State of California (Department of Transportation) (PERB 0257S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE EMPLOYEES 	TRADES COUNCIL,
LOCAL 1268, LIUNA, AFL-CIO,
Charging 	Party,
v.
STATE OF CALIFORNIA, 	DEPARTMENT
OF 	TRANSPORTATION,
Respondent.
Case No. 	S-CE-26-S
PERB Decision No. 	257-S
November 16, 	1982
Appearances: 	Thomas E. 	Rankin, 	Attorney for 	State Employees
Trade Council, 	Local 1268, LIUNA, AFL-CIO; William M. McMillan,
and Barbara T. 	Stuart 	(Department 	of 	Personnel
Administration), 	Attorneys for 	State of California, 	Department
of 	Transportation.
Before Gluck, 	Chairperson; 	Tovar 	and Jensen, Members.
DECISION
GLUCK, 	Chairperson: 	The State of California, 	Department of
Transportation 	(Caltrans) 	excepts 	to a 	hearing officer's
proposed 	finding 	that 	it 	terminated 	Richard 	Delsigne, 	a 	shop
steward, 	because 	of 	his 	participation 	in protected 	activities.
The charging party, 	State Employees Trades Council, 	Local 1268,
LIUNA, AFL-CIO 	(SETC), 	claims that Caltrans' 	stated reasons for
his 	termination, 	including 	sleeping on 	the 	job, 	using 	racially
derogatory 	language, 	and 	poor 	work 	performance 	are 	pretexts 	to
disguise 	its 	anti-union animus. 	Caltrans 	denies 	such
motivation 	and 	that 	Delsigne 	was 	engaged 	in 	protected 	activity.
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FACTS
Delsigne 	was 	a 	highway equipment 	operator 	for 	14 	years 	at
the Department's 	Placerville yard. 	He 	was 	an 	active 	union
member 	and 	as 	an 	aggressive 	SETC 	shop steward 	since 	1979 	had
several meetings with Don Frohreich, 	the 	highway
superintendent, 	representing 	other 	grievants 	and 	himself.
Three 	punitive 	actions 	were 	taken 	against 	him 	since 	1975,
including 	a 	five-day 	suspension 	in January 	1980.
On February 20, 	1980, 	Delsigne received an anonymous phone
call 	that Frohreich was 	at 	the Carriage House, 	a local bar 	and
restaurant. 	Delsigne went 	there 	at 	approximately 	5:20 	p.m.,
with 	his 	friend 	Joel Espinoza, 	and 	photographed 	Frohreich
having a drink. 	Frohreich, 	angered, 	asked Delsigne; 	"What's
the 	idea of 	taking pictures?"
Delsigne 	replied 	to 	the 	effect:
What's 	the 	idea 	of 	giving me 	five 	days 	off
unnecessarily? 	I 	have 	a 	family 	like 	anyone
else 	and 	it was 	bad 	to give 	someone 	five
days off 	for 	what 	he 	said 	at 	a 	safety
meeting.
He 	then 	said 	he was 	going 	to 	take pictures 	of 	Frohreich's 	state
car 	which was 	parked 	outside. 	Another 	employee 	later 	came 	to
the 	Carriage 	House 	and 	drove 	the 	car 	away.
The 	following 	day, 	Frohreich 	called 	Delsigne 	into 	his
office, 	reprimanded 	him 	for 	taking 	the 	pictures 	and warned 	him
that 	punitive 	action 	and 	perhaps 	a 	civil 	suit 	could 	be 	filed
against 	him. 	Frohreich 	also called 	in Espinoza 	and 	another
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employee 	who 	had 	witnessed 	the 	event 	and 	told 	them 	virtually
the 	same 	thing. 	He did not, 	however, 	discipline 	those 	two
employees.
Shortly 	thereafter, 	Delsigne 	sent 	the pictures 	he 	had 	taken
to SETC, 	and 	asked 	it 	to 	file a 	complaint 	against Frohreich 	for
drinking while 	in possession of 	a 	state 	vehicle. 	The 	union
sent 	the pictures 	to 	the Caltrans1 district office 	in
Marysville 	and 	requested 	punitive 	action. 	Caltrans 	declined,
finding 	that 	Frohreich 	had 	not 	been 	drinking 	on 	company 	time,
and 	that 	he 	did 	not 	drive 	the 	state 	car 	after 	he 	had 	been
drinking.1
From 	this point on, 	Frohreich 	and 	his 	supervisors
documented 	every Delsigne 	transgression. 	In 	early April, 	he
was 	reprimanded 	for 	sleeping 	on 	the 	job. 	In writing 	up 	the
reprimand, 	Delsigne's 	supervisor 	also cited 	him 	for 	not 	wearing
his 	hard-hat 	or 	using 	his 	seat 	belt. 	Neither 	of 	these
"charges" 	had 	been mentioned 	to Delsigne 	prior 	to 	preparation
of 	the 	reprimand.
