State of California (Department of Parks and Recreation) * * * OVERRULED IN PART by County of Santa Clara (2017) PERB Decision No. 2539-M (PERB 0328S)

OVERRULED IN PART by County of Santa Clara
(2017) PERB Decision No. 2539-M
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
PARKS AND RECREATION),
Respondent.
Case No. 	LA-CE-70-S
PERB Decision No. 	328-S
July 29, 	1983
Appearances; 	Thomas E. 	Rankin, 	Attorney for 	State Employees
Trades Council Local 1268, 	LIUNA, AFL/CIO; 	Francis C. 	Buchter,
Attorney 	for 	State 	of California, 	Department of Parks 	and
Recreation.
Before Gluck, 	Chairperson; 	Jaeger and Burt, Members.
DECISION
JAEGER, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed 	by 	the
State Employees Trades Council, 	Local 1268, 	LIUNA, 	AFL/CIO,
(SETC or 	Union) 	to 	the 	hearing officer's proposed decision
dismissing 	the 	SETC's 	allegations 	that 	Frank 	Pearson was
retaliated 	against 	because 	of 	his 	participation 	in protected
activity 	in violation of 	subsections 	3519(a),(b) 	and 	(d) 	of 	the
State 	Employer-Employee 	Relations 	Act 	(SEERA or 	Act).1
1SEERA 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	All 	statutory 	references 	are 	to 	the Government Code
unless 	otherwise 	specified.
Section 	3519 	states 	in pertinent part:
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_______________ )

On 	September 8, 1981, 	the SETC 	filed 	a charge 	alleging 	that
Frank 	Pearson 	was 	retaliated 	against 	for 	his 	participation 	in
protected 	activity when 	he 	was 	evaluated 	for 	a 	promotional
opportunity 	to 	enter 	a 	state 	park 	ranger 	training program. 	The
Association 	excepts 	to 	the 	hearing 	officer's 	conclusion 	that
the 	ranking 	Pearson 	received 	from 	the 	ranger 	selection panel
was 	not 	"based 	on 	anti-union 	animus". 	SETC also excepts 	to 	the
hearing 	officer's 	construction 	and 	application 	of 	PERB's 	test
for 	unlawful 	discrimination.
The Board 	has 	reviewed 	the 	entire 	record 	in 	light of 	these
exceptions. 	We 	reverse 	the hearing officer's decision, 	and
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.
N
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

find 	that 	the 	Department 	of 	Parks 	and 	Recreation 	(Department)
violated 	subsection 3519(a).
FACTS
Frank 	Pearson 	has 	been 	employed 	as 	a groundskeeper 	at 	the
Department 	of 	Parks 	and 	Recreation 	(Department) 	Lake 	Perris
Recreation Area 	since 	1979. 	In 	1980 	he was promoted 	to 	lead
groundskeeper. 	The 	alleged 	discriminatory acts 	occurred 	in
September 	1981 when Pearson was 	not 	selected 	for 	the 	state park
ranger 	training 	program.
Prior 	to 	the Department's September 	1981 actions, 	Pearson
became 	active 	in 	the State Employees 	Trades Council. 	He was a
SETC job steward. 	In 	that capacity, 	Pearson was 	involved 	in
grievance-related 	matters 	that 	required 	interaction 	with
various park 	supervisors.
In June 	1981, 	Pearson represented 	the grounds crew 	in a
dispute 	with 	Supervisor 	Dave 	Powers 	over 	the 	appropriate 	hour
to 	schedule 	the crew's 	lunch 	break. 	The 	crew had 	succeeded 	in
moving 	their 	starting 	time 	up 	to 	6 	a.m. 	in order 	to avoid 	the
summertime afternoon heat. 	Powers, 	in turn, 	wanted to move
their 	lunch break 	to 10 	a.m. 	However, 	Pearson, 	through a
series 	of discussions 	culminating 	in a 	letter 	to Powers'
supervisor, 	Robert Freeman, 	succeeded 	in maintaining 	the 	lunch
break 	at 	11 	a.m. 	Powers 	expressed 	anger 	over 	what he perceived
to 	be 	Pearson's 	attempt 	to go over 	his 	head 	to higher
supervisors.
W	
3

