Regents of the University of California (California State Employees Association) (PERB 0449H)

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STATE OF CALIFORNIA
, DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA STATE EMPLOYEES!
ASSOCTATION,

Charging Party, Case No. SF-CE-84-H
Ve. PERB Decision No. 449-8

REGENTS OF THE UNIVERSITY OF
CALIFORNIA,

December 4, 1984

Respondent.

See er ee ee et ee ee ee ee”

Appearances: Michael R. Bogen and Nadia Tesluk for the
California State Employees' Association; Milton H. Gordon,
Attorney for Regents of the University of California.

Before Jaeger, Morgenstern and Burt, Members.

DECISION AND ORDER

JAEGER, Member: The California State Employees'
Association (CSEA) excepts to the dismissal of certain portions
of its unfair practice charge against the Regents of the
University of California following a formal hearing conducted
by an administrative law judge for the Public Employment
Relations Board.

The Board has reviewed the entire record, including the
proposed decision attached hereto, and CSEA's exceptions and,
finding no prejudicial error in the administrative law judge's
findings of fact or conclusion of law, adopts the proposed

decision as its own and ORDERS that said portions of the charge

are DISMISSED.

Members Morgenstern and Burt joined in this decision.

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOY.MENT
	RELATIONS
	BOARD
aaa
CALIFORNIA
	STATE
	EMPLOYEES
ASSOCIATION,
Charging
	Party,
v.
REGENTS
	OF THE
	UNIVERSITY
	OF
CALIFORNIA;
Respondent.
)
)
)
)
)
)
)
)
)
)
)
__________________
)
Unfair
	Practice
Case
	No.
	SF-CE-84-H
PROPOSED
	DECISION
(
4/11/84)
Appearances: 	Michael
Bogan 	and
	Nadia
	Tesluk,
	representatives
for
	California State
	Employees
	Association;
	Milton
	Gordon,
attorney,
	for
	Regents
	of 	the 	University 	of 	California.
Before:	
Fred
	D'Orazio, 	Administrative
	Law
	Judge.
PROCEDURAL
	HISTORY
The
	California State
	Employees
	Association 	(hereafter
	CSEA
or
	Charging
	Party)
	filed 	this
	unfair 	practice
	charge
	against
the
	Regents 	of 	the
	University 	of 	California 	(hereafter
University 	or
	Respondent)
	on
	September
	18,
	1981.
	The
	charge
alleged 	that
	the
	University Art
	Museum
	(hereafter
	Museum
	or
UAM)
	systematically 	discriminated
	and
	retaliated 	against 	four
employees 	because 	of
	their 	protected
	activities
-in
	violation
	of
section
	357l(a) 	of 	the
	Higher Education
Employer-Employee
Relations
	Act
	(hereafter
	HEERA
	or
	Act).l
lThe
	HEERA
	is 	codified 	at
	Government 	Code
	section 	3560,

During
	a
	long
	procedural
	history,
	the
	charge
	was
	dismissed
once
	and 	amended
	several
	times.
	The
	charge
	was
	also
	amended
	at
the
	outset
	of
	the
	formal
	hearing
	as
	well
	as
	during
	the 	hearing
itself.
An
	informal 	conference
	was
	held
	on November 	5
	and
	6,
	1981,
but 	the 	case
	was
	not
	settled.
	The
	University
	filed
	its
	answer
on
	November
	25,
	1981.
	The
	answer
	generally
	denied 	the 	charges
and
	asserted 	affirmative
	defenses
	which
	will
	be
	dealt
	with
below.
A
pre-hearing
	conference
	was
	conducted
	by
	the 	undersigned
on
	March
	15,
	1982,
	and
	the
	formal
	hearing
	commenced 	on
March
	22, 	1982. 	Fourteen
	days
	of 	hearing
	were
	conducted
between
March
	22
	and
	June
	1,
	1982. 	After 	several 	extension,
the 	briefing
	schedule
	was
	completed
	on
	February
	1,
	1983 	and
	the
case
	was
	submitted.
PROCEDURAL
	HISTORY
FACTS
I.
	Background.
Prior 	to
	July
	1,
	1981,
	the 	University Art
	Museum 	was
divided 	into
	two
	departments
	where
	the 	events 	in 	question 	here
took 	place.
	The 	shop 	department 	performed
	duties
	such 	as
constructing
	and
	tearing
	down
	walls 	for
	exhibits, 	building
et
	seq. 	All 	statutory 	references 	hereafter 	are 	to 	theGovernment 	Code
	unless 	otherwise 	noted.
2

crates
	to
	hold
	art
	work,
	etc.
	It
	was
	supervised
	by
Andre
	Johnson,
	who
	reported
	directly
	to
	Ron
	Egherman,
	assistant
director
	for
	administration.
	Egherman
	reported
	to
	Jim
	Elliott,
director
	of
	the
	Museum.
	Two
	full-time
	career
	employees
	worked
under 	Johnson.
	They 	were
	John
	O'Neil
	and
	Laurie 	Clausen.
The
	preparation
	department 	performed
	duties 	associated
	with
installing· art
	exhibits.
	These
	included 	assignments 	such 	as
lighting,
	matting, 	video,
	etc.
	Barney
	Bailey
	was
	the
	chief
preparator
	and
	supervisor
	of
	the
	preparation
	department.
	He
reported
	directly
	to
	David 	Ross,
	the
	assistant 	director
	and
chief 	curator.
	Ross
	reported 	to
Elliott.
	There
	were 	two
full-time
	career 	preparators 	in
	the 	department.
	They
	were
Adrienne
	Wong
	and
	Bobbie
	Shalk.
	In 	general,
	employees
	in
	the
shop 	department
	were
	paid
	a
	little
	more
	than
	employees
	in
	the
preparation
	department.
Nina
	Hubbs, 	a
	designer, 	also
	worked
	in
	the
	Mus~um. 	She 	was
a
	liaison
	between
	the
	curatorial
	staff
	and
	the
	shop
	and
preparation
	departments.
Both
	departments
	relied
	heavily
	on 	what
	are
	referred 	to
	as
"on,-call" 	workers.
	As
	the
	name
	suggests, 	these 	are 	people
	who
are 	called 	to
	work 	on
	short 	notice.
	They may 	work
	for 	as
little
	as
	a
	half
	day
	or 	as 	long 	as 	several
	days
	at
	a
	stretch,
depending 	on
	the 	needs 	of 	the
	Museum. 	While 	they 	are 	paid 	the
same
	as
	full-time
	employees,
	on-call
	workers 	do
	not 	receive
other 	benefits.
3

The
	need
	for
	on-call
	workers
	is
	determined
	by
	the
peak-and-valley 	nature 	of
	the
	work
	in
	the
	Museum.
	For 	example,
several
	employees
	may
	be
	necessary 	to 	prepare
	and
	install
	a
large 	exhibit,
	but
	they
	may
	not
	be
	needed
	while
	the
	exhibit
	is
shown. 	They
	may
	again
	be
	needed
	when
	it
	is
	time
	to
	take
	down
the
	exhibit,
	but
	they
	may
	not
	be
	needed
	during 	the
	lull
	that
occurs
	between
	exhibits.
	Thus,
	the
	need
	for
	on-call
	workers
	is
determined
	largely	
by	
the
	exhibit
	schedule.
Use
	of
	on-call
	workers
	is
	a
	relatively
	new
	concept
	at
	the
UAM,
	although
	it
	is
	a 	common
	practice 	at
	museums
	in 	general.
Egherman
	instituted
	the
	practice
	in
	approximately
	1978.
As 	a
	result
	of
	layoffs
	and
	other
	cutbacks
	on
July
	1,
	1981,
there
	was 	a
	reorganization 	in 	the
	UAM.
	The
	shop
	department
	was
eliminated
	and
	Johnson, 	Clausen
	and
	O'Neil
	were
	laid 	off.
	The
chief
	preparator 	position
	was
	eliminated
	and 	a 	new
	posit~on,
head 	of
	installation
	and
	design,
	created.
	Hubbs
	filled
	that
position,
	and
	Bailey
	was 	demoted
	to
	a
	full-time 	preparator
position.
	He
	no
	longer
	was
	considered
	a
	supervisor.
	He
	served
as
	a
	lead 	person
	instead.
	Shalk
	was
	offered
	a
	half-time
preparator 	position 	in 	place 	of 	her
	full-time 	career
	slot,
	but
chose
	to 	resign 	for 	personal 	reasons.
	Wong 	was
	cut
	back
	to
	a
half-time 	preparator.
	The 	Museum
	continued 	to
	use
	on-call
workers.
Egherman,
	the 	assistant 	director
	of 	administration,
	and
Elliott,
	the 	director 	of 	the
	UAM,
	retained 	their 	positions.
4

The
	assistant
	director
	and
	chief 	curator 	position
	was
eliminated
	as
	a
	result
	of 	the
	reorganization
	and
	Ross
	was
	laid
off.
II.
	Adrienne
	Wong.
Adrienne
	Wong
	began 	working
	in
	the
	Museum
	as
	a
	work-study
student 	in
	1975.
	A~ter 	she
	graduated
	in
	March
	of
	1976,
	she
worked
	as
	a
	senior
	museum
	preparator
	on 	an
	on-call
	basis
	until
January
	1979,
	when
	she
	became 	a
	full-time 	preparator.
From
April
	1979
	to
	November
	1979,
	Wong
	was
	granted
	a
	leave
of
	absence
	to
	go
	to
Japan
	where
	Daniel Kelly, 	previously
	an
on-call
	preparator 	in
	the
	UAM,
	was 	an
	artist-in-residence.
Kelly
	and
	Wong
	had 	a
	personal
	relationship.
	Wong
	actually
wanted
	to 	quit
	the
	UAM
	to
	go
	to Japan 	to
	be
	with
	him,
	but
Bailey,
	her
	immediate
	supervisor,
	persuaded 	her
	to
	take
	a
	leave
of
	absence
	instead. 	Bailey
	felt
	at 	that
	time
	that
	Wong, 	who
possessed
	more
	experience 	than Shalk,
	had
	certain
	abilities
which
	made
	her
	valuable 	to
	the
	UAM
	and 	he 	was
	prepared
	to
	hold
her
	position
	open.
	When Wong
	left
	for 	Japan,
	she
	and
	Shalk
	had
a 	good 	working
	relationship.
A.
	Wong's
	Return
	from
	Japan
	and
	the 	Events 	of 	1980.
While
	Wong 	was
	in Japan, 	Bailey
	worked
	extensively 	with
Bobbie 	Shalk,
	at 	that
	time 	the 	only 	other 	full-time 	preparator
on
	the
	staff.
	At 	some
	point 	after
	her
	return,
	Wong
	formed
	the
opinion 	that 	there
	had 	developed
	a
	redistribution
	of
responsibilities 	in 	the 	preparation 	department.
	It
	appears
5

that Wong 	was 	displeased 	that, 	in 	her 	absence, 	Bailey 	had 	come
to 	rely 	on Shalk 	to 	perform 	key 	duties 	in 	the 	department. 	In 	a
sense, 	Wong 	felt 	Shalk 	had 	replaced 	her 	as 	the 	lead
preparator. 	Shalk 	testified 	that 	Wong 	became 	moody 	and
unpredictable 	after 	her 	return 	from Japan. 	And 	Bailey
testified 	that 	he 	i'ncreasingly 	found 	himself 	in 	the 	position 	of
trying 	to mediate 	a 	rivalry 	that 	was 	rapidly 	developing 	between
Wong 	and 	Shalk. 	In 	essence, 	it 	was 	his 	view 	that 	Wong 	felt
betrayed.
On May 	29, 	1980, 	Wong 	asked 	Bailey 	for 	a 	clarification 	of
her 	role 	within 	the 	department 	and 	an 	accurate 	description 	of
her 	job 	duties. 	Wong's 	contention 	was 	that 	the 	job description
cards 	were 	about 	10 	years 	old 	and 	no 	longer 	accurately
reflected 	the 	duties 	of 	employees 	in 	that 	position.
Wong 	testified 	that 	she 	talked 	to 	other 	preparators, 	in
both 	full-time 	and 	casual 	on-call 	status, 	about 	he~ 	concerns 	in
this 	area. 	However, 	Wong's 	chief 	concern 	was 	personal 	in
nature. 	Of 	primary 	concern 	was 	the 	fact 	that 	certain 	lighting
duties 	had 	been 	taken 	away 	from 	her, 	sometimes 	at 	the 	last
minute, 	and 	given 	to Shalk. 	This 	was 	particularly 	upsetting 	to
Wong, 	who 	considered 	herself 	to 	be 	an 	expert 	in 	lighting.
Additionally, 	at 	about 	this 	time, 	Wong 	spoke 	to Bailey 	and
voiced 	her 	opinion 	that, 	based 	on 	the 	work 	she 	was 	performing,
she 	should 	be 	reclassified 	to 	a 	higher 	position. 	This 	request
was 	based 	in 	large 	part 	on 	the 	lighting 	duties, 	which 	she
6

considered 	to 	be 	higher 	level 	work. 	As 	will 	be 	more 	fully
explained 	below, 	Bailey 	ultimately 	rejected Wong's 	request 	for
reclassification.
On May 	30 	Bailey 	gave 	Wong 	a 	good 	evaluation 	and
recorrnnended 	her 	for 	a 	7 	1/2 	percent merit 	increase. 	He 	said
that, 	while 	there 	were 	some 	problems 	with Wong's 	work, 	she 	was
basically 	doing 	a 	good 	job. 	Also, 	compared 	to 	other 	museums 	in
the 	Bay Area, 	preparators 	at 	UAM 	were 	underpaid 	and 	B~iley
thought 	it 	unfair 	to 	give 	an 	underpaid 	employee, 	who 	was
basically 	doing 	a 	good 	job, 	a 	bad 	evaluation 	with 	little 	or 	no
raise. 	Bailey's 	evaluation 	was 	further 	affected 	in 	part 	by 	the
fact 	that 	Wong 	had 	just 	returned 	from 	Japan 	.and 	was 	undergoing
some 	personal 	difficulty, 	stemming 	from, 	among 	other 	things, 	a
death 	in 	the 	family. 	On 	the 	other 	hand, 	Bailey 	testified 	that
there 	were 	some 	problems 	with Wong, 	but 	he 	felt 	they 	were 	not
typical 	of 	her 	work.
On June 	26 	and 	27, 	1980, 	Wong 	spoke 	with Joe 	Toby, 	an
analyst 	in 	the 	University's 	personnel 	department, 	about 	two
issues 	which 	were 	of 	primary 	concern 	to 	employees 	in 	the
department. 	First, 	she 	raised 	with Toby 	the 	so-called 	wage-lag
problem, 	which 	essentially 	means 	that 	preparators 	in 	the 	UAM
were 	paid 	less 	than 	employees 	in 	comparable 	positions 	in 	other
Bay Area 	museums. 	Second, 	she 	raised 	with Toby 	the 	fact 	that
on-call 	preparators 	did 	not 	receive 	fringe 	benefits. 	Wong 	said
she 	discussed 	the 	meeting 	with 	other 	employees 	in 	the 	UAM 	and
7

with 	Bailey, 	who 	also 	stood 	to 	gain 	if 	the 	wage-lag 	issue 	was
pursued 	successfully. 	According 	to Wong, 	Toby 	and 	Bailey, 	as
well 	as 	the 	employees, 	were 	receptive 	to 	her 	inquiries,
especially 	the 	pay 	inequity 	situation, 	as 	pay 	for 	preparators
was 	lagging 	about 	15 	percent 	behind 	the 	pay 	for 	comparable
positions 	in 	other Bay Area museums.
During· the 	summer 	and 	fall 	of 	1980, 	and 	into 	1981, 	she
continued 	to 	meet 	with Toby 	and 	with 	representatives 	of 	the
UAM.2 	During 	these 	meetings 	the 	issues 	relating 	to
clarification 	of 	responsibilities, 	job 	description 	cards, 	wage
inequities, 	and 	layoffs 	were 	discussed. 	Wong 	testified 	that
employees 	in 	the 	department 	were 	aware 	that 	these 	discussions
were 	ongoing. 	However, 	except 	for 	the 	wage-lag 	matter, 	it
seems 	that 	i.f 	other 	employees 	knew 	of 	these 	discussions, 	their
awareness 	was 	in 	the 	vaguest 	sense, 	and, 	at 	least 	for 	issues
other 	than 	the 	wage-lag, 	the 	record 	does 	not 	estabiish 	that
Wong 	acted 	as 	an 	appointed 	representative 	of 	other 	workers.
For 	example, 	at 	the 	hearing Wong 	testified 	at 	great 	length 	that
2For 	example, 	on July 	16, 	1980, 	Wong 	met 	with Toby 	and
David Ross 	to 	discuss 	a 	proposed 	job 	description 	card 	that 	she
prepared. 	On July 	11, 	1980, 	Wong, 	Shalk 	and 	Bailey met 	and
discussed 	wage 	inequities. 	On July 	25, 	1980, 	Wong 	and 	Kelly
met 	with Toby 	and 	discussed 	job 	descriptions 	and 	wage
inequities. 	In 	addition, 	in July 	1980, 	Wong 	submitted, 	among
other 	things, 	her 	version 	of 	a 	correct 	job 	description 	card 	to
Egherman. 	The 	card 	was 	submitted 	in 	conjunction 	with 	her
contention 	that 	she 	should 	be 	reclassified.
8

a
	burning
	issue 	in
	the
	department
	concerned
	the 	lack 	of
clarification
	of
	duties
	and
	responsibilities
	of 	workers.
	In
contrast,
	Shalk,
	Wong's
	co-worker
	and
	only
	other 	career
preparator,
	testified
	convincingly
	that,
	aside
	from
	isolated
incidents,
	she
	was
	not
	aware
	that
	a
	problem
	existed
	with
clarification
	of
	duties. 	Shalk's
	testimony
	was
	corroborated
	by
Mary
	Kate
	Murphy, 	an
	on-call 	preparator.
More9ver,
	Toby's
	version 	of 	these
	meetings
	is
	a
	little
different.
	Although
	he
	concedes
	that
	the
	wage
	lag
	problem
	was
discussed,
	he
	said
	the
	focus
	of
	the 	meetings 	during
	this
	period
was 	on Wong,
	as
	an
	individual.
	She 	wanted
	to
	be
	reclassified
to
	the 	scene
	technician 	position;
	she
	wanted
	to
	do 	some
personal
	training 	at
	the
	Oakland
Art
	Museum; 	and
	she 	complained
about
	her
	November
	evaluation,
	to
	be
	described
	below. 	With
respect
	to
	Bq~ley,
	Wong
	complained
	to
Toby
	that
	he· was
	erratic
and
	didn't
	give 	people
	enough
	information 	to
	do
	th~ir 	jobs.
She
	said 	Bailey
	favored
	certain
	people
	and
	she
	was
	not
	one
	of
them.
By
	this
	time, 	Bailey
	had
	already 	talked 	to
	Toby
	about 	the
problems
	he 	was
	having 	with
	Wong,
	so
Toby 	was
	well
	aware
	of
both 	sides 	of 	the
	story.
	These
	discussions 	continued
	into
	1981
and
	it
	appears
	that
	Toby
	tried 	to
	mediate 	the
	situation.
	He
was
	unsuccessful
	and
	at
	some
	point
	he 	began
	to 	advise 	Bailey
	as
to
	what
	his 	options
	were 	as 	a
	supervisor 	with 	respect 	to
dealing 	with
	Wong.
9

In September 	of 	1980 Wong 	formally 	proposed 	to 	Bailey 	that
she 	be 	granted 	a 	six-month 	employee 	development 	program 	which
included 	two 	projects: 	(l} 	a 	lighting 	internship 	at 	the 	Oakland
Museum, 	and 	(2) 	a 	video 	course 	to 	assist 	in 	performing 	video
work. 	The 	lighting 	internship 	program 	involved 	working 	at 	the
Oakland Art 	Museum 	revamping 	the 	lighting 	system 	and
researching 	low 	voltage. 	Bailey 	rejected 	the 	proposal 	because
the 	UAM 	had 	just 	researched 	low 	voltage 	and 	purchased 	$3,000
worth 	of 	low 	voltage 	fixtures. 	Thus, 	he 	saw 	no 	benefit 	to 	the
UAM 	from 	this 	part 	of 	the 	proposal. 	Also, 	he 	said Wong 	wanted
to 	take 	a 	private 	tutorial 	in 	video. 	Bailey 	thought 	it 	was 	a
better 	idea 	for 	both Wong 	and Shalk 	to 	take 	a 	class 	rather 	than
a 	private 	tutorial.3 	Wong 	then 	presented 	the 	proposal 	to
Ross 	and 	Egherman. 	It 	was 	similarly 	rejected.
By 	October 	1980 	the 	relationship 	between Wong 	and 	Bailey
was 	rapidly 	deteriorating. 	According 	to Wong's 	te~timony, 	she
had 	been 	given 	the 	lead 	role 	in 	lighting 	for 	the 	Marioni
3An 	example 	of 	the 	problems Bailey 	had 	working 	with 	Wong
at 	this 	time 	is 	evidenced 	by 	the 	situation 	surrounding 	drafting
the 	employee 	development 	proposal. 	Bailey 	asked Wong 	to 	submit
a 	written 	proposal. 	Three 	weeks 	went 	by 	but 	no 	proposal 	was
forthcoming. 	On 	a 	Friday Wong 	asked 	Bailey 	if 	she 	could 	have
Monday 	off 	to 	draft 	the 	proposal. 	Bailey 	refused 	because 	they
were 	in 	the 	midst 	of 	preparing 	for 	an 	exhibit 	and Wong 	was
needed 	at 	work. 	Also, 	Bailey 	felt 	three weeks 	was 	long
enough. 	On Monday 	morning Wong 	called 	the 	Museum 	to 	say 	she
would 	not 	be 	reporting 	to 	work. 	She 	said 	she 	was 	tired 	from
staying 	up 	all 	night 	to 	draft 	her 	proposal.
10

Exhibit 	and 	Shalk 	had 	been 	given 	the 	lead 	role 	in 	video. 	Wong
said Bailey, 	without 	apparent 	justification, 	claimed 	her 	work
was 	unacceptable 	and 	suggested 	terminating 	her 	if 	she 	didn't
improve. 	For 	several 	weeks 	therafter, 	according 	to Wong, 	he
assigned 	her 	menial 	cleanup 	chores. 	This 	prompted Wong 	to 	have
a 	meeting 	with 	Ross, 	where 	she 	said 	she 	was 	not 	being 	treated
equally 	and 	she 	would 	file 	a 	discrimination 	suit 	if 	it 	didn't
stop.
In November 	1980 	Bailey, 	who 	stood 	to 	benefit 	from 	any
readjustment 	which 	came 	out 	of 	pursuing 	the 	wage-lag 	issue,
became 	dissatisfied 	at 	the 	slow 	pace 	with 	which 	~he 	matter 	was
moving. 	He 	decided 	to 	get 	involved.4 	He 	met 	with 	Ross,
Egherman 	and Elliott, 	and 	took 	the 	lead 	role 	in 	putting
together 	a 	package 	to 	argue 	for 	increased 	wages 	for
preparators. 	He 	was 	assisted 	by Wong 	and 	Shalk, 	and 	together
they 	eventually 	developed 	a 	proposal. 	This 	effort.took 	a
considerable 	period 	of 	time 	because 	the 	issue 	had 	systemwide
ramifications 	and 	the 	material 	needed 	to 	be 	gathered 	from 	other
campuses. 	Eventually 	Bailey 	unsuccessfully 	presented 	the
4In April 	of 	1980 	Bailey 	had 	encouraged Wong 	and 	Shalk 	to
seek 	union 	assistance 	with 	the 	wage-lag 	problem.· 	He 	apparently
felt 	union 	representation 	would 	be 	more 	effective 	due 	to 	any
expertise 	the 	Union 	might 	bring 	to 	the 	issue. 	He 	took 	steps 	to
contact 	a 	union, 	he 	met 	with AFSCME 	representatives, 	and 	he
reported 	back 	to_Wong 	and 	Shalk. 	Despite 	these 	efforts 	by
Bailey, 	Wong 	claims 	that Bailey, 	in 	an 	attempt 	to 	discourage
union 	participation, 	told 	her 	and 	Shalk 	that AFSCME's 	dues 	were
$100 	per 	month.
. 	11

proposal 	for 	increased 	wages 	to 	a 	systemwide 	board 	established
to 	consider 	such 	matters. 	Wong 	and 	Shalk 	accompanied 	him 	and
assisted 	him 	in 	the 	presentation.5
A few 	days 	later, 	on November 	3, 	1980, 	Wong 	received 	what
she 	described 	as 	an 	unfair 	performance 	evaluation. 	She
complained 	to 	Ross 	that 	she 	objected 	to 	the 	evaluation 	and
intended 	to 	file 	a 	grievance.
The 	evaluation 	rated Wong 	as 	"unsatisfactory" 	in 	two 	areas:
(1) 	Installation 	and 	(2) 	Collection Study/Storage. 	She 	was
rated 	as 	"improvement 	needed" 	in 	four 	categories: 	(1) 	Packing/
Shipping/Receiving, 	(2) 	Collection/Delivery 	of 	works 	in 	the
Local Area, 	(3) 	Related Services, 	and 	(4) 	Other. 	In 	the
"Comments" 	section 	of 	the 	evaluation, 	Bailey 	wrote 	that Wong
refused 	to 	carry 	out 	his 	requests 	and 	accept 	responsibility
when 	an 	assignment 	was 	delegated 	to 	her. 	He 	said 	that 	her 	lack
of 	ability 	to 	communicate 	with 	others, 	especially 	quring 	a 	task
which 	involved 	two 	or 	more 	employees, 	had 	had 	a 	negative 	impact
on 	her 	work. 	In 	addition, 	Bailey 	wrote 	that 	her,
. 	bad 	temper 	has 	had 	deteriorating
consequences 	to 	the 	morale 	of 	the
preparation 	staff.
He 	further 	accused 	her 	of 	causing 	"unnecessary 	stress" 	in 	the
unit 	because 	of 	her 	"defiance."
5The 	so-called 	wage-lag 	board 	is 	made 	up 	of 	appointees
who 	hear 	proposals 	and 	arguments 	as 	to 	wage 	inequities. 	It 	is
constituted 	on 	a 	systemwide 	basis 	and 	meets 	periodically.
12

In 	support 	of 	his 	comments, 	Bailey 	attached 	to 	the
evaluation 	a September 	16 	memo 	from Bailey 	to Ross 	regarding
Wong's 	refusal 	to 	participate 	in 	a meeting 	during 	the Hartley
Exhibit, 	and 	a 	July 	15 	memo 	from Bailey 	to Wong 	about 	her
refusing 	to 	attend 	another 	meeting 	during 	another 	exhibit.
Also 	attached 	to 	the 	evaluation 	was 	a November 	3 memo 	about
Wong 	taking 	too 	long 	to 	perform 	an 	assignment. 	This 	latter
memo 	incorporates 	by 	reference 	an 	October 	22 	memo 	wherein
Bailey 	questioned Wong 	about 	disappearing 	from 	the 	work
location.
In 	the 	July 	15 	memo, 	Bailey wrote 	that 	Wong's 	"direct
defiance" 	in 	refusing 	to 	attend 	a 	meeting 	resulted 	in 	her 	being
unprepared 	for 	circumstances 	that 	followed. 	He 	informed Wong
that, 	as 	the 	supervisor, 	he 	would 	determine 	job
responsibilities. 	In 	her 	rebut~al 	statement, 	submitted 	after 	a
one-month 	stress-related 	absence, 	Wong 	conceded 	th 9t 	Bailey
requested 	the 	meeting, 	but 	she,
•.. 	felt 	the 	priority 	of 	[her] 	time 	was
needed 	for 	the 	MFA 	Lighting 	Installation.
Wong 	wrote 	that 	she 	requested 	a 	meeting 	with 	Ross 	to 	determine
priorities. 	At 	the 	hearing, 	Wong 	testified 	that 	she 	had 	other
duties 	to 	attend 	to 	that 	day, 	and 	Ross 	once 	told 	her 	not 	to
spend 	her 	efforts 	on 	time-wasting 	projects. 	Shalk's 	testimony
confirmed 	Bailey's 	to 	the 	extent 	that Wong 	did 	not 	attend 	the
meeting.
13

In 	the
	September
	16
	memo
	to
	Ross,
	issued 	during
	the 	Hartley
Exhibit,
	Bailey
	again
	complained
	that
	Wong
	refused
	to 	attend
	a
staff
	meeting,
	despite
	the
	fact 	that
	he
	explained 	the
	meeting
was
	important
	and
	it
	had
	been
	delayed
	several
	times
	for
	her
sake.
	He
	further
	wrote
	that,
...
	as
	a
	supervisor
	I
	refuse 	to
	accept
this
	form
	of
	protest.
He
	told
	Ross
	that
	he
	intended
	to,
...
	press 	the 	issue 	to 	the
	fullest
	the
next 	time
	[he
	is]
	put
	in
	this
	position.
In
	rebuttal,
	Wong
	asserted
	that
	she
	did 	not
	refuse 	to
participate
	in
	the 	meeting.
	She
	explained
	that
	she
	was
consistently
	pressed 	for
	answers
	to
	lighting
	problems 	which
	she
did
	not 	have.
	In
	an
	attempt 	to
	avoid
	dealing
	with
	Bailey
	on
the 	matter,
	she 	claimed
	it
	needed
	to
	be
	resolved
	by
	the
	chief
curator.
Bailey's
	November 	3
	memo
	to
	Wong
	referenced
	th~
	October
	22
memo
	which
	stated 	that
	she
	disappeared
	from 	work
	without
telling
	him.
	He
	apparently
	had 	asked 	her
	to
	let
	him 	know
before 	leaving 	in 	the 	future
	so
	he
	could 	avoid
	questioning
	her
judgment.
	He
	docked
	her 	2.5 	hours 	for
	her 	absence.
	The
November 	3
memo
	cites
	another
	incident
	where 	her
	disappearance
at
	the
	last
	minute 	"taxed 	the
	exhibition."
In 	her
	rebuttal
	Wong
	claims 	she 	did 	not
	walk
	out 	of 	one
	of
the 	exhibits
	(Joan
	Jonas).
	With
	respect 	to 	the 	other
	(Avedon),
she 	asserted 	that
	she 	walked
	out 	because 	she 	was
	"emotionally
14

upset" 	after 	an 	argument 	with 	Bailey. 	Both 	Bailey 	and 	Shalk
confirmed 	that 	Wong 	walked 	out 	of 	the 	Avedon Exhibit. 	And
Bailey 	convincingly 	testified 	she 	told 	him 	"fuck 	you" 	before
leaving.
After 	Bailey 	returned 	from 	his 	vacation 	in January 	1981,
they 	discussed 	the 	fact 	that 	there 	were 	problems 	in 	the
department~ 	and 	they 	agreed 	to 	attempt 	to 	work 	them 	out 	more
amicably 	in 	the 	future. 	Wong 	said 	she 	asked 	Bailey 	if 	he
wanted 	to 	discuss 	the 	evaluation, 	and 	he 	refused, 	saying 	he
intended 	to 	withdraw 	it.6
Bailey 	denied 	telling Wong 	he 	would 	withdraw 	the
evaluation. 	He 	said 	that, 	because 	of 	the 	problems 	in 	the
department, 	especially 	his 	relationship 	with Wong, 	he 	put 	a
tremendous 	amount 	of 	time 	and 	energy 	into 	the 	evaluation 	and
had 	deep 	concerns 	about 	the 	impact 	it 	would 	have 	on Wong.
Specifically, 	he 	was 	concerned 	about 	the 	deteriorating
relationships 	in 	the 	department 	and 	felt 	a 	negative 	evaluation
would make 	things 	worse. 	Meetings 	to mediate 	the 	situation 	had
been 	unsuccessful. 	Further, 	he 	was 	concerned 	because 	he
thought 	the 	evaluation might 	affect Wong's 	heart 	condition.
After 	returning 	from 	an 	absence 	due 	to 	stress, 	Wong 	wore 	a
heart 	monitor. 	And, 	according 	to 	Bailey, 	he 	received 	a 	letter
6As 	will 	more 	fully 	be 	discussed 	below, 	the 	evaluation
appeared 	in Wong's 	personnel 	file 	in June 	1981.
15

from
	Wong's
	psychologist
	saying
	that
Wong
	should
	not
	be
	working
in
	the
	Museum
	until
	she
	felt
	better.
	This
	too
	gave
	him
	reason
for
	concern,
	as
	he
	felt
	the
	evaluation
	would
	cause 	her
	more
stress.
	Bailey 	discussed
	all
	of
	this
	with
	Toby
	before
proceeding 	to
	issue
	the
	evaluation. 	In
	sum,
	Bailey
	testified
that,
	given
	all
	that
	he
	went
	through
	in 	drafting
	the
evaluation~
	it
	would 	have 	been
	absurd
	for
	him
	to
	simply
	agree
to
	then
	withdraw
	it
	and
	insert
	nothing
	in
	its
	place.
I
	credit
Bailey
	on
	this
	point
	and
	find
	that
	he
	never
	agreed
to
	withdraw
	the
	evaluation.
	As 	more
	fully
	explained
	below
	in
the
	credibility
	section,
	Wong
	was
	not
	a
	particularly
	believable
witness,
	while
	Bailey
	was 	more
	impressive
	on
	the
	stand.
Furthermore,
	it
makes 	no
	sense
	that
	Bailey
	would
	draft
	the
detailed
	evaluation,
	knowing
	fully 	that
	Wong
	would
	certainly
disagree
	with
	it,
	only 	to
	withdraw
	it
	at
	the
	slightest
protest.
	This
	is
	especially 	true
	given 	the 	unplea
9
ant
atmosphere
	in
	the 	department
	at
	the
	time;
	that
	is,
	the
relationship
	between
Wong
	and
	Bailey
	had
	deteriorated 	greatly
and
	there
	was
	little
	hope
	that
	Wong 	would
	quietly
	accept 	the
evaluation
	or
	that 	things
	would
	get
	better.
	Bailey,
	who 	was
concerned 	about 	the
	situation,
	was
	well
	aware
	of
	this
	and,
further,
	had
	to
	be 	aware
	of 	the
	fact 	that
	the. hard
	feelings
would 	not 	evaporate 	simply 	because
	he
	agreed 	to
	withdraw
	the
evaluation.
	I
·agree 	that
	it
	would 	have 	been 	absurd 	for
	him
	to
draft
	such 	an
	evaluation
	and
	then 	almost 	immediately 	withdraw
16

it
	at
	the
	slightest 	protest,
	inserting
	nothing
	in
	its
	place.
Indeed,
	I
	find
	that
	he
	did 	not
	do
	so.
Meanwhile,
	by
	the
	end
	of
	1980
	the
	relationship
	between
	Wong
and
	Shalk
	had
	worsened.
	Shalk
	testified
	that
	Wong
	became
secretive
	about
	lighting
	information.
	This
	presented
	a
problem, 	because
	Wong
	was
	supposed
	to
	be
	serving
	as 	the
	lead
person
	on
	lighting
	and,
	in
	a
	loose 	sense,
	training
	Shalk.
	By
March
	1981,
	Shalk 	wrote
	a
	letter
	about
	Wong
	to
Bailey 	in
	which
she
	said
	she
	had
	to
	let
	off
	some
	steam.
	In 	the
	letter,
	she
told
	Bailey
	she
	was
	tired
	of
	trying
	to
	compromise
	with
	Wong
with
	no
	response,
	and
	she 	complained
	of
	Wong's
	"sullen
	and
defiant"
	moods.
	In
	short,
	she 	wrote
	that
	she
	was
	"pissed
off."7
B. 	The
	Events 	of
	1981
1.
	The
	Layoffs
In January 	of
	1981
	Museum management
	found
	its~lf
	in 	the
midst 	of
	a
	severe
	financial
	crisis.
	The Museum 	had
	overspent
its
	budget 	and,
	for
	the
	first
	time
	in
	over 	40
	years, 	the
Berkeley
	campus
	faced
a.	
deficit
	of 	about
	$2
	million. 	This
meant
	that 	there
	would 	be
	less
	money 	from
	student 	fees
	and
70thers
	who
	worked
	with
	Wong
	described 	her 	in 	the
	same
way. 	For 	example,
	Mary 	Kate 	Murphy, 	a
	preparator 	in 	the
Museum,
	described
	Wong
	as
	moody, 	downcast 	and 	glum.
	Also, 	she
corroborated Shalk's 	testimony
	that
	Shalk
	and Wong
	did 	not 	get
along 	well.
17

tuition 	channeled 	to 	the Museum. 	Also, 	fund 	raising 	efforts
had 	not 	gotten 	off 	to 	a 	quick 	start 	and 	a 	cash-flow 	problem
existed.
Organizationally, 	the Vice 	Chancellor's 	office 	has
budgetary 	control 	over 	the 	UAM. 	A meeting 	of 	management
officials 	from 	the 	Museum 	and 	the Vice 	Chancellor's 	office 	was
held 	in January 	to 	discuss 	the 	crisis. 	As 	of 	that 	date, 	the
expected 	deficit 	was 	approximately 	$197,000. 	In 	general 	terms,
what 	emerged 	from 	the 	meeting 	was 	a 	request 	that 	the 	Museum 	cut
its 	budget 	by 	approximately 	$300,000 	to 	$400,000 	for 	1981-82.
Approximately 	70 	to 	80 	percent 	of 	this 	would 	be 	accomplished 	by
permanent 	staff 	reductions.
On March 	18, 	1981, 	Elliott 	responded 	to 	the Vice
Chancellor's 	office 	in 	a 	lengthy memo. 	In 	essence, 	the 	memo
suggested 	that 	a 	$300,000 	cut 	was 	too 	severe, 	and 	any 	cuts 	that
were 	made 	needed 	to 	be 	done 	in 	stages. 	Neverthele 9 s, 	Elliott
sought 	to 	comply. 	He 	set 	forth 	a 	proposal 	which 	broke 	the
budget 	into 	two 	components, 	the 	"core" 	component 	and 	the
"program" 	component. 	The 	core 	component 	was 	that 	part 	which
would 	rely 	on 	general 	funding. 	Even 	if 	no 	additional 	funds
were 	raised 	by 	other 	means, 	the Museum 	would 	still 	be 	able 	to
function 	on 	the 	core 	component. 	The 	program 	component 	was 	that
part 	which 	would 	fluctuate 	depending 	on 	the 	amount 	of 	income
available 	from 	outside 	sources. 	Naturally, 	if 	the 	Museum
received more 	program money 	it 	would 	be 	richer, 	but 	at 	worst 	it
18

could 	function 	on 	the 	core 	component. 	Further, 	in 	his 	memo,
Elliott 	stressed 	his 	concern 	for 	staff 	members 	who 	might 	have
to 	be 	laid 	off 	and 	with 	the morale 	of 	those 	who 	remained.
Communications 	continued 	between 	representatives 	from 	the
Museum, 	Elliott 	and Egherman, 	and 	representatives 	of 	the Vice
Chancellor's 	office. 	There 	were 	several 	meetings 	and 	lengthy
memoranda 	exchanged 	on 	the 	subject. 	Several 	options 	emerged
and 	were 	considered. 	It 	appears 	that 	these 	exchanges
eventually 	took 	on 	the 	flavor 	of 	negotiations, 	with 	both 	sides
setting 	forth 	their 	positions 	and 	various 	options. 	Museum
representatives 	argued 	for 	the 	highest 	possible 	budget. 	In
addition, 	part 	of 	this 	process 	included 	consideration 	of 	the
impact 	fund 	raisers 	would 	have 	on 	the 	budget.
This 	process 	continued 	for 	the 	first 	six months 	of 	1981,
and 	a 	great 	deal 	of 	uncertainty 	existed 	during 	this 	period.8
Egherman 	said 	that 	paring 	down 	costs 	was 	a 	difficult 	job. 	To
make 	up 	$300,000, 	he 	said 	he 	couldn't 	just 	cut 	a 	few 	dollars
here 	and 	a 	few 	dollars 	there, 	but 	rather 	the 	whole 	structure
and 	character 	of 	the 	Museum 	had 	to 	be 	changed. 	Thus, 	cuts 	were
made 	in 	administration, 	curatorial, 	and 	in 	the 	Pacific 	Film
8Various 	options 	were 	discussed 	during 	this 	~eriod. 	For
example, 	one 	plan 	called 	for 	1.5 	full-time 	positions 	in 	the
Museum. 	Another 	called 	for 	two 	positions, 	and 	yet 	another
called 	for 	three 	positions. 	However, 	it 	appears 	that 	during
this 	process 	no 	one 	really 	knew 	with 	certainty 	how 	much 	money
there 	would 	be 	or 	how many 	positions 	would 	finally 	be 	allotted
to 	the 	staff.
19

