
Respondent was unlawfully motivated in its decision to reject
him from probation. Factors such as
relation to the employee's performance of
protected activity, the employer's disparate
treatment of employees engaged in such
activity, its departure from established
procedures and standards when dealing with
such employees, and the employer's
inconsistent or contradictory justifications
for its actions are facts which may support
the inference of unlawful motive.
supra, at p. 7.
support the drawing of such an inference. Our findings of fact
indicate the absence of suspicious timing. There is no
evidence that Monsoor engaged in any tenant activity following
his eviction from employee housing on December 20, 1978. F
was rejected from probation on about January 28, 1979, which
was at least six weeks after Rust and others in hospital
administration learned of his tenant activity. There was no
evidence that Respondent had retained other employees who had
committed the same type and number of work-related violations

as 	did Monsoor. 	We 	cannot 	conclude 	that 	the 	employer 	departed
from 	established 	procedures 	and 	standards 	in 	dealing 	with
Monsoor. 	The 	employer 	did 	not 	offer 	inconsistent 	or
contradictory 	justifications 	for 	its 	actions. 	No 	credible
evidence 	of 	animus 	was 	presented. 	Thus, 	we 	are 	left 	with 	a
finding 	that 	Monsoor, 	with 	the 	employer's 	knowledge, 	engaged 	in
protected 	activity, 	but 	cannot 	infer 	that 	the 	required 	nexus
existed 	between 	the 	exercise 	of 	such 	activity 	and 	the 	rejection
of Monsoor 	from 	probation.I O
as did Monsoor. We cannot conclude that the employer departed
Because 	we 	find, 	in 	light 	of 	the 	credited 	testimony 	and 	the
record 	as 	a 	whole, 	that Monsoor 	has 	failed 	to 	introduce
evidence 	sufficient 	to 	raise 	the 	inference 	that 	Monsoor's
Because we find, in light of the credited testimony and the
10	10The 	hearing 	officer 	held 	that 	Rust 	made 	the 	decision 	to
reject Monsoor 	and 	that, 	while 	it 	could 	not 	be 	concluded 	that
his 	decision 	was 	based 	solely 	on Monsoor's 	protected 	conduct,
that activity was ". . 	. inextricably intertwined . .
Rust's 	decision 	to 	reject Monsoor 	from 	probation. 	We 	hold,
first, 	that Magallanes 	made 	the 	operative 	decision 	to 	terminate
Monsoor, 	and 	thus 	that 	Rust's 	willingness 	to 	bring 	this 	about
was 	short-circuited. 	Further, 	even 	if 	we 	were 	to 	find 	that
Rust 	harbored 	animus 	against 	Monsoor 	and 	intervened 	in 	his
rejection 	from 	probation 	due 	to 	that 	animus, 	we 	could 	not
conclude 	that 	Rust's 	animus 	against 	Monsoor 	had 	as 	its 	source
Monsoor's 	protected 	activity. 	The 	evidence 	indicates 	that 	Rust
harbored 	animosity 	toward 	Monsoor 	based 	upon 	his 	prior
unpleasant 	contacts 	with 	him 	and 	adverse 	reports 	from Monsoor's
references.	references. 	This 	animosity 	was 	cemented 	before 	Rust 	learned 	of
Monsoor's 	tenant-related 	activity. 	It 	would 	be 	too 	great 	a
leap 	of 	faith 	for 	us 	to 	conclude, 	based 	upon 	this 	record, 	that
animosity 	Rust 	felt 	for 	Monsoor 	was 	motivated 	by 	his 	knowledge
of 	Monsoor's 	tenant 	activities.
The hearing officer held that Rust made the decision to
24	24
from established procedures and standards in dealing with
Monsoor. The employer did not offer inconsistent or
contradictory justifications for its actions. No credible
evidence of animus was presented. Thus, we are left with a
finding that Monsoor, with the employer's knowledge, engaged in
protected activity, but cannot infer that the required nexus
existed between the exercise of such activity and the rejection
of Monsoor from probation. 10
record as a whole, that Monsoor has failed to introduce
evidence sufficient to raise the inference that Monsoor's
reject Monsoor and that, while it could not be concluded that
his decision was based solely on Monsoor's protected conduct,
that 	activity 	was" ••• 	inextricably 	intertwined 	•••	. " in	" 	in
Rust's decision to reject Monsoor from probation. We hold,
first, that Magallanes made the operative decision to terminate
Monsoor, and thus that Rust's willingness to bring this about
was short-circuited. Further, even if we were to find that
Rust harbored animus against Monsoor and intervened in his
rejection from probation due to that animus, we could not
conclude that Rust's animus against Monsoor had as its source
Monsoor's protected activity. The evidence indicates that Rust
harbored animosity toward Monsoor based upon his prior
unpleasant contacts with him and adverse reports from Monsoor's
This animosity was cemented before Rust learned of
Monsoor's tenant-related activity. It would be too great a
leap of faith for us to conclude, based upon this record, that
animosity Rust felt for Monsoor was motivated by his knowledge
of Monsoor's tenant activities.

protected 	activity 	was 	a 	motivating 	factor 	in 	Respondent's
decision 	to 	reject 	him 	from 	probation, 	we 	conclude 	that 	he 	has
failed 	to 	meet 	his 	burden, 	and 	thus 	find 	that 	Respondent 	did
not 	violate 	subsection 	3519(a).
protected activity was a motivating factor in Respondent's
ORDER	ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law 	and 	the 	entire
record 	in 	this 	case, 	it 	is 	hereby ORDERED 	that 	the 	charge 	that
Respondent 	violated 	subsection 	3519(a) 	of 	SEERA by 	rejecting
William 	Thomas Monsoor 	during 	probation 	is 	DISMISSED.
Upon the foregoing facts, conclusions of law and the entire
By : John W. Jaeger , Member 	Harry Gluck, Chairperson )
Virgil. Jensen
25	25
record in this case, it is hereby ORDERED that the charge that
Respondent violated subsection 3519(a) of SEERA by rejecting
William Thomas Monsoor during probation is DISMISSED.
decision to reject him from probation, we conclude that he has
failed to meet his burden, and thus find that Respondent did
not violate subsection 3519 (a) .