In July 1981, 	park management 	prohibited 	employees 	from
using 	the 	public 	concessions 	for 	lunch or 	breaks. 	Again,
Pearson 	represented 	his 	crew 	in 	this 	dispute, 	and management
ultimately 	rescinded 	the 	rule.
In addition, 	in March 	and April 	1981, 	Pearson 	took a
four-week 	unpaid 	leave 	of 	absence 	to 	organize 	on 	behalf 	of 	SETC
in 	the SEERA elections. 	As a result of 	these activities,
Pearson's 	union 	activity was 	well 	known 	to his 	immediate
supervisor, 	Dave Powers, Maintenance Supervisor Leon Hamilton,
Area Manager 	Robert Freeman, 	and Deputy Regional Director
Ronald McCullough. 	All were 	involved 	in 	the 	selection 	process
for 	the 	park 	ranger 	training 	program.
In May or June 	1981, 	during 	the organizing effort 	for 	the
SEERA elections, 	Pearson wore 	a SETC 	button on 	his 	uniform. 	He
was 	told 	by Area Manager 	Freeman 	that, 	according 	to
regulations, 	the 	button was 	not allowed 	and 	that 	it 	had 	to 	be
removed. 	He obeyed 	the 	order 	but 	consulted 	with 	the Union 	and
was 	informed 	that 	at 	another 	state 	park 	an 	unfair 	practice
charge 	over 	wearing 	a 	union 	button 	had 	been 	informally 	settled
in 	the Union's favor. 	On 	the 	advice of 	the Union, 	Pearson put
the 	button 	back 	on 	his 	uniform. 	Freeman 	again 	told him 	to
remove 	the 	button. 	In 	response, 	Pearson 	told Freeman to
consult 	the 	Department's 	labor 	relations 	officer. 	Several 	days
later, 	Freeman 	contacted 	that 	official 	and was 	informed 	that
Pearson 	should be permitted 	to wear 	the 	button. 	Freeman, 	in
4

turn, 	told 	Pearson. 	Freeman 	testified 	that he originally
objected 	to 	the 	button 	because 	it 	did 	not 	conform 	to uniform
regulations. 	However, 	he 	admitted 	that he 	had 	not objected 	to
the 	wearing 	of 	other 	buttons 	even 	though 	they did 	not 	conform
to 	regulations. 	Shortly after 	Pearson was 	permitted 	to wear
the 	union 	button, 	Freeman objected 	to Pearson wearing 	an 	SETC
belt 	buckle. 	Pearson 	removed 	the 	buckle.
In August 	1981, 	Pearson was 	reprimanded by Powers 	for
speeding 	and 	running 	a 	stop 	sign while 	operating 	a 	Department
motor 	scooter. 	Testimony was presented 	at 	the 	hearing 	by a
Department 	mechanic 	that 	the 	motor 	scooter 	Pearson was 	using
could 	travel 	a maximum 	speed 	of only 	17 mph. 	The posted 	speed
limit 	was 	15 mph. 	Powers 	admitted 	that he did 	not 	see Pearson
run 	the 	stop 	sign.
During 	the 	summer 	of 	1981, 	Pearson was prohibited 	from
drinking 	coffee 	on 	the 	job 	as 	part of management's 	attempt 	to
curtail 	the 	practice. 	Area Manager 	Robert Freeman 	testified
that 	employees 	working 	at 	a 	desk 	could 	drink 	coffee 	and 	carry
it 	to their 	desks. 	Pearson, 	whose 	job required 	regular desk
work, 	nonetheless 	received 	a written 	"mini-memo" 	on September
17 	for 	carrying 	a coffee 	cup. 	Both Powers 	and Freeman
testified 	that 	they 	verbally 	warned 	several 	other 	employees
besides Pearson not 	to carry coffee cups. 	None, 	however, 	other
than Pearson, 	received 	a 	written 	reprimand.
In 	late 	summer 	1981, 	Pearson applied 	for 	the 	in-house park
ranger 	training 	program. 	The 	application process 	required 	the
5

filing 	of 	both 	an 	"Employee 	Questionnaire" 	and 	a 	"Supervisor's
Endorsement" 	for 	review by 	the program's 	selection panel.
On September 	1, 	1981, 	pursuant 	to the application process,
Pearson 	picked 	up 	an 	endorsement 	from his 	immediate 	supervisor,
Dave 	Powers. 	Powers 	was 	assigned 	the 	responsibility of 	filling
out 	the 	required 	evaluation 	by 	the 	area manager, 	Robert
Freeman. 	Powers 	gave 	Pearson 	two copies of Part B of 	the
endorsement, 	one 	in pencil with 	a portion of 	the answer 	to one
of 	the 	questions 	erased 	but 	still 	legible, 	and 	the other 	a
typewritten 	final 	version. 	The 	partly-erased 	response 	to
question 	7 	stated:
I 	think 	that Frank, 	given proper 	guidance
and 	training, 	would make 	an adequate 	state
park 	ranger. 	If he puts 	as much 	effort 	into
his 	career 	as he put 	into his 	job 	steward
position he had, 	he will have more 	than
enough 	drive 	to become 	an excellent 	ranger.
(Underlining 	indicates 	the 	erased 	portion.)
The 	handwritten 	and 	typed 	versions 	of 	the 	evaluation 	are
identical except 	the erased 	portion 	is 	omitted 	from the 	typed
copy. 	The comment was deleted when Powers' 	immediate
supervisor, 	Leon Hamilton, 	reviewed 	the document and believed
that 	the 	comment 	might 	be 	"misinterpreted 	by 	other 	people".2
Freeman merely 	signed 	the 	typed 	copy 	that 	Powers 	completed.
2The 	hearing 	officer, 	after 	reviewing 	the 	testimony and
observing 	the 	demeanor 	of 	the witnesses, 	concluded 	that 	the
erased 	portion was 	intended 	to be 	a 	negative 	reference 	to
Pearson's 	union 	activities. 	The 	credibility 	findings of
hearing 	officers 	are 	ordinarily given 	deference 	if 	they 	are
supported 	by 	the 	record 	as a whole. 	Santa Clara Unified 	School
66