Archives.
	A
new
	concept
	in
	the
	allocation
	of
	space
	was
developed.
	For 	example,
	gallery
B,
	which
	was
	highly
labor-intensive
	because
	it
	was
	designed
	for
	exhibitions,
	would
no
	longer
	be
	used.
	Instead,
	the
	permanent
	collection
	was
	put
in 	gallery
	B, 	and
	changing
	exhibitions 	in
	other
	galleries
	which
had 	lower
	ceilings
	·and
	were
	easier
	to
	light
	and
	to
	install.
Also,
	admission
	would 	be
	charged
	and
	the
	number
	of
	exhibits
reduced.
The
	final
	budget
	emerged 	on
June 	3.
	It
	was
	$1.15
	million.
As
	stated, 	this
	figure
	was
	arrived
	at
	after
	much
	negotiation
between 	the
	Museum
	representatives,
	Egherman 	and
	Elliott,
	and
representatives
	of 	the 	Chancellor's
	office.
	Employees 	were
kept
	informed
	at
	various 	steps
	along 	the
	way. 	They 	knew
	the
$1.15 	million
	had
	been
	agreed
	to,
	but 	they
	didn't
	know 	how
	the
money 	would 	be
	allotted.
Egherman
	testified
	that
	he
	committed
	to
	the Viqe
Chancellor's 	office
	during 	the
	negotiations 	that
	as
	much 	money
as
	possible
	would 	be
	put
	into
	programs 	because
	that 	is
	what
	the
fund
	raisers
	wanted.
	One
	issue
	which
	kept
	surfacing 	during 	the
budget 	process
	was
	the 	concerns 	of
	fund
	raisers,
	donors,
	and
those
	who 	gave 	endowments
	to 	the
	Museum. 	They 	wanted
assurances 	that
	the 	University
	was 	committed
	to
	funding 	the
Museum
	so
	that 	their 	contributions
	would 	go 	towards 	a
	quality
operation.
The
	final
	budget, 	including 	the 	layoffs,
	was 	announced 	on
20

June 	24, 	1981. 	The 	equivalent 	of 	9.38 	full-time 	positions 	were
eliminated. 	However, 	this 	affected 	14 	or 	15 	employees 	because
some 	were 	part-time. 	The 	Museum 	was 	reorganized. 	The 	shop
department 	was 	eliminated 	and 	all 	of 	its 	career 	employees--
Johnson, 	O'Neill 	and 	Clausen--were 	laid 	off. 	A new 	department
was 	set 	up 	to 	do 	the 	work 	the 	shop 	and 	preparation 	departments
did 	in 	the·past. 	Hubbs 	was 	named 	head 	of 	that 	department. 	Her
position 	in 	design 	was 	not 	filled.
Additionally, 	the 	budget 	provided 	for 	the 	equivalent 	of 	two
other 	full-time 	positions. 	Bailey 	retained 	one 	full-time
position, 	but 	he 	was 	demoted 	from 	chief 	preparator 	to 	a
non-supervisory 	lead 	person 	slot. 	Hubbs 	testified 	that 	she
offered 	Bailey 	the 	full-time 	position 	because 	of 	his 	experience
and 	the 	fact 	that 	she 	felt 	a 	little 	uneasy 	about 	taking 	over
the 	supervision 	of 	the 	combined 	preparation 	and 	shop
departments. 	Wong 	was 	reduced 	from 	full-time 	prep~rator 	to 	a
.50 	preparator. 	Shalk 	had 	been 	offered 	the 	.50 	position 	based
on 	her 	seniority over 	Wong, 	but 	she 	declined 	and 	resigned.
The 	remaining 	.50 	position 	was 	allotted 	to 	on-call
workers. 	Hubbs 	reasoned 	that 	this 	would 	give 	her 	the
flexibility 	needed 	to 	employ 	on-call 	workers 	to 	handle 	the
peaks 	and 	valleys 	of 	the 	exhibition 	season. 	Also 	available 	for
this 	purpose 	was 	some 	on-call money 	from 	the 	program 	budget.
David Ross, 	the 	chief 	curator 	was 	laid 	off. 	Every
department 	except 	security 	was 	hit 	by 	the 	layoff.
21

Although
	it
	was
	the
	chancellor's 	office 	that
	eventually
imposed
	the
	final
	budget,
	Hubbs
	had
	the 	primary
	authority 	to
decide
	how
	to
	allocate
	the
	two
	full-time 	positions.
	For
example,
	rather
	than
	have
	l.~
	career
	positions,
	she 	could
	have
decided 	to
	use
	all
	the
	money
	for 	the
	two
	positions
	for 	only
on-call
	employees,
	or 	she 	could
	have
	devised
	some
	other
arrangement.· 	After 	consulting
	with
	Toby, 	Ross 	and
	Egherman,
she
	settled
	on
	1.50
	caree~
	positions
	and
	.50
	on-call.
	Bailey
played
	no
	role
	in
	this
	decision
	or
	in
	the
	layoffs.
	In
	fact,
	he
didn't
	even
	know
	they
	were 	coming.
	The
	layoffs
	were
	effective
July 	1,
	1981.
Meanwhile,
	in
	May
	1981
	Jim
	Elliott,
	director
	of 	the
	UAM,
called
	a
	meeting
	of
	all
	staff
	to
	announce
	that
	there
	would
	be
layoffs.
	Elliott
	explained
	that
	the
	layoffs
	were
	necessary
	due
to 	cutbacks 	in
	funding
	from
	the 	Berkeley
	campus.
	Wong
testified
	that
	she
	had
	no
	reason 	to 	question
	the
	vali9ity 	of
Elliott's
	explanation.
Immediately
	after
	Elliott's
	May
	13
	announcement,
	but 	before
the
	cuts
	were 	implemented,
	Wong
	and
	Kelly 	undertook
	a
	campaign
to 	secure
	employment
	for 	themselves 	in 	the 	face 	of
	this
muse~rn-wide
	layoff.
	Wong
	set
	up 	a
	meeting 	with
	Elliott
	and
told
	him
	of 	the 	role
	she 	had
	filled
	in 	the 	department
	and
	the
functions
	she 	had
	performed.
	She
	raised
	with
	him
	the 	idea
	that
she 	and 	Kelly 	continue 	to 	receive
	work.
	Wong
	first
	proposed,
in 	essence, 	that
	she 	receive
	a
	.50
	preparator's 	slot
	and 	.50
22

on-call
	time.
	Alternatively,
	she 	proposed
	that
	Kelly
	be
	given
the 	.50
	on-call
	time
	if
	she
	couldn't
	have
	it.
	In
	making
	this
proposal,
	Wong
	was
	aware
	of
	the
	fact 	that
	if
	she
	and
	Kelly
received
	this
	work,
	it
	would 	be
	to
	the
	exclusion 	of
	all
	other
employees
	who
	were
	also
	facing
	a
	layoff.
Elliott
	directed
	Wong
	to
	Ross
	who,
	in
	turn, 	directed
	her
	to
Nina 	Hubbs,
	the
	new
	head
	of
	installation
	and
	design.9	
Wong,
in
	fact,
	had
	several 	discussions
	with
	Hubbs
	about
	future
employment.
	It
	had 	been 	announced
	that
	there
	was 	a
	likelihood
that
	1.5
	positions
	would 	be
	available,
	and
	once
	again 	the
thrust
	of
	Wong's 	comments
	to
	Hubbs 	was
	to 	secure 	as
	much
	of
this	
work	
as
	possible
	for
	herself
	and
	for 	Daniel 	Kelly.
	She
claims
	that
	Hubbs, 	on
	June 	3,
	and
	again
	on
	June 	5,
	offered
	her
a
	.50
	position
	and
	told
	her
	that
	Shalk,
	who
	actually
	had 	more
seniority
	than
	Wong, 	would 	be
	offered
	the
	other
	.SO
	position.
On
	June 	8, 	according 	to
	Wong, 	Hubbs
	offered
	her
	a
	.SO
	position
and 	a
	.50
	casual 	on-call 	position,
	Shalk 	having 	decided
	to
leave 	the
	UAM
	by
	this
	time.
	Wong
	further
	testified 	that
	Hubbs
said
	Kelly 	could
	have
	the
	.50
	casual 	on-call 	position
	if
	Wong
didn't
	want
	it.
	Hubbs'
	version of 	these 	conversations
	is
somewhat
	different.
Hubbs
	denied
	making
	the
	offers.
	She
	said
	she
	told
	Wong
9wong
	also
	went
	to
	Toby 	and
	pursued 	the
	possibility
	of
securing
	a
	position 	for 	herself
	and
	for 	Kelly.
23

that
	Shalk
	had 	more
	seniority
	and
	thus
	was
	entitled
	to 	the
remaining
	.50
	slot.
	But
	if
	Shalk
	declined,
	Wong
	was
	next
	in
line
	and
	could
	have
	it.
	According
	to
	Hubbs,
	Wong
	said
	she
	was
interested,
	and
	she
	also 	raised 	the
	fact 	that
	Kelly
	was
interested
	in
	a
	.50
	job 	or
	other
	work.
	Hubbs
	denied
	that
	she
offered
	Wong
	the
	.50
	position,
	plus
	.50
	worth
	of 	other
	on-call
work.
	This
	would 	add
	up
	to
	a
	full-time
	job
	and
	Hubbs
	said
	she
was
	not 	in
	a
	position
	to
	offer 	that.
	In 	the
	end,
	Wong
	said
	she
was
	interested
	in 	the
	.50
	position.10
I
	credit
	Hubbs'
	testimony
	on
	this
	point.
	Hubbs
	knew
	Bailey
would
	get
	one
	full-time
	job.
	There
	was
	only
	one
	other
	.50
	slot
available.
	Hubbs
	could 	not
	have
	offered
	Wong 	a
	.50
	position
until
	after
	Shalk
	declined 	the
	same
	position 	since
	the
	layoff
of
	career
	employees
	is
	based
	on
	seniority
	and
	Shalk
	was
	senior
to
	Wong. 	More
	importantly,
	it
	is
	not
	believable
	that
	Hubbs
would
	offer 	either
	Wong
	or 	Kelly
	a
	.50
	on-call
	positi_on,
	since
such 	an
	offer
	would
	limit
	the
	number
	of
	employees
	Hubbs
	could
call
	to
	work
	at
	any 	one
	time
	and
	thus 	reduce 	the
	flexibility
needed
	to 	handle 	the
	fluctuating
	workload
	in 	the
	Museum.
	It
does 	not
	seem
	even 	remotely
	possible 	that
	Hubbs,
	who
	struck
	me
as
	a
	conscientious
	and
	thoughtful
	manager,
	would 	have
	tied
	her
own
	hands
	in
	this
	regard. 	This
	is 	especially 	true 	since
	it
	was
lOApparently, 	Bailey 	did 	not 	figure 	into 	these
discussions, 	although
	Hubbs 	and
	Bailey 	talked 	about
	Bailey's
situation 	at 	other 	times.
24

Hubbs'
	stated
	philosophy
	at
	the
	time
	to 	preserve
	this
flexibility
	by
	using 	the
	remaining
	.50
	position
	for
	on-call
employees.
	Committing
	this
	amount
	of
	on-call
	work
	to
	any 	one
employee
	would
	have
	completely
	undermined
	her
	ability
	to
	cover
the
	work
	during
	exhibitions.
2.
	The
	June
	12
	Letter
On
	June
	12,
	1981,
	Bailey
	gave
	Wong
	the 	following
	memo:
My
	request 	for 	information
	from
	you,
	details
on 	a
	light 	test
	was
	denied. 	After
	which 	you
suggested
	I 	do
	it
	myself.
	You
	then 	denied
	a
request
	for 	the
	name
	of
	the 	person
	I
	needed
to 	contact 	to 	obtain 	the 	information
	I
needed
	to
	complete
	the
	project
	myself.
	When
I
	asked
	you
	why
	you 	were
	so
	defiant
	youranswer
	was 	you
	didn't
	like
	the
	way 	I
"handled" 	the 	attempt 	to
	correct
	our
	wage
lag.
	This
	abstract
	defiance
	and
	your
leaving 	for 	the
	day
	(returning
	after
speaking
	to
	David 	Ross)
	because
	you
	don't
"feel
	well"
	and
	that
	"you
	don't
	have
	to 	takeanything
	from 	me"
	is
	inexcusable.
This
	is
	by
	far
	not 	the
	first
	incident 	of
	its
kind
	or 	the
	first
	caution 	to
	you
	that
	it
	is
inexcusable.
Shortly
	after
	she
	received
	this
	memo, 	on
	approximately 	June 	16,
Wong 	made
	her
	first
	contact
	with
	CSEA, 	and 	a
	meeting
	was
	held
on
	June
	29
	to 	discuss 	the
	memo, 	among
	other 	things.11
llThe
	original
	memo
	used
	the
	word
	"warning" 	in 	the
	last
sentence 	in 	place 	of 	the
	word
	"caution."
	At 	some
	point,probably 	before 	the 	meeting 	with
	CSEA
	representatives, 	the
	word
"warning"
	was 	changed
	to 	"caution."
	The 	change 	was 	made 	by
Bailey 	at
	Toby's 	suggestion.
	The
	effect 	of 	the 	change 	was
	to
make
	it
	clear 	that 	the
	letter
	did 	not
	constitute 	corrective
action
	and
	thus 	could 	not 	be 	used 	to 	support
	a
	subsequent
disciplinary 	action.
25

There 	had 	been 	a 	situation 	in 	the 	Museum 	where 	light 	bulbs
were 	burning 	out 	too 	fast. 	These 	bulbs 	were 	sent 	to 	facilities
management 	to 	be 	checked. 	Since 	Bailey 	had 	not 	heard 	anything
from 	facilities 	management 	for 	about 	a 	month, 	he 	told 	Wong 	to
call 	and 	check 	it 	out. 	Wong 	got 	off 	the 	telephone 	and 	said
that 	she 	had 	to 	tak~ 	some 	"stuff" 	down 	to 	facilities
management.· 	Bailey 	said, 	"what 	stuff?" 	She 	said,
"specifications." 	Bailey 	repeatedly 	asked 	what 	specifications,
but 	she 	would 	not 	say 	anything 	except 	"specifications," 	even
though 	she 	knew 	precisely 	what 	specifications 	were 	requested.
Wong 	then 	said, 	"if 	you 	want 	to 	do 	it, 	do 	it 	yourself." 	Bailey
said, 	"okay, 	I 	will. 	What's 	the 	number."
Wong 	had 	called 	facilities 	management 	and 	had 	been
transferred 	to 	the 	appropriate 	individual. 	When 	Bailey 	asked
for 	the 	number, 	instead 	of 	giving 	him 	the 	number 	or 	name 	of 	the
person 	she 	had 	been 	talking 	to, 	she 	gave 	him 	the 	original
number, 	which 	meant 	that 	when 	Bailey 	called 	he 	had 	to 	get
transferred 	himself. 	Bailey 	called 	the 	number, 	eventually 	got
transferred, 	and 	a 	man 	at 	the 	other 	end 	of 	the 	line 	explaihed
he 	needed 	certain 	specifications. 	Bailey 	told 	him 	the
specifications 	had 	been 	sent 	in 	a 	month 	ago. 	At 	this 	point,
the 	person 	in 	facilities 	looked 	in 	his 	file, 	confirmed 	that
what 	Bailey 	said 	was 	true, 	and 	said, 	"okay, 	we'll 	get 	back 	to
you." 	That 	was 	the 	end 	of 	it. 	Significantly, 	Wong 	was 	present
and 	in 	fact 	was 	the 	one 	who 	gave 	these 	specifications 	to 	the
26

facilities 	management 	people 	approximately 	a 	month 	ago 	when
they 	visited 	the 	museum 	to 	check 	out 	the 	problem. 	Thus, 	she
was 	at 	all 	times 	aware 	of 	the 	specifications 	Bailey 	wanted.
Bailey 	summed 	up 	the 	incident 	as 	follows. 	He 	said 	that
Wong 	frequently 	would 	make 	a 	response 	to 	him 	which 	was
sufficiently 	vague 	to 	be 	confusing 	or 	incomplete, 	but 	not 	so
incomplete -as 	to 	be 	completely 	nonresponsive. 	He 	described
this 	as 	passive 	defiance.
Wong 	eventually 	filed 	a 	grievance 	under 	SPP 	section 	280.
As 	more 	fully 	explained 	below, 	the 	University 	rejected 	the
grievance 	because 	the 	memo 	did 	not 	constitute 	"corrective
action" 	within 	the 	meaning 	of 	the 	SPP 	and 	therefore 	was 	not
grievable 	under 	section 	280.12
3. 	The 	June 	16 	Performance 	Evaluation
On 	June 	16, 	1981, 	Wong 	received 	her 	performance 	evaluation
covering 	the 	period 	July 	1, 	1980 	to 	July 	1, 	1981. 	Bailey 	rated
her 	as 	"unsatisfactory" 	in 	three 	categories, 	and 	"improvement
needed" 	in 	four 	categories.13 	He 	also 	attached 	comments.
12The 	facts 	surrounding 	the 	University's 	res~onses 	to 	the
grievances 	filed 	by 	all 	the 	discriminatees 	in 	this 	case, 	and
the 	charging 	party's 	arguments 	in 	relation 	to 	each 	grievance,
are 0
set 	forth 	in 	Section VI, 	infra.
13 11 Unsatisfactory" 	ratin~s 	were 	in 	Response 	to 	Supervisor
(and 	co-workers); 	Packing/Shipping/Receiving; 	and
Installation. 	"Improvement 	Needed" 	ratings 	were 	in
Collection/Storage; 	Collection/Delivery; 	Related 	Services 	(such
as 	handling 	art 	work 	for 	loan 	on 	campus); 	and 	Others 	(such 	as
safe 	handling 	of 	art).
27

which 	were 	generally 	critical 	of 	Wong's 	ability 	to 	get 	along
with 	co-workers, 	and 	of 	her 	general 	attitude 	about 	her 	job.
Bailey 	did 	not 	include 	written 	specific 	incidents 	to 	support
his 	comments.
The 	evaluation 	further 	states 	that 	Wong 	made 	improvements
since 	her 	last 	evaluation. 	However, 	the 	evaluation 	contains
more 	negative 	checks 	in 	the 	various 	categories 	than 	in 	the
prior 	evaluation. 	Bailey 	explained 	this 	inconsistency. 	He
said 	that 	essentially Wong 	was 	erratic 	in 	her 	work. 	While 	she
improved 	temporarily, 	she 	ultimately 	regressed 	in 	the 	overall
ratings.
He 	further 	explained 	that 	Wong 	would 	not 	sit 	down 	with 	him
to 	discuss 	the 	evaluation, 	so 	the 	specifics 	in 	support 	of 	these
ratings 	were 	never 	discussed. 	At 	first 	Bailey 	testified 	that,
since 	there 	had 	been 	no 	discussion, 	he 	has 	no 	recollection 	of
what 	these 	specifics 	were. 	However, 	when 	pressed, 	he 	recalled
several 	specifics 	to 	support 	his 	"Comments" 	in 	the 	evaluation.
Specifically, 	he 	said 	that 	he 	once 	told 	Shalk 	to 	tell 	Wong, 	who
was 	going 	out 	to 	pick 	up 	some 	lamps, 	to 	stop 	by 	a 	certain
manufacturer's 	place 	of 	business 	and 	pick 	up 	a 	ladder. 	Shalk
did 	so, 	but 	Wong 	said 	she 	didn't 	have 	time 	and 	she 	didn't 	want
to 	talk 	to 	Shalk 	about 	it. 	Then 	she 	left. 	As 	a 	result, 	the
equipment 	was 	not 	picked 	up, 	and 	someone 	else 	had 	to 	make 	a
separate 	trip 	to 	get 	the 	ladder. 	Also, 	Bailey 	cited 	the
example 	of 	the 	Pomodoro 	Exhibition 	when 	Wong 	kept 	telling 	him
28

that
	he 	was
	assigning
	her
	"shit
	work."
	Further,
	he
	said 	there
were
	at 	least
	three
	or 	four 	times
	when
	Wong
	gave
	Shalk
	an
extremely
	hard 	time
	which
	consequently
	affected
	everybody's
performance.
	He
	also 	cited
	the
	incident
	when 	he
	asked
	Wong
	for
specifications
	about 	the
	light
	bulbs
	and
	she
	wouldn't 	give
	them
to
	him.
	Bailey
	said
	that
	on
	another 	occasion
	he
	asked
	her 	to
clear 	off
	a
	matting
	table.
	She
	gave
	him 	a
	long
	memo
	wherein
she 	asked
	him
	where 	he
	wanted
	her
	to 	put
	certain
	items.
	She
listed
	these
	items
	in
	a
	long
	list,
	but
	they
	were
	basically
	just
little
	odds
	and
	ends
	that
	were 	on
	the
	table
	and
	didn't
	have
	any
specific
	place 	to
	go; 	she 	should
	have
	known
	where
	to
	put
	them.
The
	odds
	and
	ends
	were
	such
	things
	as
	little
	pieces 	of 	paper,
etc.
	He
	termed
	her
	memo
	"ridiculous."
	A
day
	later
	she
	came
back 	with 	another
	memo
	specifying
	a
	list
	of
	similar
	items
	and
asked 	Bailey
	where
	to 	put
	them.
	On
	the
	third
	day
	she 	gave
	him
yet
	another
	memo
	in
	which
	she
	said 	that
	she
	had
	decided
	to 	put
all
	these
	little
	odds
	and
	ends 	under
	the
	table
	until
	it
	was
decided 	exactly
	where
	they 	should 	go.
	Bailey
	said
	that's
exactly
	what 	he 	wanted
	her 	to
	do
	in 	the
	first
	place, 	but
	it
took
	three
	memos 	and
	three
	days
	to
	do 	a
	job
	that
	should 	have
been
	done
	in 	half
	an
	hour.
	He
	said 	that 	this 	affected 	the
installation
	and
	all
	aspects 	of 	her
	work
	because
	it
	wasted 	time.
Another
	point 	of 	contention
	stemming 	from
	the 	evaluation
involved 	the 	fact 	that
	her
	lighting 	responsibilities
	were
	not
specifically 	reflected
	on
	the 	evaluation,
	even 	though 	she 	had
29

done
	lighting
	during 	the
	evaluation 	period.
	Bailey
	said
	that
her
	lighting
	responsibilities
	were
	covered
	under
	the
	area 	of
installation.
	He
	also 	said
	that
	at 	least
	three
	people,
including
	Shalk
	and
	himself,
	and
	as
	many
	as
	five
	people
	when
the
	on-call
	workers
	were
	considered,
	also
	did
	lighting
	at
	the
time.
	Thus,
	Wong's.percentage
	of
	time
	in
	lighting
	was
	not
great.
	Bailey's
	comments
	also
	incorporated
	by
	reference 	the
October
	1980
	evaluation.
	I
	have
	already
	found
	that
	Bailey
never 	agreed
	to
	withdraw
	the
	October
	1980
	evaluation.
When
	he
	was
	the
	chief 	preparator,
	it
	was
	Bailey's 	practice
to
	keep
	evaluations 	in
	his
	desk
	along 	with
	other 	personnel
information. 	After 	the
	reorganization,
	he
	transferred 	his
files
	and
	responsibilities
	over
	to
	Nina
	Hubbs 	and 	showed
	her
where 	he
	kept 	the 	personnel
	files.
	He'was 	informed
	that
	the
personnel
	files
	should
	be
	kept
	upstairs
	in 	another
	office.
Hubbs
	then
	transferred
	all
	the 	personnel
	files,
	incfuding
Wong's,
	into
	the 	business
	office
	files.
	It
	was
	apparent
	at
this
	point 	that
	Wong
	learned
	that
	the
	October
	1980
	evaluation
had
	not
	been 	withdrawn.
The
	evaluation
	was
	discussed
	at
	the 	June
	29
	meeting
	in
Toby's
	office.
	Present
	were 	Toby,
	Bailey
	and
	Wong, 	who
	was
represented
	by
	Nadia 	Tesluk 	of
	CSEA.
	Also
	discussed
	was
	the
June
	12
	letter
	regarding
	"specifications."
	This
	was
	the
	first
time
	Wong 	was
	represented
	by 	CSEA.
30

4. 	The 	July 	14 	Grievance.
On 	July 	14, 	1981, 	Wong 	filed 	a 	grievance 	about 	her 	layoff.
The 	grievance 	charged 	that 	the 	University's 	layoff 	regulations
(SPP 	section 	760) 	had 	been 	violated 	because,
.•. 	the 	department 	does 	not 	document 	the
layoff 	with 	either 	a 	lack 	of 	funds 	or 	a 	lack
of 	work. 	·
Additionally, 	Wong 	complained 	in 	the 	grievance 	that 	casual
~mployees 	were 	"being 	retained 	to 	do 	the 	same 	work." 	Lastly,
the 	grievance 	asserted 	that 	the 	layoff 	was 	part 	of 	a 	continuing
"series 	of 	punitive 	actions" 	including 	the 	June 	12 	"letter 	of
warning" 	and 	the 	June 	28 	evaluation.
5. 	The 	July 	16 	and 	20 	Letters 	Regarding 	Keys
Nina 	Hubbs 	returned 	from 	vacation 	on 	July 	13 	as 	the 	new
supervisor 	of 	the 	installation 	and 	design 	department. 	As
mentioned 	earlier, 	Hubbs 	became 	the 	supervisor 	of 	Barney 	Bailey
and 	Adrienne 	Wong, 	and 	Bailey 	no 	longer 	had 	supervisory
responsibility 	for 	Wong. 	He 	did, 	however, 	serve 	as 	a 	lead
person 	and 	had 	a 	great 	deal 	of 	contact 	with 	Wong 	in 	this
capacity.
As 	part 	of 	this 	transition, 	Hubbs 	established 	new
procedures 	for 	the 	use 	of 	building 	keys. 	Keys 	would 	no 	longer
be 	taken 	home, 	but 	would 	be 	left 	at 	"control," 	the 	security
desk, 	prior 	to 	leaving 	for 	the 	day.
On 	July 	15, 	she 	met 	with 	Bailey, 	Wong, 	and 	Gary 	Garvin,
another 	employee, 	and 	directed 	them 	to 	follow 	this 	new
31

procedure. 	Reasons 	for 	the 	new 	procedure 	were 	based 	largely 	on
her 	concern 	for 	the 	security 	of 	the 	art 	work. 	In 	the 	past,
problems 	had 	been 	created 	when 	keys 	were 	left 	at 	home 	or 	lost.
In 	addition, 	those 	people 	who 	worked 	part-time 	were 	absent 	from
the 	Museum 	for 	long 	periods 	of 	time 	during 	which 	their 	keys
might 	be 	required. 	Hubbs' 	policy 	on 	keys 	applied 	to 	the 	entire
staff.
Two 	hours 	after 	Hu.bbs 	announced 	this 	directive, 	Wong 	left
the 	Museum 	without 	leaving 	her 	keys 	at 	control. 	At 	the 	end 	of
the 	day, 	when 	turning 	in 	her 	keys, 	Hubbs 	discovered 	that 	Wong
was 	the 	only 	employee 	who 	had 	not 	done 	so. 	Hubbs 	chose 	not 	to
discuss 	the 	matter 	with Wong. 	Instead, 	on 	July 	16, 	1981, 	she
wrote 	Wong 	a 	letter 	of 	reprimand 	citing 	the 	incident.
On 	the 	next 	day 	that 	Wong 	was 	scheduled 	to 	work, 	Monday,
July 	20, 	she 	again 	forgot 	her 	keys. 	Rather 	than 	tell 	Hubbs
that 	she 	left 	her 	keys 	at 	home, 	Wong 	went 	directly 	to 	control
and 	attempted 	to 	get 	a 	second 	set. 	This 	prompted 	Hubbs 	to
write 	Wong 	a 	second 	letter 	of 	reprimand 	on 	the 	subject 	of
keys. 	Both 	letters 	simply 	reminded 	Wong 	of 	the
newly-established 	procedure 	and 	said 	that 	if 	she 	continued 	to
neglect 	this 	responsibility 	her 	key 	privileges 	would 	be
rescinded. 	In 	addition, 	the 	July 	20 	letter 	asserted 	that 	the
keys 	were 	University 	property 	and 	their 	removal 	from 	the 	Museum
constituted 	misappropriation 	of 	University 	property, 	which 	is
32

subject 	to 	corrective 	action. 	Both 	of 	these 	letters 	were 	given
to 	Wong 	on 	Monday, 	July 	20.
In 	the 	past, 	others 	had 	lost 	their 	keys, 	but 	were 	not
reprimanded. 	For 	example, 	Bailey 	once 	lost 	his 	keys 	prior 	to
June 	1981, 	before 	this 	procedure 	was 	established. 	There 	was 	no
evidence 	that 	this 	had 	occurred 	under 	the 	new 	procedure.
Wong 	filed 	grievances 	about 	both 	of 	the 	memos 	related 	to
the 	key 	issue. 	On 	September 	2, 	1981, 	Elliott 	responded 	by.
letter 	assuring 	her 	that 	the 	security 	reasons 	prompted 	the
memos 	and 	they 	were 	not 	a 	reprisal 	for 	use 	of 	the 	grievance
procedure.
6. 	The 	July 	1981 Memos 	Dealing 	with 	Lighting 	Files, 	Use
of 	Xerox 	Machine, 	and 	Other 	Copying 	of 	Files.
On 	July 	14 	Hubbs 	tried 	to 	locate 	the 	lighting 	files 	that
were 	normally 	kept 	in 	a 	filing 	cabinet 	in Wong's 	desk. 	The
information 	in 	these 	files 	was 	needed 	to 	prepare 	a 	new 	budget
for 	the 	department. 	When 	she 	could 	not 	locate 	the 	iiles 	Hubbs
asked 	Wong 	if 	she 	knew 	where 	they 	were. 	Wong 	replied 	"usually
they 	are 	kept 	in 	my 	desk." 	In 	fact, 	Wong 	had 	taken 	the 	files
home.
The 	next 	day, 	July 	15, 	Hubbs 	had 	a 	meeting 	with 	Bailey,
Wong 	and 	Garvin 	and 	they 	discussed 	the 	issue 	of 	the 	keys 	and
consolidation 	of 	files. 	Hubbs 	anounced 	that 	she 	intended 	to
consolidate 	the 	working 	files 	from 	the 	old 	shop, 	preparation
and 	design 	departments 	in 	her 	office, 	including 	the 	lighting
33

files.
	Also,
	Hubbs
	said
	that,
	in 	order
	to
	clean
	up
	the
	files
before
	consolidation,
	any
	extraneous
	material
	would 	be
	thrown
out.
	Wong
	became
	extremely
	concerned
	that
	some
	of 	the
information
	that
	she
	had
	in 	these
	files
	might
	be
	discarded,
	and
this
	would
	hurt
	her
	attempts
	at
	a
	reclassification.
	Wong
apparently
	felt
	that
	her
	work
	in
	lighting
	could
	be
	documented
by
	reviewing 	her
	research 	in
	this
	area,
	which
	was
	included 	in
these
	files.
	Two.
days
	later,
	on
	July
	17,
	Hubbs
	again 	looked
for
	the
	lighting
	files
	in
	Wong's
	desk.
	Again
	she
	could
	not
locate
	the
	specific
	files
	she 	needed.
Hubbs 	became
	increasingly
	concerned 	about 	the 	whereabouts
of 	the
	files.
	On
	Friday 	evening,
	July
	17,
	at
	6:30
	p.m.,
	Hubbs
called
	control
	and
	requested
	that
	Adrienne
	Wong,
	Barney
	Bailey,
and
	Daniel 	Kelly
	be
	denied 	access 	to 	the
	Museum
	offices
	from
that
	time 	through 	8:30
	a.m.,
	Monday,
	July
	20.
	The
	hours
included 	only 	the 	time 	during
	which
	those
	individuals 	did
	not
normally
	work. 	Normal 	work
	hours 	for 	these
	employees 	were
	to
begin 	again
	on
	Monday
	at
	8:30 	a.m.
	She
	did 	~his 	in 	order 	to
determine
	who 	was
	responsible 	for 	the
	removal
	of
	lighting
files.
	Hubbs'
	intention
	was
	to 	see
	if
	anyone 	would
	attempt 	to
return
	the
	files
	over
	the
	weekend.
On
	Monday,
	July
	20,
	Wong
	arrived 	at
	work
	early
	to
	copy
	the
files,
	knowing
	that
	Hubbs 	wanted 	them.14	
A
security
	guard·
told
	her 	to 	leave 	the 	building
	and
	not 	to 	return 	until
8:30 	a.m.
	When 	Wong
	arrived 	at
	work
	later 	that
	morning 	she
34

brought 	several 	files 	with 	her 	and 	Hubbs 	asked 	her 	where 	the
remainder 	of 	the 	files 	were. 	Wong 	responded,
Oh, 	I 	thought 	that 	I 	told 	you 	that 	I 	had
them 	at 	home.
And 	Hubbs 	said,
No, 	you 	didn't 	tell 	me 	that 	you 	had 	them 	at
home. 	• 	· 	[Y] ou 	told 	me 	that 	usually 	they
were 	kept 	in 	your 	desk 	and 	they're 	not 	in
your 	desk.
Hubbs 	then 	requested 	that 	Wong 	prepare 	a 	list 	of 	all 	the 	files
that 	she 	kept 	at 	home, 	and 	Wong 	did 	so.
On 	July 	20, 	1981, 	Hubbs 	gave 	Wong 	a 	letter 	of 	warning. 	The
letter 	states 	in 	relevant 	part:
On 	July 	14, 	i981 	I 	asked 	you 	if 	you 	knew
where 	the 	lighting 	files 	were. 	You 	replied,
"Usually 	they 	are 	kept 	in 	my 	desk." 	Since
they 	were 	at 	that 	time 	in 	your 	personal
possession, 	this 	was 	an 	intentionally
evasive 	and 	deceptive 	answer. 	You 	did 	not
at 	any 	time 	inform me 	that 	you 	had 	any 	files
at 	home. 	On 	July 	15 	I 	specifically
requested 	that 	all 	catalogues, 	pamphlets,
files, 	etc. 	were 	to 	be 	kept 	in 	my 	office 	and
were 	to 	be 	removed 	only 	with 	my 	permission.
At 	that 	time 	you 	should 	have 	informed 	me
that 	you 	had 	materials 	in 	your 	possession.
14wong 	says 	that 	she 	had 	concern 	that 	if 	the 	files 	were
consolidated, 	what 	she 	considered 	her 	personal 	information
would 	be 	thrown 	out, 	because 	Hubbs 	wanted 	to 	get 	rid 	of 	the
extraneous 	material. 	This 	explanation 	is 	questionable. 	Hubbs
asked 	her 	only 	to 	consolidate 	certain 	files. 	If 	there 	were
extraneous 	material 	in 	these 	files 	that 	were 	Wong's 	personal
materials, 	she 	could 	simply 	have 	removed 	this 	material 	and
submitted 	the 	files 	to 	Hubbs 	for 	consolidation 	as 	requested.
Since 	she ·didn't·do 	this, 	the 	logical 	inference 	is 	that 	she
was, 	in 	fact, 	copying 	University 	files 	for 	her 	own 	use.
35