1Two 	years 	earlier, 	Delsigne 	and 	other 	employees 	had
filed 	charges 	against 	Frohreich 	for 	drinking 	while 	driving 	a
state 	vehicle 	and 	were 	told 	by Caltrans 1 district manager 	that
they 	could 	not 	prove 	their 	case 	without 	photographs. 	Frohreich
is 	assigned 	a 	state car 	on 	a 	24-hour 	per 	day, 	7-day per 	week
basis. 	Frohreich 	testified 	on 	cross-examination 	that 	he
"recently" 	had 	a 	drunk 	driving 	charge 	reduced 	to 	reckless
driving, 	although 	this 	did 	not occur 	during working 	hours 	or
involve 	a state car.
w	3

On April 	9, 	Frohreich wrote 	to 	the district maintenance
engineer 	requesting 	Delsigne's 	dismissal. 	He 	also 	asked
Jerry Hamm, 	another 	supervisor, 	for 	a 	letter 	complaining 	about
Delsigne.2 Melvin 	Fronk, 	a 	lead 	worker 	who 	considered
Delsigne's 	performance 	to 	be 	very 	good, 	was 	not 	consulted.
During 	the 	spring, 	Froerich 	counseled 	Delsigne 	concerning
his 	use 	of 	racially derogatory 	language. 	Such 	language 	was
common 	at 	the 	Placerville yard, 	but Frohreich 	had 	never
disciplined 	anyone 	for 	this 	reason.
On July 2, 	1980, 	Delsigne 	received his notice of
termination citing 	inefficiency, 	neglect 	of 	duties,
insubordination, 	and discourteous 	treatment 	of 	the public 	and
other 	employees. 	The 	notice 	specified 	Delsigne's 	telling
offensive 	ethnic 	jokes 	and 	using 	racially 	derogatory words;
photographing 	Frohreich 	at 	the Carriage House; 	aggravating
other 	crew members; 	sleeping on 	the 	job and 	not wearing 	a
hard-hat or 	using 	seat 	belts; 	referring 	to 	his 	supervisors 	as
"Hitler" 	and 	"dictator" 	and 	ridiculing 	another 	supervisor 	by
placing 	a 	cartoon on 	the 	bulletin 	board. 	A poor 	annual
2Another 	letter 	may 	have 	been 	solicited 	from 	a 	supervisor
who 	had 	worked 	with 	Delsigne 	some 	two 	years 	earlier. 	Frohreich
denies 	asking 	him 	to write 	it 	but did 	use 	it 	in preparing 	the
dismissal charges.
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performance 	rating 	and 	the 	derogatory 	letter 	solicited 	from 	one
of 	Designe's 	former 	supervisors 	were 	also 	cited.3
Delsigne 	appealed 	his 	termination 	to 	the 	State 	Personnel
Board 	and 	SETC 	filed 	this 	unfair 	practice 	charge 	alleging,
inter 	alia, 	that Caltrans had violated subsections 3519(a), 	(b)
and 	(d) 	of 	the State Employer-Employee Relations Act 	(SEERA) 	by
firing 	him 	for 	engaging 	in protected 	activities, 	namely
photographing 	Frohreich 	and 	posting 	materials 	on 	the 	union
bulletin 	board.4
RA
 3Delsigne 	denied only 	the 	charge 	that 	he 	had 	slept on 	the
job
resolutio
4 SEE
. 	SETC did 	not 	except 	to 	the 	hearing 	officer's 	adverse
n 	of 	the 	conflicting 	testimony.
Subsections 3519(a), 	(b) 	and 	(d) 	state:
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.
(b) 	Deny 	to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(d) 	Dominate or 	interfere with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or contribute financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join 	any organization 	in
preference 	to 	another.
un
4sEERA 	is 	codified 	at Government Code 	section 	3512 	et
seq. 	All 	references 	hereafter 	will 	be 	to 	the Government Code
unless 	otherwise 	indicated.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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DISCUSSION
The 	hearing 	officer 	determined 	that 	Delsigne 	would 	not 	have
been dismissed 	but 	for 	his 	taking Frohreich's picture, 	an act
she 	found 	to be protected5. 	Caltrans 	admits 	that 	its
decision 	to 	terminate 	Delsigne 	was 	influenced 	by 	this 	incident
but 	argues 	that 	his 	actions 	are 	not protected.6
Activity 	directed 	against 	a 	supervisor's 	performance 	has
been protected 	in 	the 	private 	sector 	when 	its 	purpose 	was 	to
advance 	the 	employees' 	interests 	in working conditions. 	In
Dreis & Krump Mfg. 	Co. 	v. 	NLRB 	(7th Cir. 	1976) 	544 F.2d 320
[93 LRRM 2739], 	an employee was reprimanded for 	the negligent
use of 	tools. 	He grieved 	this, 	contending 	that 	his 	supervisor
had 	not 	adequately 	trained 	him or 	informed 	him of 	safety
procedures. 	While 	the grievance was 	being processed, 	the
employee 	distributed 	leaflets 	to 	his 	coworkers 	informing 	them
of 	his 	complaint, 	criticizing 	his 	supervisor 	and 	urging other
The hearing 	officer 	did 	not 	address 	the 	3519(d) 	violation.