Powers 	was 	responsible 	for 	evaluating 	two candidates,
Pearson 	and Allen Garrity, 	a 	Lake 	Perris 	groundskeeper 	with
three 	years of 	service.
There 	are 	a 	number 	of differences 	between 	the 	evaluations
of 	Pearson 	and Garrity. 	In 	response 	to a question 	regarding
whether 	the 	candidate met 	all 	the 	qualifications, 	Garrity's
evaluation 	stated: 	"Yes, 	I 	feel 	that Al will make every effort
to become 	the best of the 	rangers"; 	whereas Pearson's
evaluation 	stated: 	"He 	has 	good 	qualifications 	in 	natural
resources 	due 	to his present position." 	With 	respect 	to 	the
inquiry 	about 	the 	candidate's 	strongest 	and 	weakest 	qualities,
Powers 	responded 	that 	Garrity's 	strongest 	quality was 	"A good
level headed 	attitude" 	and his weakest, 	"I have 	seen no bad
qualities 	in 	this 	individual." 	Pearson's 	stated 	that his
strongest 	quality 	was 	his 	"interpretation of 	natural 	resources
and 	accompanying 	pest-disease 	detection 	and 	control" 	and 	his
weakest 	was 	that 	"He 	takes 	authority of 	any kind 	and 	uses 	it 	in
a manner 	that 	tends 	to exceed 	the 	limits 	given." 	When
cross-examined 	about 	the basis of 	this 	comment, 	Powers
expressly 	admitted 	that 	Pearson's 	union 	activities 	were 	a
factor 	in his 	perception 	that 	Pearson 	exceeded 	authority.
District 	(9/26/79) 	PERB Decision No. 	104. 	Since we 	find 	the
hearing 	officer's 	credibility 	determination 	is 	supported 	by 	the
record 	as 	a whole, 	we hereby adopt 	it 	as 	the 	factual
determination of 	the Board 	itself.
V7

The 	State's 	witnesses 	offered 	two different 	explanations
for 	the 	authority comment. 	Freeman claimed 	that 	Pearson
exceeded 	his 	authority 	by 	responding 	to 	emergencies 	outside 	his
assigned 	area of duties. 	However, 	when examined 	as 	to 	specific
incidents 	of 	misconduct, 	Freeman 	could 	only cite 	an 	incident
which 	occurred 	after 	the 	evaluation was 	submitted 	to 	the 	ranger
selection panel. 	Freeman was 	unable 	to cite 	a 	single example
of 	Pearson's 	abuse 	of 	authority prior 	to 	the 	date 	of 	the
evaluation. 	Pearson 	testified 	that 	the 	incident 	referred 	to
was 	life-threatening and 	extraordinary and, 	furthermore, 	that
his 	supervisors 	required 	him 	to work 	outside 	of 	assigned
boundaries 	for 	other 	purposes.
Powers 	supported 	the 	reference 	to Pearson's 	difficulty 	with
authority by citing 	an 	incident 	in June 	1981 	in which 	Pearson
allegedly brought 	in an outside 	contractor 	to supply
information 	without 	the 	consent of management. 	Pearson
testified, 	and 	the hearing 	officer 	also concluded, 	that prior
to Powers' 	assuming supervisory responsibility, 	Lee Banks,
Pearson's previous 	supervisor, 	authorized 	Pearson 	to set 	up 	the
meeting 	with 	the contractors. 	Furthermore, 	during 	the hearing,
Powers 	expressly 	admitted 	that 	his 	criticism 	regarding
Pearson's 	use of 	authority 	relied 	in part 	on his 	knowledge 	of
Pearson's 	union 	activity.
Finally, 	Powers' 	evaluation of the candidates' 	potential as
rangers 	stated 	that 	Garrity 	" . . . 	seems 	career 	oriented 	to
CO	
8