The 	files 	you 	brought 	in 	this 	morning 	you
removed 	from 	the 	office 	once 	again 	without
my 	permission. 	All 	lighting 	files 	are 	to 	be
kept 	in 	the 	grey 	file 	cabinet 	in 	my 	office
unless 	I 	specifically 	request 	or 	give
permission 	for 	them 	to 	be 	removed. 	I 	want
all 	of 	the 	files 	you 	have 	listed 	(and 	any
others 	that 	may 	have 	escaped 	your 	memory) 	on
the 	attached 	memo 	returned 	tomorrow 	morning
before 	9 	a~. 	These 	files 	are 	the 	property
of 	the 	University. 	Removal 	of 	them 	without
supervisorial 	permission 	constitutes 	a
mtsappropriation 	of 	University 	property 	and
is 	grounds 	for 	immediate 	dismissal 	under
Staff 	Personnel 	Policy 	740.11.
The 	next 	day, 	on 	July 	21, 	Hubbs 	learned 	that 	Wong 	had 	been
copying 	the 	files 	on 	Monday 	evening 	during 	non-work 	hours.
This 	concerned 	Hubbs 	because 	she 	had 	not 	requested 	copies 	of
the 	files. 	She 	wanted 	the 	originals. 	Hubbs 	was 	informed 	that
Wong 	had 	copied 	a 	large 	amount 	of 	files 	with 	the 	Museum 	Xerox
machine 	over 	a 	period 	of 	three 	to 	four 	hours. 	Hubbs 	felt 	that
this 	was 	costly 	and 	inappropriate. 	Eventually 	what 	Hubbs
received 	were 	copies, 	not 	the 	originals.15 	Again, 	Hubbs 	felt
that 	Wong 	was 	being 	deceptive 	and 	not 	behaving 	in 	an 	honest
manner. 	She 	then 	wrote 	the 	following 	memo 	to 	Wong 	on 	July 	21:
It 	has 	been 	brought 	to 	my 	attention 	that 	on
July 	20 	at 	7:30 	pm 	and 	July 	21 	at 	7:30 	am
you 	were 	using 	the 	xerox 	machine 	in 	this
building 	to 	copy 	files. 	As 	I 	have 	not
requested 	copies 	of 	any 	files 	from 	you, 	I
15wong 	claims 	the 	originals 	were 	her 	own 	work 	product 	and
developed 	on 	her 	own 	time. 	She 	said 	Hubbs 	had 	no 	right 	to
them; 	however, 	she 	consented 	to 	make 	copies 	available 	anyway.
It 	is 	my 	understanding 	that 	the 	charging 	party 	now 	considers
these 	files 	in 	the 	nature 	of 	"gifts" 	to 	the 	Museum.
36

assume
	that
	you 	were
	copying
	files
	for
	your
own
	personal
	use.
	In 	the
	future,
	please
request
	permission
	from
	me
	before
	copying
any
	files
	that
	are
	University 	property.
Also, 	while
	the
	use
	of
	the
	xerox
	machine
	for
personal 	business
	is
	a
	privilege
	we
	all
	make
occasional
	use
	of,
	it
	is
	a
	privilege 	that
due
	to
	abuse
	by
	one
	or
	two
	individuals
	may
be
	rescinded
	at
	any
	time.
On
	Friday,
	July
	24, 	1981,
	Wong
	came
	into
	Hubbs'
	office 	at
approximately
	11:00
	a.m.
	and
	questioned
	Hubbs
	about 	her
	policy
on
	copying
	files.
	Hubbs
	explained
	that
	she 	should 	ask
permission 	before
	copying
	any
	material
	from 	a
	file
	so
	that
	in
the 	event
	that
	the
	file
	was
	lost
	she
	could
	identify
	who
	had
	it
last.
	Hubbs
	reiterated
	the
	content 	of
	her
	July
	21
	memo
	where
she
	stated 	that
	in
	the
	future
	Wong
	should
	secure 	permission
before
	copying
	UAM
	files.
	A few
	hours
	later
	Wong
	returned 	to
Hubbs'
	office,
	removed 	a
	file
	from 	a
	cabinet
	and,
	without
permission,
	began
	copying
	it.
	This 	time,
	however,
	Wong
	copied
the
	file
	by 	hand
	as
	Hubbs
	looked 	on.
Wong's
	actions
	prompted
	Hubbs
	to 	issue 	yet
	another
	letter
of
	reprimand
	on
	July
	31, 	1981.
	In 	the
	letter
	Hubbs
	related
	the
events 	leading
	up
	to 	July
	24 	and
	the 	hand-copying
	incident
which
	occurred
	on
	that
	day.
	Hubbs
	wrote
	that
	Wong
"deliberately
	chose
	to 	ignore 	[her]
	instructions."
	The 	memo
also 	stated 	that
	Hubbs
	looked 	on
	the 	incident
	as
	an 	example
	of
"surreptitious 	behavior,"
	which
	is
	a 	form
	of 	"dishonesty"
	~nd
"insubordination."
	Wong
	claims
	that
	Hubbs'
	instructions 	about
37

securing 	permission 	applied 	only 	to 	Xeroxing 	files, 	not
hand-copying 	files.
With 	the 	assistance 	of 	CSEA, 	Wong 	filed 	grievances
challenging 	the 	three 	memos. 	In 	each 	instance 	Elliott _upheld
the 	action 	taken 	by 	Hubbs, 	informing 	Wong 	that 	the 	files
contained 	confidential 	information 	and 	that 	it 	was 	the
supervisor'~ 	responsibility 	to 	monitor 	their 	use. 	In 	response
to 	the 	July 	31 	letter 	of 	reprimand, 	Elliott 	again 	upneld 	the
action. 	He 	informed 	Wong 	that 	the 	memos 	represented 	the
culmination 	of 	her 	"complete 	and 	dogged" 	disregard 	for 	her
supervisor's 	regulations 	concerning 	use 	of 	the 	files.
7. 	The 	Davis 	Painting 	Incident
Works 	of 	art 	are 	frequently 	transported 	by 	the 	elevator 	at
the 	UAM. 	The 	elevator 	has 	a 	gate 	which 	must 	be 	closed 	before
it 	will 	move 	from 	floor 	to 	floor. 	As 	with 	most 	elevators, 	it
is 	possible 	to 	call 	the 	elevator 	to 	a 	particular 	fl?or 	by
pressing 	a 	button. 	However, 	the 	elevator 	at 	the 	UAM 	cannot 	be
called 	in 	this 	way 	unless 	the 	gate 	is 	closed.
There 	is 	no 	dispute 	that 	it 	is 	unsafe 	for 	a 	work 	of 	art 	to
travel 	unattended 	on 	the 	elevator 	from 	floor 	to 	floor.
Therefore, 	it 	is 	a 	well-established 	policy 	at 	UAM, 	that 	works
of 	art 	not 	be 	left 	unattended 	on 	the 	elevator 	with 	the 	gate
closed, 	thus 	permitting 	them 	to 	be 	called 	from 	another 	level.
A major 	concern 	is 	that 	workers 	who 	carry 	tools 	use 	the
elevator, 	and 	if 	they 	don't 	notice 	the 	work 	of 	art 	there 	is 	a
38

risk 	that 	the 	tools 	may 	accidentally 	come 	in 	contact 	with 	the
art 	and 	damage 	it.
On August 	17, 	1981, 	Wong 	placed 	a 	valuable 	Davis 	painting
unattended 	on 	the 	freight 	elevator 	and 	closed 	the 	doors.
According 	to 	Hubbs, 	the 	painting 	was 	such 	that 	a 	person 	not
familiar 	with 	minimalist 	art may 	not 	recognize 	it 	as 	a 	work 	ot
art. 	This would 	create 	more 	danger 	to 	the 	art. 	The 	painting
was 	called 	to 	another 	floor 	where 	a 	worker 	from 	the 	physical
plant 	got 	on 	and 	rode 	with 	the 	painting 	to 	another 	gallery.
Mary 	Smiley 	witnessed 	Wong's 	actions. 	She 	testified 	that
on 	August 	17 	she 	was 	working 	with Wong. 	They 	were 	to 	leave 	the
elevator 	area 	to 	help 	Bailey move 	a 	large 	crate. 	Prior 	to
doing 	so, 	Wong 	opened 	the 	elevator 	door, 	moved 	the 	cart
carrying 	the 	painting 	onto 	the 	elevator, 	and 	deliberately
closed 	the 	door. 	Smiley 	told 	Wong 	she 	hoped 	it 	was 	still 	there
when 	they 	got 	back, 	and 	Wong 	laughed. 	She 	testified 	that 	she
did 	not 	attempt 	to 	stop Wong 	because,
Adrienne 	is 	fairly 	notorious 	for 	giving 	you
a 	bad 	time 	if 	you 	question 	her 	or 	say
anything.
Smiley 	said 	Wong,
... 	turns 	into 	a 	different 	person. 	She
can 	come 	in 	in 	the 	morning 	and 	be 	real 	•
friendly 	and 	bubbly 	and 	then 	without 	anyone
doing 	anything 	or 	saying 	anything 	all 	of 	a
sudden 	she 	can 	turn 	to 	ice 	••..
After 	moving 	the 	crate, 	Bailey 	became 	aware 	of 	what 	had
happened. 	He 	learned 	from 	Smiley 	that 	Wong 	was 	the 	one 	who 	put
39

the
	painting
	on
	the
	elevator
	and
	he
	confronted
	Wong,
	advising
her
	that
	she
	had 	made 	a
	mistake.
	On
	August
	19
	Bailey 	recorded
the 	incident
	in
	a
	memo
	to
	Hubbs.
	On
	September
	2,
	1981,
	Hubbs
suspended
	Wong
	for 	her
	actions.
	The
	suspension
	memo
	was
delivered 	shortly
	after
	a
	September
	2
meeting
	held 	with
	Wong
'
and
	her
	CSEA
	representative
	to
	investigate
	the
	matter.
At
	the
~eeting
	Wong
	and
	her
	representative
	made
	several
arguments
	in
	defense
	of
	the
	action.
	However,
	at
	no
	time
	prior
to 	the 	hearing
	in
	this
	case 	did
	Wong
	or 	her
	representative
acknowledge
	that
	Wong
	had
	made 	a
	mistake.
	According
	to
	Hubbs,
it
	was
	this
	factor 	that
	played
	a
	major
	role
	in
	her
	decision 	to
suspend
	Wong.
	In
	this
	regard, 	the
	letter
	of
	suspension
	states:
From
	this
	incident
	it
	is
	apparent
	that
	you
are 	incapable 	of
	working
	without 	continuous
ongoing
	supervision
	and
	that
	you
	clearly
lack 	the 	necessary 	sense
	of
	responsibility
and 	good
	judgement
	required 	of
	a
	Senior
Preparator.
	You
	have
	not 	given
	me
	any
indication 	of
	your 	awareness
	of 	the 	seriou~
nature 	of
	your
	misconduct,
	nor 	any
	indication
that
	in 	the
	future
	you
	will
	not
	repeat 	the
error.
	In
	an
	attempt 	to
	make
	it
	perfectly
clear
	to
	you
	that
	what 	you 	have 	done 	amounts
to 	gross
	misconduct
	of
	such
	magnitute 	as 	towarrant
	immediate
	dismissal
	if
	repeated,
	I
intend 	to
	suspend
	you
	for
	12
	hours 	of
	work,
effective
	September
	8-9,
	1981,
	without 	pay.
It
	was
	not
	until
	the 	hearing 	in
	this
	case
	that
	Wong
	finally
admitted
	that
	she
	made 	a
	mistake.
Several 	witnesses
	testified 	that
	they 	had 	never 	seen 	works
of
	art 	left
	unattended
	on
	the 	elevator 	with 	the 	gate 	closed.
The
	testimony
	showed
	only 	that
	works
	of
	art
	have 	been
	left
40

unattended 	on 	the 	elevator 	with 	the 	gate 	open, 	thus 	preventing
the 	elevator 	from 	being 	called 	from 	another 	floor. 	On 	the
other 	hand, 	other 	witnesses 	testified 	that 	in 	the 	past 	they 	had
seen 	works 	of 	art 	left 	unattended 	in 	elevators 	with 	the 	gate
closed. 	However, 	none 	of 	these 	workers 	ever 	notified 	any
management 	official.of 	this. 	There 	was 	no 	evidence 	presented
to 	show 	that 	any 	management 	person 	knew 	or 	should 	have 	known 	of
these 	incidents.16
8. 	The 	Telephone 	Locks
On 	July 	30, 	1981, 	Mary 	Louise 	Beecroft, 	a 	work-study
employee, 	purchased 	phone 	locks 	at 	Hubbs' 	request. 	Beecroft
testified 	that 	the 	phones 	in 	the 	preparation 	area 	were 	unlocked
and 	there 	had 	been 	untraceable 	long-distance 	calls 	made 	after
hours 	and 	on 	weekends 	from 	isolated 	areas 	in 	the 	Museum.
Bel:croft 	purchased 	two 	locks 	that 	required 	two 	different 	keys.
16charging 	party 	presented 	evidence 	to 	show 	that 	in 	the
past 	works 	of 	art 	have 	been 	damaged 	in 	the 	UAM, 	but 	there 	has
never 	been 	corrective 	action 	taken 	until 	Wong's 	elevator
incident. 	For 	example, 	union 	witnesses 	attributed 	cracks 	in 	a
Neil 	Jenny 	painting 	to 	Bailey. 	A glass 	object 	was 	mistakenly
packed 	as 	plastic, 	but 	no 	damage 	was 	done. 	A gust 	of 	wind 	bent
a 	photo 	while 	it 	was 	being 	delivered. 	All 	of 	these 	incidents
may 	be 	distinguished 	from 	the 	elevator 	incident. 	With 	respect
to 	the 	Jenny 	painting, 	it 	was 	not 	clearly 	established 	that 	the
cracks 	could 	be 	attributed 	to 	Bailey 	or 	any 	other 	employee.
All 	other 	examples 	offered 	by 	the 	charging 	party 	involved
damage 	caused 	by 	circumstances 	beyond 	the 	control 	of 	the
employee 	responsible 	(i.e., 	a 	gust 	of 	wind), 	or 	situations
where 	the 	particular 	approach 	to 	handling 	the 	art 	was 	a 	matter
of 	judgment 	and 	therefore 	open 	to 	debate. 	There 	were 	no
examples 	offered 	where 	an 	employee 	violated 	a 	clear 	policy 	as
Wong 	did 	in 	the 	elevator 	incident.
41

When 	she 	returned, 	Hubbs 	said 	she 	wanted 	locks 	which 	could 	be
opened 	with 	a 	master 	key. 	Rather 	than 	return 	the 	locks
immediately, 	Hubbs 	decided 	to 	wait 	until 	a 	later 	date 	to 	do 	so.
Hubbs, 	Egherman, 	Toby, 	Tesluk 	and 	Wong 	met 	in 	Egherman's
office 	on 	August 	12 	to 	discuss, 	among 	other 	things, 	the 	July 	31
letter 	of 	reprimand~ 	During 	the 	course 	of 	this 	meeting, 	the
subject 	of Wong 	making 	telephone 	calls 	during 	work 	time 	to 	her
CSEA 	representative 	was 	discussed. 	Hubbs 	was 	concerned 	that
even 	a 	brief 	call 	might 	be 	disruptive 	because 	it 	might 	take 	an
employee 	10 	minutes 	to 	get 	from 	the 	gallery 	to 	a 	phone 	and
another 	10 	minutes 	to 	return 	to 	the 	gallery 	after 	the 	call.
The 	call 	itself 	would 	take 	some 	time. 	If 	that 	person 	happened
to 	be 	working 	with 	another 	person 	at 	the 	time, 	it 	could 	result
in 	an 	employee 	standing 	around 	waiting 	for 	the 	caller 	to
return. 	As 	a 	result 	of 	the 	meeting, 	Hubbs 	issued 	a 	memo 	on
September 	29, 	1981, 	stating 	that, 	as 	a 	general 	rule 	telephone	1
calls 	should 	be 	restricted 	to 	break 	and 	lunch 	times. 	The 	memo
said 	that 	if 	it 	was 	"necessary" 	to 	place 	a 	call 	during 	work
hours, 	the 	employee 	should 	get 	permission 	from 	the 	on-site
supervisor 	before 	leaving 	the 	work 	area.
Shortly 	after 	this 	meeting, 	Wong 	was 	asked 	to 	exchange 	the
locks 	previously 	purchased 	by 	Beecroft. 	Wong 	viewed 	this 	as 	a
form 	of 	retaliation 	for 	participating 	in 	the 	meeting. 	However,
she 	testified 	that, 	although 	she 	assumed 	her 	purchase 	of 	the
phone 	locks 	after 	this 	meeting 	was 	directly 	related 	to 	the
42

earlier
	discussion 	of
	telephone
	calls
	during 	the 	meeting,
	she
acknowledged
	that
	there
	may
	have 	been
	other
	reasons
	why
	Hubbs
wanted
	locks
	on
	the
	phones.
	Lastly, 	there
	were
	pay
	phones
	in
the
	Museum
	which
	Wong
	was
	free
	to 	use,
	so
	the 	locks 	did
	not
interfere
	with
	her
	ability
	to
	call
	her
	representative.
9.
	The
	September
	14,
	1981
	Representation 	Issue
Wong
	arrived
	at
	work
	at
	8:30
	a.m.
	on 	Monday,
	September
	14,
1981,
	the
	first
	day
	of
	work
	following 	her 	12-hour
	suspension.
At
	approximately
	9:30 	a.m.
	Hubbs 	and
	Bailey
	met
	Wong
	at
	the
loading
	dock
	in
	the
	Museum. 	Hubbs 	had
	the 	understanding
	that
Wong 	was
	to
	be
	on
	suspension 	for
	4
	hours 	in 	the
	morning 	and
then
	work
	the 	afternoon
	of
	the 	previous
	Wednesday,
	so
	she
	asked
Wong 	why
	she
	hadn't
	worked
	that
	afternoon.
	Wong
	said
	she
didn't
	work
	in 	the 	afternoon
	because 	she
	was
	under
	suspension.
Hubbs
	told
	Wong
	that
	it
	was
	her 	impression
	that
	she
	had
	been
under 	suspension
	until
	noon 	and
	therefore
	had
	been
	~xpected
	to
show 	up
	for
	work
	in 	the 	afternoon.
	At
	that 	point,
	Wong
	said
she
	wanted
	her
	representative.
	Hubbs
	said 	there
	would
	be 	no
corrective 	action,
	and
	she
	further 	explained
	that
	she 	simply
wanted
	to
	clear
	up
	the 	misunderstanding.
	It
	appears
	that
	both
Wong 	and 	Hubbs 	were
	confused 	as 	to
	whether
	a
	previous 	agreement
that
	Wong
	would 	work 	on 	Wednesday
	afternoon
	was
	superseded
	by
the 	suspension.17
17wong's 	normal 	schedule
	was
	to
	work 	a
	full
	day 	on 	Monday
and 	Tuesday, 	and 	a
	half-day
	on 	Wednesday. 	The
	confusion
	was
43

At
	that 	point,
	the
	conversation
	moved
	upstairs
	to
	the
design
	office
	where 	Hubbs
	again
	told
	Wong
	that
	there
	would 	be
no
	corrective
	action
	and
	she
	was
	obligated 	to 	discuss 	the
matter.
	Wong
	asked
	to
	call
	Tesluk,
	her
	CSEA
	rep~esentative,
and
	Hubbs
	agreed.
Hubbs 	and
	Bailey
	were
	present
	when
	Wong
	discussed 	the 	issue
with 	Tesluk
on
	the
	phone.
	After
	Wong
	had
	been
	on
	the
	phone
	for
awhile,
	she
	began
	to 	discuss 	other 	subjects
	with
	Tesluk.
	Hubbs
told
	Wong
	she
	had
	been
	on
	the
	phone
	long
	enough,
	and
	since
	she
had
	not
	asked
	for
	permission,
	she
	was
	asked
	to
	hang
	up. 	At
that
	point
	Wong
	said 	to
	Tesluk 	over
	the
	phone
	that
	"Nina
	says
	I
can't
	talk
	to 	you."
	Hubbs
	said,
	"that's
	not
	what
	I
	said.
	You
tell
	her
	what
	I
	said."
	Wong
	then 	repeated 	to
	Tesluk
	what
	Hubbs
had
	actually 	said
	and 	hung
	up.
	After
	she
	hung 	up
	the
telephone,
	Wong
	told
	Hubbs
	that
	Tesluk 	advised 	her
	to
	go
	ahead
with 	the 	discussion 	as
	long
	as
	it
	would
	not 	lead
	to,corrective
action.
	Hubbs
	asked
	Wong
	if
	she
	was
	satisfied
	with
	Tesluk's
advice.
	Wong
	said
	she
	wasn't
	and 	wanted
	to 	discuss
	it
	with
Joe
	Toby, 	which
	she
	did.
No
	disciplinary 	action
	was
	taken.
	Wong
	was
	paid 	for 	the
four 	hours
	that
	she
	did 	not
	work 	on 	Wednesday
	afternoon. 	In
	a
memo
	dated 	September 	14,
	Hubbs
	asked
	Wong
	to
	make 	up
	the 	four
due 	to 	the 	fact 	that
	Monday
	of 	the
	week
	in 	question
	was 	a
holiday.
44

hours, 	but 	she 	never 	did. 	Wong 	contends 	she 	has 	no 	obligation
to 	do 	so.
10. 	Sanding 	Frames
In 	September 	1981 Bailey 	assigned 	Wong 	the 	tasks 	of 	sanding
and 	oiling 	frames 	in 	preparation 	for 	the 	Leonardo 	da 	Vinci
Exhibit. 	These 	tasks 	had 	been 	performed 	in 	the 	past 	primarily
by 	employees 	in 	the 	shop 	department, 	but 	were 	now 	performed 	by
others 	since 	that 	department 	was 	eliminated 	as 	a 	result 	of 	the
1981 	reorganization. 	Thus, 	it 	was 	not 	uncommon 	for 	all
employees 	to 	perform 	such 	work 	assignments. 	It 	is 	true, 	as
Wong 	and 	Bailey 	both 	testified, 	that 	while 	Wong 	was 	sanding 	and
oiling 	frames, 	other 	employees 	were 	assigned 	the 	tasks 	of
matting 	and 	framing 	works 	of 	art. 	Bailey 	testified 	that 	he 	had
reservations 	about 	assigning 	these 	m9re 	delicate 	tasks 	to 	Wong
because 	he 	didn't 	think 	she 	could 	handle 	them 	at 	the 	time. 	He
said 	that, 	as 	a 	result 	of 	the 	elevator 	incident, 	sh~ 	was
"fuming 	all 	the 	time" 	and 	therefore 	not 	in 	a 	condition 	to 	do
the 	more 	delicate 	work.
In 	response 	to 	the 	assertion 	that 	these 	assignments
resulted 	in 	isolating 	her 	from 	other 	employees, 	Bailey
testified 	that 	he 	did 	it 	for 	her 	own 	benefit. 	He 	said 	he 	moved
her 	into 	an 	area 	where 	she 	could 	sand 	and 	oil 	near 	an 	exhaust
fan. 	He 	also 	said 	that 	she 	should 	use 	a 	respirator 	when 	doing
this 	work. 	Wong 	viewed 	this 	as 	harrassment 	because 	of 	the
manner 	in 	which 	Bailey 	did 	it.
45

The
	pace
	at
	which
	Wong
	undertook
	those 	assignments
	also
troubled 	Bailey.
	In 	demonstrating
	how
	to
	lightly
	sand
	a
	frame,
Bailey
	completed
	a
	frame
	in
	about
	five
	minutes.
	Although 	she
picked
	up
	the
	pace
	near 	the
	end
	of
	the 	assignment,
	Bailey
estimated
	that
	Wong
	did 	approximately
	11
	frames
	per
	day.
11.
	Denial
	of
	Access
	to 	the
	Registration
	Area 	During
	the
da
	Vinci
	Exhibit
	and
	the
	"Grand
	Master
	Key"
Egherman
	described
	the
	need
	for
	maximum
	security
	around
	the
da
	Vinci
	exhibit.
	It
	was
	the
	first
	time
	that
	da
	Vinci's
	work
had 	been
	in 	the 	building
	or
	in
	the
	Bay
	Area
	for
	that
	matter,
and
	it
	was
	of 	extraordinary 	value.
	He
	was
	concerned
	that
	some
pieces,
	such
	as 	the
	Christ 	figure,
	might
	bring 	out 	the 	worst 	in
some
	of
	the 	people
	that
	hang
	around
	Berkeley.
	As
	Egherman
	put
it,
	they
	had 	had
	problems
	with
	"street
	people"
	in 	Berkeley 	with
respect
	to
	damaging
	art
	and
	harrassing
	employees
	in 	the
	Museum.
The
	daVinci's
	were
	electronically
	wired
	and
	connected
	to
the 	police
	department
	in 	Berkeley. 	Special 	cases
	were
	built.
There
	were
	24-hour 	guards
	stationed
	in 	the
	gallery.
On
	September
	10, 	1981, 	Jim
	Elliott
	issued
	a
	memo
	concerning
security
	around
	the 	daVinci
	exhibit. 	Esssentially,
	the
	memo
voiced
	a
	concern 	about
	security,
	and
	it
	limited 	access
	to
	the
registration
	storage 	area 	without
	a
	specific 	authorization.
Only 	a
	select
	group
	was
	permitted 	to
	go
	into 	the
	registration
area.
	Even 	Egherman 	was
	excluded.
	The
	only 	people 	allowed 	in
there
	were
	the 	individual 	curator
	working 	on
	the 	exhibit, 	the
director, 	the
	registrar,
	who
	obviously 	had 	to 	handle 	the
46

paintings,
	and
	the 	photographer,
	who
	worked
	in
	there 	to 	take
condition
	photographs.
	Bailey
	and 	Hubbs 	were
	also
	on
	the
	list.
Hubbs
	testified
	that
	everyone
	wanted
	to
	see
	the
	pieces 	of
art
	in
	the
	daVinci
	exhibit
	and
	everyone
	was
	interested
	in
access 	to
	the
	registration
	room
	to
	view
	the
	work.
	She
	said
that
	access
	even
	to ·the
	galleries
	was
	limited,
	and
	people
	had
to
	have
	a
	special
	badge
	to 	get 	into
	the
	gallery.
	She
	said
	the
exclusion 	of
	Wong
	from
	the
	registration
	area
	was 	by 	no 	means 	a
reprisal
	and
	that
	the
	policy
	actually
	included
	practically
everyone
	in 	the
	whole
	building,
	except 	for 	the
	five
	people
named
	above.
At
	about
	this
	time
	there
	was
	another
	security
	matter
	that
arose
	at
	Jim
	Elliott's
	prompting.
	At 	a
	meeting
	Elliott
	brought
up
	the
	fact 	that
	grand 	master
	keys 	should
	be
	limited
	to
supervisory 	personnel, 	except
	at
	his 	discretion.
	Prior 	to
that,
	Hubbs,
	Bailey,
	Wong
	and 	one
	other
	employee 	ha? 	grand
master 	keys,
	and
	there
	was 	one
	additional
	grand 	master
	key
	on 	a
key
	chain 	for
	on-call
	employees.
	On
	September 	11, 	1981,
	after
the
	meeting 	with
	Elliott,
	Hubbs
	wrote
	a
	memo
	to 	Jesse 	Fisher,
head
	of 	security, 	telling
	him
	that
	she
	had
	recently 	learned
from
	Elliott
	that
	only 	supervisory 	personnel 	should 	have
	grand
master 	keys.
	The
	memo
	told 	Fisher 	to
	retrieve
	all
	grand 	master
keys
	from 	everyone 	except 	Bailey
	and 	Hubbs. 	She
	said 	the
others
	should 	be
	issued 	sub-master 	keys.
	The
	sub-master 	key,
in 	essence, 	gives 	the 	holder
	a 	more
	limited 	access 	to 	the
47

museum 	facilities. 	Wong's 	grand 	master 	key 	was 	taken 	away.
12. 	The 	September 	29 	Telephone 	Call
As 	described 	above, 	a 	dispute 	existed 	as 	to 	whether 	Wong
should 	be 	paid 	for 	the 	four 	hours 	she 	did 	not 	work 	on
Wednesday, 	September 	9, 	the 	last 	day 	of 	her 	suspension. 	In
connection 	with 	this 	dispute, 	Hubbs 	asked 	Wong 	to 	turn 	in 	her
timesheets ·by 	10:00 	a.m. 	the 	following 	day. 	On 	the 	morning 	of
September 	29, 	Wong 	left 	her 	work 	site 	without 	telling 	anybody
and 	went 	to 	an 	outside 	pay 	telephone 	to 	call 	Tesluk 	about 	the
timesheet 	issue. 	Bailey, 	who 	was 	looking 	for 	Wong, 	discovered
her 	at 	the 	pay 	phone. 	A discussion 	took 	place. 	Bailey 	told
Wong 	she 	was 	not 	to 	call 	her 	representative 	on 	work 	time. 	He
testified 	that 	he 	told 	Wong 	she 	should, 	as 	a 	common 	courtesy,
contact 	him 	before 	leaving 	the 	work 	area 	so 	that 	he 	is 	kept
aware 	of 	her 	whereabouts 	when 	she 	is 	supposed 	to 	be 	working
and, 	if 	necessary, 	he 	could 	get 	someone 	to 	cover 	fof 	her 	when
she 	leaves. 	The 	matter 	was 	not 	pursued 	any 	further 	by 	either
Wong 	or 	Bailey. 	Furthermore, 	Bailey's 	actions 	were 	consistent
with 	a 	policy 	statement 	on 	telephone 	use 	issued 	by 	Hubbs.
Wong 	testified 	that 	it 	would 	have 	been 	possible 	to 	call
Tesluk 	on 	non-work 	time. 	However, 	she 	did 	not 	do 	so. 	Also,
the 	call 	was 	made .at 	approximately 	9:30 	a.m.i 	Wong's 	break 	was
at 	10:00 	a.m. 	There 	is 	no 	evidence 	to 	show 	that 	Wong 	received
any 	corrective 	action 	as 	a 	result 	of 	the 	incident.
48

13.
	Assignment
	of
	Menial
	Tasks.
In
	late
	September
	1981
	Bailey
	told
	Wong
	to 	pick
	up
	lumber
and
	a
	sander
	from 	an
	outside
	shop.
	On
	several
	occasions 	during
October
	and 	November,
	Bailey 	and/or
	Hubbs
	told
	Wong
	to 	take 	out
the
	garbage.
	On
	October
	8
	Wong
	was
	told
	by
	Bailey 	to 	pick
	up
the 	debris
	left
	by
	other
	employees,
	and 	on
	October
	13
	Wong
	was
told
	to 	clean
	up 	a
	tool
	cart
	and
	matting
	tables
	which 	had
	been
used
	by
	other
	employees.
	Wong
	claims 	these
	assignments
	were
discriminatory.18
However,
	in
	direct
	contradiction
	to
	this
	claim 	of
discriminatory 	treatment,
	Wong
	testified
	that
	she
	was
	asked
	to
take 	out
	garbage
	more
	frequently
	after
	the
	reorganization,
	when
the
	shop
	had
	been
	eliminated
	and
	there
	were 	fewer
	workers
	to
perform
	such
	tasks.
	She
	also
	concedes
	that
	Bailey
	never 	asked
her 	to
	do
	anything
	he
	didn't
	do.
Moreover,
	Wong's
	co-workers
	testified
	that
	they,performed
tasks
	such
	as 	taking 	out 	the
	trash,
	sanding 	frames,
	delivering
and
	picking
	up
	items
	outside 	the
	Museum,
	etc.
	Even
	Kelly
agreed
	that
	all
	preparators 	occasionally 	take 	out 	the
	trash.
18while
	testifying
	about
	work
	assignments, 	Bailey 	offeredanother
	earlier
	example
	of
	Wong's
	dissatisfaction
	about
	a 	work
assignment 	during 	the
	Pornodoro
	Exhibit 	in
	March 	1981. 	Therewere 	problems 	with 	unloading 	the
	exhibit,
	which 	was
	large
	and
bulky.
	Wong 	was 	working 	on
	lighting
	and
	Bailey 	called 	her 	to
help 	uncrate 	the 	exhibit
	and
	label
	it.
	Wong
	helped 	out 	forawhile
	and
	then 	returned 	to 	her
	lighting. 	Bailey
	went
	to 	herand 	asked 	for
	more
	help 	because 	they 	needed
	to 	unload
	it
	beforemoving 	on
	to 	other 	assignments. 	Bailey 	said 	that 	at 	that 	point
Wong
	protested 	that
	he 	was
	assigning 	her
	"shit
	work."
49

Furthermore,
	supervisors
	Bailey
	and 	Hubbs
	performed
	these
duties
	themselves.
	According
	to
	Hubbs,
	the
	only
	thing 	unusual
about
	Wong
	taking 	out 	the
	trash
	was
	that
	she
	had
	to
	be
	told
	to
do
	it.
	Other 	workers
	did
	it
	on 	a
	voluntary
	basis
	when
	they
	saw
that
	a
	can
	was
	full,
According
	to
	Wong,
	she
	was
	told
	to 	clean
	up
	after
	other
preparators
on
	occasion.
	But
	Bailey 	convincingly
	testified
that,
	to
	the
	extent
	this
	occurred,
	it
	was
	due
	to 	the
	nature 	of
the
	on-call
	system.
	For
	example,
	on-call
	workers
	may
	work
	for
a
	temporary
	period
	and
	complete
	a
	matting 	assignment. 	Since
the
	assignment
	is 	finished,
	they
	are
	not
	generally 	called
	back
the
	next 	day, 	but 	the 	cleanup
	still
	needs
	to
	be 	done.
	Bailey
testified
	that
	it
	made 	no
	sense
	to
	call
	the
	workers
	back
	just
to 	clean
	up, 	so
	he 	gave
	the
	·assignment
	to
	Wong, 	who 	was
	the
only 	other 	career
	employee.
14.
	The
	Chinese
	Fan
	Incident
On
	November
	4, 	1981,
	Bailey
	asked
	Wong
	to
	mount 	two
	Chinese
fans.
	It
	took
	Wong
	a 	day 	and 	a
	half
	to
	mount
	the
	first
	fan.
Bailey
	felt
	that 	this
	was
	too 	long
	and
	began
	to
	inject
	himself
into
	the 	process, 	suggesting 	to
	Wong
	another
	way
	to
	do
	it.
	He
said 	this 	irritated
	Wong, 	who
	told 	Bailey
	he 	needed
	help
	and
should 	see
	a
	psychiatrist.
	Wong
	denied 	saying
	this
	to
Bailey.19
19Another 	example
	of 	the 	Wong-Bailey
	relationshipoccurred 	at 	this 	point. 	Bailey 	apparently
	became
	frustrated
50

It 	was 	Bailey's 	opinion 	that, 	in 	the 	process 	of 	mounting
the 	fan, 	Wong 	had 	improperly 	bent 	a 	corner 	of 	one 	of 	the 	fans
and 	was 	picking 	at 	another 	corner 	with 	her 	fingernail. 	Bailey
felt 	this 	was 	damaging 	to 	the 	fan. 	He 	told 	her 	to 	stop 	picking
at 	it. 	She 	looked 	at 	him, 	smiled, 	and 	then 	defiantly 	continued
to 	pick.
Bailey Telated 	the 	entire 	incident 	to 	Hubbs. 	Wong 	then 	had
a 	meeting 	with 	Hubbs, 	who 	told 	her 	that 	Bailey 	had 	seen 	her
bend 	a 	corner 	of 	the 	fan 	while 	mounting 	it.· 	Wong 	told 	Hubbs
that 	she 	did 	not 	bend 	the 	corner 	of 	the 	fan 	and 	if 	this
incident 	was 	going 	to 	result 	in 	corrective 	action 	she 	would
like 	to 	have 	her 	CSEA 	representative 	present.
Later, 	possibly 	the 	next 	day, 	Hubbs 	called 	Wong 	to 	her
office 	and 	told 	her 	that 	there 	were 	serious 	problems 	since 	Wong
was 	not 	respondipg 	to 	Bailey's 	directives. 	Hubbs 	apologized
because 	she 	was 	not 	personally 	able 	to 	supervise 	Wo9g 	directly
all 	the 	time, 	but 	told 	her 	that 	this 	was 	simply 	not 	possible.
Wong 	insisted 	on 	discussing 	the 	details 	of 	the 	fan 	incident,
and 	explained 	how 	she 	had 	matted 	the 	fan. 	According 	to 	Hubbs,
about 	the 	fans 	and 	told 	Wong 	to 	take 	out 	the 	tra~h 	instead 	of
working 	on 	the 	fans. 	She 	looked 	at 	him 	but 	did 	not 	do 	it.
Bailey 	called 	Hubbs, 	who 	appeared 	and 	asked 	Wong 	if 	Bailey 	told
her 	to 	take 	out 	the 	trash. 	Wong 	said 	she 	didn't 	say 	she
wouldn't 	do 	it. 	At 	that 	point 	Hubbs 	asked 	her 	to 	take 	out 	the
trash 	and 	she 	did. 	Furthermore, 	there 	is 	no 	need 	to 	resolve
the 	dispute 	about 	whether 	Wong 	told 	Bailey 	he 	should 	see 	a
psychiatrist. 	This 	is 	mentioned 	here 	only 	to 	show 	the 	petty
nature 	of 	the 	issues 	which 	characterized 	the 	Wong-Bailey
relationship.
51