Since 	there 	was 	no 	evidence 	or 	argument 	presented 	in 	support 	of
this charge, we dismiss 	it here.
5Section 	3515 	guarantees 	that:
state 	employees 	shall 	have 	the 	right 	to
form, 	join and participate 	in 	the 	activities
of 	employee organizations 	of 	their 	own
choosing 	for 	the 	purpose 	of 	representation
on 	all matters 	of 	employer-employee
relations.
6 We 	do 	not 	reach 	the 	question 	of 	whether 	posting 	the
material was 	protected 	in 	this 	instance. 	The 	hearing 	officer
made 	no 	finding 	on 	this 	and 	SETC did 	not 	except 	to 	the 	omission,
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employees 	to 	come 	forward 	if 	they 	had 	similar 	grievances. 	The
employee was 	fired 	for 	the 	leafletting. 	Ordering
reinstatement, 	the 	court 	found 	the 	leafletting 	protected
because 	its 	purpose 	was 	to 	elicit 	group 	activity which 	would
benefit 	all 	participants 	as 	employees. 	See 	also Avalon-Carver
Community Center 	(1981) 	255 NLRB 241 	[107 LRRM 1077], 	where a
grievance 	criticizing 	the 	supervisor 	was 	protected 	because 	the
supervisor's 	performance 	affected 	collective 	working 	conditions.
Where, 	however, 	an 	employee's circulation of a petition
signed 	by 	27 	employees, 	calling 	for 	the dismissal of 	a
supervisor 	was 	for 	the 	purpose 	of 	humiliating 	the 	supervisor
against whom he 	harbored 	a personal grudge, 	his 	conduct was
denied 	protection.7
Here, 	we do not 	find 	that 	Delsigne's 	act 	furthered 	a
legitimate 	interest of 	the 	employees. 	Whether 	or 	not Frohreich
drank 	after 	hours 	(a period of 	time 	in which 	employees 	normally
have no interest 	in their 	supervisors' 	activities), 	used a
state 	car 	to go 	to a bar 	or 	drove 	the 	car 	after 	drinking 	at 	a
7The 	employee 	who 	had 	been 	disciplined 	by 	the 	supervisor
for 	running 	a 	gambling 	operation 	on 	company property 	and 	being
overly attentive 	to a 	female worker, 	was 	fired 	for 	circulating
the petition. 	The court did concede 	that, 	if 	the purpose of
the 	action 	relates 	to working conditions, 	it will 	not 	lose 	its
protection 	because 	of 	the 	questionable 	motives 	of 	those
initiating 	the 	action. 	Joanna Cotton Mills v. 	NLRB 	(4th Cir.
1949) 	176 	F.2d 	749 	[24 	LRRM 2416].
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bar, 	bears 	no discernable 	relationship 	to 	the 	unit 	employee's
working 	conditions. 	While 	any 	individual may 	report 	a 	state
employee's 	improprieties 	to 	appropriate 	authority, 	Delsigne's
action 	falls 	outside 	the 	range 	of 	conduct which 	SEERA was
enacted 	to 	protect.
SETC also charges 	that, 	after 	Delsigne's termination, 	Joel
Espinoza 	was 	overheard 	telling 	him 	by 	phone 	that 	Frohreich 	was
having 	a beer 	at 	lunch, 	and 	was 	warned 	by his 	supervisor 	not 	to
make 	phone 	calls 	during 	his 	lunch 	hour. 	The 	hearing 	officer
found 	this 	"warning" 	violated 	subsections 	3515(a) 	and 	(b). 	No
exception was 	taken 	to 	this 	finding. 	The 	pertinent 	part 	of 	the
hearing officer's order 	is 	therefore 	final as 	to 	the parties.
ORDER
Upon 	the 	foregoing 	findings of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this case, 	the Public Employment
Relations 	Board ORDERS 	that 	the 	charge 	brought 	by 	the 	State
Employees 	Trades Council 	against 	the 	State 	of 	California,
Department 	of Transportation 	in Case No. 	S-CE-26-S 	is
DISMISSED, 	except 	as 	to 	that 	portion 	thereof 	alleging 	that 	the
Department 	violated 	subsections 	3519 (a) 	and 	(b) 	of 	the SEERA by
issuing 	a 	warning 	to Joel 	Espinoza.
The 	hearing 	officer's 	decision 	and 	order 	with 	respect 	to
said allegations, 	not having 	been excepted 	to, 	is 	final 	as 	to
the parties.
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The matter 	is 	remanded 	to 	the General Counsel 	to prepare
and 	issue 	an 	amended Notice 	to Employees 	conforming 	herewith,
Members 	Tovar 	and 	Jensen 	concurred.
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