me. 	I 	think 	he would make 	a very good park 	ranger." 	Pearson's
stated, 	omitting 	the erased comments 	noted previously, 	"I 	think
that Frank, 	given proper 	guidance 	and 	training, 	would make 	an
adequate 	state park 	ranger." 	(Emphasis 	added.)
Pearson 	submitted 	his 	application, 	the 	supervisor's
endorsement, 	plus an optional career development plan, 	on
September 	1. 	Eight 	others 	applied 	in his 	region but 	two
withdrew leaving 	seven candidates, 	including Pearson, 	to be
interviewed.
The 	interviews 	were 	conducted 	by 	a 	three-member 	panel which
included 	Deputy 	Regional 	Director 	Ronald 	McCullough 	and 	two
other members. 	Prior 	to the 	interviews, 	each panelist 	received
and 	reviewed 	the 	papers 	submitted 	by 	the 	applicants. 	The 	panel
then questioned 	each 	candidate 	for 	approximately 	20 minutes.
The 	individual 	panel members 	then 	graded 	each 	candidate
according 	to categories 	specified 	on 	a 	form entitled
"Statistical 	Competitive 	Rating 	Report." 	After 	the 	interviews,
the panelists discussed 	the candidates' 	presentations. 	The
candidates 	were 	then 	ranked 	according 	to 	their 	scores on 	the
rating 	forms. 	After 	the 	ranking, 	the 	forms were 	sent 	to the
Department's 	affirmative 	action 	officer 	for 	a 	brief 	review.
According 	to McCullough, 	the 	panel generally considered 	the
application 	and 	supervisor's 	evaluation 	to 	account 	for 	about
one 	half of 	the overall 	score. 	He 	further 	testified 	that 	the
supervisor's 	evaluation 	had 	the most 	impact on 	the 	grading 	of
the 	categories 	"Experience" 	and 	"Attitude."
9

Based on these grades, Frank Pearson, 	a white male, was
ranked 	fourth on 	the 	list. 	Ranking 	first was Joseph Juarez, 	an
Hispanic; 	second was Mirlita Dennis, 	a woman; 	and 	third was
Allen Garrity, 	a white male. 	The State 	contended 	that
affirmative 	action 	goals 	determined 	and 	justified 	the 	outcome
of 	the 	selection process. 	This claim 	is 	substantiated 	in
relation to 	the 	two 	top candidates. 	However, 	Pearson 	is most
closely matched 	to Garrity, 	who 	is 	also a white male 	and
therefore 	affirmative 	action 	goals 	do 	not 	explain why 	Pearson
ranked 	below Garrity. 	Pearson's 	rank was 	.17 of 	a point 	below
Garrity's.
Due 	to extraneous events, 	including a statewide 	hiring
freeze, 	only Garrity was 	able 	to enter 	the 	training program.
The 	candidates 	who 	placed 	first 	and 	second 	did 	not 	actually
enter 	the 	program 	because 	their 	original 	positions 	could 	not 	be
back-filled. 	The 	evidence was 	inconclusive 	as 	to whether
Pearson's 	lead 	groundskeeper 	position 	could 	have 	been
back-filled.
DISCUSSION
The 	proposed 	decision was 	issued 	after 	the Board
established 	its 	test 	for 	discriminatory 	employer 	conduct 	in
Novato Unified School District 	(4/30/82) 	PERB Decision
No. 	210. 	However, 	the hearing officer 	failed 	to apply or 	cite
the Novato 	test, 	instead 	relying 	on 	an 	inappropriate
application of Carlsbad Unified School District 	(1/30/79) 	PERB
Decision No. 	89.
10