Wong
	at
	first
	claimed 	she
	did 	not
	bend
,the
	fan
	and
	accused
Hubbs
	of
	knowing
	nothing 	about
	preparation
	work.
	Hubbs
responded
	that
	she
	had 	done
	preparation
	work
	in 	the
	past
	and
knew
	about
	matting.
	The 	two
	women
	talked
	further
	and,
according
	to
	Hubbs,
	Wong
	eventually
	admitted
	she
	made 	a
	mistake
and
	bent 	the
	fan
	when
	she 	could
	not
	properly
	insert
	the
corner.
	Hubbs
	testified
	that
	she
	told
	Wong
	that 	that
	was
understandable,
	and
	everyone
	makes
	mistakes.
•
	Wong
	testified
	that
	she 	never
	admitted
	to
	Hubbs,
	or
	anyone
else,
	that
	she
	bent 	the 	corner
	of
	the 	fan.
	She
	maintained
	at
the 	hearing
	that
	in
	fact
	she
	did
	not
	bend
	the 	fan.
This
	credibility
	dispute
	is
	resolved 	in
	favor
	of
	Hubbs.
	As
Hubbs
	demonstrated 	with
	respect 	to
	the
	elevator 	incident,
	she
was
	not
	reluctant
	to
	discipline
	Wong
	if
	she
	believed
	it
	proper
I
to
	do
	so.
	Wong
	was
	suspended
	for 	the
	elevator 	incident 	not
	so
much
	because
	of
	her 	conduct, 	but
	rather
	because
	she_refused 	to
admit
	that
	she
	made 	a
	mistake.
	Based 	on
	the 	information 	she
had
	from
	Bailey,
	Hubbs 	would
	have 	been
	justified
	in
disciplining
	Wong
	for 	the
	Chinese 	fan
	incident.
	However,
	she
did 	not
	do
	so.
	The
	logical 	inference 	to
	be 	drawn 	from
	her
failure
	to
	do
	so
	was
	that, 	unlike 	the 	elevator 	incident,
	Wong
admitted 	her 	mistake 	with 	regard 	to 	the 	fans. 	Otherwise, 	there
would 	have 	been 	no
	reason 	for
	Hubbs
	to 	not
	discipline
	her 	again.
At 	some
	point,
	Wong's
	representative, 	Tesluk, 	contacted
Toby
	in
	an 	attempt 	to 	set
	up 	a 	meeting 	to 	discuss 	the 	fan
52

incident 	along 	with 	a 	series 	of 	other 	incidents 	which 	had
occurred 	prior 	to 	that 	date. 	In 	essence, 	Toby 	took 	the
position 	that, 	since 	there 	had 	been 	no 	corrective 	action 	taken,
there 	was 	no 	need 	for 	a 	meeting. 	Toby 	saw 	no 	point 	in 	having 	a
discussion 	about 	how 	to 	mount 	a 	Chinese 	fan, 	nor 	did 	he 	see 	a
need 	for 	a 	meeting 	to 	tell 	Hubbs 	how 	to 	run 	her 	department.
However, 	Tdby 	also 	said 	that 	he 	would 	consider 	the 	request 	if
presented 	with 	an 	agenda 	so 	that 	there 	was 	some 	structure 	to
the 	meeting.
Tesluk 	never 	contacted 	Toby 	with 	an 	agenda, 	and 	no 	meeting
was 	held. 	Wong 	never 	received 	corrective 	action 	as 	a 	result 	of
the 	fan 	incident.
15. 	The 	Desk 	Audit 	and 	Reclassification 	Denial
Employees 	who 	seek 	reclassification 	have 	the 	right 	to 	ask
for 	a 	desk 	audit 	to 	determine 	if 	their 	positions 	are 	properly
classified. 	The 	employee 	usually 	fills 	out 	a 	job 	d~scription
document 	with 	the 	percentages 	of 	time 	assigned 	to 	each 	task,
and 	a 	supervisor 	signs 	the 	document 	to 	corroborate 	its 	contents
if 	he 	or 	she 	is 	in 	agreement 	with 	the 	employee's 	description.
Toby 	then 	does 	a 	desk 	audit 	to 	verify 	exactly 	what 	the 	employee
does.
Toby 	received 	Wong's 	request 	for 	a 	reclassification 	on
June 	30, 	1981.20 	Wong's 	supervisors, 	Bailey 	and 	Ross, 	had
20This 	was 	a 	continuation 	of 	the 	reclassification 	appeal
that Wong 	had 	initiated 	in 	August 	1980.
53

already 	refused 	to 	corroborate 	her 	description 	of 	her 	duties.
They 	were 	of 	the 	opinion 	that 	Wong's 	description 	did 	not
accurately 	reflect 	her 	actual 	duties, 	and 	therefore 	refused 	to
concur 	in 	her 	request.21 	Toby 	did 	not 	contact Wong 	to 	set 	up
the 	desk 	audit 	until 	early 	October. 	He 	testified 	that, 	given
his 	work 	backlog, 	it 	is 	not 	unusual 	for 	him 	to 	take 	three 	or
four 	months 	to 	respond 	to 	such 	requests.
Wong 	said 	she 	wanted 	to 	have 	Tesluk 	repr~sent 	her 	during
the 	audit. 	At 	some 	point 	in 	early 	October, 	Toby 	heard 	from
Tesluk, 	who 	asked 	to 	represent 	Wong. 	Toby 	refused 	the
request. 	He 	then 	went 	on 	vacation 	for 	the 	latter 	part 	of
October. 	Upon 	his 	return, 	the 	parties 	experienced 	some
difficulty 	in 	arriving 	at 	a 	mutually 	agreeable 	date. 	Tesluk
renewed 	her 	request 	to 	represent 	Wong 	on 	November 	11. 	On 	about
November 	19, 	1981, 	Toby 	again 	spoke 	with 	Wong 	about 	the 	desk
audit. 	Wong 	again 	asked 	for 	representation 	and 	Toby 	refused.
Apparently 	nothing 	happened 	over 	the 	holidays. 	On 	January 	21,
1982, 	Toby 	wrote 	to 	Wong 	and 	told 	her 	that 	too 	much 	time 	had
elapsed, 	and 	if 	he 	didn't 	hear 	from 	her 	by 	February 	8 	about 	a
date, 	he 	would 	return 	the 	request 	to 	her 	and 	close 	the 	file.
21For 	example, 	Wong 	claimed 	that 	75 	percent 	of 	her 	duties
involved 	lighting. 	Bailey's 	response, 	based 	on 	review 	of 	her
timesheets, 	showed 	that 	she 	spent 	approximately 	34 	percent 	of
her 	time 	doing 	lighting. 	He 	did 	not 	consider 	her 	to 	be 	a
supervisor. 	And, 	in 	general, 	he 	was 	of 	the 	opinion 	that 	she
distorted 	and 	grossly 	inflated 	her 	responsibilities.
54

The 	desk 	audit 	was 	finally 	conducted 	on 	February 	24, 	1982.
Wong's 	request 	for 	representation 	was 	denied 	by 	Toby. 	He 	wrote
the 	following 	with 	respect 	to 	the 	reclassification:
After 	auditing 	your 	position 	on 	February 	24,
1982 	and 	giving 	it 	careful 	consideration, 	I
find 	that 	your 	position 	is 	properly
classified 	as 	a 	Senior 	Museum 	Preparator.
To 	warrant ·reclassification 	to 	the 	Principal
level 	you 	would 	either 	have 	to 	be
supervising 	other 	Preparators 	or 	to 	be 	doing
the 	most 	difficult 	preparative 	work. 	I 	find
neither 	of 	these 	criteria 	to 	be 	true 	in 	your
case.
In 	the 	first 	place, 	you 	did 	not, 	and 	do 	not
now 	truly 	supervise 	other 	employees.
Supervision 	entails 	responsibility 	for
hiring, 	evaluating 	and 	disciplining
employees. 	Instead, 	you 	at 	times, 	exercised
a 	lead 	role 	on 	particular 	projects 	with 	one
or 	more 	of 	the 	employees 	that 	you 	listed.
With 	one 	exception, 	all 	of 	them 	were 	casual
employees 	who 	were 	occasionally 	called 	in, 	a
few 	at 	a 	time, 	to 	help 	out 	with 	exhibits.
Furthermore, 	even 	if 	lighting 	is 	considered
a 	more 	difficult 	preparative 	task, 	the 	fact
in your 	own 	time 	records 	show 	that 	in 	the
time 	interval 	July 	1980 	to 	June 	1981, 	your
lighting 	assignments 	only 	equaled 	50% 	or
more 	of 	your 	working 	time 	on 	only 	two
occasions-- 	January 	and 	February 	1981.
Since 	July 	1, 	1981 	your 	assignments 	in 	this
task 	have 	been 	diminished. 	Museum 	policy
for 	some 	time 	now 	has 	been 	that 	assignments
would 	cover 	a 	wide 	range 	of 	preparative
tasks 	without 	any 	one 	person 	having
specialized 	duties. 	This 	arrangement 	is 	not
peculiar 	to 	UC 	Art 	Museum management.
Museum 	technicians 	at 	the 	San 	Francisco
Museum of 	Modern 	Art 	are 	all 	expected 	to 	do
lighting 	in 	addition 	to 	other 	preparative
tasks.
Finally, 	to 	be 	comprehensive, 	I 	also
considered 	the 	Scene 	Technician 	series.
55

However, 	it 	is 	quite 	clear 	that 	the 	series
is 	intended 	for 	theatrical 	arts. 	These
positions 	presume 	assignments 	in 	the 	dynamic
lighting 	of 	performances 	(a 	really 	different
set 	of 	parameters 	than 	is 	found 	in 	static
lighting) 	and 	in 	the 	design, 	construction
and 	painting 	of 	stage 	props 	and 	sets. 	It 	is
quite 	clear 	that 	your 	position 	is 	not 	that
of 	a 	Scene 	Technician.
Even 	Wong 	conceded 	in 	her 	testimony 	that 	at 	the 	time 	of 	the
desk 	audit ~he 	was 	n~t 	performing 	duties 	that 	would 	have
entitled 	her 	to 	a 	reclassification. 	She 	contended, 	however,
that 	she 	was 	entitled 	to 	a 	reclassification 	based 	on 	duties 	she
performed 	at 	an 	earlier 	point 	in 	time, 	but, 	she 	claimed, 	those
duties 	had 	been 	taken 	away 	from 	her 	as 	a 	reprisal 	for 	her
protected 	activities.
In 	addition, 	the 	lighting 	duties 	had 	formed 	the 	foundation
for 	her 	r~classification 	proposal. 	She 	claimed 	her 	expertise
in 	lighting 	was 	a 	major 	factor 	to 	be 	considered 	in 	the
reclassification 	process. 	However, 	several 	other 	wjtnesses 	had
a 	different 	opinion. 	Murphy, 	one 	of 	Wong's 	co-workers,
testified 	that 	lighting 	was 	overr~ted. 	She 	said 	it 	amounted 	to
little 	more 	than 	changing 	light 	bulbs. 	Hubbs 	agreed. 	Bailey
was 	of .the 	opinion 	that 	lighting 	is 	not 	that 	complicated. 	He
said 	it 	is 	not 	like 	nuclear 	physics; 	anyone 	with 	a 	sense 	of
aesthetics 	who 	has 	been 	around 	the 	Museum 	for 	awhile 	would 	pick
it 	up.
Wong 	pointed 	to 	several 	of 	her 	other 	duties 	to 	support 	her
reclassification 	request. 	However, 	all 	of 	these 	fall 	within
56

the 	preparator's 	current 	position 	description.
Moreover, 	granting 	Wong's 	reclassification 	request 	would
have 	been 	contrary 	to 	Egherman's 	philosophy 	about 	staffing 	at
that 	time. 	The 	scene 	technician 	had 	performed 	a 	lot 	of
lighting 	duties 	in 	the 	past. 	After 	the 	scene 	technician
position 	was 	eliminated, 	Egherman 	decided 	not 	to 	fill 	the 	slot
because 	it ·was 	too 	specialized 	and 	thus 	the 	specialist 	might
claim 	higher 	compensation. 	Egherman 	wanted 	to 	move 	in 	the
direction 	of 	filling 	positions 	with 	generalists. 	Ideally,
these 	would 	be 	people 	who 	could 	do 	a 	little 	of 	everything. 	If
an 	individual 	happened 	to 	be 	a 	little 	better 	in 	lighting, 	he 	or
she 	could 	serve 	in 	a 	lead 	role 	in 	that 	capacity 	on 	particular
projects, 	but 	the 	age 	of 	specialists 	was 	over.
16. 	Tool 	Cart 	Incident
The 	standard 	Museum procedure 	for 	transporting 	a 	tool 	cart
or 	an 	airlift 	down22 	a 	ramp 	prior 	to 	April 	1981 	was. as
follows. 	It 	was 	preferable 	for 	the 	employee 	to 	wear 	proper
workshoes 	with 	flat 	heels 	and 	to 	precede 	the 	heavy 	equipment 	as
it 	moved 	down 	the 	ramp. 	In 	other 	words, 	the 	employee 	backed
down 	the 	ramp 	while 	restraining 	the 	cart 	by 	holding 	the
handle. 	The 	tool 	cart 	and 	airlift 	can 	be 	easily 	stopped 	from
this 	position. 	Employees, 	including 	Wong, 	usually 	kept 	an
22The 	airlift 	weighs 	approximately 	400 	pounds 	and 	the
cart 	approximately 	370 	pounds. 	The 	tool 	cart 	is 	used 	to
transport 	works 	of 	art.
57

extra 	pair 	of 	tennis 	shoes 	available 	for 	this 	purpose.
During 	the 	course 	of 	her 	employment 	on 	March 	2, 	1982,
Bailey 	told 	Wong 	to 	move 	a 	tool 	cart 	down 	a 	ramp. 	As 	she 	moved
the 	cart, 	Wong 	was 	in 	a 	procession 	of 	other 	employees 	who 	were
also 	in 	the 	process 	of 	moving 	tool 	carts 	and/or 	airlifts 	down
the 	ramp. 	Murphy 	was 	moving 	the 	airlift 	and 	Smiley 	was 	moving
a 	tool 	cart. 	Neither 	employee 	had 	assistance. 	Midway 	down 	the
ramp, 	Wong 	lost 	control 	of 	the 	cart 	and, 	after 	banging 	off
several 	walls, 	the 	cart 	rolled 	to 	a 	stop 	in 	the 	gallery
below.23 	Wong 	claimed 	she 	was 	injured 	in 	the 	process.
The 	evidence 	showed 	that, 	while 	it 	may 	have 	been 	preferable
for 	two 	people 	to 	move 	the 	cart, 	in 	the 	past 	women 	frequently
moved 	this 	equipment 	alone, 	and 	several 	women 	actually
performed 	this 	task 	on 	the 	day 	in 	question. 	Specifically, 	in
contradiction 	to 	Wong's 	testimony, 	Shalk, 	Smiley, 	Murphy 	and
Beecroft 	testified 	that 	they 	had 	observed 	other 	women,
including 	Wong, 	perform 	this 	task 	alone 	many 	times 	prior 	to 	the
incident 	in 	question. 	Smiley 	testified 	that 	earlier 	on 	the 	day
of 	the 	incident -she 	saw Wong 	moving 	the 	airlift 	alone 	from
gallery 	2 down 	to 	the 	lobby. 	Wong 	was 	not 	wearing 	sneakers.
23As 	the 	cart 	rolled 	down 	the 	ramp 	several 	items,
including 	Wong's 	little 	yellow 	notebook, 	fell 	out. 	Wong 	kept
her 	notebook 	with 	her 	at 	work 	and 	made 	a 	practice 	of 	recording
practically 	every 	event 	the 	very 	moment 	it 	happened. 	This
included 	on 	the 	spot 	recording 	of 	her 	exchanges 	with 	Bailey 	and
others 	in 	the 	department. 	After 	the 	cart 	rolled 	to 	a 	stop,
Wong 	retrieved 	her 	notebook 	and 	began 	recording 	the 	incident.
58

Although 	Smiley 	offered 	Wong 	assistance, 	Wong.did 	not 	accept
it. 	Smiley 	recalls 	that 	Wong 	was 	in 	a 	bad 	mood 	that 	day, 	a
mood 	she 	had 	seen 	many 	times 	before.
17. 	The 	July 	1, 	1982 	Layoff
On 	May 	21, 	1982, 	Wong 	received 	a 	letter 	from 	Elliott
informing 	her 	that, ·effective July 	1, 	1982, 	she 	would 	be 	placed
on 	indefinite 	layoff 	status. 	The 	letter 	stated 	in 	relevant
part:
Using 	the 	exhibition 	schedule, 	we 	have 	found
that 	there 	simply 	will 	not 	be 	enough 	work
every 	week 	to 	provide 	you 	with 	a 	fixed 	50%
time 	schedule. 	There 	are 	26 	weeks 	with 	no
preparation 	work 	scheduled. 	Even 	allowing
for 	your 	three 	weeks 	of 	vacation, 	that
leaves 	23 	weeks 	with 	no 	scheduled 	work 	for
you 	to 	do. 	Since 	we 	still 	have 	a 	$200,000
deficit 	to 	retire 	and 	we 	still 	have 	to
maintain 	our 	existing 	core 	budget 	despite
inflation 	and 	cost 	of 	living 	increases, 	the
funding 	for 	23 	weeks 	without 	definite 	work
cannot 	be 	justified.
I 	regret 	to 	inform you, 	then, 	that 	as 	of
1 July 	1982 	you 	will 	be 	on 	indefinite 	layoff
status. 	This 	layoff 	is 	in 	no 	way 	a
reflection 	on 	your 	performance; 	it 	relates.
stric.tly 	to 	the 	Museum's 	financial
situation. 	In 	fact, 	the 	plan 	is 	to 	no
longer 	have 	any 	permanent 	career 	preparators
on 	our 	core 	staff 	in 	any 	classification 	as
of 	1 	July 	1982. 	All 	preparation 	and 	shop
work 	will 	be 	done 	by 	on-call 	casual
employees.
Although 	Elliott 	ultimately 	made 	the 	final 	decision 	to 	lay 	off
Wong, 	Egherman 	participated 	to 	a 	great 	extent. 	He 	testified
that, 	in 	addition 	to 	the 	cuts 	cited 	in 	Elliott's 	letter, 	the
Museum 	reduced 	the 	security 	staff 	by 	half. 	The 	security 	staff
59

had 	escaped 	cuts 	during 	1981. 	Also, 	one 	full-time 	40 	percent
curatorial 	assistant 	position 	would 	not 	be 	filled.
With 	respect 	to 	the 	exhibits 	for 	1982-83, 	Egherman 	said 	the
schedule 	was 	firm. 	As 	mentioned 	by 	Elliott 	in 	the 	layoff
letter, 	the 	projected 	schedule 	showed 	that 	there 	were 	26 	weeks
where 	the 	Museum would 	not 	need 	any 	shop 	or 	preparation 	work
done. 	In 	other 	words, 	there 	would 	be 	26 	weeks 	during 	the 	year
_when 	Won9, 	a 	half-time 	employee, 	would 	have 	little 	or 	nothing
to 	do. 	Given 	this 	situation, 	according 	to 	Hubbs, 	the 	most
efficient 	thing 	to 	do 	was 	lay 	off 	Wong 	and 	move 	to 	the 	use 	of 	a
straight 	on-call 	worker 	system 	to 	perform 	the 	necessary 	work.
Egherman 	testified 	that, 	due 	to 	the 	ongoing 	hearings 	in
this 	case, 	he 	was 	concerned 	about 	implementing 	Wong's 	1982
layoff. 	For 	this 	reason 	he 	told 	Hubbs 	to 	be 	absolutely 	certain
that 	the 	layoff 	was 	justified 	and 	instituted 	solely 	for
financial 	reasons. 	It 	was 	under 	this 	directive 	that 	Hubbs
analyzed 	the 	situation 	and 	concluded 	that 	it 	was 	most 	efficient
to 	go 	to 	a 	straight 	on-call 	system. 	Even 	after 	these 	cuts, 	a
$190,000 	deficit 	remained 	in 	the 	Museum.
III. 	Daniel 	Kelly
A. 	The 	Events 	of 	1980 	and 	Early 	1981
By 	the 	end 	of 	May 	1980 	Kelly 	was 	due 	to 	return 	from 	Japan.
Based 	on 	his 	experience 	working 	with 	Wong 	and 	Kelly 	in 	the
past, 	Bailey 	was 	concerned 	that 	problems 	might 	arise 	if 	Kelly
were 	to 	return 	to 	the 	Museum. 	To 	compound 	matters, 	when 	Wong
60

and
	Kelly
	had 	worked
	at
	the
	Museum
	in
	the
	past,
	Kelly
	was
senior
	to
	Wong,
	but
	their
	roles
	were
	now
	reversed
	and
	Bailey
felt
	this
	might
	present
	a
	problem.
	He
	told
	Wong
	that
	he
	did
not
	intend 	to
	mediate
	disputes
	between
	the
	two
	of
	them.
	And
	if
they
	couldn't
	work
	together
	smoothly, 	Kelly
	would
	not
	be
	called
to
	work.
	Bailey
	testified
	that
	Wong
	reacted
	positively
	to
	this
statement.·
She 	was
	pleased
	that
	Bailey
	recognized
	that
	she
	was
now
	senior
	to
	Kelly
	and 	would
	be
	treated
	as 	such.
	Bailey
	had
	a
similar
	conversation
	with 	Kelly
	upon
	his
	return
	to 	the
	Museum.
In
	early
	June 	1980,
	shortly
	after
	his 	return
	to 	the
	Museum,
Kelly
	had 	a
	meeting 	with
	Bailey 	during
	which 	he
	raised 	three
chief
	concerns
	of
	employees
	in
	the
	UAM.
	First,
	Kelly
	testified
that
	he
	told
	Bailey
	that 	on-call
	employees
	felt
	insecure
	about
their
	positions
	because
	Bailey
	had
	control
	over
	how 	much 	and
when
	they
	worked. 	According
	to 	Kelly,
	he
	told 	Bailey
	that
on-call
	employees 	were
	reluctant
	to
	alienate
	Bailey_
for
	fear
they
	would
	not
	be
	called 	to
	work. 	Second, 	Kelly 	spoke
	to
Bailey
	about
	getting
	more
	advance
	notice 	of
	assignments 	for
on~call
	workers. 	Third, 	Kelly
	testified 	that
	he
	told 	Bailey
that
	employees 	were
	generally
	dissatisfied
	and
	concerned 	over
the 	confusion 	surrounding
	what
	their
	job
	duties
	were.24
24one
	matter 	of
	dissatisfaction
	stemmed 	from
	the 	fact
that 	there 	existed
	a
	discrepancy 	between 	hours
	and 	pay
	of
career
	and
	on-call
	employees. 	Career 	employees 	worked 	a
7
	1/2-hour
	day 	beginning
	at
	8:30 	a.m. 	and 	were
	paid 	for 	an
8-hour 	day. 	On-call 	employees 	were 	expected 	to
	work
	the
	same
hours, 	but
	were
	paid 	for
	7
	1/2 	hours.
	A meeting 	with 	Bailey
61

Kelly 	and Wong 	had 	similar 	meetings 	with 	Toby 	in 	July 	1980.
During 	at 	least 	one 	of 	these 	meetings, 	Kelly 	and 	Wong 	discussed
the 	wage-lag 	problem 	with 	Toby. 	Although 	Kelly 	had 	been 	back
only 	a 	short 	time, 	he 	said 	he 	learned 	of 	these 	problems 	by
talking 	to Wong 	and 	other 	employees.
During 	1980 	Kelly 	was 	supportive 	of 	Wong's 	efforts 	in 	the
Museum. 	In August 	and 	October 	he 	met 	with 	Ross 	and 	discussed
employment 	conditions 	in 	the 	preparation 	department. 	He
thought 	that 	Wong 	was 	being 	harrassed 	and 	he 	was 	concerned 	for
her 	wellbeing. 	He 	told 	Ross 	that 	he 	might 	file 	a
discrimination 	suit 	if 	the 	harrassment 	didn't 	stop.
In 	early 	November 	1980, 	Andre 	Johnson 	had 	a 	conversation
with 	Mary 	Lieuallen, 	a 	nonsupervisory 	employee, 	about 	certain
financial 	matters 	that 	had 	to 	be 	completed 	before 	Johnson 	could
hire 	on-call 	employees 	for 	an 	upcoming 	exhibit. 	During 	the
discussion, 	Lieuallen 	said 	that 	perhaps 	he 	shouldn'~ 	hire 	Kelly
because 	he 	was 	a 	"trouble 	maker." 	Johnson, 	who 	did 	not 	place
much 	weight 	on 	her 	opinion, 	did 	not 	ask 	her 	what 	she 	meant 	by
the 	comment. 	He 	assumed 	it 	was 	just 	a 	personal 	observation,
and 	did 	not 	believe 	she 	was 	communicating 	this 	attitude 	on
behalf 	of 	management. 	Johnson 	was 	not 	aware 	of 	any 	reason
Lieuallen 	should 	call 	Kelly 	a 	"trouble 	maker," 	since 	Kelly 	had
was 	requested 	by 	employees 	to 	discuss 	this 	situation. 	As 	a
result 	of 	the 	meeting, 	Bailey 	granted 	the 	request 	and
thereafter 	on-call 	employees 	were 	paid 	the 	same 	as 	career
employees.
62

no
	conflicts
	with
	management 	up
	to
	that
	time.
	Lieuallen
	was 	a
non-supervisory
	employee
	and
	there
	was 	no
	evidence
	presented 	to
directly
	link
	her 	or 	her
	comment
	to
	any 	management
representative.
Shortly
	after
	his
	conversation
	with
	Lieuallen,
	Johnson
testified
	that
	he
	was
	told
	by 	Egherman
	that
	when
	Kelly
	finished
his 	current
	tasks
	he
	should 	not
	be
	rehired.
	He
	said
	he
	told
Johnson
	that,
	unless	
pe 	was
	desperate,
	he 	would
	be
	better
advised 	not 	to
	hire
	Kelly.
	Johnson 	responded
	that
	Kelly
	was 	a
good 	worker
	and 	he 	wanted
	to
	continue
	to
	hire
	him. 	At
	this
point,
	according 	to
	Johnson,
	Egherman
	called
	Kelly
	a
	"trouble
maker."
	Johnson
	did 	not 	ask
	Egherman
	what 	he
	meant	
by	
"trouble
maker,"
	nor
	did
	Egherman
	volunteer
	a
	definition
	of
	that
	term.
Johnson 	perceived
	Egherman's
	comment
	as
	a
	suggestion, 	not
	a
direct
	command,
	since
	Egh~~man
	did 	not
	directly
	say
	"don't 	hire
Daniel 	Kelly."
	Johnson
	testified
	that
	it
	was
	standard
procedure 	for
	Egherman
	to
	approve
	people
	Johnson 	wanted
	to
	call
for
	work.
Egherman
	recalls 	this
	conversation 	with 	Johnson.
	He
testified
	that
	he
	suggested 	to
	Johnson
	that
	he 	would
	prefer
	if
Kelly
	was
	not 	rehired.
	This
	was
	not
	a
	directive,
	according 	to
Egherman, 	because
	he
	did 	not
	want
	to 	exercise 	that
	kind
	of
heavy
	control
	over 	Johnson's 	supervisory 	responsibility.
	The
final
	decision
	was
	left
	to 	Johnson's 	judgment. 	Egherman
further 	testified 	that
	he 	doubts 	he 	used 	the
	word
	"trouble
63

maker."
	He
	believes
	he
	may
	have 	used
	the
	word
	"difficult"
	to
describe
	Kelly.
	Egherman's
	opinion 	of
	Kelly
	was
	based
	on
hearsay
	and 	comments 	he
	picked
	up
	around
	the
	Museum.
According
	to 	Johnson,
	he 	and 	Egherman 	had 	a
	similar
conversation
	again
	in
	January
	1981. 	Johnson
	paid
	no
	attention
. .
to
	Egherman's
	comments 	and
	continued 	to
	call
	Kelly
	to
	work.
Time
	records
	show
	that
	Kelly
	received
	on-call
	work
	assignments
from
	November 	1980
	through 	June 	1981.25
I
	credit
	Johnson's
	testimony
	on
	this
	point
	and
	find
	that
Egherman
	did, 	in
	fact, 	c~ll
	Kelly
	a
	"troublemaker."
	Johnson
was
	clear
	in
	his 	recollection
	and
	thus 	convincing
	in
	his
testimony
	that
	the
	specific
	word
	"troublemaker"
	was
	used. 	In
contrast,
	while
	Egherman 	was
	generally
	a
	credible 	witness,
	he
was
	unsure
	if
	he
	used
	that 	label
	to 	describe
	Kelly.
Thereafter,
	on 	one
	occasion
	when
	Kelly
	was
	working
	in
	the
Museum, 	Egherman 	walked
	in
	and
	said 	to
	Johnson
	"I
	s~e
	you
	hired
Kelly
	after
	all."
	He
	then
	walked
	away. 	Egherman
	never 	took
any
	adverse
	action 	against
	Johnson
	for
	hiring
	Kelly.
	Nor
	did
Egherman
	ever
	threaten
	Johnson 	with
	reprisals
	for
	hiring
	Kelly.
In
	addition,
	Shalk
	filled
	in 	for 	Bailey 	in
	December
	while
he 	went 	on
	vacation.
	Wong
	testified 	that
	Shalk
	told
	her 	Bailey
left
	instructions
	not 	to 	hire
	Kelly 	during
	this 	period.
	Shalk
25Kelly 	was
	called 	to
	work 	on 	a
	regular 	basis
	from
January 	to 	the 	layoffs 	in 	July
	1981.
64

testified
	that
	Bailey
	never
	made
	such
	a 	comment
	and, 	moreover,
she 	never
	even
	discussed 	the
	subject
	with
	Wong.
	Bailey
	also
denied
	ever
	telling
	Shalk
	to
	not
	call
	in
	Kelly 	for
	work.
I
	found
	it
	highly
	unlikely
	that
	Shalk
	made
	this
	comment
	to
Wong.
	By
	this
	point,
	the
	relationship
	between
	Wong
	and
	Shalk
had
	deteriorated
	tremendously. 	Shalk
	testified
	that
	Wong
	was
even
	secretive
	about
	lighting
	information.
	Further,
	Shalk
	was
well
	aware
	of
	Wong's
	unpredictable 	nature
	and
	that
	she
	had
	a
close 	relationship
	with
	Kelly~ 	Given
	these
	facts,
	it
	would
have
	been
	inviting
	sheer 	aggravation
	to
	make
	such
	a 	comment
	to
Wong.
	Thus,
	I
	find
	it
	very
	unlikely 	the 	statement
	was 	made.
It
	is
	true,
	however,
	that
	Kelly
	was
	not
	called
	to
work
	in
December.
	When
	asked
	about
	this 	at
	the
	hearing,
	Shalk
	said
that
	she 	simply
	preferred
	not 	to
	work
	with
	him 	and 	I
	credit
	her
on
	this
	point.
B. 	The
	Events
	of
	May-July 	1981.
Shortly
	after
	the
	meeting
	on
	May
	13,
	1981 	when
	Elliott
announced
	there
	would 	be
	cuts,
	Kelly 	undertook
	an
	effort
	to
secure
	employment
	for 	himself
	and 	Wong.
	In
	separate 	meetings
with
	Elliott,
	Ross 	and 	Hubbs, 	he 	proposed
	that
	he 	and
	Wong
	be
permitted 	to 	share
	a
	job 	in 	the
	Museum
	after
	the
	layoffs.
	He
outlined
	what 	he
	considered 	to
	be
	the 	advantages 	of
	such 	a
job-sharing 	arrangement.
	While
	Elliott,
	Ross 	and 	Hubbs
listened
	to 	Kelly, 	they 	correctly
	informed 	him
	that 	layoffs
would 	have 	to
	be 	conducted 	under 	University 	regulations,
	and
65

factors 	such 	as 	seniority 	and 	employment 	status 	considered.
Shortly 	before 	the 	layoffs, 	Kelly 	told 	Ross 	and 	Bailey 	that
he 	was 	applying 	for 	a 	permanent 	position 	with 	the 	San 	Francisco
Museum of 	Modern 	Art. 	He 	requested 	and 	received 	a 	letter 	of
recommendation 	from 	Ross.26
Based 	on 	independent 	conversations 	they 	had 	with 	Kelly,
both 	Hubbs ·and 	Bailey 	were 	under 	the 	impression 	that 	the 	job 	in
San 	Francisco 	was 	his 	for 	the 	asking. 	And, 	since 	they 	did 	not
hear 	from 	him, 	they 	assumed 	he 	got 	the 	job.
During 	this 	time 	the 	relationship 	between 	Kelly 	and 	Bailey
was 	hot 	and 	cold. 	There 	were 	occasions 	when 	the 	two 	men
appeared 	to 	work 	well 	together, 	but 	there 	were 	occasions 	when
they 	seemed 	unable 	to 	get 	along 	at 	all.27
26There 	is 	some 	dispute 	about 	whether 	Kelly 	mentioned 	the
San 	Francisco 	job. 	At 	one 	point, 	he 	denied 	that 	he 	told 	Bailey
he 	was 	being 	considered 	for 	the 	San 	Francisco 	job. 	_At 	another
point 	he 	testified 	that 	he 	called 	Bailey 	during 	the 	last 	week
in 	June 	to 	tell 	him 	he 	hadn't 	gotten 	the 	job. 	This
inconsistency 	undermines 	Kelly's 	credibility 	on 	this 	point. 	If
he 	hadn't 	told 	Bailey 	he 	was 	being 	considered 	for 	the 	job, 	why
would 	he 	call 	him 	to 	say 	he 	hadn't 	gotten 	it? 	Moreover, 	I 	find
it 	likely 	that 	Kelly 	did 	tell 	Bailey 	and 	Hubbs 	about 	the 	job 	on
San 	Francisco 	because 	it 	was 	not 	a 	secret, 	since 	he 	had 	earlier
requested 	and 	received 	a 	letter 	of 	recommendation 	from 	Ross.
27For 	example, 	Bailey 	recalls 	an 	incident 	in 	June 	1981
when 	Kelly 	was, extremely 	angry 	with 	him. 	Kelly 	had 	not 	filled
out 	his 	time 	sheet 	and 	they 	disagreed 	about 	his 	hours 	of 	work.
Eventually, 	they 	came 	to 	an 	agreement. 	At 	some 	point, 	however,
Kelly 	said 	Bailey 	could 	"stick 	it" 	or 	something 	on 	that 	order.
Several 	days 	later, 	Kelly 	returned 	and 	apologized. 	Bailey 	then
offered 	him work 	and 	Kelly 	began 	immediately. 	On 	another
occasion, 	Bailey 	scheduled 	Kelly 	for 	two 	weeks. 	After 	Kelly
had 	worked 	two 	days, 	he 	told 	Bailey 	that 	he 	had 	a 	more
66

c.
	July
	27,
	1981
	Meeting.
On
	July
	27, 	1981,
	Kelly
	and
	Tesluk
	met
	with
	Ross 	and
	Toby.
The
	subject
	of
	on-call
	hours
	was
	discussed.
	Ross
	said
	that
	he
had
	no
	intention
	to
	deny
	Kelly
	hours.
	According
	to
	Toby,
	Kelly
was
	told 	that
	he
	was
	not
	laid
	off;
	he
	was
	still
	on
	the
	on-call
list
	and 	would
	have
	the
	same
	opportunity
	for
	on-call
	hours 	as
others
	on
	tile
	list.
	However, 	Toby
	said 	there
	was 	no
	guarantee
of
	work,
	and
	it
	was
	emphasized
	that 	laid-off
	career
	people
would 	have
	first
	crack
	at
	the
	available 	on-call
	hours. 	Kelly
received
	no
	on-call
	hours
	after
	the 	meeting.
Kelly 	claims
	that
	during
	this
	meeting
	Ross
	offered
	him
on-call
	hours
	in 	the
	future.
	I
	find
	this
	to
	be
	unbelievable.
First,
	it
	is
	unlikely
	that
	Ross 	was
	in 	the
	position
	to
	make 	any
offers
	about
	future
	employment,
	given 	the
	fact 	that
	he 	had 	been
laid
	off
	and 	would 	no
	longer
	be 	around. 	Secord, 	the
	practice
at
	the
	Museum was
	to
	let
	the 	supervisor,
	Hubbs
	in
	this
instance,
	have
	practically 	full
	authority
	over
	who
	worked 	and
when
	they
	worked.
	It
	would
	have 	been 	an
	unlikely 	departure
from
	past 	practice
	for
	Ross,
	a 	lame 	duck
	at 	this 	point, 	to
	now
important 	issue 	to 	take 	care 	of 	than 	doing 	the 	job
	that
	he
	was
assigned
	and
	scheduled 	to
	do.
	Bailey
	assumed
	Kelly 	needed
	to
prepare 	his
	resume
	for 	the
	San
	Francisco 	job. 	Bailey 	told
Kelly 	that
	the 	on-call
	system works 	both 	ways,
	suggesting
	that
while 	Kelly
	may
	have 	no
	real 	obligation 	to 	the
	Museum,
	neither
did 	the
	Museum have 	an
	obligation 	to
	call
	him
	for
	work.
	After
Kelly
	left
	Bailey's 	office
	on
	that 	date, 	Bailey
	had 	no
	further
contact 	with 	him.
67

guarantee 	Kelly 	hours. 	While 	Ross 	may 	have 	technically 	had 	the
authority 	to 	make 	such 	a 	statement, 	given 	the 	practice 	of
assigning 	hours, 	it 	is 	extremely 	doubtful 	that 	he 	would 	have
done 	so 	without 	contacting 	Hubbs, 	and 	he 	had 	not 	done 	so 	at 	the
time 	of 	the 	meeting. 	Toby's 	testimony 	supports 	this 	finding.
He 	said 	essentially 	that 	Kelly 	was 	told 	that, 	as 	an 	on-call
worker, 	he ~asn't 	laid 	off. 	But 	he 	was 	never 	guaranteed 	work.
D. 	The 	Events 	After 	the 	July 	27 	Meeting.
By 	this 	time 	Hubbs 	had 	taken 	over 	as 	supervisor. 	She
testified 	that 	as 	per 	her 	earlier 	meeting 	with 	Kelly 	she 	was
under 	the 	impression 	that 	he 	had 	gotten 	the 	job 	in
San 	Francisco. 	It 	was 	not 	until 	after 	the 	July 	27 	meeting 	that
she 	learned 	Kelly 	was 	still 	interested 	in 	on-call 	work 	at 	the
Museum.
~n 	September 	it 	was 	time 	to 	renew 	the 	on-call 	list. 	Hubbs
cut 	the 	list 	substantially 	because 	there 	was 	a 	great 	deal 	less
work, 	some 	of 	the 	people 	were 	no 	longer 	interested, 	and 	some 	of
those 	on 	the 	list 	were 	unknown 	to 	her. 	Also, 	Hubbs 	felt 	if 	she
had 	a 	relatively 	small 	group 	of 	on-call 	workers 	she 	could 	call
them 	in 	more 	frequently, 	Museum 	work 	would 	be 	more 	attractive
to 	them, 	and 	thus 	the 	likelihood 	of 	their 	continuing 	to 	work 	at
the 	Museum 	rather 	than 	seek 	employment 	elsewhere 	would 	be
increased. 	Essentially, 	she 	wanted 	a 	small 	and 	reliable 	core
of 	efficient 	on-call 	workers 	who 	would 	receive 	more 	hours 	under
68

this
	arrangement.
	During
	this
	process,
	Kelly
	was
	eliminated
from
	the
	list.
When
	Hubbs
	trimmed
	the
	list
	she
	was
	under
	the 	impression
that
	she
	would
	be
	able 	to
	add
	to
	the
	list
	in
	the 	futur~
	if
necessary.
	However,
	shortly 	thereafter
	a
	hiring
	freeze
	was
imposed
	and
	it
	became
	impossible
	to
	do
	so.
There
	were 	two
	reasons 	Kelly
	was
	eliminated
	from
	the
	list.
First,
	Hubbs
	testified
	that
	after
	July
	1
	there 	was~
	whole
	new
approach
	in 	the
	Museum.
	Cuts
	had 	been
	made 	and
	the
	whole
operation
	trimmed
	back.
	They 	were
	not 	going
	to
	be 	doing
	things
quite
	as 	thoroughly 	as
	in
	the
	past,
	going
	the
	full
	100
	percent
to
	make
	assignments
	absolutely
	perfect.
	She
	described
	that
	the
work 	would
	now
	be 	done
	in
	a 	manner 	which
	she
	called
	"quick
	and
dirty,"
	a
	theater
	term
	that
	means
	that
	things 	are
	built
	only 	to
last
	for
	a 	few
	months.
	In 	the
	Museum
	things
	had
	been
	built,
she
	said,
	to
	last
	for 	years.
	The
	program
	from
	now 	on 	was
	going
to
	be 	quick
	and
	dirty,
	and
	she
	said
	that 	this
	went
	against
Kelly's 	nature.
	His
	degree
	of 	"finesse"
	could
	no
	longer
	be
used.
In
	this
	regard, 	several 	witnesses
	testified
	about
	Kelly's
work. 	There
	seems
	to
	be 	no
	dispute 	that
	Kelly
	was
	creative
	and
capable 	of
	doing
	good 	work. 	However,
	there
	were
	other 	aspects
of 	his
	work
	that
	were
	not 	always 	so
	useful 	in 	the
	Museum.
Hubbs 	and
	Bailey
	testified 	that
	Kelly
	was
	overly 	thorough 	in
his
	work; 	he 	was
	meticulous
	and 	a
	perfectionist.
	Hubbs
	said
	he
69

seemed 	compelled 	to 	develop 	an 	alternative 	approach 	to
assignments. 	There 	were 	times 	when 	these 	qualities 	were
useful, 	but 	Kelly 	needed 	to 	have 	a 	certain 	amount 	of 	restraint
put 	on 	him 	to .minimize 	his 	propensity 	for 	detail.
Other 	workers 	in 	the 	Museum 	echoed 	Hubbs' 	and 	Bailey's
perception 	of 	Kellyis 	work. 	Shalk 	said 	he 	was 	overly
meticulous ·and 	thus 	put 	a 	lot 	of 	pressure 	on 	other 	workers 	when
they 	were 	~orking 	to 	meet 	a 	deadline. 	Smiley 	said 	Kelly 	would
undertake 	to 	develop 	a 	new 	time-saving 	device, 	but 	in 	the 	end
it 	would 	take 	longer 	than 	if 	the 	exhibit 	had 	been 	installed
without 	the 	device. 	Murphy 	described 	Kelly 	as 	a 	person 	who 	was
strong-willed 	and 	who 	had 	no 	room 	for 	shortcuts. 	Beecroft 	said
Kelly 	would 	take 	two 	days 	to 	determine 	how 	to 	save 	fifteen
minutes. 	Things 	did 	not 	work 	smoothly 	when 	he 	was 	on 	the 	crew,
according 	to 	Beecroft.
The 	second 	reason 	Kelly 	was 	eliminated 	from 	the 	list
involved 	the 	three-way 	relationship 	between Wong, 	Kelly 	and
Bailey. 	Hubbs 	testified 	that 	Wong 	and 	Bailey 	were 	not 	getting
along 	well. 	She 	said 	there 	was 	so 	much 	tension 	and 	friction
between 	them 	that 	they 	couldn't 	even 	be 	in 	the 	same 	room
together. 	She 	reasoned 	that 	Kelly 	would 	only 	make 	the
situation 	worse. 	Instead 	of 	having 	two 	people 	who 	couldn't.
work 	together, 	she 	would 	have 	three, 	and 	she 	was 	not 	interested
in 	that.
70

From 	July 	1 	on, 	Hubbs' 	supervisor
. was 	Jim 	Elliott. 	He
never 	told 	her 	whether 	or 	not 	she 	should 	hire 	Kelly. 	Nor 	did
Egherman 	ever 	try 	to 	influence 	her 	decision 	about 	hiring
Kelly. 	It 	was 	solely 	up 	to 	Hubbs' 	discretion 	to 	decide 	whether
or 	not 	she 	should 	hire 	Kelly.
E. 	Kelly's 	Grievance.
On Augu~t 	19, 	1981, 	Daniel 	Kelly 	filed 	a 	grievance. 	He 	was
represented 	by 	CSEA. 	The 	subjects 	of 	the 	grievance 	were 	the
so-called 	"banning" 	memo 	of 	July 	20, 	1981, 	and 	the 	fact 	that
Kelly 	had 	not 	received 	on-call 	hours 	since 	the 	July 	27
meeting. 	As 	more 	fully 	explained 	below, 	Toby 	rejected 	the
grievance.
IV. 	Sam Greyson
On 	Friday, 	February 	20, 	1981, 	Egherman 	called 	an 	emergency
meeting 	of 	all 	Museum 	supervisors, 	including 	Johnson, 	Bailey,
Hubbs 	and 	Cecelia 	Franklin, 	the 	controller. 	There 	~as 	a
serious 	problem with 	the 	budget 	for 	on-call 	workers, 	since 	it
was 	half-way 	through 	the 	year 	and 	the 	entire 	budget 	had 	been
spent. 	The 	purpose 	of 	the 	meeting 	was 	to 	find 	ways 	to 	reduce
the 	amount 	of 	on-call 	work 	that 	was 	required 	for 	the 	remaining
six 	months 	of 	the 	year. 	During 	the 	meeting 	there 	was 	a
discussion 	about 	cutting 	exhibitions, 	reducing 	the 	design
requirements, 	and 	generally 	cutting 	the 	amount 	of 	work 	already
planned. 	It 	was 	decided 	that 	the 	on-call 	workers 	already
scheduled 	to 	work 	at 	the 	Museum 	would 	be 	cancelled. 	Bailey 	was
71

able
	to
	contact
	those
	on-call
	employees
	he
	had
	scheduled
	in
	the
preparation
	department
	and
	advise
	them
	that 	their
	assignment
was
	cancelled.
	Johnson
	tried
	to
	do
	the
	same
	in
	the
	shop
department, 	but
	he
	was
	not
	entirely
	successful.
Greyson
	and
	Ed
	Williams, 	another
	on-call
	worker,
	had
	been
scheduled
	by
	Johnson
	to
	work
	in 	the
	shop
	department 	for
	a
period 	of
	time
	beginning
	Monday,
	February
	23, 	1981.
	Johnson
immediately
	made
	attempts 	to
	notify
	both 	Williams
	and
	Greyson
of 	the
	cancellation
	of 	the
	project.
	Johnson
	was
	able
	to 	notify
Williams
	on
	Friday 	afternoon, 	but
	was
	unable
	to 	contact
Greyson. 	Throughout
	the
	weekend,
	Johnson
	made
	further 	attempts
to
	contact
	Greyson
	but
	was
	unsuccessful.
On
	Monday,
	February
	23, 	1981,
	when
	Greyson
	arrived
	at
	the
Museum
	to
	begin
	work,
	Johnson
	advised
	hi_m
	that
	Egherman
	had
cancelled
	the
	project.
	Johnson
	told
	him
	of 	the
	meeting
	held
the 	previous 	Friday,
	and
	of 	his 	attempts 	to 	notify
	him.
Greyson
	was
	extremely
	angry 	about 	the
	cancellation
	and
	the 	lack
of
	advance
	notice.
	Greyson,
	who 	was
	paid 	for
	a
	half-day's
	work
on
	February 	23,
	held
	Egherman
	responsible.
Upon
	learning 	of 	the
	cancellation,
	Greyson
	sat
	down
	at
Johnson's
	desk
	and
	wrote
	a
	letter
	of 	protest
	to
	Egherman. 	The
letter
	expressed 	Greyson's 	"personal 	outrage"
	at
	the
	situation
and
	referred 	to
	Egherman's 	"managerial 	incompetence."
	It
asserted 	that 	the
	Museum
	treats
	employees
	like 	"chattel(s)
1 	and
"non-persons." 	In
	a
	direct 	shot 	at
	Egherman, 	Greyson 	wrote
72

that 	the 	prevailing 	joke 	among 	on-call 	workers 	is 	that,
... 	the 	only 	apparent 	benefit 	to 	the
Museum of 	your 	many 	hours 	of 	managerial
training 	was 	to 	get 	you 	out 	of 	the 	Museum
for 	a 	few 	days.
Greyson 	did 	not 	consult 	with 	other 	on-call 	workers 	or
request 	their 	authorization 	before 	he 	wrote 	the 	letter. 	He
testified 	that 	he 	never 	asked 	anyone 	whether 	he 	should 	write
it. 	It 	was 	his 	decision, 	and 	he 	alone 	signed 	it, 	although 	he
claimed 	at 	the 	hearing 	he 	wrote 	it 	on 	behalf 	of 	other
employees. 	However, 	the 	letter 	was 	seen 	by Wong 	and 	Johnson
before 	it 	was 	delivered 	to 	Egherman, 	and 	both 	supported 	it.
Copies 	of 	the 	letter 	were 	sent 	to 	Barney 	Bailey, 	David 	Ross,
James 	Elliott 	and 	Mark 	Rosenthal, 	another 	management 	person.
Many 	other 	Museum 	employees 	subsequently 	saw 	the 	letter.
Greyson 	said 	he 	wrote 	the 	letter 	for 	three 	reasons. 	First,
he 	anticipated 	that 	he 	would 	receive 	on-call 	work, 	had 	relied
on 	this 	arrangement, 	and 	was 	upset 	when 	he 	learned 	that 	it 	had
been 	cancelled. 	Second, 	according 	to 	Greyson, 	it 	had 	become 	a
pattern 	for 	Museum management 	to 	make 	offers 	of 	on-call 	work,
only 	to 	withdraw 	the 	work 	without 	giving 	advance 	notice. 	Also,
the 	Museum had 	in 	the 	past 	called 	up 	on-call 	workers 	at 	the
last 	minute 	to 	ask 	them 	to 	come 	in 	to 	work. 	On-eall 	workers
had 	been 	accustomed 	to 	more 	notice. 	The 	third 	reason 	was
Greyson's 	perception 	of 	the 	allegedly 	poor 	treatment 	that 	Kelly
received. 	Kelly, 	however, 	was 	not 	mentioned 	in 	the 	letter.
73

Egherman 	was
	livid
	as
	a
	result
	of 	the
	letter.
	He
	felt
	it
was
	personally
	insulting
	because
	of 	the
	tone
	and
	content,
	and
because
	it
	was
	sent 	to
	his
	supervisor,
	his
	colleagues
	and
	his
subordinates.
	He
	was
	particularly
	upset
	at
	the 	negative
reference 	to
	his
	managerial
	incompetence.
	He
	said
	he
	could
accept
	criticism,
	but 	not
	insults.
Approximately
	10
	days
	after
	he
	delivered
	the
	letter,
Greyson
	received 	the 	reply
	from 	Egherman
	in 	the 	mail.
	The
reply
	began:
You
	are
	justifiably
	angry
	for
	showing
	up
	for
work
	yesterday
	according
	to 	schedule
	and
being 	informed
	that
	your
	services
	would
	not
be 	needed
	due
	to
	the 	withdrawal
	of
	funds
that
	had 	been
	allocated
	for
	the
	project
	you
were
	to
	work
	on.
Egherman 	went
	on
	to 	explain
	that:
...
	the 	various
	Museum
	departments 	function
autonomously
	and
	that 	unit 	supervisors
	have
the
	authority
	and
	flexibility
	to
	determine
how
	they
	will
	meet
	the 	goals
	established
	for
their
	departments. 	In 	the 	case 	of 	the
	Shop
on-call
	program,
	Andre 	manages
	it
independently.
	I 	do
	not
	tell
	him
	who
	to
hire
	or
	how
	to
	run
	it.
Egherman
	described 	the
	meeting
	that
	had 	been
	held
	on
	Friday
regarding 	the
	financial
	crisis
	and
	the 	discussion 	of 	the
various
	ways
	they 	could 	reduce 	the
	total
	amount
	of 	extra 	labor
to
	complete 	the
	year's 	exhibition 	schedule.
Andre
	indicated 	his 	ability
	to
	do
	the
required
	work
	without
	any
	on-call 	help.
	He
did 	not 	mention
	that
	he 	had
	alreadyscheduled 	people 	for 	the 	next
	week. 	Had 	he
done
	so,
	an 	accommodation 	would 	most
74

probably 	have 	been 	made 	to 	reduce 	the
abruptness 	of 	the 	decision.28
Egherman 	described 	the 	on-call 	program 	as 	a 	two-way
street. 	It 	is 	an 	opportunity 	for 	those 	involved 	to 	pick 	up
work 	on 	a 	casual 	basis 	without 	having 	to 	make 	a 	full-time
commitment 	to 	a 	job ..
On-call 	staff 	can 	say 	yes 	when 	they 	are
available 	to 	work 	and 	no 	when 	they 	are 	not.
They 	are 	free 	to 	pursue 	other 	jobs 	and
school 	interest.
The 	final 	statement 	in 	the 	letter 	was,
It's 	a 	shame 	that 	someone 	who 	has 	invested
as 	much 	time 	and 	energy 	in 	the 	Museum 	as 	you
have 	in 	the 	past 	has 	chosen 	to 	burn 	bridges
in 	the 	way 	that 	you 	have.
Copies 	of 	Egherman's 	letter 	were 	sent 	to 	Bailey, 	Elliott,
Johnson, 	Rosenthal 	and 	Ross.
Egherman 	and 	Johnson 	had 	a 	short 	conversation 	about 	Greyson
shortly 	after 	these 	two 	letters 	were 	exchanged. 	Egherman 	told
,
Johnson 	that 	he 	wanted 	to 	meet 	with 	Greyson, 	and 	he 	wanted
28There 	was 	much 	conflicting 	testimony 	at 	the 	hearing
about 	what 	was 	said 	at 	the 	February 	20 	meeting. 	Essentially
the 	conflict 	centered 	on 	the 	question 	of 	whether 	Johnson 	said
he 	had 	on-call 	workers 	already 	scheduled 	to 	work 	the 	following
week 	and 	on 	the 	question 	of 	whether 	Johnson 	said 	he 	could
perform 	the 	work 	in 	the 	shop 	in _the 	near 	future 	with 	a
considerable 	cut 	in 	on-call 	help. 	It 	is 	unnecessary 	to 	resolve
this 	dispute, 	since 	the 	theory 	of 	charging 	party's 	case 	is 	that
Greyson's 	letter 	to 	Egherman 	was 	protected 	activity 	and 	the
subsequent 	denial 	of 	on-call 	hours 	was 	unlawful 	retaliation.
There 	is 	no 	contention 	that 	the 	cancellation 	of 	work 	on
February 	23 	was 	aimed 	at 	Greyson, 	nor 	is 	there 	a 	contention
that 	Greyson 	was 	even 	mentioned 	at 	the 	February 	20, 	meeting.
75

Greyson 	to 	make 	some 	concessions. 	Johnson 	interpreted 	this
comment 	to 	mean 	Egherman 	wanted 	an 	apology. 	Johnson 	responded
by 	saying 	that 	Greyson 	is 	a 	good 	worker. 	Johnson 	described
Greyson, 	a 	law 	student 	at 	the 	time, 	as 	a 	"country 	lawyer" 	who
likes 	to 	spout 	off 	and 	get 	things 	of£ 	his 	chest, 	but 	things
then 	return 	to 	normal. 	Egherman 	responded 	that 	he 	objected 	to
Greyson's 	Yetter 	because 	it 	was 	both 	public 	and 	personal
criticism. 	Egherman 	wanted 	Greyson 	to_admit 	that 	he 	went
overboard. 	He 	encouraged 	Johnson 	to 	communicate 	to 	Greyson 	the
need 	for 	a 	meeting 	to 	discuss 	the 	situation, 	but 	this
apparently 	did 	not 	happen 	because 	Egherman 	had 	no 	further
contact 	with 	Johnson 	or 	Greyson 	about 	the 	incident. 	Johnson
testified 	that, 	at 	this 	point, 	he 	did 	not 	perceive 	that
Egherman 	precluded 	the 	possibility 	of 	Greyson 	continuing 	as 	an
on-call 	employee.
During 	the 	first 	week 	of March, 	Greyson 	came 	ba9k 	into 	the
shop 	and 	discussed 	the 	situation 	with 	Johnson. 	Johnson 	relayed
his. perception 	of 	his 	earlier 	conversation 	with 	Egherman; 	that
is, 	that 	the 	three 	of 	them would 	have 	to 	meet 	and 	that 	Greyson
would 	have 	to 	make 	concessions. 	Greyson 	felt 	that 	it 	would 	be
better 	if 	he 	waited 	a 	while 	so 	that 	Egherman 	could 	cool 	off.
However, 	he 	never 	contacted 	Egherman.
Later, 	on 	more 	than 	one 	occasion 	Greyson 	contacted 	Johnson
in 	an 	attempt 	to 	get 	on-call 	hours, 	but 	there 	was 	no 	work
available 	at 	the 	time. 	On 	other 	occasions 	when 	work 	was
76

available,
	Johnson
	attempted
	to
	call
	Greyson
	but,
	due
	to
Greyson's 	schedule,
	either
	he
	could 	not
	make
	contact
	or
	Greyson
was
	not
	available
	for
	work.
On
	another
	occasion,
	Greyson 	went
	to
	the
	Museum 	and
	talked
with
	Bailey,
	who
	told
	him
	that
	he
	was 	on
	the
	preparation
department's
	list.
	In
	fact,
	Bailey 	offered
	Greyson
	some
	work.
Greyson
	told
	Bailey
	he
	would
	have
	to 	clear
	it
	with
	Egherman.
Bailey 	said
	he
	did 	not
	have
	to
	clear
	it
	with
	Egherman.
	He
	then
assigned
-Greyson 	a
	half-day
	on-call
	time.
Greyson
	testified
	that
	in
	May
	he
	heard
	of 	the
	layoffs.
	He
assumed
	that
	if
	Johnson
	was
	laid 	off
	he 	would
	not
	be
	able
	to
get
	work.
v. 	Andre
	Johnson.
A. 	1981
	Layoffs
	and
	Denial
	of
	On-Call
	Work
As 	a
	result
	of 	the 	l981
	cuts,
	the
	shop
	department
	was
abolished
	and 	Andre
	Johnson
	was
	laid 	off.29	
From
	t~e
	date 	of
29Egherman 	was
	asked
	at
	the 	hearing
	why
	Johnson
	wasn'tgiven
	a
	temporary
	layoff 	as 	permitted
	by
	the
	University's
regulations 	rather
	than
	an
	indefinite 	layoff.
	He
	cited
	two
reasons 	for 	the
	indefinite 	layoff.
	First,
	Egherman
	said
	a
temporary
	layoff 	suggests
	that 	there 	is
	some
	light 	at
	the
	end
of 	the 	tunnel
	and
	holds 	out 	the
	possibility 	that
	the
	employee
will
	be
	recalled.
	The
	opposite
	was
	true 	in 	the
	Museum. 	The
future
	looked 	dim, 	and
	there
	was
	little
	chance
	that
	Johnsonwould 	be
	rehired.
	Thus,
	it
	would 	have 	been
	unfair 	to 	Johnsonand
	pointless 	to 	hold 	out
	this 	false
	hope. 	Also, 	given 	the
circumstances, 	the 	temporary
	layoff
	would 	have 	been
	converted
into
	and
	indefinite
	one 	one
	at
	some
	point 	in 	the 	near
	future.
Second, 	Egherman
	said 	the
	Museum 	had
	just 	negotiated
	a
	seriesof
	permanent
	cuts 	with 	the 	Vice
	Chancellor's 	office,
	and
temporary 	layoffs
	would 	have 	been
	contrary 	to 	the 	agreement.
77

the 	staff 	meeting 	in 	May 	1981 	announcing 	the 	layoffs, 	through
the 	summer 	of 	1981, 	Johnson 	freely 	discussed 	his 	plans 	with
co-workers. 	Six 	witnesses 	testified 	at 	the 	hearing 	that
Johnson 	told 	them 	that 	he 	intended 	to 	collect 	unemployment 	and
was 	not 	interested 	in 	working 	at 	the 	Museum 	on 	an 	on-call
basis. 	On 	several 	occasions 	prior 	to 	his 	layoff, 	Johnson
indicated 	to 	a 	number 	of 	employees 	in 	the 	Museum 	that 	he 	was
not 	interested 	in 	on-call 	work. 	These 	comments 	were 	made 	to
co-workers 	in 	and 	around 	the 	Museum 	and 	it 	appears 	that 	it
became 	well-known 	as 	a 	general 	fact 	that 	Johnson 	was 	not
interested 	in 	on-call 	hours. 	He 	made 	it 	known 	that 	he 	was
interested 	in 	pursuing 	other 	interests 	and 	expressed 	little
concern 	about 	being 	unemployed.30
In 	addition, 	Egherman 	talked 	to 	Johnson 	about 	tempqrary
work 	and 	told 	him 	that 	he 	would 	be 	called. 	But 	Johnson 	told
Egherman 	that 	he 	didn't 	want 	to 	accept 	temporary 	work 	if 	it
would 	jeopardize 	his 	rehire 	rights. 	Apparently, 	although
30These 	witnesses 	were 	Smiley, 	Murphy, 	Beecroft, 	Shalk,
Bailey, 	Hubbs 	and 	Egherman. 	For 	example, 	he 	told 	Shalk 	that 	he
wasn't 	worried 	about 	his 	future 	and 	wanted 	to 	spend 	some 	free
time. 	He 	told 	Smiley 	that 	he 	was 	looking 	forward 	to 	being 	with
his 	kids 	at 	home. 	He 	told 	Murphy 	he 	wasn't 	interested 	in 	prep
work 	because 	it 	was 	too 	delicate, 	and 	he 	was 	pursuing 	the
possibility 	of 	opening 	a 	grocery 	store 	at 	Shattuck 	and
Alcatraz. 	He 	told 	Beecroft 	his 	wife, 	who 	had 	worked 	at 	the
School 	for 	the 	Blind, 	which 	moved 	from 	Berkeley 	to 	Fremont, 	had
a 	new 	job 	and 	he 	wanted 	to 	stay 	home 	and 	spend 	some 	time 	with
his 	kids. 	He 	told 	Egherman, 	Hubbs 	and 	Bailey 	the 	same 	thing,
and 	said 	that 	if 	he 	collected 	unemployment 	he 	would 	be 	all
right 	until 	November.
78

Johnson 	was 	under 	the 	impression 	that 	accepting 	on-call 	hours
would 	jeopardize 	his 	recall 	rights, 	Eghermen 	told 	Johnson 	that
he 	didn't 	believe 	this 	was 	true 	and 	suggested 	that 	he 	verify 	it
with 	Joe 	Toby. 	Egherman 	testified 	that 	it 	was 	very 	clear 	to
him 	when 	they 	last 	spoke 	in 	June 	that 	Johnson 	did 	not 	want
on-call 	time. 	In 	fact, 	Egherman 	saw 	Johnson 	several 	times
during 	the ~ummer, 	and 	they 	talked, 	but 	Johnson 	never 	mentioned
that 	he 	had 	changed 	his 	mind 	and 	wanted 	on-call 	tim~. 	The
first 	notice 	Egherman 	received 	that 	Johnson 	wanted 	on-call 	work
was 	when 	he 	received 	a 	letter 	from 	CSEA 	representative
Michael 	Bogan.
Hubbs' 	testimony 	on 	this 	point 	is 	consistent 	with 	that
given 	by 	Egherman. 	During 	the 	last 	week 	in 	May, 	Hubbs 	and
Johnson 	discussed 	Johnson's 	future. 	Hubbs 	asked 	everyone 	in
the 	shop 	and 	preparation 	department 	if 	they 	would 	like 	t9 	work
on 	an 	on-call 	basis 	after 	July 	1. 	Johnson 	told 	her 	he 	wasn't
interested. 	According 	to 	Hubbs, 	he 	said 	he 	was 	going 	to
collect 	unemployment 	for 	six 	months, 	and 	then 	get 	a 	full-time
job 	in 	January; 	he 	said 	he 	needed 	to 	work 	around 	his 	house 	and
he 	wanted 	to 	spend 	time 	with 	his 	kids. 	Significantly, 	Johnson
also 	told 	Hubbs 	that 	he 	was 	confused 	about 	whether 	or 	not
on-call 	work 	would 	affect 	preferential 	rehire.
Johnson's 	version 	of 	these 	conversations 	is 	a 	little
differ~nt. 	He 	acknowledged 	that 	he 	had 	a 	concern 	about
preserving 	his 	rehire 	rights, 	but 	he 	did 	not 	intend 	to 	give 	the
79

impression 	that, 	as 	a 	result 	of 	this 	concern, 	he 	did 	not 	want
on-call 	hours. 	Johnson 	testified 	that 	his 	parting 	words 	with
Hubbs 	were 	that 	if 	there 	was 	no 	problem 	with 	rehire 	rights 	he
would 	be 	available 	for 	work.
Johnson 	made 	several 	inconsistent 	statements 	about 	when 	he
first 	learned 	that 	his 	acceptance 	of 	on-call 	work 	would 	not
affect 	his ~referential 	rehire 	status. 	First 	he 	said 	he
learned 	this 	in 	late 	July; 	then 	he 	said 	it 	was 	early 	August;
and 	then 	he 	said 	it 	was 	mid-July. 	In 	any 	event, 	after 	he
learned 	this, 	it 	was 	not 	until 	late 	August 	that 	he 	informed 	the
Museum 	that 	he 	would 	be 	interested 	in 	on-call 	work.
In 	late 	August 	Egherman 	received 	a 	letter 	from 	Bogan
requesting 	a 	meeting 	to 	discuss 	Johnson's 	situation. 	A
meeting, 	attended 	by 	Egherman, 	Toby, 	Bogan 	and 	Johnson, 	was
held 	on 	August.24. 	Egherman 	expressed 	surprise 	that 	Johnson
had 	changed 	his 	mind 	and 	now 	wanted 	to 	work. 	He 	asked 	if
Johnson 	would 	accept 	preparation 	work 	at 	the 	significantly
lower 	wage 	or 	if 	he 	would 	accept 	only 	shop 	work. 	Bogan
responded 	that 	Johnson 	wanted 	work, 	and 	refused 	to 	specify 	if
he 	would 	accept 	preparation 	work.
Johnson 	filed 	a 	grievance 	on 	September 	2, 	1981. 	He
testified 	that 	after 	he 	filed 	the 	grievance 	Hubbs 	called 	him
and 	said 	she 	had 	been 	under 	the 	impression 	that 	he 	did 	not 	want
to 	work. 	According 	to 	Johnson, 	he 	told 	Hubbs 	that,
80

... 	was 	not 	the 	case, 	that 	the 	only
problem 	I 	had 	was 	in 	preferential 	rehire
rights, 	and 	that, 	in 	fact, 	I 	did 	want 	to
work.
According 	to 	Hubbs, 	Johnson 	complained 	that 	she 	had 	hired
other 	people. 	Hubbs 	responded 	that 	she 	had 	done 	so 	because 	he
had 	told 	her 	that 	he 	wasn't 	interested 	in 	working. 	Johnson
said 	"well, 	I 	changed 	my 	mind." 	She 	asked 	him 	why 	he 	didn't
let 	her 	know 	that 	he 	changed 	his 	mind, 	but 	he 	was 	evasive. 	He
said 	that 	his 	mother 	had 	died 	and 	that 	he 	was 	sort 	of 	"spaced
out" 	when 	he 	had 	seen 	her 	(Hubbs) 	earlier 	in 	the 	summer.
At 	this 	point, 	Hubbs 	had 	already 	committed 	to 	hiring 	other
people 	for 	the 	daVinci 	Exhibit, 	but 	told 	him 	that 	she 	would
hire 	him 	as 	soon 	as 	there 	was 	another 	job, 	which 	she 	did.
Since 	that 	time 	she 	has 	given 	him 	the 	first 	choice 	on 	all
on-call 	shop 	work.
B. 	Johnson's 	Treatment 	as 	an 	On-Call 	Worker
Johnson 	was 	put 	on 	the 	on-call 	list 	as 	a 	building
maintenance 	worker 	and 	received 	work 	for 	the 	daVinci 	Exhibit.
By 	the 	time 	he 	began 	work, 	however, 	the 	on-call 	crew 	for 	that
exhibit 	had 	already 	been 	hired, 	and 	Clausen, 	a 	former 	full-time
employee 	of 	the 	shop, 	and 	Beecroft, 	a 	work-study 	student, 	had
been 	chosen 	by 	Hubbs 	as 	the 	"lead" 	workers 	on 	the 	project.
Prior 	to 	the 	reorganization, 	Johnson 	supervised 	these 	workers.
Johnson 	testified 	that 	on 	his 	first 	day 	at 	work 	Beecroft
explained 	to 	him 	and 	to 	Ed 	Williams 	their 	assigned 	duties, 	as
well 	as 	the 	current 	chain 	of 	command. 	Beecroft 	explained 	that
81

the 	chain of 	command 	was, 	in 	order, 	Hubbs, 	Clausen, 	Beecroft
and 	then 	Johnson 	and 	Williams. 	Although 	Johnson 	felt 	that 	he
had 	to 	go 	along 	with 	this, 	it 	didn't 	sit 	well 	that 	he 	would 	be
supervised 	by 	Clausen 	and 	Beecroft.
On 	Johnson's 	first 	day 	back 	at 	work, 	he 	asked 	Beecroft 	to
find 	someone, 	presumably 	with 	less 	experience, 	to 	remove 	some
garbage, 	a ·task 	which 	he 	apparently 	felt 	was 	beneath 	his 	level
of 	skill. 	Beecroft 	told 	him 	that 	if 	he 	wanted 	it 	removed 	he
would 	have 	to 	do 	it 	himself. 	Subsequently, 	Williams 	and
Johnson 	took 	out 	the 	garbage. 	Johnson 	conceded 	during 	his
testimony 	that 	everyone 	on 	the 	job 	took 	out 	the 	trash. 	Several
similar 	incidents 	regarding 	such 	assignments 	as 	taking 	out 	the
trash 	and 	vacuuming 	occurred. 	In 	general, 	Johnson 	felt 	he
received 	less 	skilled 	job 	assignments 	than 	other 	workers 	who
had 	less 	experience.
Johnson 	also 	testified 	about 	an 	incident 	involving
skylights. 	Clausen 	told 	Johnson 	to 	perform 	the 	skylight 	work
in 	a 	certain 	way. 	She 	felt 	this 	hadn't 	been 	done, 	but 	when 	she
questioned 	him 	about 	why 	he 	hadn't 	done 	the 	job 	in 	the 	way 	she
suggested, 	an 	unpleasant 	exchange 	occurred. 	She 	told 	Johnson
that 	he 	was 	argumentative, 	that 	he 	was 	trying 	to 	start 	a 	fight,
and 	that 	he 	should 	perform 	the 	job 	in 	the 	manner 	that 	she 	had
instructed. 	This 	did 	not 	sit 	well 	with 	Johnson.
According 	to 	Johnson, 	he 	and 	Williams 	felt 	physically
isolated 	from 	other 	employees. 	Hubbs 	testified 	that 	she 	never
82

saw 	Johnson 	isolated. 	He 	worked 	in 	the 	galleries, -mainly 	with
Ed 	Williams. 	She 	testified 	that 	it 	would 	have 	been 	pointless
to 	hire 	him 	and 	then 	restrict 	him 	in 	that 	manner.
Beecroft 	testified 	that 	Hubbs 	never 	asked 	her 	to 	isolate
Williams 	or 	Johnson 	from 	the 	other 	employees. 	In 	the 	Museum
employees 	usually 	work 	on 	teams, 	and 	Johnson 	and 	Williams 	were
a 	team 	tha~ 	worked 	well 	with 	the 	rest 	of 	the 	people. 	Beecroft
said 	that 	she 	never 	intentionally 	"isolated" 	Johnson 	or
Williams. 	On 	occasion, 	they 	were 	isolated 	with 	her 	in
performing 	certain 	duties. 	However, 	she 	said 	that 	on 	these
occasions 	it 	was 	because 	they 	were 	involved 	in 	many 	different
activities 	and 	the 	isolation 	was 	due 	to 	the 	nature 	of 	the 	work
being 	performed.
Johnson 	testified 	that 	in 	late 	September, 	while 	he 	was 	at
work, 	Beecroft 	told 	him 	not 	to 	associate 	with 	Wong 	because 	she
was 	involved 	in 	union 	activities. 	Beecroft 	denied 	~hat 	she
made 	such 	a 	statement. 	She 	said 	that 	she 	and 	Johnson 	once
talked 	about 	the 	instant 	unfair 	practice 	charge. 	During 	the
conversation 	she 	told 	him 	that 	there 	are 	two 	sides 	to 	every
story 	and 	he 	should 	not 	be 	taken 	in 	by 	one 	side 	or 	the 	other.
Given 	the 	tenuous 	relationship 	between 	Beecroft 	and 	Johnson 	at
this 	point, 	it 	seems 	unlikely 	that 	Beecroft 	would 	take 	it 	upon
herself 	to 	advise 	Johnson 	as 	to 	who 	he 	should 	associate 	with.
Furthermore, 	the 	statement -consists 	of 	a 	comment 	from 	one
non-supervisory 	employee 	to 	another. 	As 	such, 	even 	if 	it 	is
83

found
	that
	Beecroft
	made
	the 	statement,
	it
	would
	have
	no
bearing
	on
	this
	case 	in
	the
	absence
	of
	any
	evidence
	that
	Hubbs
or
	some
	other
	management
	official
	put 	Beecroft
	up
	to
	it.
C.
	Johnson's
	Grievance.
On
	September 	2, 	1981, 	Johnson
	filed
	his
	first
	grievance.
He
	challenged
	the
	layoff
	itself
	and
	the
	denial 	of
	work.
Johnson
	filed
	another 	grievance
	on
	October
	21, 	1981.
	This
grievance 	pertained 	to
	adverse
	letters
	that
	had
	been
	placed 	in
Johnson's 	personnel
	file
	during
	1975
	and
	1976.
	The
University's
	responses 	to 	these 	grievances 	are 	discussed
	below.
VI. 	General
	Credibility
	Observations
Adrienne
	Wong,
	the 	charging
	party's
	chief 	witness,
	was
	not
a
	particularly
	credible
	one.
	On
	direct
	examination 	she
	was
relaxed
	and
	gave
	lengthy
	detailed
	answers
	to 	questions
	asked
	by
her
	representative.
	But
	on
	cross-examination 	her
	demeanor
changed.
	She 	became
	guarded 	with 	her
	answers
	and
	djsplayed
	a
selective
	memory. 	When
	the 	questioning 	got
	tough 	she 	even 	shed
tears
	in
	a 	manner
	that
	did 	not
	strike
	me
	as
	particularly
genuine.
	The
	tears
	seemed
	out 	of 	character
	for
	Wong, 	who 	had
been 	through
	many
	tough
	battles
	with 	Bailey
	and
	others,
seemingly 	without
	a
	hint
	of
	such 	emotion.
In 	addition,
	Wong's
	testimony
	on many
	occasions
	was
evasive, 	exaggerated, 	inconsistent, 	distorted
	or
	inherently
unbelievable.31	
When
	asked
	if
	she 	knew
	that
	Kelly
	was
3lr 	will 	set 	forth
	some 	examples 	to 	support 	these
84

pursuing 	a 	job 	at 	a 	museum 	in 	San 	Francisco, 	she 	replied 	that
she 	didn't 	know. 	Given 	the 	relationship 	between 	Wong 	and 	Kelly
and 	the 	circumstances 	at 	the 	time 	Kelly 	was 	seeking 	this 	job, 	I
find 	it 	completely 	unbelievable 	that 	Wong 	was 	not 	aware 	of 	his
efforts. 	On 	another 	occasion 	she 	testified 	that 	on 	the 	day 	of
the 	elevator 	incident 	other 	employees 	placed 	works 	of 	art 	on
the 	elevator 	and 	left 	them 	there 	unattended. 	If 	true, 	this
statement 	would 	indicate 	that 	her 	conduct 	in 	this 	regard 	was
not 	out 	of 	the 	ordinary. 	But 	when 	pressed 	on 	the 	matter 	she
conceded 	that 	employees 	had 	placed 	works 	of 	art 	on 	the 	elevator
unattended 	but, 	significantly, 	had 	not 	closed 	the 	door 	as 	she
had. 	Thus, 	in 	the 	examples 	in 	her 	testimony 	no 	danger 	was
presented. 	In 	a 	similar 	vein, 	she 	testified 	that 	when 	Bailey
found 	her 	on 	the 	telephone 	he 	told 	her 	she 	was 	not 	permitted 	to
call 	her 	representative, 	the 	implication 	being 	that 	Bailey
attempted 	to 	block 	her 	from 	contacting 	the 	union
representative. 	But 	when 	pressed 	on 	the 	point, 	she 	conceded
that 	what 	Bailey 	actually 	said 	was 	that 	she 	should 	not 	call 	her
representative 	on 	work 	time. 	This 	puts 	Bailey's 	comments 	in 	an
entirely 	different 	light.
observations. 	However, 	the 	examples 	are 	by 	no 	means
all-inclusive. 	The 	record 	is 	replete 	with 	instances 	where 	Wong
testified 	in 	this 	manner. 	In 	addition, 	it 	is 	noted 	that 	this
section 	on 	credibility 	does 	not 	include 	resolution 	of 	all
credibility matters 	in 	the 	case. 	Other 	credibility 	matters 	are
resolved, 	as 	necessary, 	throughout 	the 	decision 	at 	appropriate
places.
85

In 	her 	classification 	appeal 	she 	called 	herself 	a
supervisor, 	a 	designation 	which 	she 	surely 	did 	not 	have. 	She
also 	claimed 	that 	her 	lighting, 	at 	least 	in 	part, 	entitled 	her
to 	the 	reclassification. 	In 	a 	disingenious 	~ttempt 	to
underscore 	her 	lighting 	work, 	she 	introduced 	her 	timesheets 	for
December 	1980, 	January 	1981 	and 	February 	1981, 	which 	showed
that 	she 	worked 	on 	lighting 	for 	over 	50 	percent 	of 	the 	time 	in
those 	months. 	Based 	on 	these 	timesheets 	?he 	testified 	that 	she
worked 	over 	50 	percent 	of 	her 	time 	in 	lighting 	and 	was 	thus
entitled 	to 	be 	reclassified. 	But 	when 	pressed 	on 	this 	figure,
she 	conceded 	that 	she 	chose 	these 	three 	months 	because 	they
were 	the 	highest. 	In 	fact, 	when .the 	complete 	picture 	is 	looked
at, 	it 	becomes 	clear 	that 	Wong 	averaged 	only 	34 	percent 	of 	time
performing 	lighting 	duties. 	She 	was 	obviously 	at 	all 	times
aware 	of 	this 	fact.
Wong's 	testimony 	becomes 	even 	more 	suspect 	when 	viewed 	in
comparison 	with 	the 	testimony 	given 	by 	several 	of 	her
co-workers. 	Although 	the 	testimony 	of 	co-workers 	was 	not
without 	minor 	defects, 	Shalk, 	Beecroft, 	Smiley 	and 	Murphy 	were
all 	generally 	credible 	witnesses. 	They 	were 	direct 	in 	their
answers 	and 	appeared 	on 	the 	stand 	as 	employees 	who 	were
genuinely 	interested 	in 	participating 	in 	the 	hearing, 	even
though 	it 	was 	not 	the 	most 	pleasant 	experience 	for 	them. 	They
were 	all 	disinterested 	in 	that 	they 	had 	no 	stake 	in 	the 	case.
In 	fact, 	Shalk 	no 	longer 	worked 	in 	the 	Museum.
86