Under 	Novato, 	where 	a charging party has alleged
discrimination, 	he or 	she has 	the 	initial burden of making 	a
showing 	sufficient 	to 	support 	the 	inference 	that protected
activity was 	a motivating 	factor 	in 	the 	employer's 	decision 	to
take 	adverse personnel 	action. 	In 	recognition of 	the 	fact 	that
direct 	evidence of motivation 	is 	seldom available, 	unlawful
motivation may 	be 	demonstrated 	circumstantially. 	Accord,
Republic Aviation Corp. 	v. 	NLRB 	(1945) 	324 U.S. 	793 	[16 LRRM
620]. 	If the charging party is able, 	by direct or
circumstantial evidence, 	to 	raise 	the 	inference 	that 	the
employer 	was 	motivated 	to 	take 	adverse personnel 	action by 	its
knowledge of 	the 	employee's protected 	activity, 	the burden
shifts 	to 	the 	employer 	to demonstrate 	that 	it would have 	acted
as 	it did 	regardless of 	the 	employee's participation 	in
protected 	activity. 	Novato, 	supra; Wright Line, 	A Division of
Wright Line, 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM 1169]; 	NLRB v.
Transportation Management 	Corp. 	(1983) 	U.S. 	[113 	LRRM
2857].
The 	charging 	party must 	first 	demonstrate 	that 	he 	was
engaged 	in, 	and 	the employer 	was 	aware of, 	the protected
activity. 	Based 	upon Pearson's 	job 	steward 	activities,
including 	the 	union button 	incident, 	the 	lunch break 	incident,
the park 	concession 	incident, 	and 	his 	leave without pay 	to
organize 	for 	SETC, 	as well 	as his 	supervisor's 	admitted
awareness of his 	union 	activity, 	we conclude 	that Pearson
produced 	sufficient 	evidence 	to meet 	this 	aspect of 	the 	test.
11

Next, 	the 	charging party must 	establish 	that 	Pearson's
protected 	activity was 	a motivating 	factor 	in 	the 	Department's
low 	rating of him. 	Viewing 	the 	record 	in 	its 	totality, 	we 	find
that 	there 	is 	sufficient 	circumstantial 	evidence 	to support 	an
inference 	that 	the 	Department 	unlawfully discriminated 	against
Pearson 	because 	of 	his 	participation 	in protected 	activity. 	In
our 	view, 	the 	record 	reveals 	a pattern of discriminatory
conduct 	on 	the 	part 	of 	the 	Department 	culminating 	in Pearson's
relatively poor 	rating 	in 	the 	evaluation process.
On 	three 	occasions prior 	to 	the 	evaluation 	incident,
Pearson 	was 	discriminatorily 	reprimanded. 	We 	find 	that 	when
the 	timing 	of 	these 	reprimands 	is 	viewed 	against 	the 	background
of 	Pearson's 	concentrated 	efforts 	on behalf of 	the 	union 	at 	the
same 	time, 	an 	inference of anti-union animus 	is 	raised.
In May or June, 	1981, 	Pearson was ordered by Robert Freeman
to 	remove 	a 	union 	button 	from his 	uniform. 	Freeman 	testified
that 	he 	ordered 	Pearson 	to 	remove 	the 	button 	because 	by wearing
it 	Pearson 	was 	breaking 	Department 	regulations 	concerning 	the
appearance of employee uniforms. 	Nevertheless, 	he admitted
that 	he 	did 	not 	require 	employees 	wearing 	non-union-related
badges 	or 	buttons 	to 	remove 	them from 	their 	uniforms. 	From
such 	conduct 	we 	infer 	that 	Freeman's 	conduct was merely
pretextual 	and 	evidences 	anti-union 	animus. 	San Joaquin Delta
Community College District 	(11/30/82) 	PERB Decision No. 	261.
12

In August 	1981, 	Pearson 	received 	a verbal 	reprimand 	for
speeding 	and 	running 	a 	stop 	sign while 	operating 	a 	Department
vehicle. 	The 	uncontroverted 	testimony of 	the 	Department's
mechanic 	indicated 	that 	the 	vehicle 	was 	mechanically 	incapable
of moving 	faster 	than 	two miles 	per 	hour 	above 	the 	speed
limit. 	During 	the hearing, 	Powers 	admitted 	that he did 	not
observe Pearson 	run 	the 	stop sign. 	Thus, 	the 	reprimand was
given 	for 	an 	insignificant 	violation 	of 	the 	speed 	limit 	and 	was
based, 	in part, 	on unsupported allegations of misconduct.
Discipline 	based 	on 	unsubstantial 	allegations 	or 	on mere
technical violations of 	employer 	work 	rules may 	raise 	an
inference 	of 	unlawful motivation. 	San Joaquin Delta Community
College District, 	supra; 	North Sacramento School District
(12/20/82) 	PERB Decision No. 	264.
Similarly, 	Pearson's 	reprimand 	for 	violation of 	the
Department's 	coffee 	policy 	also 	discloses 	disparate 	treatment.
The 	evidence 	establishes 	that 	the policy was 	ill-defined 	and
inconsistently 	applied. 	Robert 	Freeman 	testified 	that
employees 	could 	drink 	coffee 	at 	their 	desks. 	Despite 	the 	fact
that Pearson's 	job duties 	required 	regular 	use of 	a desk, 	he
was 	nonetheless 	reprimanded 	for 	carrying 	a 	coffee 	cup.
Although 	Powers 	and 	Pearson 	testified 	that 	they 	verbally warned
other 	employees 	not 	to carry coffee cups, 	no other 	employee
besides 	Pearson 	received 	a written 	reprimand.
13