Contrary
	to
	Wong,
	each
	of 	these 	witnesses
	said
	that
	in
	the
past
	they
	saw
	women
	move
	the
	tool
	cart
	and/or
	airlift
	down 	a
ramp
	alone.
	Some
	of 	these
	workers
	even
	said
	they
	saw
	Wong
	do
it.
	I
	find
	it
	significant 	that
	four
	credible
	witnesses
(excluding
	Bailey,
	Hubbs 	and
	even
	Kelly)
	would
	contradict
	Wong
on
	this
	point.
The 	same
	can 	be
	said
	about 	performing
	the
	so-called
	menial
tasks. 	Practically
	every
	witness
	who
	testified 	at
	the 	hearing
said
	all
	workers 	performed
	these
	tasks.
	Wong
	alone 	claims
	that
she
	was
	singled
	out
	to
	do
	this
	work
	in
	a
	discriminatory
manner.
	It
	is
	hard
	to 	accept 	her 	claim 	in 	the 	face 	of
	such
overwhelming
	opposition,
	and
	it
	also 	severely
	undermines
	her
credibility.
~urther,
	Wong
	testified 	at
	great
	length
	about 	the
	problems
stemming 	from
	the
	so-called
	lack
	of
	clarification
	of 	job
duties.
	Shalk, 	the 	only
	other 	career 	preparator,
	t~stified
that
	there
	was 	no
	such 	problem. 	Since 	Shalk
	was 	a 	much 	more
believable 	witness, 	there 	is
	no
	choice 	but 	to
	discredit
	Wong.
Shalk
	(and
	Bailey)
	also
	testified 	that
	Bailey 	did 	not
	tell
her
	and
	Wong
	that
	the
	AFSCME
	dues 	were 	$100 	a 	month,
	as
	Wong
claims.
	Such 	a
	statement
	would 	have 	been
	preposterous, 	given
the 	fact 	that
	the 	figure 	is
	exaggerated
	and
	Wong
	herself
	could
have 	checked
	it
	out 	with
	a
	single
	phone
	call.
	Moreover,
	Wong
implied 	that 	Bailey,
	by
	this 	statement, 	sought 	to 	discourage
her
	from
	joining
	AFSCME.
	But
	this
	makes 	no
	sense, 	since
	it
	was
87

Bailey 	who 	had 	become .the 	point 	man 	in 	the 	wage-lag 	matter, 	and
it 	was 	Bailey 	who 	suggested 	going 	to 	the 	union 	in 	the 	first
place.
Kelly's 	testimony, 	while 	slightly 	more 	convincing 	than
Wong's, 	nevertheless 	suffered 	from 	similar 	flaws. 	For 	example,
he 	testifi~d 	with 	certainty 	that 	Bailey 	was 	responsible 	for
damage 	whicb 	occurred 	to 	the 	Jenny 	painting, 	yet 	he 	was 	not
disciplined. 	If 	left 	to 	stand, 	this 	testimony 	would 	have
assisted 	Wong's 	disparate 	treatment 	argument 	with 	respect 	to
the 	suspension 	arising 	out 	of 	the 	Davis 	painting 	incident.
However, 	when 	challenged 	on 	cross-examination, 	Kelly 	testified
that 	he 	was 	not 	absolutely 	certain 	that 	it 	was 	Bailey 	who
caused 	the 	cracks 	in 	the 	Jenny 	painting. 	Moreover, 	with
respect 	to 	the 	discipline, 	he 	changed 	his 	testimony 	to 	say 	that
to 	his 	knowledge 	Bailey 	was 	not 	disciplined. 	These 	significant
qualifications 	cast 	serious 	doubt 	on 	Kelly 	as 	a 	witness
because, 	in 	my 	view, 	he 	must 	have 	known 	when 	he 	testified 	on
direct 	that, 	in 	fact, 	he 	was 	not 	sure 	Bailey 	did 	the 	damage 	to
the 	Jenny 	painting, 	nor 	was 	he 	sure 	that 	Bailey 	was 	not
disciplined.
Furthermore, 	in 	my 	view, 	Kelly's 	manner 	of 	testifying 	in
the 	end 	had 	the 	effect 	of 	making 	most 	of 	what 	he 	said
unconvincing. 	Even 	when 	questions 	called 	for 	short 	direct
answers, 	he 	consistently 	insisted 	on 	lengthy 	explanations 	which
frequently 	contained 	irrelevant 	material 	and 	ultimately 	served
88

only 	to
	cloud 	the
	issues.
	Because
	of
	his
	propensity 	to
	do
	this
rather
	than
	respond
	directly
	he
	left
	me
	with
	the
	overall
impression
	that
	he
	was
	being
	evasive.
	This
	casts
	considerable
doubt
	on
	the
	veracity
	of
	most
	of
	what 	he 	had
	to
	say.
Lastly,
	Bailey
	and 	Hubbs
	were
	also 	credible
	witnesses.
Both
	displayed
	a
	calm
	demeanor 	on
	the
	stand.
	They
	answered
questions
	directly
	and
	with
	clarity,
	frequently 	emphatically
making
	a
	point 	in
	a 	manner 	which
	impressed
	me
	as
	truthful.
Also,
	I
	find
	little
	or
	no
	inherent
	inconsistencies
	or
improbabilities
	in
	what
	they
	had
	to
	say
	about 	the
	central
points
	litigated
	here.
	In
	sum,
	they
	were
	both
	good
	witnesses.
ISSUES
1.	
Whether
	the
	UAM
	unlawfully
	interfered
	with,
discriminated 	against
	or
	retaliated
	against
	Adrienne
	Wong
	by
any
	of
	the 	following
	actions:32
32The
	allegation 	that
	the
	November 	1980
	evaluation,
incorporating
	certain
	attached
	memos,
	constituted
	retaliation
for
	Wong's
	protected
	activity
	was
	included 	in 	the
	original
charge
	which 	was
	dismissed
	by 	a
	PERB
	hearing
	officer
	on
September 	23, 	1981. 	Charging
	party 	did 	not 	appeal
	thatdismissal,
	nor
	did
	it
	include 	these
	allegations
	in 	the
	two
lengthy
	amendments
	submitted
	prior 	to 	hearing.
	Although
	the
charge
	was
	again
	amended
	at
	the
	outset 	of 	the 	hearing,
	that
amendment
	included 	only 	the
	allegations 	that
	the
	1981
	layoff
and
	the 	June 	15,
	1981
	letter
	of
	reprimand 	were
	in
	retaliation
for
	Wong's
	protected 	conduct 	in
	1980. 	(Vol.
	I;
	pp. 	8-10.)
Also, 	the
	November 	3
	evaluation 	as 	well 	as 	the 	attachments
thereto
	occurred
	more
	than 	six
	months
	before 	the
	filing 	of 	the
original
	charge 	in
	September 	1981. 	Thus, 	while 	the
November 	1980
	evaluation, 	including 	the 	attachments,
	may 	be
considered 	as 	background 	evidence, 	these 	actions 	cannot 	be
considered 	as 	separate 	violations,
	and
	the 	arguments 	in
charging 	party's 	brief 	to 	the 	contrary 	are 	rejected.
89

A. 	The
	July
	1981
	layoff;
B.	
The
	June 	12,
	1981
	letter
	about
	"specifications";
c. 	The
	June 	16,
	1981
	performance
	evaluation;
D.	
The
	July
	16 	and
	20,
	1981
	letters
	regarding
	keys;
E.	
The
	July
	1981 memos
	regarding
	lighting
	files,
	use
of
	the
	Xerox
	machine
	and
	other
	copying
	of
	files;
F;	
The
	elevator 	incident
	suspension;
G.	
The
	installation
	of
	telephone 	locks;
H. 	The
	September
	14,
	1981
	confrontation 	regarding
representation;
I.	
The
	assignment
	to
	sand 	frames
	in
	September 	1981;
J.	
The
	denial 	of 	access 	to 	the
	UAM
	during 	the
	daVinci
exhibit;
K.	
The
	withdrawal
	of
	Grand
	Master
	Key
	privileges;
L. 	The
	September 	29,
	1981
	confrontation 	regarding
Wong's
	call
	to 	Tesluk;
M.	
The
	assignment
	of
	menial
	tasks;
N. 	The
	Chinese 	fan
	incident;
o. 	The
	denial 	of 	representation 	at
	the
	desk
	audit;
P.	
The
	reclassification
.denial;
Q. 	The
	tool 	cart
	incident;
R. 	The
	1982
	layoff;
s.	
The
	refusal 	to 	process 	grievances.
2. 	Whether
	the
	UAM
	unlawfully 	interfered 	with,
discriminated 	against 	or
	retaliated 	against 	Daniel 	Kelly 	by
90

either 	of 	the 	following 	actions:33
A. 	The 	denial 	of 	on-call 	work 	after 	July 	1, 	1981; 	or
B. 	The 	refusal 	to 	process 	grievances.
3. 	Whether 	the 	UAM 	unlawfully 	interfered 	with,
discriminated 	against, 	or 	retaliated 	against 	Sam Greyson 	by
denying 	him 	on-call 	work 	after 	February 	23, 	1981?
4. 	Whether 	the 	UAM 	unlawfully 	interfered 	with,
discriminated 	against 	or 	retaliated 	against 	Andre 	Johnson 	by
any 	of 	the 	following 	actions:34
33At 	the 	outset 	of 	the 	hearing 	the 	charging 	party 	moved
to 	amend 	the 	charge 	to 	include 	the 	allegation 	that 	Kelly 	engaged
in 	protected 	activities 	from 	January 	to 	August 	1980, 	and 	in
retaliation 	he 	was 	denied 	on-call 	hours 	on 	several· occasions
leading 	up 	to 	July 	1981. 	This 	allegation 	was 	part 	of 	the
original 	charge 	that 	was 	dismissed 	by 	a 	PERB 	hearing 	officer.
The 	dismissal 	was 	not 	appealed 	and, 	despite 	several 	subsequent
comprehensive 	amendments, 	the 	allegations 	were 	never 	reinstated
by 	the 	charging 	party. 	The 	motion 	to 	amend 	was 	denied 	on 	the
record 	for 	two 	reasons. 	First, 	some 	of 	the 	acts 	of 	retaliation
were 	time-barred. 	Second, 	because 	the 	charging 	party 	had
ignored 	these 	allegations 	throughout 	the 	long 	procedural
history 	leading 	up 	to 	the 	hearing, 	including 	the 	dismissal 	and
two 	subsequent 	amendments, 	the 	respondent 	was 	not 	fairly 	on
notice 	that 	it 	would 	have 	to 	defend 	against 	these 	allegations.
Thus, 	permitting 	the 	amendment 	at 	such 	a 	late 	date 	would 	be
unduly 	prejudicial. 	Charging 	party 	noted 	no 	objection 	to 	this
ruling. 	(Vol. 	I, 	pp. 	7-8.) 	To 	the 	extent 	evidence 	was 	taken
about 	events 	before 	July 	1981, 	it 	was 	taken 	for 	purpose 	of
background 	information 	only 	and 	not 	for 	the 	purpose 	of
litigating 	the 	issues 	in 	the 	proposed 	amendment 	which 	was
denied. 	For 	these 	reasons, 	the 	lengthy 	arguments 	presented 	in
charging 	party's 	brief 	about 	Kelly's 	actions 	and 	alleged
reprisals 	prior 	to 	July 	1981 	are 	not 	considered 	as 	independent
charges. 	·
34The 	original 	charge 	contained 	the 	allegation 	that 	the
Museum 	in 	June 	1981 	subcontracted 	work 	involving 	the 	building
of 	crates, 	rather 	than 	give 	it 	to 	Johnson. 	Although 	this
91

A. 	The 	1981 	layoff;
B. 	The 	denial 	of 	on-call 	work 	immediately 	after 	the
layoff;
C. 	The 	treatment 	as 	an 	on-call 	employee; 	or
D. 	The 	refusal 	to 	process 	grievances.
DISCUSSION
I. 	Introau·ction
Section 	357l{a) 	of 	the 	Act 	prohibits 	discriminatory 	action
against 	an 	employee 	for 	engaging 	in 	conduct 	protected 	by 	the
HEERA. 	In 	Novato 	Unified 	School 	District 	(4/30/82) 	PERB
Decision 	No. 	210, 	the 	Board 	set 	forth 	the 	standard 	by 	which
charges 	alleging 	discriminatory 	conduct 	under 	section 	3571(a)
are 	to 	be 	decided. 	The 	Board 	summarized 	its 	test 	in 	a 	decision
under 	HEERA 	issued 	the 	same 	day 	as 	Novato:
•.. 	a 	party 	alleging 	a 	violation 	•.. 	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 	engage 	in 	the 	conduct 	of 	which
allegation 	was 	dismissed 	by 	a 	PERB 	hearing 	officer 	and 	never
formally 	reinstated 	by 	the 	charging 	party, 	a 	limited 	amount 	of
evidence 	concerning 	this 	issue 	was 	presented 	at 	the 	hearing.
Since 	the 	matter 	was 	not 	fully 	litigated, 	this 	issue 	will 	not
be 	addressed 	here. 	San 	Ramon 	Unified 	School 	District 	(8/9/82)
PERB 	Decision 	No. 	230. 	However, 	it 	is 	worth 	noting 	that 	the
limited 	testimony 	offered 	on 	this 	point 	indicates 	that 	the 	UAM
did 	not 	act 	improperly. 	Johnson 	was 	asked 	to 	build 	the 	crates,
but 	he 	declined, 	saying 	that 	since 	he 	was 	to 	be 	laid 	off 	he
didn't 	want 	to 	undertake 	the 	project 	and 	then 	be 	forced 	to
leave 	it 	half-done. 	Also, 	the 	evidence 	showed 	that 	shop 	work
had 	on 	occasion 	been 	subcontracted 	in 	the 	past. 	It 	was 	under
these 	circumstances 	that 	the 	work 	was 	subcontracted.
92

the 	employee 	complains. 	Once 	this 	is
established, 	the 	burden 	shifts 	to 	the
employer 	to 	demonstrate 	that 	it 	would 	have
taken 	the 	same 	action 	even 	in 	the 	absence 	of
protected 	conduct. 	As 	noted 	in 	Novato, 	this
shift 	in 	the 	burden 	of 	producing 	evidence
must 	operate 	consistently 	with 	the 	charging
party's 	obligation 	to 	establish 	an 	unfair
practice 	by 	the 	preponderance 	of 	the
evidence •. (California 	State 	University,
Sacramento 	(4/30/82) 	PERB 	Decision 	No. 	211-H
at 	pp . 	13-14 • )
The 	test 	adopted 	by 	the 	Board 	is 	consistent 	with 	precedent
in 	California 	and 	under 	the 	National 	Labor 	Relations 	Act 	(NLRA)
requiring 	the 	trier 	of 	fact 	to 	weigh 	both 	direct 	and
circumstantial 	evidence 	in 	order 	to 	determine 	whether 	an 	action
would 	not 	have 	been 	taken 	against 	an 	employee 	but 	for 	the
exercise 	of 	protected 	rights. 	See, 	e.g., 	Martori 	Brothers
Distributors 	v. 	Agricultural 	Labor 	Relations 	Bd. 	(1981)
29 	Cal.3d 	721, 	729-730; 	Wright 	Line, 	Inc. 	(1980) 	251 	NLRB 	150
[105 	LRRM 	1167] 	enf., 	in 	part, 	(1st 	Cir. 	1981) 	662 	F.2d 	899
[108 	LRRM 	2513] .35
Hence, 	assuming 	a 	prima 	facie 	case 	is 	presented, 	an
employer 	carries 	the 	burden 	of 	producing 	evidence 	that 	the
action 	"would 	have 	occurred 	in 	any 	event." 	Martori 	Brothers
35The 	construction 	of 	similar 	or 	identical 	provisions 	of
the 	NLRA, 	as 	amended, 	29 	o.s.c. 	151 	et 	seq., 	may 	be 	used 	to
guide 	interpretation 	of 	the 	EERA. 	See, 	e.g., 	San 	Die 	o
Teachers 	Assn. 	v. 	Superior 	Court 	(1979) 	12 	Cal.3d 	1,2-13;	1
Fire 	Fighters 	Union 	v. 	City 	of 	Vallejo 	(1974) 	12 	Cal.3d 	608,
616. 	Compare 	section 	357l(a) 	of 	the 	Act 	with 	section 	8(a) (3)
of 	the 	NLRA, 	also 	prohibiting 	discrimination 	for 	the 	exercise
of 	protected 	rights.
93

Distributors
	v.
	Agricultural
	Labor
	Relations
	Bd.,
	supra,
29
	Cal.3d
	at
	730.
	Once
	employer
	misconduct
	is
	demonstrated,
the 	employer's
	action,
...
	should
	not
	be
	deemed 	an
	unfair
	labor
practice
	unless 	the
	Board
	determines
	that
the
	employee
	would
	have 	been
	retained
	"but
for"
	his
	union
	membership
	or
	his
	performance
of 	other 	protected
	activities.
	(Ibid.)
It
	is
	under
	this
	test
	that
	the
	Museum's
	conduct
	will
	be
analyzed.
II.
	Adrienne
	Wong.
A. 	Pre-CSEA
	Activities.
The
	Charging
	Party's 	brief
	summarizes
	Wong
1 s 	pre-CSEA
activities
	as
	follows. 	In 	the 	spring 	of
	1980
	she
	met
	with
Bailey
	to
	discuss
	clarification
	of 	her
	responsibilities
	in 	the
department.
	Her
	basic
	complaint
	was
	that
	her 	assignments'had
been 	taken
	away
	at
	the
	last
	minute.
	Later,
	according 	to 	the
Charging
	Party,
	she
	discussed
	with
	Bailey
	(and 	Toby)
	job
description
	cards 	for
	employees
	in 	the 	department 	along 	with
more
	general 	concerns, 	including 	the
	fact 	that 	on-call
employees
	did 	not 	receive 	fringe 	benefits.
	On
	at 	least
	one
occasion 	Kelly 	joined
	Wong 	when
	she 	met
	with
	Toby. 	The
wage-lag 	problem
	was
	also 	discussed,
	and, 	as
	more
	fully
described 	in 	the 	statement 	of
	facts,
	she
	actively
	worked
	to
remedy
	the
	wage
	problem 	along 	with 	Shalk
	and
	Bailey.
Section
	3565
	of
	HEERA
	states
	in 	relevant 	part:
94

Higher 	education 	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 	and 	for 	the
purpose 	of 	m~eting 	and 	conferring.
To 	find 	any 	of 	Wong's 	actions 	protected 	under 	this 	section,
it 	must 	be 	found 	that 	she 	actively 	participated 	in 	an 	employee
organization, 	and 	that 	the 	organization 	existed 	for 	the 	purpose
of 	representation 	r.egarding 	matters 	of 	employer-employee
relations. 	See 	Monsoor 	v. 	State 	of 	California, 	Department 	of
Developmental 	Services 	(7/28/82) 	PERB 	Decision 	No. 	228-S
(hereafter 	Monsoor). 	Under 	the 	Act 	an 	employee 	organization 	is
defined 	in 	section 	3562(g) 	as,
•.. 	any 	organization 	of 	any 	kind 	in 	which
higher 	education 	employees 	participate 	and
which 	exists 	for 	the 	purpose, 	in 	whole 	or 	in
part, 	of 	dealing 	with 	higher 	education
employers 	concerning 	grievances, 	labor
disputes, 	wages, 	hours 	and 	other 	terms 	and
conditions 	of 	employment 	of 	employees .•. , .
Taking 	guidance 	from 	the 	private 	sector, 	the 	Board 	has
interpreted 	similar 	language 	under 	the 	State 	Employer-Employee
Relations 	Act 	to mean 	that 	a 	given 	aggregation 	of 	employees, 	to
be 	considered 	an 	employee 	organization, 	need 	not 	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 	Board 	placed 	the 	central 	focus 	on whether 	the 	group 	has, 	as
a 	key 	purpose, 	the 	representation 	of 	employees 	on
95

employment-related 	matters. 	Monsoor, 	supra, 	p. 	7. 	Under 	this
test, 	the 	Board 	observed 	that 	even 	two 	employees 	who 	act 	in
concert 	to 	present 	grievances 	about 	cuts 	in 	overtime 	and 	loss
of 	jobs 	may 	be 	viewed 	to 	have 	constituted 	themselves 	an
employee 	organization 	because 	they 	had 	joined 	together 	to
represent 	employees 	concerning 	working 	conditions. 	It 	follows
that 	interfering 	with 	even 	two 	employees 	who 	engage 	in 	such
activity 	has 	the 	effect 	of 	discouraging 	e~ployees 	in 	general
from 	continuing 	to 	act 	in 	concert 	through 	an 	employee
organization. 	Ohio 	Oil 	Company 	(1951) 	92 	NLRB 	1597
[27 	LRRM 	1288] 	cited 	with 	approval 	in 	Monsoor, 	supra.
Under 	this 	approach, 	we 	need 	not 	consider 	the 	full 	range 	of
Wong's 	pre-CSEA 	conduct 	in 	order 	to 	determine 	that 	she 	engaged
in 	the 	requisite 	protected 	activity 	to 	satisfy 	the 	first 	step
under 	the 	Novato 	test. 	Wong's 	actions 	with 	respect 	to 	the
wage-lag 	effort 	were 	protected. 	Wages 	is 	clearly 	a_working
condition 	of 	concern 	to 	employees. 	Unlike 	most 	of 	her 	other
actions, 	the 	efforts 	here 	were 	clearly 	in 	concert 	with 	at 	least
two 	other 	nonsupervisory 	employees, 	Shalk 	and 	Kelly. 	In
July 	1980 	Wong 	and 	Kelly 	met 	with 	Toby 	and 	discussed, 	among
other 	things, 	the 	wage 	inequity 	problem. 	Also 	in 	July 	1980,
Wong 	and 	Shalk 	met 	with 	Bailey 	to 	discuss 	the 	same 	issue.
These 	meetings 	were 	well 	known 	to 	other 	employees 	who 	stood 	to
benefit 	if 	the 	wage-lag 	problem 	was 	successfully 	pursued. 	As 	a
result 	of 	these 	meetings 	a 	substantial 	effort 	was 	undertaken.
96

Since 	the 	matter 	at 	issue 	involved 	the 	wages 	of 	all 	employees,
and 	since 	many 	employees 	were 	aware 	of 	these 	efforts 	as 	a
result 	of 	discussions 	with 	Wong, 	it 	can 	be 	said 	that 	Wong 	acted
with 	at 	least 	the 	implied 	authority 	of 	these 	workers. 	Together
with 	Bailey, 	Wong 	and 	Shalk 	collected 	information 	and 	prepared
a 	proposal 	to 	be 	presented 	to 	the 	appropriate 	University 	body.
Although 	Bailey 	made 	the 	representation, 	Wong 	and 	Shalk 	were
present 	and 	their 	efforts 	leading 	up 	to 	the 	presentation 	were
not 	insubstantial. 	Therefore, 	it 	is 	concluded 	that, 	although
many 	of 	the 	issues 	Wong 	raised 	were 	personal 	in 	nature, 	she
engaged 	in 	the 	activity 	required 	to 	bring 	her 	within 	the
protections 	of 	the 	Act.36
However, 	there 	is 	no 	evidence 	that 	the 	Museum's 	pre-CSEA
conduct 	about 	which 	the 	charging 	party 	complain~ 	was 	connected
to 	this 	protected 	activity, 	or, 	for 	that 	matter, 	to 	any 	of
Wong's 	other 	activities, 	ev~n 	assuming 	they 	are 	pro~ected.
While 	it 	is 	abundantly 	clear 	that Wong 	and 	Bailey 	had 	a 	rocky
36Because 	of 	this 	finding, 	it 	is 	unnecessary 	to 	address
the 	question 	of 	whether 	other 	activities 	connected 	to
clarification 	of 	duties, 	job description 	cards, 	fringe 	benefits
for 	on-call 	employees, 	etc. 	were 	protected. 	It 	is 	noted,
however, 	that 	with 	respect 	to 	most 	of 	these 	activities 	Wong
testified 	that 	she 	talked 	with 	other 	employees. 	·However, 	the
record 	established 	by 	the 	charging 	party 	is 	lacking 	as 	to
whether 	Won~ 	acted 	with 	other 	employees 	or 	with 	the 	requisite
express 	or 	implied 	authority 	of 	these 	other 	employees 	to 	make
her 	conduct 	concerted. 	See 	Meyers 	Industries, 	Inc. 	(1984)
268 	NLRB 	No. 	73 	[ 	LRRM 	]. 	Thus, 	it 	is 	doubtful 	that
these 	actions 	are 	protected-.--
97

relationship,
	it
	is
	equally
	clear
	that 	their
	difficulties
	were
not 	the
	result
	of
	Wong's
	protected
	activity
	or
	Bailey's
unlawful
	motive.
Bailey
	and
	Wong
	fell
	on
	hard 	times 	almost
	immediately
	after
her
	return
	from
	Japan,
	and
	long
	before
	Wong
	did
	anything
	that
can
	even
	remotely
	be
	considered
	protected
	activity.
	Upon
	her
return,
	Wong
	became
	upset
	because 	Shalk
	had
	begun
	to
	play
	more
of
	a
	role
	in
	the 	department.
	I
	believe
	Bailey's
characterization
	of
	Wong
	as
	feeling
	"betrayed''
	is
	an
	accurate
one.
	She
	began
	to
	assert 	that
	her
	duties
	needed
	clarification,
an
	assertion 	that
	Shalk
	and 	Murphy
	dispute.
	And
	she
	claimed
she 	should
	be
	reclassified.
	Both
	of 	these
	complaints
	were
unfounded
	in
	my
	view.
	Nevertheless, 	in 	conjunction
	with
	these
claims,
	she
	protested
	to
	Toby
	that
	Bailey
	was
	treating
	her
unfairly:
	he
	favored
	certain
	people,
	she
	said,
	and
	she
	was
	not
one
	of
	them. 	Thus,
	it
	seems
	that
	Bailey
	and
	Wong
	djd 	not 	get
along 	beginning
	from
	the
	time 	she
	returned
	from
	Japan.
	Simply
put,
	Wong
	was
	not
	an
	easy 	perso~ 	to
	work
	with.37 	This
	fact,
not 	protected
	conduct,
	was
	the 	source 	of 	the 	tension.
The
	record
	is 	replete
	with 	examples 	which
	demonstrate 	the
difficulties
	Bailey
	had
	with
	Wong. 	For 	example,
	despite 	the
37The 	same
	thing
	may 	be
	said 	about
	Wong's
	relationshipwith 	her 	coworkers. 	Aside 	from
	the 	fact 	that
	they 	repeatedly
contradicted 	her 	testimony
	at
	the 	hearing, 	they 	described 	her
personality
	as 	moody 	and 	not 	very 	easy 	to
	work
	with.
98

fact
	that
	Bailey 	refused
	to 	grant
	her
	time
	off
	to
	draft
	her
employee 	development
	plan,
	she
	wai_ted
	until
	the
	last
	minute
	to
complete
	the
	draft
	and
	took 	time
	off
	anyway. 	The
	attachments
to
	her
	November
	3,
	1980
	evaluation,
	as
	well 	as
	Wong's
	rebuttal,
show
	that
	on
	occasion
	Wong
	refused 	to 	attend
	staff
	meetings
because
	she
	unilaterally
	determined
	her
	priorities
	were
elsewhere
	at
	the 	time, 	or
	she
	disappeared
	from
	the
	worksite
without 	apparent 	reason.
	When
	Bailey
	asked
	her 	to 	help
	uncrate
the
	Pomodoro
	exhibit,
	she
	protested
	that
	it
	was
	"shit
	work."
Other
	examples
	of 	the
	difficulties
	Bailey
	had
	in
	working
	with
Wong
	are
	set
	forth
	in 	the 	statement 	of
	facts.
	It
	would
	serve
no
	useful
	purpose
	to 	again
	describe
	them
	here;
	nor
	would
	it
serve
	any
	useful
	purpose
	to 	assess
	blame
	for 	these
	incidents,
as
	most
	of
	them
	boiled
	down
	to
	petty
	work-place
	disagreements.
Suffice
	it
	to
	say
	that
	these
	problems
	were
	representative 	of
the
	not
	uncommon
	situation
	where 	an 	employee 	and 	he~
	supervisor
simply 	are 	not 	able 	to
	work
	together
	smoothly
	for 	reasons
related
	to
	what
	may
	be
	described 	as
	differences 	in
	style,
approach
	to 	the
	work,
	personality, 	etc.
	In
	my
	view,
	the
problems 	Bailey
	and
	Wong
	experienced
	do
	not 	suggest
	an
	unlawful
motive.
	And
	there
	exists
	no
	concrete 	evidence 	in 	the 	record
from 	which 	I
	am
	prepared 	to 	infer
	such 	a
	motive. 	Therefore,
	it
is
	concluded
	that 	the 	charging 	party
	has 	not 	established
	a
prima 	facie 	case 	under 	Novato 	with 	respect 	to 	the
	pre-CSEA
allegations.
99

But
	even 	assuming
	that,
	regarding 	the
	Museum's 	pre-CSEA
complained-of 	conduct,
	a
	prima
	facie
	case
	had
	been
	proved, 	the
Charging
	Party's
	case
	does
	not
	stand
	up
	in
	the 	face
	of 	the
Museum's
	reasons 	for
	its
	actions.
	The
	outstanding
	allegations
of
	unlawful
	activity
	which
	occurred
	prior
	to
	the
	time
	Wong
	was
first
	represented
	by
	CSEA
	on
	June 	29,
	1982
	are
	(1)
	the
	June
	12
letter,
	(2)'
	the
	June
	16
	evaluation,
	and 	(3)
	the
	July
	1981
layoff.
	Each
	of 	these
	will
	be
	considered 	in 	order.38
1.
	The
	June 	12,
	1981
	Letter:
My
	best
	understanding 	of 	the
	Charging
	Party's
	argument
concerning
	this
	letter
	is
	as
	follows.
	Prior
	to
	June 	12, 	both
Wong
	and
	Bailey
	knew
	the
	wage-lag
	proposal
	had
	been
	turned
down.
	Consequently, 	Bailey
	somehow 	"knew"
	that
	Wong
	would
reinstate
	her
	efforts
	to 	pursue 	the
	reclassification
	process,
which
	she
	had
	temporarily 	given 	up. 	For
	some
	reason,
	even
though
	Bailey 	favored 	the
	wage-lag
	proposal,
	he 	opposed 	Wong's
pursuit
	of 	the
	reclassification
	issue
	and 	he
	issued 	the 	June
	12
letter
	as
	a
	reprisal
	for
	initiating
	the
	reclassification
proposal 	in 	the
	first
	place.
	Also, 	Charging
	Party 	urges
	a
38This 	charge
	was
	filed
	on 	September 	18, 	1981. 	Thus,
Charging 	Party
	acknowledges
	that 	reprisal 	actions
	taken 	before
March
	18,
	1981
	are 	time-barred.
	However,
	it
	asserts 	that
	the
July
	15,
	1980 	memo,
	the 	September 	16,
	1980 	memo, 	and
	the
November
	3,
	1980
	evaluation 	should 	be
	considered 	as 	independent
violations
	because 	they
	were
	not 	placed 	in
	Wong's
	personnel
until 	July
	31, 	1981. 	This 	argument
	is 	rejected, 	since
	I
	file
have 	already
	found
	that 	Bailey 	never 	agreed 	to 	withdraw 	the
November 	3
	evaluations
	and
	the 	attachments. 	Thus, 	these
charges 	are 	time-barred.
100

finding
	that
	the
	letter
	was
	issued 	as
	a
	"warning"
	to
	Wong
	not
to
	seek
	a
	reclassification
	in 	the
	future.
Even
	if
	the
	facts
	as
	characterized
	by
	the
	Charging
	Party
	in
making
	this
	argument
	are
	true,
	I
	find
	the
	argument
	to
	be
unpersuasive. 	Bailey
	is
	the
	one
	who
	became
	the 	lead 	person 	in
the
	wage-lag
	issue,· 	not 	only 	for
	his
	own
	benefit,
	but
	also
because 	he.genuinely 	believed
	employees
	were
	underpaid.
	It
	was
Bailey
	who
	encouraged
	Wong
	and
	Shalk
	to
	go
	to
	the 	union
	and
seek
	its
	expertise
	on
	the
	matter.
	And
	it
	was
	Bailey, 	not
	Wong
or
	Shalk,
	who
	actually
	went
	to
	AFSCME
	and
	sought
	assistance,
dutifully
	reporting
	back
	to
	Wong
	with
	the 	information.
	It
would
	strain
	credulity
	to
	now
	find
	that
	Bailey
had
	completely
changed
	his
	view
	about 	the
	pay
	inequity
	situation
	in 	the
	Museum
and 	had
	turned
	to 	issuing
	letters
	such
	as
	this
	in
	reprisal
	for
Wong's
	reclassification 	efforts.
In
	addition,
	under 	Charging
	Party's
	argument,
	for 	the
June
	12
	letter
	to
	be
	an
	unlawful
	reprisal
	under
	the
	Act,
	Wong's
attempt
	at 	reclassification
	would
	have
	to
	be
	considered
protected
	conduct. 	Indeed, 	Charging
	Party
	asserts 	that 	this
conduct
	is 	protected.
The
	best
	evidence
	of
	Wong's
	efforts
	to
	be
	reclassified 	is
found
	in her 	written 	reclassification
	proposal
	which 	she
eventually 	finally
	submitted 	to
	Toby 	on 	June 	30, 	1981. 	The
proposal 	is
	a
	lengthy
	and
	detailed
	document 	which
	sets 	forth
her 	individual 	duties
	and
	percentages 	of 	time 	she 	spent 	on
101

those
	duties.
	Despite
	Wong's
	self-serving
	testimony
	to
	the
contrary,
	it
	is 	clearly
	an
	attempt
	to
	get
	herself
	classified
	to
the
	principal
	preparator
	level.
	Given
	that
	the 	information
therein 	is
	so
	unique
	to
	Wong's
	personal
	situation,
	it
	is
	not
likely
	that 	other
	employees, 	such
	as 	Shalk,
	would
	benefit
	even
if
	Wong
	was
	successful
	and
	ultimately
	reclassified.
	Indeed,
	in
the 	proposal
	itself,
	Wong
	claimed
	that
	she
	supervised
	Shalk
	and
15
	other
	on-call 	preparators.
	Based
	on
	the
	foregoing,
	I
conclude
	that
	the
	reclassification 	effort
	was
	undertaken
	solely
for
	her
	own
	benefit
	and
	thus
	was
	not
	protected
	conduct.
Therefore,
	even
	if
	Bailey's
	June
	12
	memo 	was 	a
	reprisal
	for
this
	conduct,
	it
	did 	not
	violate
	the 	Act.
With
	respect 	to
	the
	specifics
	of 	the
	letter,
	Charging
	Party
acknowledges
	that
	Wong
	knew
	what
	"specifications"
	meant.
However,
	citing
Wong's
	testimony,
	it
	argues
	that
	Bailey did
	not
ask
	Wong
	for 	the
	"details,"
	but 	rather
	asked
	her
	why
	they
needed
	specifications,
	and 	she
	told
	them
	she
	didn't
	know.
According
	to
	Charging
	Party's
	argument,
	it
	would
	have 	been
absurd 	for 	Bailey
	to
	ask
	Wong
	about 	the
	details
	of 	the
	test
since
	Wong
	had
	already 	told
	him
	that
	they 	needed
specifications,
	thus
	indicating 	that 	details
	were
	not
	yet
available.
	I
	agree,
	and
	it
	is 	precisely
	because 	such
	a
statement
	would have 	been
	unlikely 	that
	I
	conclude 	Bailey 	did
not 	ask 	for
	details
	of 	the
	test.
	Rather,
	it
	seems 	more
	logical
to
	me
	that 	Bailey asked
	Wong
	what
	specifications
	were 	needed,
102

and
	she
	refu$ed
	to
	answer,
	thus
	prompting
	the
	letter.
	And,
although 	the
	memo
	is 	inartfully
	drafted,
	it
	does
	clearly
	say
that
	Bailey 	requested
	certain
	"information,"
	as 	well 	as
"details,"
	from
	Wong.
	It
	is
	for
	these
	reasons
	that
	I
	credit
Bailey's
	testimony
	to
	the
	effect
	that
	Wong
	defiantly
	refused 	to
give
	him
	information
	she
	had,
	thus
	necessitating
	his
	call
	to
facilities-
In
	sum,
	I
	conclude
	that
	the
	June
	12
	letter
	was
	nothing
	more
than 	another
	incident
	arising
	out
	of
	Wong's 	and
	Bailey's
	stormy
relationship.
	There
	was
	no
	unlawful 	motive
	present,
	nor 	can
	it
be
	said
	that
	this
	letter
	violated
	the
	Act
	in
	any
	way.
2.
	The
	June 	16,
	1981
	Evaluation.
As
	with 	the
	June
	12
	memo,
	Charging
	Party argues
	that
	the
June
	16
	evaluation
	was
	a
	reprisal
	action
	taken 	because
	of
Wong's
	efforts 	to
	"gain
	reclass
	for
	herself
	and
	others."
	For
the
	reasons
	set
	forth
	in 	the 	preceding 	secti.on,
	it
	is
	concluded
that
	the
	reclassification
	was
	unprotected.
	Thus,
	this
	argument
is
	rejected.
In 	an
	attempt
	to
	support
	its
	argument
	that
	the 	evaluation
is
	somehow
	tainted,
	Charging
	Party 	points 	to 	the
	fact 	that
	no
mention
	of
Wong's
	lighting 	duties 	is
	found
	in 	the 	evaluation.
It
	also 	points
	out
	that 	there 	are
	no 	comments
	in 	the 	evaluation
which
	specifically
	support 	the 	ratings
	given
	Wong
	in 	the
various 	categories~ 	instead, 	there 	are 	only 	general
	comments
about 	not 	getting
	along 	with 	people.
103

It 	is 	true 	that 	the 	negative 	ratings 	are 	not 	supported 	by
specific 	comments 	in 	the 	evaluation 	itself. 	To 	the 	extent 	that
the 	evaluation 	does 	not 	include 	such 	comments, 	it 	may be 	said
to 	be 	deficient. 	When 	asked 	about 	this 	point 	at 	the 	hearing,
Bailey 	first 	testified 	that 	Wong 	wouldn't 	discuss 	the
evaluation 	with 	him. 	Because 	there 	was 	no 	discussion he
couldn't 	remember 	any 	specifics 	to 	support 	the 	ratings.
However, 	when 	pr.essed 	on 	this 	point, 	Bailey 	cited 	several
examples 	of 	incidents 	where 	Wong 	either 	refused 	to 	carry 	out 	an
assignment, 	complained 	about 	an 	assignment, 	or 	wasted 	time
during 	an 	assignment. 	According 	to 	Bailey, 	this 	conduct
affected 	her 	performance 	in 	all 	the 	listed 	categories. 	In 	my
view, 	Bailey's 	explanation 	on 	this 	matter 	is 	less 	than 	might 	be
expected 	from 	a 	supervisor 	who 	gives 	an 	employee 	a 	negative
evaluation. 	And 	it 	is 	certainly perferable 	to 	include 	such
comments 	on 	the 	evaluation 	itself, 	even 	if 	the 	employee 	refuses
to 	discuss 	it. 	The 	evaluation, 	therefore, 	is 	deficient 	in
these 	respects. 	However, 	these 	deficiencies, 	standing 	alone,
do 	not 	transform 	the 	evaluation 	into 	an 	illegal 	reprisal.
As 	to 	Wong's 	lighting 	duties, 	Bailey 	correctly 	explained
that 	they 	were 	covered 	under 	the 	rating he 	gave 	in 	the 	category
"in-stallation." 	He 	further 	explained 	that 	as 	many 	as 	five
people 	were 	involved 	in 	lighting 	during 	the 	evaluation 	period,
and, 	therefore, 	the 	amount 	of 	time 	Wong 	spent 	doing 	lighting
was 	not 	great. 	The 	Charging 	Party, 	in 	its 	brief, 	has 	not
104

challenged
	Bailey's
	explanations
	on
	these
	points.
Based
	on
	the
	foregoing,
	I
	conclude
	that
	the
	June
	16
evaluation
	has
	been
	sufficiently
	substantiated
	and
	thus 	cannot
be
	viewed
	as
	an
	illegal
	reprisal
	under
	the
	Act.
3.
	The
	July
	1981
	Layoff.
It
	is
	clear 	that
	a
	valid 	financial
	reason
	existed
	for
reducing 	tpe
	staff
	in
	the
	shop
	and
	preparation
	departments
	and
reorganizing
	those 	departments
	into
	the
	new
	installation
department.
	Also,
	the
	Charging
	Party
	concedes
	that
	the
	layoff
rules
	embodied
	in 	the
	SPP
	were
	followed
	to
	the
	extent
	that
career
	employees 	were
	laid 	off
	in
	accordance 	with
	their
seniority,
	and
	there
	were
	no
	vacant
	positions 	into
	which
	these
career
	employees
	could
	have 	been
	transferred.
	Charging
	Party
contends, 	nevertheless, 	that
	the
	layoff 	rules 	set
	forth 	in
SPP
	760.5,
	which
	give 	preference
	to 	career
	employees
	over
casual
	employees,
	are 	applicable 	here
	and
	that
	they
	have
	not
been 	followed.
	That
	section
	states
	in 	relevant
	part:
Department
	Head.
	The
	department 	head
	shall
determine
	when
	indefinite
	or
	temporary
layoffs 	are 	necessary
	due
	to 	lack 	of
	work
	or
lack 	of 	funds.
	The
	department 	head
	shall
minimize
	indefinite 	layoffs
	from
	career
positions
	by
	first
	reviewing 	the
	necessityfor 	existing 	casual
	and
	casual/restrictedpositions 	within 	the 	department
....
·After 	the 	layoff,
	Wong
	worked
	half-time.
	Other 	employees
were
	called 	in
	to
	~ork 	on
	an
	on-call 	basis.
	According
	to 	the
Charging 	Party, 	since
	Wong 	was
	available 	for 	additional
	work
105

(beyond
	her
	.50
	position)
	which
	was
	performed
	by
	these
	on-call
employees
	after
	the
	layoff, 	section
	760.5
	was
	violated.
	Based
on
	this
	violation,
	the
	Charging
	Party
	contends
	that
	an
	unlawful
motivation
	should
	be
	inferred.
This
	argument
	is
	unconvincing.
	Even
	if
	Charging
	Party
	is
correct 	that
	SPP
	section
	760.5
	has
	not
	been 	followed,
	in
	the
absence 	o~
any
	showing
	of
	disparate
	treatment 	or
	that
	the
Museum's
	actions
	were
	pretextual,
	it
	cannot be 	concluded
	on
this
	record
	that
	the
	Act
	has
	been
	violated.
	Charging
	Party
has
shown
	neither.
	As
	more
	fully
	explained
	below,
	it
	has
	shown
only
	that
	there
	may
	have 	been
	an
	alternative
	approach
	to
	the
assignment 	of
	work
	after
	the
	layoff.
As
	to
	the 	merits 	of
	Charging
	Party's
	contention,
	a
	fair
reading 	of
	SPP
	section
	760.5
	is 	that,
	in 	order
	to
	minimize
	the
impact
	of
	layoff
	on
	career
	employees,
	the
	Museum
	was
	first
obligated 	to 	consider
	whether
	on-call
	employees 	were
	needed.
If
	on-call
	employees
	were
	not
	needed
	to
	perform
	the
	work,
	the
Museum
	would
	presumably have
	the
	obligation 	to
	employ
	the
career
	employees
	in
	some
	reduced
	capacity 	and/or 	otherwise
offer
	them
	the 	equivalent 	of 	full-time
	work 	on 	an
	on-call
basis. 	If,
	however,
	after
	considering 	the
	need
	for
	on-call
employees, 	the
	Museum
	determined
	that
	they 	were·needed
	to
perform 	the
	work,
	it
	would 	be
	free 	to 	continue 	to
	employ 	them,
even 	though 	such
	a
	decision
	impacted
	negatively
	on
	the 	career
employees 	involved. 	Thus, 	the
	Museum
had 	to 	balance 	the 	need
106

for
	on-call
	employees
	against
	the
	protection
	of 	career
employees.
	Under
	this
	reading
	of
	SPP
	section
	760.5,
	I
	conclude
that
	the
	obligation
	placed
	on
	the
	Museum
	by
	that
	section
	was
fulfilled.39
The
	record 	evidence
	shows
	that,
	due
	to 	the 	nature
	of
	some
of
	the 	ass
ignrnents
,·
	it
	was
	not
	feasible
	to
	limit
	the
	staff
	to
	a
few
	full-time
	career
	employees,
	and
	exclude
	on-call
	help.40
Due
	to
	the
	highly
	fluctuating
	work
	during 	the
	exhibition
schedule, 	the
	Museum
	needed
	the
	flexibility
	to
	employ
	large
numbers
	of
	employees
	on
	short 	notice
	for
	short
	periods
	of
time.
	In
	addition,
	it
	was
	desirable 	to
	have
	some
	career
39This
	conclusion
	is
	based
	on
	the
	assumption
	that 	on-call
employees
	in 	the
	Museum
	are
	covered
	by
	the
	SPP
	generally
	and
	by
section
	760.5
	specifically,
	an
	assumption 	with
	which
	there
	is
some
	disagreement.
	In
	essence, 	the
	Charging
	Party 	argues
	that
on-call
	employees
	are 	included 	within 	the
	SPP
	definition 	of"casual"
	employee.
	As
	such,
	on-call
	employees
	are
	covered 	by
the
	SPP
	in
	its
	entirety.
	The
	University, 	primarily
	through 	the
testimony 	of
	Toby,
	cont.ends
	that 	on-call
	employees
-are
	a
	unique
group
	and
	not 	covered
	by
	the
	SPP.
	It
	is
	unnecessary
	to 	resolve
this
	dispute.
	Even
	if
	it
	is
	determined
	that 	on-call
	employees
are
	covered 	by
	the
	SPP,
	this
	determination
	will
	not
	alter
	the
outcome
	of
	this 	decision.
	As
	more
	fully
	explained
	below,
	the
dictates
	of 	section
	760.5 	were
	followed
	at 	least
	conceptually,and, 	as
	further
	noted 	below, 	the 	impact
	of 	the
	layoff
	on
	career
employees
	was
	minimized
	to 	the 	extent 	possible
	under
	the
circumstances.
40Examples 	were
	given
	at
	the 	hearing 	to
	ill~strate 	this
point. 	If
	a
	huge
	concrete
	ball
	needed
	to
	be
	moved,
	it
	might
require 	several
	employees 	(from 	the
	on-call
	list)
	to
	do
	it.
Two
	or 	three 	career
	employees
	could 	not 	accomplish
	the.task.
Also,
	it
	might 	take 	several
	employees
	to
	hang
	a
	particular
	work
of
	art.
	Two
	career
	employees 	might 	not 	be 	able 	to
	do
	it.
	By
using
	its
	allotment 	of 	position
	by 	employing
	career
	employees
to 	the 	exclusion 	of 	on-call 	workers, 	the
	Museum
	would
	severely
limit 	the
	flexibility 	it
	needed 	to 	perform 	such 	assignments.
107

employees
	on
	staff
	to
	perform
	necessary
	duties
	when
	there
	was
	a
lull
	in 	the 	schedule, 	as 	well 	as
	when
	an
	exhibit
	was
scheduled.
	Given
	these
	needs,
	Hubbs
	acted
	to
	balance 	the
negative
	impact
	of 	the
	layoff
	on
	career
	employees
	against
	the
Museum's
	need
	to
	employ
	on-call
	workers.
	She
	chose
	to
	staff
the
	Museum
	with
	1.5'
	career
	positions
	and
	use 	the 	remaining
allotment 	to
	hire
	on-call
	workers
	as
	necessary.
	Under
	this
post-layoff
	arrangement,
	it
	stands
	to
	reason
	that
	some
	on-call
employees
	would
	be
	hired
	to
	do
	some
	of
	the
	work
	previously
performed
	by
	career
	employees,
	including
	Wong.
	But
	this
	does
not
	mean
	that
	the
	impact
	on
	career
	employees
	was
	not
	minimized
or
	that
	SPP
	section
	760.5
	was
	violated.
That
	the
	impact
	on
	career
	employees
	was
	minimized
	is
evident
	when
	one 	compares
	the
	actual
	impact
	on
	the
	career
employees
	involved 	with 	the
	potential
	impact.
	The
	average
monthly
	on-call
	hours 	assigned 	for 	the
	second
	half
	of
	1981
	was
486.
	Of
	these,
	an
	average
	of
	123
	per
	month 	were
	assigned 	to
laid-off
	career
	employees
	Clausen,.O'Neill
	and
	Johnson. 	This
figure 	is 	significant
	when
	one
	considers
	that 	there 	are 	far
fewer 	car.eer 	employees
	in 	the
	Museum
	than
	on-call
employees.41 	Thus, 	former
	career
	employees 	Clausen, 	O'Neil
41Ten
	employees,
	who
	were 	not 	former
	career
	employees,worked 	on 	an
	on-call 	basis 	during 	the
	last 	six
	months
	of
	1981.
By
	contrast,
	only 	three
	former
	career
	employees 	worked 	on 	an
on-call 	basis 	during
	this 	period.
108

and
	Johnson
	received
	a
	large
	share 	of 	the
	post-layoff
	on-call
work.
	Additionally,
	Wong
	retained
	a
	.50
	career
	position,
	and
Bailey 	retained
	a
	full-time
	slot,
	while
	Ross
	was
	laid
	off
totally.
	The
	potential
	impact
	on
	career
	employees
	could have
been
	much
	worse.
	Wong
	(and
	Bailey)
	could
	have 	been
	laid 	off
completely
	and
	a
	straight
	on-call
	system 	implemented,
	or,
	for
example, 	o.ther 	former
	career
	employees
	could
	have 	been
	given
fewer
	on-call
	hours.
	The
	possibilities
	are 	endless
	and 	one
need 	not
	consider
	each
	and
	every
	one
	to
	see
	that
	the
	impact
	on
career
	employees
	was
	minimized.
	Under
	these 	circumstances,
	one
cannot
	justifiably
	conclude
	that
	SPP
	section
	760.5, 	assuming
its
	applicability,
	was
	violated.
	Wong 	may
	not
	have 	been 	happy
with 	the
	post-layoff 	distribution
	of
	work,
	but 	her 	displeasure
and
	desire
	for
	more
	hours
	does
	not,
	under
	these 	circumstances,
lead 	to
	the 	conclusion
	that
	the
	impact
	of
	the
	layoff
	on
	career
employees
	was
	not
	minimized. 	In
	fact,
	a
	strong
	argument 	can 	be
made
	that
	Wong, 	who
	retained
	.50
	career
	status,
	fared
	much
better
	than
	at 	least
	four
	of 	the
	career
	employees
	involved,
thus 	rendering 	her 	claim of 	discrimination
	unconvincing.
It 	is
	worth
	noting 	here
	that
	I
	have
	already
	found 	Hubbs
	did
not 	guarantee
	Wong
	any
	hours
	beyond
	the
	.50
	career 	position.
To
	support
	its
	argument
	to 	the 	contrary, 	the 	Charging
	Party
asserts
	in
	its 	brief 	that
	it
	is 	"clear" 	that
	Hubbs
	intended 	to
give
	Wong
	full-time
	work,
	but 	circumstances 	caused 	her 	to
change her
	mind. 	According
	to 	the 	Charging 	Party,
	"what 	must
109

have
	happened"
	is
	that
	Bailey
became
	upset
	because
	he
	"knew"
Wong
	intended
	to
	pursue 	the
	reclassification
	matter.
	He
	went
to
	Hubbs
	and
	Egherman 	and
	the
	three
	of
	them 	worked
	out
	a
situation
	whereby
	they
	would
	deny
	Wong
	work
	and
	"hopefully
force
	her
	out
	of 	the
	Museum."
	In 	an
	attempt
	to
	explain
	why
Wong
	was
	given 	the
0
.50
	slot,
	the
	Charging
	Party's
	brief
	also
asserts
	thi3,t
	"it
	is
	also 	quite 	possible"
	that
	Bailey
	somehow
"knew"
	Wong
	had
	contacted
	CSEA
	(this
	was
	before
	any
	CSEA
con
tact
	emerged
	in 	the 	record)
	and
	the
	.
50
	position
	was
	merely
a
	means
	to
	"avoid
	a
	winning
	grievance
	by
	Wong." 	The
	record
shows
	that
	Bailey played
	no
	role
	in 	the
	decisions 	regarding 	the
layoff
	or 	the
	post-layoff 	distribution
	of hours.
	Because
	these
arguments
	are
	based
	on
	sheer 	speculation
	and
	find
	absolutely
	no
support 	in 	the 	record, 	they
	must
	be
	discarded.
The
	Charging
	Party 	further
	argues
	that,
	given 	the
	number
	of
on-call
	hours
	available
	after
	the
	layoff,
	Johnson,
	O'Neill
	and
Clausen 	could 	each have 	been 	given
	100
hours 	per
	month
	and
	that
Wong
	could have 	been 	given
	86
	hours 	per
	month
	of
	on-call
	time.
When
	coupled 	with
	her
	.50
	career
	appointment,
	this
	would
	bring
her
	up
	to 	full-time.
	This
	allocation
	would 	have
	left
	100
	hours
available 	per
	month
	for
	distribution 	to 	other 	on-call
workers.42
42This
	plan 	is
	known
	as 	Charging
	Party's
	"100
	hour
plan." 	It 	is
	based
	on
	the 	fact 	that 	the 	average
	number
	of
on-call 	hours 	assigned 	monthly 	from
	July
	1981
	through
December 	1981 	was 	486 	(CP
	Ex.
	No.
	43).
110

It 	is 	the 	Charging 	Party's 	position 	that 	the 	Respondent 	has
not 	proved 	that 	the 	"100 hour 	plan" 	would 	not 	have 	worked.
This 	stance 	misconstrues 	the 	Novato 	test. 	W'nen boiled 	down 	to
its 	basic 	terms, 	this 	~rgument 	simply 	presents 	another
alternative 	way 	to 	assign 	work 	in 	the 	Museum. 	It 	does 	not, 	by
itself, 	detract 	from 	the 	decision 	to 	employ 	1.5 	career
employees 	and 	use 	the 	remainder 	of 	the 	time 	for 	on-call
workers. 	Under 	Novato, 	Respondent 	need 	not 	disprove 	the
validity 	of 	an 	alternative 	employment-related 	decision. 	It
need 	only 	show 	that 	it 	had 	a 	valid 	business 	justification 	for
its 	dee is ion. 	In 	the 	absence 	of· a 	showing 	of 	disparate
treatment 	or 	a 	finding 	by 	the 	trier 	of 	fact 	that 	the
Respondent's 	decision 	is 	pretextual, 	its 	decision must 	stand.
As 	stated 	above, 	I 	find 	no 	disparate 	treatment, 	nor 	do 	I 	find
the 	Museum's 	decision 	to 	be 	pretextua1.43
Furthermore, 	the 	specifics 	of 	the 	Charging 	Party's 	"100
hour 	plan" 	are 	noteworthy. 	In 	essence, 	it 	seeks 	full-time 	work
for 	Wong, 	but 	only 	100 hours 	per 	month 	for 	the 	three 	other
career 	employees 	who 	found 	themselves 	completely 	laid 	off
43rn 	support 	of 	its 	argument, 	the 	Charging 	Party 	asserts
that 	the 	only 	way 	Respondent 	could have 	proved 	t:i-iat 	the 	"100
hour 	plan" 	would 	not 	have 	worked 	was 	to 	produce 	timesheets 	to
show 	that 	the 	amount 	of 	work 	could 	not 	have been handled 	under
the 	plan. 	Charging 	Party's 	brief 	states 	that 	Respondent 	never
produced 	these 	timesheets 	pursuant 	to 	a 	valid 	subpoena 	duces
tecum, 	thus 	suggesting 	a 	refusal 	to 	comply. 	It 	is 	noted 	here
that, 	contrary 	to 	the 	Charging 	Party's 	assertion, 	the
Respondent 	produced 	the 	information 	necessary 	to 	make 	this
argument. 	Thus, 	the 	argument 	must 	fail.
111

without
	even
	the
	.50
	career
	position
	to
	rely
	on.
	Why
	should
the
	focus 	be
	on
	full-time
	work
	for
	Wong
	at
	the
	expense
	of
former
	career
	employees
	who
	no
	longer
	have
	career
	status?
	Why
not 	equalize
	all
	the
	hours?
	Why
	not
	assign
	the
	equivalent 	of
full-time 	on-call
	work
	to
	Clausen,
	for
	example,
	and
	distribute
the
	remainder
	of 	the 	hours 	equally?
	While
	there 	are 	endless
alternatives
	one
	might
	propose 	as
	to
	the
	distribution
	of
	the
work
	in 	the
	Museum
	after
	the
	layoff, 	there
	is
	no
	point
	in
exploring 	these
	alternatives
	here. 	Suffice
	it
	to
	say
	that
	the
resolution
	of 	the
	instant
	dispute
	does
	not
	turn
	on
	the
possibility
	of 	the
	existence
	of
	some
	workable
	alternative
distribution
	of
	work
	that
	would
	be
	more
	acceptable
	to
	Wong
	or
to
	any
	other
	employee.
	What
	is
	more
	central 	to
	the
	resolution
of
	the
	instant
	case
	is
	the 	consideration 	of
	whether
	Wong
	was
treated differently
	from
	other
	employees
	or
	discriminatorily
denied
	some
	right
	or
	benefit
	because
	of her
	union
	activity.
This 	has 	not 	occurred.
As
	stated,
	one
	could
	legitimately
	reach 	the 	conclusion
	that
Wong
	emerged
	from
	these 	cuts 	in
	a
	favored
	position.
	For
example, 	while
	it
	is
	true 	that
	Wong
	was
	not 	assigned
	on-call
hours
	from
	January
	to
	December
	1981,
	it
	is 	also 	true 	that
	the
Museum
	could have 	gone
	to
	a
	pure
	on-call
	system.
	Instead,
	she
was
	retained 	in
	a
	.50
	career 	preparator 	position, 	thus
affording 	her
	a
	certain
	amount
	of 	security
	and
	other 	benefits
that 	other
	former
	career
	employees
	did 	not 	have. 	Ross,
112

Clausen,
	O'Neill,
	and
	Johnson,
.
for
	example,
	were
	career
employees
	who
	were
	laid 	off
	completely.
Further,
	a
	comparison
	of 	the
	on-call
	hours
	assigned
	to
former
	career
	employees
	during
	this
	period
	further
	shows
	that
Wong 	was
	not
	treated
	in
	a
	discriminatory
	manner. 	For 	example,
while
	Clausen
	worked
	a
	substantial
	number
	of
	hours
	from
September .through
	December,
	she
	worked 	no
	hours
	in 	July
	and
August.
	O'Neill
	worked
	only
	in
	November.
	He
	did
	not
	work
	in
July,
	August, 	September, 	October
	or
	December.
	Johnson
	worked
less
	than
	half-time,
	and
	only 	in
	September, 	October
	and
November.
	Wong
	had
	steady
	work
	throughout
	this
	period.
	Under
these
	circumstances,
	it
	cannot 	be 	concluded
	that
	Wong
	was
treated 	unfairly
	or
	differently
	from
	former
	career
	employees.
As
	per her
	stated
	plan,
	Hubbs
	distributed
	the
	on-call
	work
to
	a
	scal.ed-down
	group
	of
	approximately
	13
	employees. 	While
	it
is
	true 	that
	some
	of 	these
	on-call
	workers
	occasionally
	worked
more
	hours 	than
	Wong
	in
	a
	given
	month
	or 	during 	the
	last 	six
months
	of
	1981
	as
	a
	whole,
	it
	is 	also 	true 	that 	there
	were
months
	when
	they
	worked 	fewer
	hours 	than
	Wong
	or 	not
	at
all.44	
But
	this 	is
	explained
	by
	the 	nature 	of 	on-call
	work;
44rt 	is 	also
	noted
	that,
	with 	one
	exception, 	those
on-call
	employees
	who
	worked 	more
	total
	hours 	than
	Wong
	during
the 	last
	six
	months
	of
	1981,
	also
	worked
	approximately 	an
equivalent
	number
	of hours 	during 	the
	first
	six
	months
	of 	that
year.
	Thus,
	at 	least
	for 	these 	employees,
	their
	hours 	were 	not
increased 	to
	Wong's
	detriment.
	As
	for 	the 	remainder 	of
employees,
	their 	hours
	were
	far
	below Wong's.
113

that 	is, 	during 	certain 	periods 	of 	time 	there 	is 	a 	great 	deal
of 	work, 	and 	on-call 	workers 	may 	work 	a 	large 	number 	of 	hours,
even 	more 	hours 	than 	a 	career 	employee.45 	However, 	the
opposite 	is 	also 	true. 	There 	are 	times 	when 	on-call 	employees
work 	fewer 	hours 	than 	career 	employees 	or 	not 	at 	all. 	In 	sum,
Wong 	has 	not 	been 	treated 	in 	a 	discriminatory 	manner.
Based 	on 	all 	of 	the 	foregoing, 	it 	is 	concluded 	that 	the
Charging Party has 	not 	shown 	that 	but 	for 	her 	protected
activity Wong 	would 	not 	have 	received 	the 	June 	12 memo, 	the
July 	16 	evaluation, 	or 	the 	July 1 	layoff. 	Nor 	has 	it 	been
shown 	that 	but 	for 	her 	protected 	activity, 	Wong 	would 	have
received 	on-call 	hours 	after 	July 	1, 	1981. 	The 	allegations 	as
to 	Wong's 	pre-CSEA activity 	shall 	be 	dismissed. 	We 	now 	turn 	to
Wong's 	post-CSEA activity.
B. 	Post-CSEA Activities.
In 	mid-June 	1981, 	Wong 	joined 	CSEA and 	on 	approximately
June 	29 	was 	represented 	by 	CSEA 	for 	the 	first 	time 	at 	a 	meeting
to 	discuss, 	among 	other 	things, 	her 	June 	16 	evaluation. 	This
is 	considered 	protected 	activity 	under 	the 	Act. 	See 	Redwoods
Community 	College 	District 	(3/15/83) 	PERB 	Decision 	No. 	293.
Also, 	a 	few 	weeks 	later, 	Wong 	filed 	the 	first 	of 	many
grievances 	challenging 	several 	Museum actions. 	·she 	was
45For 	example, 	at 	least 	one 	major 	exhibit 	(daVinci)
occurred during 	the 	last 	part 	of 	1981.
114

represented 	by CSEA during 	these 	grievances. 	This, 	too, 	is
protected 	conduct 	under 	HEERA. 	Rio 	Hondo 	Community 	College
District 	(12/28/82) 	PERB 	Decision 	No. 	272. 	Soon 	after 	the
June 	29 	meeting 	where 	she 	was 	represented 	by 	CSEA, 	a 	series 	of
incidents 	occurred 	which 	the 	Charging 	Party 	contends 	were
motivated 	by 	the 	employer's 	unlawful 	motive 	and 	were 	therefore
illegal 	un9er 	the 	Act. 	Coming 	on 	the 	heels 	of 	the 	above
protected 	conduct, 	the 	timing 	of 	the 	beginning 	of 	this 	series
of 	events, 	coupled 	with 	the 	large 	number 	of 	events, 	constitutes
the 	requisite 	nexus 	between 	the 	protected 	activity 	and 	the
complained 	of 	employer 	conduct. 	Thus, 	a 	prima 	facie 	case 	has
been 	established~ 	and, 	under 	Novato, 	it 	is 	up 	to 	the 	University
to 	come 	forward 	to 	explain 	its 	actions.
1. 	The 	July 	16 	and 	20 	letters 	regarding· 	keys.
In 	the 	past, 	employees 	had 	either 	lost 	keys 	or 	forgotten 	to
bring 	keys 	to 	work. 	Given 	this, 	Hubbs 	was 	legitimately
concerned 	about 	the 	security 	of 	the 	art 	work 	in 	the 	building.
Also, 	part-time 	employees 	were 	sometimes 	absent 	from 	the 	Museum
for 	long 	periods 	of 	time 	during 	which 	their 	keys 	were
required. 	For 	these 	reasons, 	Hubbs 	established 	a 	new 	policy
which 	required 	employees 	to 	leave 	their 	keys 	at 	the 	control
desk 	when 	leaving 	the 	Museum. 	As 	the 	supervisor, 	she 	had 	a
right 	to 	set 	such 	a 	policy and 	she 	had 	valid 	reasons 	for 	doing
so. 	The 	policy 	did 	not 	interfere 	with 	any 	employee's 	work, 	and
it 	applied 	to 	everyone 	across 	the 	board.
115

Within 	a 	matter 	of hours 	Wong 	violated 	the 	policy, 	and 	she
violated 	it 	again 	a 	few 	days 	later. 	Hubbs 	responded 	with
letters 	of 	reprimand 	for 	each 	instance. 	Both 	letters 	reminded
Wong 	of 	the 	newly-established 	procedure 	and 	informed 	her 	that
if 	she 	continued 	to 	neglect 	these 	responsibilities 	her 	key
privileges 	would 	be 	revoked. 	While 	it 	may have 	been 	advisable
for 	Hubbs 	±o discuss 	these 	incidents 	with Wong, 	rather 	than
respond 	with 	memos, 	the 	fact 	that 	she 	did 	not 	do 	so 	is 	not
fata1.46 	There 	was 	a 	valid 	reason 	for 	the 	letters, 	Wong
having 	twice 	within 	a 	matter 	of 	days 	violated 	a 	new 	policy
implemented 	by 	a 	new 	supervisor.
The 	Charging 	Party's 	argument 	that 	these 	letters 	came 	soon
after 	Wong 	engaged 	in 	protected 	activity 	and 	were 	11 trivial 	in
nature 11 	is 	rejected. 	Wong, 	like 	other 	employees, 	was bound 	to
follow 	Hubbs' 	new 	policies. 	She 	did 	not. 	Based 	on 	the 	record
it 	is 	my view 	that 	she 	would 	have 	received 	the 	letters 	even 	in
the 	absence 	of her 	protected 	activity.
2. 	July 	1981 	Memos 	Dealing 	with 	Lighting 	Files, 	Use 	of
Xerox 	Machine, 	and 	Other 	Copying 	of 	Files.
46rt 	is 	noteworthy 	that 	Hubbs, 	being 	aware 	of 	past
difficulties 	in 	the 	preparation 	department, 	took 	a 	different
approach 	to 	supervision 	than 	did 	Bailey. 	In 	my _view, 	where
Bailey 	took 	an 	informal 	approach 	to 	the 	job, 	Hubbs 	was 	nore
formal. 	She 	was 	quick 	to 	take 	control, 	establishing 	new
procedures 	and 	generally demonstrating 	an 	assertiveness 	which
had 	not 	previously been 	seen 	in 	the 	department. 	While 	she 	may
not 	have 	handled 	every 	situation 	in 	the 	most 	skillful 	way, 	her
shortcomings 	can 	be 	attributed 	more 	to 	the 	lack 	of 	experience
than 	to 	any 	other 	factor.
116

These 	memos 	represent 	three 	more 	examples 	of 	Wong's 	defiant
refusal 	to 	follow 	the 	directives 	of 	her 	supervisor.
As 	a 	new 	supervisor, 	Hubbs 	attempted 	to 	consolidate 	the
Museum's 	lighting 	files. 	Her 	intention 	to 	do 	so 	was 	announced
at 	the 	July 	15 	meeting, 	along 	with 	her 	intention 	to 	rid 	the
files 	of 	extraneous 	material. 	When 	she 	could 	not 	locate 	the
files, 	she. asked 	Wong 	about 	their 	location. 	Wong 	responded
that 	"usually 	they 	are 	kept 	in 	my 	desk," 	knowing 	that 	she 	had
taken 	them home. 	Hubbs 	made 	further 	unsuccesful 	efforts 	to
find 	the 	files. 	Later, 	she 	discovered 	that 	Wong 	had 	not 	been
truthful 	about 	the 	location 	of 	the 	files 	and, 	in 	fact, 	had 	them
in 	her 	possession 	all 	the 	while. 	This 	prompted 	the 	first 	of
the 	three 	memos 	wherein 	Hubbs 	cited Wong's 	evasive 	answer,
restated 	the 	new 	policy, 	and 	again 	requested 	the 	files 	be
returned.
I 	can 	find 	nothing 	improper 	about 	this 	memo. 	Hubbs 	was
entitled 	to 	establish 	the 	new 	file 	policy 	and Wong 	was
responsible _for 	following 	it, 	just 	as 	she 	was 	bound 	to 	follow
the 	new key 	policy. 	It 	was 	her 	refusal 	to do 	so 	and 	her 	lack
of 	truthfulness 	that 	prompted 	the 	July 	20 	memo, 	not 	her
protected 	activity. 	Wong 	did 	not 	become 	free 	to 	ignore 	Museum
policy because 	of 	her 	protected 	activities.
Charging 	Party 	offers 	three 	lame 	arguments 	with 	respect 	to
the 	files. 	First 	it 	asserts 	that 	Wong 	was 	never 	asked 	to
prepare 	the 	files 	as 	part 	of her 	job, 	and 	actually 	prepared
117

some 	of 	them 	on her 	own 	time. 	Charging 	Party 	apparently 	feels
that 	this 	gave 	Wong 	a 	personal 	claim 	to 	the 	files. 	This
argument 	is 	not 	persuasive. 	While 	Wong 	may have 	not 	been 	asked
to 	prepare 	the 	files, 	it 	is 	undeniable 	that 	she 	did 	so 	during
the 	course 	of 	her 	employment. 	Thus, 	the 	University 	was
entitled 	to 	monitor• 	their 	control 	and 	upkeep.
Second 1 	Charging 	Party argues 	that 	the 	files 	supported
Wong's 	reclassification 	efforts 	and 	she 	didn't 	want 	any 	of 	the
material 	to 	be 	discarded. 	But 	this 	does 	not 	excuse Wong's
evasive 	answer 	to 	Hubbs 	and 	her 	ultimate 	refusal 	to 	comply 	with
the 	policy. 	Wong 	would 	have 	been 	better 	advised 	to be 	honest
with 	Hubbs 	about 	the 	whereabouts 	of 	the 	files 	and 	attempted 	to
discuss 	her 	concern 	about 	the 	impact 	that 	cleansing 	the 	files
would 	have 	on 	her 	reclassification 	appeal.
Third, 	Charging 	Party 	asserts 	that 	since Wong 	had 	taken
files 	home 	before 	this 	was 	nothing 	new. 	This 	ignores 	the 	fact
that 	Hubbs 	had 	initiated 	a 	new 	effort 	to 	consolidate 	the 	files
under 	a 	new 	policy. 	It 	was 	the 	refusal 	to 	respond 	to 	the 	new
policy 	and 	Hubbs' 	inquiry 	that 	prompted 	the 	memo. 	Wong's
practice 	of 	taking 	files 	home 	became 	irrelevant 	in 	the 	face 	of
Hubbs' 	new policy.
The 	July 	21 	memo 	was 	given 	to 	Wong 	because 	Hubbs
immediately 	learned 	that 	Wong 	spent 	a 	considerable 	amount 	of
time 	after 	work 	copying 	files. 	Hubbs had 	not 	asked Wong 	for
copies, 	but 	rather 	wanted 	the 	originals 	to 	which 	she 	felt 	the
118

Museum had 	a 	right. 	Once 	again, 	Hubbs 	felt ,Wong 	was 	being
deceptive. 	In 	addition, 	Hubbs 	learned 	that 	Wong 	had 	spent
several hours 	at 	the 	Xerox 	machine 	copying 	these 	files 	and 	she
felt 	this 	was 	an 	abuse 	of 	the 	Xeroxing 	privilege. 	These 	two
factors 	prompted 	the 	memo, 	not 	Wong's 	protected 	activity.
Furthermore, 	despite 	Charging 	Party's 	claim 	to 	the
contrary, 	the 	July 	21 	memo 	appears 	on 	its 	face 	to be
innocuous. 	It 	is 	a 	short 	memo 	which 	merely 	sets 	forth 	the 	fact
that 	Wo?g 	copied 	files, 	asks 	her 	to 	seek 	permission before
doing 	so 	in 	the 	future, 	and 	reminds 	her 	that 	use 	of 	the 	Xerox
machine 	is 	a 	privilege 	which 	should 	not 	be 	abused. 	Also,
unlike 	the 	July 	20 	and 	July 	31 	memos, 	it 	does 	not 	state 	Wong's
appeal 	rights. 	This 	memo 	is 	probably 	not 	unlike 	hundreds 	of
other 	memos 	that 	are 	issued 	at 	the 	University 	every day, 	and 	it
stretches 	one's 	imagination 	to 	view 	it 	as 	retaliatory.
The 	third 	memo 	about 	which 	the 	Charging 	Party 	complains 	was
issued 	on 	July 	31, 	1981. 	On 	July 	24 	Hubbs 	and Wong 	had 	a
discussion 	during 	which 	Hubbs 	once 	again 	made 	it 	clear 	that
Wong 	needed 	to 	seek 	permission before 	copying 	Museum 	files.
Wong 	was 	under 	the 	impression 	that 	this 	applied 	only 	to
Xeroxing 	files, 	not 	to hand-copying. 	A few 	hours 	later, 	Wong
entered 	Hubbs' 	office 	and, 	in 	Hubbs' 	presence, 	began
hand-copying 	a 	file 	without 	permission. 	Hubbs 	obviously 	was
not 	under 	the 	same 	impression 	as Wong 	and 	felt 	that
hand-copying 	files 	without 	permission 	came 	within 	the
119

par~meters 	of her 	instructions 	to Wong. 	She 	viewed 	this 	as 	a
deliberate 	attempt 	to 	ignore 	her 	instructions. 	Thus, 	the
letter 	of 	reprimand 	issued.
There 	appears 	to 	have 	been 	a 	misunderstanding 	between 	Wong
and 	Hubbs 	about 	the 	issue 	of 	hand-copying 	versus
machine-copying. 	Wong 	may have 	formed 	her 	opinion 	based 	on
conversatipns 	with 	Hubbs 	and 	the 	July 	21 	memo, 	which discusses
only 	Xeroxing 	files. 	From 	Hubbs' 	perspective, 	it 	would 	have
made 	no 	sense 	to 	institute 	the 	policy 	only 	to 	permit 	employees
to 	take 	possession 	of 	the 	files 	without 	permission 	if 	the
purpose 	was 	to 	copy 	them by hand 	rather 	than 	machine. 	In 	any
event, 	it 	was 	chiefly 	this 	misunderstanding 	which 	prompted Wong
to 	attempt 	to 	hand-copy 	the 	files 	in 	question 	and 	which 	then
triggered 	the 	July 	31 	let~er. 	In 	addition, 	this
misunderstanding 	was 	probably complicated by Wong's 	and 	Hubbs'
rapidly 	deteriorating 	relationship. 	It 	may 	even 	be 	that 	Hubbs'
frustration 	with 	trying 	to 	get 	Wong 	to 	comply 	with her 	new
policies 	on keys 	or 	files 	caused her 	to 	go 	overboard 	when 	Wong
entered her 	office 	to 	copy 	the 	files. 	In 	any 	event, 	it 	is
concluded 	that 	these 	factors, 	not 	Wong's 	protected 	conduct,
prompted 	the 	July 	31 	letter.
In 	sum, 	it 	has 	not 	been 	shown 	that 	but 	for 	Wong's 	protected
activity 	these 	three 	documents 	would 	not 	have 	been 	issued. 	In
my 	view, 	they 	were 	issued 	because 	Wong 	resisted 	complying 	with
Hubbs' 	new policy on 	files 	or, 	regarding 	the 	July 	31 	memo,
120

because
	there
	was
	a
	misunderstanding
	about
	the
	applicability
	of
the 	policy. 	Lastly,
	I
	can
	find
	nothing
	improper
	about
	denying
Bailey,
	Kelly
	or
	Wong
	access
	to
	the
	Museum
before
	8:30
	a.m.
	on
July
	20.
	In
	my
	view,
	this
	was
	nothing
	more
	than
	a
	legitimate
attempt
	to
	see
	if
	any
	of 	these
	employees,
	apparently
	all
suspects 	in
	Hubbs
1
	-eyes,
	arrived 	early
	to
	return
	or
	copy
	the
missing
	fiJes.
	In
	fact,
	her
	hunch
	turned 	out
	to
be
	correct,
	as
Wong
	showed 	up
	early
	for
	that
	very 	purpose.
3.
	The
	Telephone 	Locks.
The
	Charging
	Party
	argues
	that
	asking
	Wong
	to
	return
	the
telephone 	locks
	so
	shortly
	after
	the
	August
	12
	meeting,
	where
calls
	to
	her
	CSEA
	representative
	were
	discussed,
	was
	a
	reprisal
intended
	to
	make
	it
	difficult
	for 	her
	to
	call
	her
representative.
	This
	argument
	ignores 	the
	evidence
	on
	this
point.
	The
	decision 	to
	install
	telephone 	locks
	was 	made
	to
stop 	untraceable 	long-distance
	calls
	which 	were
	being
	placed
after
	hours
	and 	on 	weekends,
	not
	to 	prevent
	Wong
	from
	calling
her 	representative.
	And
	the 	decision
	was
	made
	prior 	to 	the
August
	12
	meeting.
	Thus,
	it
	cannot 	be
	seriously
	argued
	that
the 	decision 	in
	some 	way
	constitutes 	retaliation
	for 	the
meeting.
More
	importantly, 	the 	evidence
	shows
	that
	throughout
	this
long
	and 	arduous
	series 	of 	events
	Wong
	contacted her
representative 	at 	will
	and, 	in 	fact,
	she 	did 	so
	frequently 	both
prior 	to
	and 	subsequent 	to 	the 	August 	12
	meeting.
	At 	no 	time
121