Both 	the 	hearing officer 	and 	the 	witnesses 	for 	the
Department 	characterized 	the 	written 	reprimand 	which 	Pearson
received as 	a 	"counseling 	device," 	implying 	that 	it was,
therefore, 	no more 	serious 	than a verbal warning. 	However,
although 	the 	record 	does 	indicate 	that 	the 	memorandum was 	not
placed 	in Pearson's personnel 	file, 	Powers admitted 	that an
informal 	written 	reprimand 	is 	considered 	by 	the 	Department 	to
be more 	serious 	than a verbal warning. 	Moreover, 	unlike 	the
verbal 	warnings given 	to other 	employees, 	the 	reprimand given
Pearson was circulated 	to his 	superiors. 	In any event, 	the
Department 	introduced 	no 	evidence 	to 	show how 	the 	reprimand
was, 	or could have been, 	used by the Department 	to "counsel"
Pearson. 	As 	such, 	we 	are persuaded 	that 	the written reprimand
represented 	disparate 	treatment 	of 	Pearson 	from which 	we 	infer
unlawful motive. 	North 	Sacramento School District, 	supra.
The 	main 	evidence 	of 	unlawful 	employer 	conduct 	arises 	from
the 	events 	surrounding 	Pearson's 	application 	to 	the park 	ranger
training program. 	Pearson's 	overall 	less 	favorable 	rating 	than
Garrity's was based, 	in large part, 	on comments which evidence
anti-union animus on the part of Powers. 	First, 	as noted
above, 	Powers 	rated 	as 	Pearson's 	weakest quality his 	tendency
to 	exceed 	authority. 	Powers 	expressly 	admitted 	that 	this
comment was, 	in part, 	based on Pearson's union activities.
Moreover, 	when examined 	at 	the 	hearing 	as 	to 	the 	basis of 	this
comment, 	neither 	Powers 	nor 	Freeman 	offered 	a 	credible
14

alternative 	justification. 	The 	justification 	they offered 	was
based 	on 	incidents 	which 	arose 	after 	the 	evaluation was
completed 	or 	which 	evidence 	no misuse of 	authority. 	Such
shifting 	justifications 	have 	often 	been 	held 	to 	evidence 	a
pretextual motivation. 	North 	Sacramento 	School 	District,
supra; 	Marin Community College District 	(11/19/80) 	PERB
Decision No. 	145; Wright Line, 	supra; 	Firestone Textile Co.
(1973) 	203 NLRB 89 	[83 LRRM 1039]; 	Shell Oil Co. 	(5th Cir.,
1942) 	128 F.2d 	206 	[10 LRRM 670].
Second, 	and perhaps more 	significantly, 	Pearson's
evaluation 	contained 	an 	incompletely-erased 	reference 	to
Pearson's 	enthusiastic 	approach 	to his 	shop 	steward
responsibilities. 	As noted, 	supra, 	consistent with 	the hearing
officer's 	credibility determination, 	we 	find 	that 	the 	erased
portion of 	the 	draft 	evidences 	anti-union 	bias 	on 	the part of
Powers. 	The partially-erased draft of Pearson's evaluation, 	in
combination 	with 	the 	other 	negative 	aspects of 	the 	evaluation,
raises 	an 	inference 	of 	unlawful motivation on 	the part of 	the
Department. 	As 	a 	result of 	this anti-union animus, 	Pearson
received 	an 	overall 	less 	favorable 	evaluation 	from Powers 	and
Freeman 	than 	he 	would 	have 	otherwise 	received.
The 	Department 	offers 	three 	arguments 	to 	rebut 	the
inference drawn 	from this evidence. 	First, 	it argues 	that 	the
decision-making panel never 	saw the 	erased comment, 	and was,
therefore, 	not motivated by anti-union animus. 	Second, 	the
15

Department 	argues 	that 	Freeman's 	independent 	review cleansed
any 	unlawful motivation 	from 	the 	evaluation. 	Third, 	the
Department 	argues 	that 	affirmative 	action goals 	justified 	the
resulting 	ratings.
We 	find 	no merit 	in 	the 	Department's 	first contention.
Although 	the 	final 	version 	of 	the 	evaluation 	did 	not 	contain
any 	express 	reference 	to Pearson's 	activities 	on behalf 	of
SETC, 	the 	lower 	ranking 	Pearson 	received 	from Powers was
utilized 	by 	that 	panel 	to 	rank 	Pearson 	below 	the 	other
candidates. 	Thus, 	according 	to 	the 	testimony of 	the
chairperson of 	the 	selection panel, 	the panelists 	based 	their
rankings 	on 	their 	overall 	impression of 	each 	candidate,
impressions 	formed 	from the 	interviews, 	applications, 	and
evaluations. 	Hence 	the 	rank 	score which 	the panel 	assigned
each 	candidate 	was 	based 	partially 	on 	information 	derived 	from
their 	supervisor's 	evaluations. 	The 	final 	ranking of 	the 	top
four 	candidates 	closely matches 	the 	relative 	strengths of 	their
supervisors' 	evaluations and, 	as such, 	these evaluations played
a 	significant 	role 	in the panel's 	selection process. 	The 	fact
that 	the 	panel may have 	only 	unwittingly 	relied 	upon 	the
evaluation's 	biased 	appraisal 	of 	Pearson's 	performance 	does 	not
neutralize 	the 	taint of 	unlawful motivation. 	Unlawful 	animus
may be 	found where 	an evaluation panel, 	even 	innocently, 	relies
upon 	the 	inaccurate 	and 	biased 	evaluations 	of 	other 	management
officials. 	See Hambre Hombre Enterprises, 	Inc. 	v. 	NLRB 	(9th
16

Cir. 	1978) 	581 F.2d 204, 	207 	[99 LRRM 2541]; Allegheny
Pepsi-Cola Bottling Co. 	v. 	NLRB 	(3d Cir., 	1962) 	312 F.2d 529,
531 	[52 LRRM 2019]; 	NLRB v. 	Buddy Schoellkoph Products, 	Inc.
(5th Cir., 	1969) 	410 F.2d 2089 	[71 LRRM 2089].
Next, 	the Department 	argues 	that Freeman engaged 	in an
independent 	review of Pearson's 	work 	record, 	thus 	cleansing
Powers' 	evaluation of 	any anti-union 	animus. 	We 	find 	the
Department's 	argument unconvincing. 	In 	the 	first place, 	given
the 	incident 	concerning 	Pearson's 	wearing 	of 	a 	union 	button,
Freeman's potential 	to be 	an 	independent 	evaluator 	free 	from
anti-union animus 	is questionable. 	More 	importantly, 	we 	find
no basis 	in 	the 	record 	to 	support 	the 	contention 	that 	Freeman
engaged 	in 	an 	independent 	review of 	Pearson's 	work 	record.
Freeman 	initially 	testified 	that 	he 	reviewed 	the 	comments 	on
the 	evaluation. 	His 	testimony, 	however, 	was 	undermined by his
inability 	to 	explain 	the 	basis 	for 	the 	comments 	he 	endorsed.
Despite 	the 	fact 	that Pearson 	complained 	to Freeman 	about 	the
contents 	of 	the 	evaluation 	as 	well 	as 	the 	objectivity of 	Powers
as 	an 	evaluator, 	Freeman merely 	signed 	the 	typed 	copy as
delivered. 	Thus, 	there 	is no evidence 	that Powers' 	evaluation
received 	any more 	than 	a 	cursory 	review 	by Freeman.
Finally, 	the Department 	claims 	that 	affirmative 	action
goals determined, 	and 	therefore 	justified, 	the outcome of 	the
selection process. 	This 	claim might have 	had 	some validity 	in
relation 	to 	the 	two 	top candidates. 	But Pearson was most
17

closely matched 	to Garrity, 	who 	is a white male. 	Thus,
affirmative 	action 	goals 	alone 	cannot 	explain 	Pearson 	being
ranked 	below 	Garrity.
Since 	the 	District has 	offered 	no 	legitimate 	justification
to 	rebut 	the 	evidence of 	unlawful motive, 	we conclude 	that the
Department 	violated 	subsection 	3519(a) 	when 	it 	retaliated
against 	Frank 	Pearson 	for 	engaging 	in protected 	activity.
We 	dismiss 	that 	portion 	of 	the 	charge 	alleging 	a 	violation
of 	subsection 	3519(b), 	since no 	independent evidence was
introduced 	to prove 	that 	the Department, 	by 	its conduct,
violated 	SETC's 	rights 	under 	the Act. 	Novato Unified 	School
District, supra.
The 	Board 	dismisses 	the 	alleged 	violation of 	subsection
3519 (d) 	since 	the Union 	failed 	to present 	evidence 	in support
of 	this charge.
REMEDY
Subsection 	3514.5(c) 	empowers 	the Board 	to 	fashion a 	remedy
which will effectuate the purposes of 	the Act. 	While we have
determined 	that 	Pearson's 	overall 	ranking 	was 	adversely
affected 	by 	the 	anti-union 	animus 	that 	tainted 	the 	evaluation
portion of 	the 	selection process, 	we 	find 	that 	the purposes of
the Act 	can 	best 	be 	effectuated 	without 	voiding 	Allen Garrity's
appointment.
In Lemoore 	Union High 	School District 	(12/28/82) 	PERB
Decision No. 	271, 	where 	the Board 	found 	that a 	job selection
process 	was 	tainted 	by anti-union 	animus 	but was 	unable 	to
18

conclude 	that 	the 	employee 	who 	was 	retaliated 	against would
have been promoted 	in the absence of anti-union bias, 	it
ordered 	the employer 	to 	retest all 	the candidates. 	However, 	in
Lemoore, 	the 	vacancy 	for 	which 	the 	charging party competed 	was
a 	one-time 	opening 	for 	a 	permanent position. 	No other 	openings
were anticipated 	in the 	foreseeable 	future. 	Thus, 	absent a new
test, 	the 	charging 	party could 	never 	be granted 	an effective
remedy. 	In 	this case, 	the 	record 	establishes 	that 	testing 	and
selection 	for 	the 	park 	ranger 	training program 	is 	continuous
and 	may occur 	any 	time when 	appropriate 	state 	park 	ranger
positions 	become vacant. 	Garrity, 	an 	innocent party, 	may have
completed 	his 	training 	and 	served 	as 	a permanent 	ranger 	for
more 	than a 	year. 	There 	is 	no evidence 	that his 	test 	score was
unwarranted. 	Rather 	than 	require 	his 	removal 	from the
position, 	we 	find 	it appropriate 	to order 	the 	Department 	to
place Pearson, 	without additional 	testing, 	at 	the head of 	the
current 	list, 	if any, 	or 	at 	the head of 	the next 	list generated.
ORDER
Based 	upon 	the 	foregoing 	facts, 	conclusions of 	law and 	the
entire 	record 	in 	this case, 	it 	is ORDERED that 	the State of
California, 	Department of Parks 	and 	Recreation 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Violating 	SEERA subsection 	3519(a) 	by
discriminating 	against 	Frank 	Pearson 	because 	of 	his
participation 	in protected 	activity.
19

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE 	PURPOSES 	OF THE ACT:
1. 	Place Pearson, 	without additional testing, 	at the
head of 	the current 	list, 	if any, 	or 	at 	the head of 	the next
list 	generated 	for 	the 	park 	ranger 	training program. 	Our 	order
will 	not 	affect 	the 	Department's 	affirmative 	action criteria.
In 	no 	event 	shall 	the Board's 	order 	affect 	the 	current 	job
placement 	of 	Allen 	Garrity.
2. 	Within 	10 working days 	following 	service of 	this
Decision, 	post copies of 	the Notice 	to Employees 	as 	set 	forth
in 	the 	attached 	Appendix 	for 	a period 	of 	thirty 	(30)
consecutive 	workdays 	in all 	locations where notices 	to
employees 	are 	customarily posted.
3. 	At 	the 	end of 	the posting period, 	notify the
Sacramento 	regional 	director 	of 	the 	Public 	Employment 	Relations
Board, 	of 	the 	action 	taken 	to comply with 	this Order.
Chairperson 	Gluck 	and Member 	Burt 	joined 	in 	this 	Decision.
20

Appendix
NOTICE 	TO 	EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case No. 	LA-CE-70-S,
State Employees Trades Council, 	Local 1268, 	LIUNA, 	AFL-CIO v.
State of California, 	Department of Parks 	and Recreation, 	It has
been 	found 	that 	the 	Department 	of 	Parks 	and 	Recreation 	violated
subsection 	3519(a) 	of 	the 	State 	Employer-Employee 	Relations Act
(SEERA) 	by 	retaliating 	against 	its employee, Frank Pearson, 	by
failing 	to 	evaluate 	him 	fairly 	for 	selection 	for 	the 	state park
ranger 	training 	program 	because 	of 	his 	exercise 	of 	rights
guaranteed 	by 	SEERA.
As 	a 	result 	of 	this 	conduct, 	we have 	been ordered 	to post
this Notice, 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Violating 	SEERA subsection 	3519(a) 	by
discriminating 	against 	Frank 	Pearson 	because 	of 	his
participation 	in 	protected 	activity.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
1. 	Place Pearson, 	without additional testing, 	at the
head of 	the 	current 	list, 	if 	any, 	or 	at 	the head of 	the next
list 	generated 	for 	the 	park 	ranger 	training 	program.
Dated: 	By: Authorized Agent 	of 	the
Department
THIS 	IS 	AN 	OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
CONSECUTIVE WORKDAYS 	FROM THE 	DATE OF 	POSTING AND MUST NOT BE
REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.