was
	she
	interfered
	with
	in
	the
	exercise
	of
	this
	right.
	In
	my
view,
	the 	request 	to
	return
	the
	locks
	had
	nothing
	to
	do
	with
Wong's
	protected
	activity. 	It
	was
	simply
	a
	request
	to 	return
the
	locks
	that
	Beecroft
	had
	purchased
	two 	weeks
	earlier
	for 	the
purpose 	of 	stopping 	unauthorized
	long-distance
	calls.
	The
	fact
that
	Wong
	was
	given
	this
	assignment
	after
	the
	August
	12
	meeting
is
	pure 	coincidence.
4.
	The
	Davis
	Painting 	Incident
	and
	the
	September
	2
'Suspension.
Wong
	endangered
	a
	valuable
	work
	of
	art
	(Davis
	painting)
	by
placing
	it
	unattended
	on
	a
	freight 	elevator
	and
	closing 	the
door.
	This
	act
	was
	in
	clear 	violation
	of
	Museum
	policy
	which
is
	that
	works
	of
	art
	should 	not
	be
	left
	unattended
	on
	elevators
with 	the 	gate 	closed, 	thus
	creating
	the
	possibility
	of 	the
elevator
	being
	called 	to
	another
	floor.
	It
	was
	this 	action,
not 	her
	protected
	activity, 	that
	prompted
	her 	suspension.
Even
	though
	Wong
	deliberately
	endangered
	a
	valuable
	work
	of
art,
	it
	appears
	that
	she 	could 	have 	escaped
	disciplinary 	action
by
	admitting her 	mistake.
	Hubbs
	testified
	that
	a
	major
	concern
was
	that
	Wong
	refused 	to
	admit
	her 	mistake.
	Had
	Hubbs
	been
given
	some
	assurance
	that
	Wong
	recognized 	her 	mistake
	and 	would
attempt 	to
	avoid 	such
	error 	in 	the 	future,
	it
	a~pears
	that
	the
suspension
	would
	not 	have 	occurred.
	But 	she
	refused 	to
	do 	so
until
	the 	hearing 	in
	this 	case.
The
	Charging
	Party asserts 	that 	the 	suspension
	letter
	makes
122

no
	mention
	of
	the
	refusal
	to
	admit
	a
	mistake
	as
	a
	reason
	for
the
	suspension.
	This
	is
	simply
	not
	true.
	The
	letter
	clearly
says
	that,
..
	you
	have
	not 	given
	me
	any
	indicationof
	your 	awareness
	of 	the
	serious 	nature
	of
your 	misconduct, 	nor
	any
	indication
	that
	in
the
	future
	you
	will
	not
	repeat
	the
	error.
The
	Charging
	Party
	also
	argues
	that
	several
	CSEA
	witnesses
testified
	that 	paintings
	had 	been
	left
	on
	elevators
	unattended
in
	the
	past
	with
	no
	discipline
	imposed.
	However, 	none
	of 	these
witnesses
	took
	steps 	to
	inform
	a 	Museum
	official
	of
	this
occurrence
	and
	there
	was
	no
	independent 	evidence
	presented
	to
indicate 	that
	management
	knew
	or
	should
	have
	known
	about
	these
incidents.
	Thus,
	this
	aspect 	of
	Charging
	Party's 	disparate
treatment
	argument 	must
	fai1.47
The
	next 	point 	raised
	by
	the
	Charging
	Party
	concerns
	the
fact 	that
	the 	issuance 	of 	the 	suspension
	letter
	occurred 	before
Wong
	and
	her
	CSEA
	representative
	met
	with
	management
	t9
	discuss
the 	matter.
	I
	find
	no
	merit 	in
	this
	argument.
	As
	far 	as
	I 	am
aware, 	the
	employer
	has
	no
	obligation 	to
	meet
	with
	an 	employee
and
	her 	representative 	before 	issuing
	a
	suspension.
	Thus,
absent 	other
	evidence 	about 	the 	incident
	which 	would
	suggest
	an
47Evidence 	showing
	that
	in 	the 	past
	works
	of
	art
	were
placed
	on
	elevators
	with 	the 	gate
	open 	has
	no
	bearing
	on
	thisissue, 	since 	the 	elevator 	could 	not 	be
	called 	to 	another 	floorwhile 	the 	gate
	was
	open. 	In
	short,
	no
	danger
	was
	presented 	to
the 	art
	work
	under 	these 	circumstances.
123

unlawful 	motive, 	I 	decline 	to 	infer 	such 	motive 	based 	on 	the
timing 	of 	the 	letter.
Further, 	Charging 	Party attempts 	in 	vain 	to 	discredit 	the
suspension by arguing 	that 	the 	letter 	did 	not 	include 	a
reference 	to 	Smiley's 	testimony 	to 	the 	effect 	that 	Wong
"giggled" 	as 	she 	shut 	the 	elevator 	gate. 	The 	logic 	of 	this
argument 	escapes 	me. 	The 	letter 	included 	a 	clear 	and 	concise
statement 	of 	the 	facts 	surrounding 	the 	incident, 	the 	concerns
of 	Hubbs, 	the 	violations 	involved 	and 	appeal 	rights. 	What 	more
is 	needed?
Lastly, 	Charging 	Party 	again 	raises 	the 	disparate 	treatment
argument, 	this 	time 	from 	another 	angle. 	In 	the 	past, 	according
to 	this 	approach, 	works 	of 	art 	have 	been 	damaged 	or 	endangered
by 	employees, 	but 	no 	discipline 	has 	been 	administered. 	As
stated 	earlier 	in 	the 	statement 	of 	facts, 	each 	of 	these 	prior
incidents 	is 	easily 	distinguished 	from 	the 	elevator 	incident.
(See 	fn. 	16, 	s·upra.) 	Thus, 	there 	has 	been 	no 	disparate
treatment.
5. 	The 	September 	14, 	1981 	Representation 	Issue.
The 	Charging 	Party here 	argues 	that 	Wong 	was 	denied
representation 	in 	violation 	of 	her 	Weingarten 	rights.48 	The
48NLRB 	v. 	Weingarten 	(1975) 	420 	U.S. 	25 	[98 	LRRM 	2689]
holds 	that 	an 	employee 	is 	entitled 	to 	a 	representative 	at 	an
investigatory 	interview 	which 	the 	employee 	reasonably 	believes
will 	lead 	to 	disciplinary 	action. 	PERB has 	adopted 	this
doctrine. 	See 	Marin 	Community 	College 	District 	(11/19/80) 	PERB
Decision 	No. 	145.
124

Weingarten
	rule
	is
	not
	applicable
	to
	this 	situation
because
	at
the
	outset
	of 	the
	discussion
	Hubbs
	made
	it
	very
	clear
	that
there
	was
	no
	disciplinary
	action
	contemplated.
	~ne
	told
	Wong
that
	she 	only
	wanted
	to
	clear
	up
	the
	misunderstanding
	about
whether
	Wong
	was
	to
	work
	the
	previous
	Wednesday,
	and
	there
	was
no
	objective
	evidence
	presented
	to
	show
	Wong
	had
	a
	reason
	to
expect
	dis~ipline.
	As
	it
	turned
	out,
	Hubbs
	was
	truthful.
There
	was
	no
	disciplinary
	action
	taken.
Wong
	arguably
had
	a
	-right
	under
	HEERA
	to
	be
	represented
	by
CSEA
on
	this
	employment-related
	matter,
	and
	CSEA
arguably
	had
	a
right 	to
	represent
	Wong, 	a 	member
	of 	the
	organization,
	even
	in
the
	absence
	of
	disciplinary 	action.
	See
	Redwoods
	Community
College
	District,
	supra,
	PERB
	Decision
	No.
	293.
	However,
	the
right
	to 	representation
	under
	Redwoods
	need
	not 	be
	addressed
here,
	for
	even
	if
	this 	right 	existed,
	the 	evidence
	shows
	that
Wong
	was
	not 	denied
	representation
	on 	September
	14.
Soon
	after
	Wong
	requested
	a
	representative,
	the
conversation
	moved
	upstairs
	to 	the 	design
	office.
	It 	is
	true
that
	Hubbs
	told
	Wong
	she
	was
	obligated 	to 	discuss
	the
	matter,
but 	the 	discussion 	did 	not 	take 	place.
	Wong
	called
	Tesluk
instead,
	and 	Tesluk 	advised
	Wong
	to
	go
	ahead 	and
	talk 	to
	Hubbs,
provided 	there
	was
	no
	corrective 	action 	involve6.
	It
	appears
that
	even 	then 	the 	discussion did 	not 	take 	place.
	Wong
	said
she 	wasn't
	satisfied
	with 	Tesluk's 	advice
	and 	wanted
	to 	talk 	to
Toby, 	which 	she
	did
	at
	some
	later 	point 	in 	time.
	And,
	to 	the
125

extent 	any discussion 	took 	place 	between 	Hubbs 	and 	Wong 	after
the 	call 	to 	Tesluk, 	it 	was 	with 	Tesluk's 	approval.
Hubbs 	may 	have 	felt 	Wong 	was 	not 	entitled 	to 	a
representative, 	but 	she 	nevertheless 	did 	not 	press 	the 	point.
She 	permitted Wong 	to 	call 	Tesluk 	and 	then 	apparently dropped
the 	matter 	after 	Wong 	decided 	she 	wanted 	to 	tall< 	to 	Toby.
There 	was 	?O 	corre.ctive 	action 	taken, 	nor 	did Wong 	ever 	make 	up
the 	four 	hours 	that 	triggered 	this 	incident 	in 	the 	first
place. 	Under 	these 	facts, 	it 	cannot be 	concluded 	that 	Wong's
right 	to 	representation 	was 	denied, 	nor 	can 	it be 	concluded
that 	CSEA was 	denied 	the 	right 	to 	represent 	a 	member 	of 	the
organization.
6. 	Sanding 	Frames 	and 	Other 	Menial 	Tasks.
The 	Charging 	Party argues 	that 	Wong 	was 	assigned 	to 	sand
frames 	in 	retaliation 	for 	her 	protected 	conduct. 	It 	is 	claimed
that 	this 	assignment 	was 	made 	while 	other 	less 	skilled
employees 	were 	doing 	matting 	and 	framing. 	It 	is 	further
claimed 	that 	Wong 	was 	isolated 	from 	other 	employees 	while 	doing
this 	work. 	These 	arguments 	are 	not 	convincing.
This 	assignment 	was 	given 	to Wong 	shortly after 	the
September 	14 	representation 	incident. 	Bailey 	felt 	that 	Wong
was 	upset 	as 	a 	result 	of 	that 	incident 	and 	was 	in 	no 	condition
to 	do 	the 	more 	delicate 	work 	on 	the 	daVinci 	exhibit. 	Standing
alone, 	this 	explanation 	by Bailey 	might 	justifiably be
126

questioned.
	However,
	when
	placed 	in
	context,
	the 	assignment
emerges
	as
	routine.
It
	was
	not
	uncommon
	for
	all
	employees
	to
	perform 	such
tasks, 	especially
	after
	the
	reorganization
	when
	the
	shop
	was
	no
longer 	in 	existence
	and
	Wong
	and
	Bailey
	were
	the
	only 	remaining
career
	employees. 	·Despite
	her 	experience,
	Wong
	was
	not
insulated
	from
	such
	assignments.
	The
	same
	is
	true
	with
	respect
to
	the
	menial
	tasks
	Wong
	claims
	she
	was
	assigned
	as
	retaliatory
measures
	by
	management.
	The
	evidence, 	including
	Wong 1 s
•
testimony,
	is
	overwhelming
	that
	everyone,
	at
	one
	time
	or
another,
	performed 	such
	tasks.
	In
	the
	face
	of
	this
	evidence,
one
	cannot 	conclude
	that
	Wong
	was
	singled
	out
	to
	do
	this
	work.
The
	argument
	that
	the
	assignment
	was
	a
	form
	of harrassment
and
	made
	to
	isolate
	Wong
	from
	other
	employees
	likewise
	is
	not
convincing. 	In
	fact,
	the
	so-called 	isolation
	was
	for
	Wong's
benefit
	as
	it
	permitted her
	to
	sand 	and
	oil
	the
	frames
	near 	the
exhaust 	fan 	with
	a
	respirator.
	In
	my
	view,
	this
	cannot
	even
remotely
	be
	considered harrassment.
	To
	the
	contrary,
	I
	would
be
	more
	inclined 	to
	view
	this
	as 	harrassment
	if
	Bailey 	had
assigned her
	this
	work
	in
	full
	view
	of 	other
	employees
	without
the 	benefit 	of 	the 	exhaust 	fan 	or 	the
	respirator.
7. 	Denial 	of
	Access
	to 	the 	Registration
	Area 	During
	the
daVinci 	Exhibit
	and
	the
	"Grand 	Master 	Key".
On
	September 	10, 	1981,
	Elliott
	issued
	a 	memo
	calling 	for
increased 	security 	for 	the 	daVinci
	exhibit.
	Egherman
	testified
that 	the 	reason 	for 	increased 	security
	was
	two-fold.
	First,
127

since 	the 	art 	work 	was 	of 	extraordinary value 	and 	had 	not 	been
shown 	in 	the 	Bay 	Area 	before, 	there 	was 	great 	interest 	in 	the
exhibit. 	Second, 	based 	on 	past 	experience 	with 	so-called
"street 	people" 	in 	Berkeley, 	there 	was 	concern 	that 	the 	works
of 	art 	be 	adequately 	protected. 	To 	this 	end, 	access 	to 	the
registration 	area 	where 	the 	art 	work 	was 	kept 	was 	limited, 	and
other 	security 	measures 	taken. 	Wong 	was 	one 	of 	the 	people 	not
permitted 	access. 	But 	this 	restriction 	was 	not 	directed 	at
Wong 	as 	an 	individual. 	It 	applied 	to 	everyone 	except 	a 	few
•
employees 	on 	an 	"as 	needed" 	basis, 	i.e., 	curator, 	registrar,
photographer, 	etc. 	Even 	Egherman 	was 	excluded. 	The 	absence 	of
any 	evidence 	to 	cast 	doubt 	on 	Elliott's 	obvious
security-related 	motive 	for 	issuing 	the 	directive, 	taken 	with
the 	general 	application 	of 	the 	policy, 	makes 	it 	impossible 	to
conclude 	that 	the 	policy or 	Wong's 	exclusion 	from 	the
registration 	area 	was 	discriminatory.
The 	same 	conclusion 	must 	be 	drawn 	with 	respect 	to 	the
directive, 	again 	prompted 	by 	Elliott, 	that 	grand 	master 	keys be
limited 	to 	supervisory 	personnel. 	While 	Hubbs 	and 	Bailey 	were
permitted 	to 	retain 	their 	keys, 	at 	least 	three 	other 	keys, 	one
of 	which 	was 	Wong's, 	were 	withdrawn. 	Once 	again, 	this 	can
hardly 	be 	characterized 	as 	discriminatory. 	Sub-master 	keys,
which 	afforded 	the 	holder 	more 	limited 	access 	to 	the 	Museum,
were 	issued 	in 	place 	of 	the 	grand 	master 	keys. 	Since 	the
directive 	applied 	to 	all 	non-supervisory 	personnel, 	not 	just 	to
128

Wong, 	and 	since 	there 	is 	no 	evidence 	that 	lack 	of 	a 	grand
master 	key 	interfered 	with 	the 	ability 	of 	non-supervisory
employees 	to 	perform 	their 	required 	duties, 	this 	action 	cannot
be 	viewed 	as 	retaliation 	or 	discrimination.
8. 	The 	September 	29, 	1981 	Telephone 	Call.
At 	about 	9:30 	a.m. 	on 	September 	29, 	Wong 	left 	her 	workplace
during 	wor~ing hours 	without 	clearing 	it 	with her 	supervisor
\
and 	went 	to 	an 	outside 	pay 	telephone 	to 	call 	Tesluk, 	her 	CSEA
representative, 	about 	the 	September 	9 	pay dispute. 	The 	day
before, 	Hubbs 	had 	asked 	Wong 	for 	a 	response 	on 	this 	dispute 	by
10:00 a.m. 	Bailey 	found 	Wong 	on 	the 	telephone 	and 	told 	her 	she
was 	not 	to 	call her 	representative 	on 	work 	time, 	and 	as 	a
courtesy 	she 	should 	let 	him know before 	leaving 	the 	work 	area
dur,ing· worktime 	so he 	could 	get 	someone 	to 	cover 	for 	her 	if
necessary. 	The 	matter 	was 	then 	totally dropped. 	There 	was 	no
corrective 	action.
I 	find 	nothing 	unlawful 	about 	Bailey's 	comments. 	In 	fact,
he 	showed 	remarkable 	restraint, 	considering 	that 	an 	employee 	is
usually 	expected 	to 	work 	during 	worktime. 	Bailey's 	restraint
is 	even 	more 	remarkable 	when 	one 	considers 	that 	Wong 	was 	aware
in 	advance 	of 	the 	10:00 	a.m. 	deadline 	and 	could have 	called
Tesluk 	the 	night 	before. 	Further, 	despite 	the 	fact 	that 	Wong
was 	due 	for 	a 	break 	at 	10:00 	a.m., 	she 	left 	work 	at 	9:30 	a.m.
to 	make 	the 	call.
In 	its 	brief, 	Charging 	Party 	asserts 	that 	these 	facts 	make
129

it
	"evident
	that
	Wong
. was
	constantly
	being
	watched."
	I
	find
this
	statement
	to
	be
	a
	complete
	exaggeration.
	'l'Nhen
	boiled
	down
to
	its
	simplest
	terms,
	this 	entire
	incident
	consists
	of 	Bailey
telling
	Wong
	that
	she 	should
	not 	leave 	the
	work
	area
	to
	make
telephone
	calls
	to
	her 	representative
	on
	worktime
	without
letting
	her 	supervisor
	know
	where
	she
	was.
	There
	is
	nothing
unlawful
	apout
	such
	a
	statement.
9.
	The
	Chinese
	Fan
	Incident.
This
	incident 	represents
	nothing
	more
	than
	another
confrontation 	in
	what
	had by
	this
	point
	become
	a
	long
	line
	of
confrontations
	between
	Bailey
	and
	Wong.
	This 	time
	Bailey
	felt
that
	Wong
	took
	too
	long
	to
	mount
	a
	Chinese
	fan,
	and
	he
	felt
that
	she had
	improperly bent
	a
	corner 	of 	the
	fan
	in 	the
mounting
	process.
	Wong
	naturally
	disagreed
	and,
	as
	might 	be
expected, 	another 	unpleasant
	exchange
	occurred.
	But
	these
exchanges,
	which
	had 	by
	now
	become 	commonplace,
	had
	nothing
	to
do
	with
	protected
	activity.
	These
	two
	simply 	could 	not
	work
together
	smoothly.
	It
	is
	my
	view
	that
	Bailey had
	become
frustrated 	in 	trying 	to 	deal 	with
	Wong
	and 	had
	exhausted
	his
patience.
	It
	seems
	that
	Wong,
	for 	her
	part, 	resented 	Bailey
and
	felt
	he
	was
	constantly picking
	on
her.
	In 	any
	event, 	the
fact 	that
	these
	two
	had 	an
	unpleasant
	exchange 	over 	Chinese
fans
	and
	generally
	were
	unable
	to
	work
	together
	does
	not
automatically 	translate 	into 	unlawful 	harrassment 	under
	HEERA.
After 	Bailey 	reported 	the 	incident 	to
	Hubbs, 	she 	met
	with
130

Wong 	and 	they 	discussed 	the 	Chinese 	fan 	incident, 	among 	other
things. 	Unlike 	the 	elevator 	incident, 	Wong 	eventually 	admitted
she 	bent 	the 	fan 	and 	Hubbs 	told 	her 	it 	was 	understandable
because 	everyone 	makes 	mistakes. 	No 	corrective 	action 	took
place 	and 	the 	entire 	matter 	was 	droppen.
Tesluk, 	however, 	contacted 	Toby. 	She 	wanted 	a 	meeting 	to
discuss, 	among 	other 	things, 	the 	fan 	incident. 	Toby
understandably 	refused. 	Even 	Toby, 	who 	appeared 	to 	me 	on 	the
witness 	stand 	to have 	the 	patience 	of 	Job, 	saw 	no 	point 	in 	the
meeting, 	since 	there 	had 	been 	no 	corrective 	action 	and 	the
matter 	had 	been dropped. 	Eventually, 	he 	agreed 	to 	a 	meeting 	if
he 	was 	presented 	with 	an 	agenda 	so 	there 	could be 	some
structure. 	But 	by 	now 	even 	Tesluk 	had 	given 	up 	on 	the 	matter
because 	Toby 	never 	heard 	from her 	again.
Nothing 	about 	this 	incident 	can 	remotely be 	construed 	as
discriminatory 	or 	retaliatory. 	Wong 	and 	Bailey had 	a
disagreement 	which 	Hubbs 	and 	Wong 	later discussed. 	This 	simply
does 	not 	add 	up 	to 	harrassment.
10. 	The 	Desk 	Audit 	and 	Reclassification.
The 	Charging 	Party here 	contends 	that 	by 	the 	time 	of 	the
desk 	audit 	most 	of 	the 	preparator's 	duties 	had 	been 	taken 	away
and 	Wong 	was 	doing 	primarily 	menial 	tasks. 	Thus, 	according 	to
the 	Charging 	Party, 	any honest 	job 	audit 	would 	have 	resulted 	in
her 	being 	reclassified 	downward. 	The 	Charging 	Party 	claims
131

this
	spells
	out
	a
	clear
	case
	of
	reprisal.
	This 	argument
	is
unconvincing.
It
	has
	already
	been 	concluded
	that
	Wong
	was
	not
	singled
	out
to
	perform
	menial
	tasks.
	Everyone
	at
	one
	time
	or 	another 	did
this
	work
	and
	the 	evidence
	does
	not
	show
	that
	Wong
	was
	assigned
a
	disproportionate
·amount
	of 	these
	duties.
	Further, 	the 	record
does 	not 	support 	the
	argument
	that
	Wong's
	duties
	had
dramatically
	changed
	over
	the 	course 	of
	a
	year.
	The
	evidence
on
	this
	point
	consists
	only
	of 	general
	assertions 	that
	Wong
	was
increasingly
being 	assigned
	menial
	tasks.
	While
	there
	are
examples
	of
	this 	cited
	in
	the 	testimony,
	there
	is
	no
	accurate
breakdown
	of
	precisely
how 	much
	of
	Wong's
	time
	was
	being 	spent
in
	this
	area,
	nor
	is
	there
	a
	meaningful 	comparison
	of
	Wong's
time
	and
	duties
	with 	those 	of
	other 	preparators.
	Therefore,
	it
cannot
	be 	concluded
	that
	Wong's
	duties
	changed
	measurably 	over
the 	years,
	nor
	can
	it
	be 	concluded
	that
	she
	was
	doing
	primarily
menial
	task
	as 	of 	the 	date 	of 	the
	desk
	audit.49
Turning
	to
	the 	merits 	of 	the
	reclassification
	appeal,
	it
	is
obvious
	that
	Wong
	was
	not
	a
	supervisor, 	as 	she 	claimed.
	At
most, 	she 	performed 	in
	a
	leadperson 	capacity 	with 	the
	employees
she 	claimed 	she
	supervised.
	At 	one
	time
	or 	another,
	most
employees 	served 	in
	a
	leadperson
	role.
	Nor
	did
	Toby
	find 	that
49
rn
	fact, 	Bailey 	disagreed 	with
	Wong's
	description 	of
her 	duties 	as 	early as 	the
	summer
	of
	1980, 	long 	before 	the
Museum
had 	the 	opportunity 	to 	transform her 	preparator 	duties
into
	menial 	tasks. 
132

she 	was 	performi~g 	the 	most 	difficult 	preparator 	work. 	His
investigation 	indicated 	that, 	during 	the 	period 	July 	1980 	to
June 	1981, 	Wong's 	lighting 	assignments 	equaled 	50 	percent 	of
her 	time 	on 	only 	two 	occasions. 	This 	would 	not 	entitle 	her 	to
a 	reclassification. 	Moreover, 	one 	is 	left 	with 	the 	impression
that, 	even 	if Wong·had 	done 	lighting 	in 	excess 	of 	50 	percent 	of
her 	time, 	~hat 	alone 	would 	not 	entitle 	her 	to 	reclassification,
because 	several 	credible 	witnesses, 	including 	Wong's
co-workers, 	testified 	that 	lighting 	was 	overrated 	and 	consisted
of 	little 	more 	than 	changing 	light 	bulbs. 	There 	were 	no 	other
significant 	duties 	upon 	which 	a 	reclassification 	could 	be
based. 	Although 	at 	the 	hearing 	Wong 	described 	some 	of 	the
duties 	upon 	which 	she 	would 	base 	a 	reclassification, 	they 	fell
within 	the 	current 	position 	description 	of 	preparator. 	As
such, 	they 	would 	not 	justify 	the 	reclassification.
Lastly, 	consistent 	with 	Egherman's 	testimony, 	Toby 	informed
Wong 	that 	the 	Museum was 	not 	interested 	in· creating 	specialized
slots. 	Like 	other 	Bay 	Area 	museums, 	the 	UAM wanted 	employees
who 	could 	perform a 	11
wide 	range 	of preparative 	tasks 11	
and 	had
chosen 	not 	to 	allocate 	any 	of 	its 	existing 	positions 	to
so-called 	specialists.
The 	desk 	audit 	upon 	which 	the 	denial 	was 	largely 	based 	was
conducted by 	Toby and Wong 	was 	denied 	a 	CSEA representative.
Toby 	believed 	that 	Wong 	was 	not 	entitled 	to 	a 	representative
because 	the 	desk 	audit 	was 	only 	a 	review 	of 	her 	work 	and 	not 	a
133

matter 	appropriate
	for
	union
	representation.
The
	desk
	audit 	related
	to
	the
	reclassification
	appeal.
	As
such,
	it
	was
	clearly
	an
	employment-related
	matter 	during
	which
Wong
	had
	the
	right
	to
	a
	CSEA
	representative.
	In
	addition,
	CSEA
had
	a
	right
	to 	represent
	Wong
	as
	one
	of
	its
	members.
	Denial 	of
these
	rights
	violated 	section
	357l(a)
	and 	(b)
	respectively.
See
	Redwooqs 	Community
	College
	District,
	supra.
11.
	The
	Tool
	Cart
	Incident.
While
	it
	may
	have 	been
	preferable 	to
	have
	two
	employees
move
	these
	heavy
	pieces 	of
	equipment,
	it
	was
	not 	unusual
	for
	an
individual
	employee
	to
	move
	the
	tool
	cart
	or 	the
	airlift
	down
ramps
	in 	the
	Museum. 	Many
	employees,
	including
	Wong,
	had
	done
this
	in 	the
	past,
	as 	well 	as
	on
	the
	day
	in
	question.
	Thus,
	it
cannot
	be 	concluded
	that
	giving
	this
	assignment
	to
	Wong
	on
March 	2, 	1982,
	was
	either
	discriminatory 	or
	retaliatory.SO
12.
	The
	July
	1,
	1982
	Layoff.
Ignoring 	evidence
	to 	the
	contrary,
	the
	Charging
	Party
argues
	that
	the 	July
	1982
	layoff
	was
	the
	final 	act 	of
retaliation.
	The
	Charging
	Party
	is,
	once
	again,
	off 	target.
In
	fact, 	there
	was
	no 	work
	for
	Wong. 	As
	Elliott
	pointed 	out 	in
his
	May
	21, 	1982
	letter,
	the 	exhibition
	schedule
	showed
	that
	in
50since 	the 	Charging
	Party 	failed 	to 	address
	this 	issue
in
	its 	brief,
	I
	can 	only
	assume
	that 	its
	complaint
	centers
	on
the
	argument
	that 	this
	assignment
	was 	a 	form
	of 	discrimination
or 	retaliation.
134

the
	upcoming
	year
	there
	would
	be
	26
	weeks
	with
	no
	preparation
work
	scheduled.
	Allowing
	for
	vacation,
	Wong
	would
	be
	idle
23
	weeks.
	Given
	the
	fact 	that
	the
	Museum
	still
	faced
	a
	huge
deficit,
	carrying
	Wong
	under
	these
	circumstances 	could
	not
	be
justified.
Hubbs
	agreed
	wi-th
	Elliott
	and,
	after
	considerable 	thought
about 	the
	impact
	Wong's
	layoff
	would
	have
	during 	the 	course 	of
unfair 	practice
	hearings,
	concluded
	that
	the
	most
	efficient
thing 	to
	do
	was
	to
	implement
	a
	straight
	on-call
	system.
	Thus,
Wong
	was
	laid 	off
	along 	with
	other 	cuts
	that
	saw
	the
	security
staff
	reduced
	by
	half
	and
	a
	curatorial
	position
	left
	unfilled.
Based
	on
	this
	evidence,
	it
	is
	concluded
	that
	the
	Museum
had
a
	valid
	business
	reason 	for 	taking
	this 	action.
	There
	is
	no
evidence
	which
	can 	be 	used
	to
	attribute
	an
	unlawful 	motive
	to
Elliott,
	Egherman
	or
	Hubbs.
	The
	Charging
	Party
	simply has 	not
come
	close 	to
	showing
	that
	but 	for 	the
	exercise 	of
	protected
activity,
	Wong
	would
	not
	have been
	laid 	off.
III.
	Daniel 	Kelly
On
	July
	27, 	1981,
	Kelly
	was
	represented 	for 	the
	first
	time
by
	CSEA
at
	a
	meeting 	with
	Ross
	and
	Toby
	to 	discuss
	his
post-layoff
	lack 	of 	on-call 	hours. 	Securing 	union
representation
	about
	a
	matter 	of
	employment
	rela.tions
	falls
within 	the 	protection 	afforded
	by
	section
	3565. 	See
	Redwoods
Community
	College
	District,
	supra.
	Thus,
	it
	is
	concluded
	that,
as 	of 	July
	27, 	Kelly 	had 	engaged 	in 	protected 	conduct.
135

The
	Charging
	Party, 	in
	its
	brief,
	also
	argues
	that
	Kelly
engaged
	in
	protected
	conduct
	prior
	to
	that
	date
	by
	virtue
	of
his
	other
	conduct
	and
	his
	support 	of
	Wong
	in her 	attempts 	to
improve 	working
	conditions 	in 	the
	Museum.
	This
	activity
	may
	be
summarized
	as 	follows. 	Kelly,
	in
	1980,
	met
	with
	Ross,
	Toby
	and
Bailey
	and
	voiced 	concerns
	on
	matters 	of
	interest
	to 	other
workers
	in.
the
	Museum.
	These
	included 	the
	number
	of
	hours
worked
	and
	Bailey's 	control
	over
	these 	hours;
	advance
	notice
for
	on-call
	workers;
	and
	clarification
	of
	job
	duties.
	During
this
	process,
	he
	was
	openly
	supportive 	of
	Wong's
	activities
	and
even
	joined her
	on
	occasion
	when
	she
	met
	with
	Toby
	to 	discuss
employment-related 	concerns.
	To
	the 	extent
	that
	he
	joined
	with
Wong
	to present
	employment-related 	concerns
	to
	management
officials,
	his
	conduct
	is
	considered
	protected.
	See 	Ohio
Oil
	Co.,
	supra. 	Further, 	to
	the
	extent 	that
	Wong
	engaged
	in
protected
	conduct by, 	for
	example,
	participating
	in 	the
wage-lag
	process, 	Kelly's 	participation
	and
	support 	can 	be
found
	to
	be
	protected~Sl
Egherman's
	earlier
	references 	to
	Kelly 	as
	a
	troublemaker
and
	the
	refusal 	to 	assign
	him
	on-call
	hours
	after
	July
	l
51
It 	is
	noted,
	however,
	that 	Kelly's
	pre-CSEA
	protectedconduct
	was
	extremely 	minimal 	and 	so 	remote
	in
	time
	as 	to
	have
little
	bearing
	on
	the 	on-call
	hours
	issue. 	Further, 	since 	the
central
	matter
	at
	issue 	with 	respect 	to
	Kelly
	is 	denial 	of
on-call
	hours
	after 	July 	1,
	and
	since 	Kelly had
	clearly
	engaged
in 	protected
	conduct 	as 	of 	July
	27,
	his
	pre-CSEA
protected
activity 	is 	relevant 	only 	to 	the 	alleged 	retaliation
	which 	took
place
	between 	July
	1
	and
	July
	27.
136

constitutes 	evidence 	from 	which 	an 	unlawful 	motive 	may be
inferred. 	This 	inference 	is 	underscored 	by 	the 	fact 	that 	Kelly
had 	received hours 	on 	a 	regular 	basis 	since his 	return 	from
Japan. 	A prima 	facie 	case 	having 	been.established, 	we 	now 	turn
to 	the 	Museum's 	explanation 	for 	refusing 	to 	assign 	Kelly 	work
after 	July 	1, 	1981;
Denial. of 	on-call 	hours 	during 	July 	1981 	will 	be 	considered
first. 	Before 	doing 	so, 	however, 	it 	is 	important 	to 	note 	that
most 	of 	Kelly's 	conduct 	which 	Charging 	Party 	views 	as 	protected
occurred 	in 	the 	later 	part 	of 	1980. 	Although 	Kelly 	and 	Bailey
had 	several 	disputes 	during 	this 	period, 	which 	Charging 	Party
attributes 	to 	Kelly's 	protected 	conduct, 	the 	record 	with
respect 	to 	work 	assignments 	belies 	the 	fact 	that 	Bailey
retaliated 	against 	Kelly. 	For 	the 	first 	six 	months 	of 	1981, 	it
was 	Bailey who 	assigned 	Kelly almost 	all 	of his 	wo_rk 	in 	the
Museum. 	This 	marked 	a 	clear 	departure 	from 	1980 	when 	Kelly
received 	most 	of his 	assignments 	from 	Johnson.52 	Thus, 	it
cannot be 	concluded 	that 	Kelly 	suffered 	discrimination 	during
the 	first 	six 	months 	of 	1981.
After 	July 	1, 	1981, 	Hubbs 	was 	the 	person 	in 	charge 	of
assigning hours. 	She 	credibly 	testified 	that 	at 	the 	time 	of
52ouring 	the 	first 	six 	months 	of 	1981, 	Bailey 	assigned.
Kelly 	522.5 hours. 	Johnson, 	by 	contrast, 	assigned him
11.5 	hours. 	During 	the 	last 	six 	months 	of 	1980, 	Bailey
assigned 	Kelly 	565 hours. 	Johnson, 	by 	contrast, 	assigned 	him
548.
137

the 	layoff
	she had
	not 	heard
	from
	Kelly
	and
	was
	under
	the
impression
	that
	he 	had
	taken 	the 	job
	in
	San
	Francisco.
	Thus,
she
	did
	not
	assign
	him
	any
	hours
	in 	July.53	
This
	is
	not
	to
say,
	however,
	that,
	absent 	the
	possibility
	of 	the
	San
	Francisco
job,
	Kelly
	would
	have 	been
	assigned
	work
	in
	July.
Shortly
	after
	the
	July	
27	
meeting,
	Hubbs
	learned
	that
	Kelly
did
	not
	ge~
	the
	job
	in
	San
	Francisco
	and
	was
	interested
	in
on-call
	hours.
	While
	in
	the 	process 	of
	trimming
	the
	on-call
list,
	Hubbs
	had
	to
	decide
	whether 	she
	wanted
	Kelly
	on
	the
list.
	She
	decided
	she
	didn't
	and
	she 	excluded
	him
	for
	two
reasons.
	First,
	she
	felt
	Kelly
	was
	not
	able
	to
	work
	"quick
	and
dirty."
	This
	would
	make
	him
	less
	valuable 	in 	the
	new
	approach
she 	intended
	to
	use, 	as 	she
	felt
	Kelly
	would
	not
	fit
	into
	the
newly-established 	core 	of
	reliable
	and
	efficient
	workers
	to
	do
the
	work.
	Without 	minimizing
	Kelly's
	abilities
	as
	a
preparator,
	it
	appears
	that
	he
	was
	simply 	not 	the 	kind
	of
worker
	Hubbs
	wanted.
It
	is
	noteworthy
	that
	Hubbs' 	view
	of 	Kelly's
	work
	finds
considerable 	support 	in 	the 	record,
	especially
	from
	Kelly's
co-workers.
	He
	was
	overly 	thorough, 	meticulous,
	and
	regularly
sought 	time-consuming
	alternative
	approaches
	to 	assignments.
53rn
	fact,
	it
	~as 	not 	unusual 	for
	most
	on-call
	employees,
including 	Kelly, 	to 	receive
	little
	or
	no 	work
	in
	any
	given
month. 	For 	example, 	Kelly 	received
	no 	work
	in 	July 	of 	1980,
and 	in
	December 	1980 he 	worked
	only 	eight hours.
138

Hubbs 	justifiably 	felt 	that 	Kelly 	would 	not 	fit 	into 	the
newly-organized 	department.
In 	this 	connection, 	it 	is 	once 	again 	worth 	noting 	that
Hubbs 	was 	a 	new 	supervisor 	in 	a 	recently 	reorganized
department. 	It 	appears 	that, 	where 	Bailey had 	taken 	a 	more
informal 	approach 	tD 	the 	job, 	Hubbs 	was 	more 	aggressive 	and
decisive. 	She 	had 	a 	well-formed 	opinion 	as 	to how 	the 	on-call
system 	would 	run 	under 	her 	supervision 	and 	she 	knew 	with
certainty 	the 	type 	of 	employee 	she 	needed 	to 	get 	the 	job 	done.
Because 	of 	the 	nature 	of his 	work, 	Kelly did 	not 	figure 	into
the 	system.
The 	second 	reason 	Kelly 	was 	eliminated 	from 	the 	list 	was
his 	relationship 	with Wong 	and 	with 	Bailey .. without 	question,
there 	was 	a 	tremendous 	amount 	of 	tension 	between Wong 	and
Bailey. 	Hubbs' 	view, 	understandably, 	was 	that 	Kelly, 	given his
close 	relationship 	with Wong 	and 	his 	sometimes 	volatile
relationship 	with 	Bailey, 	would 	only heighten 	the 	tension. 	It
is 	important 	to 	underscore 	here 	that, 	while 	this 	tension 	was
disruptive, 	it 	did 	not 	have 	its 	roots 	in 	unlawful 	motive 	which
stemmed 	from 	any 	opposition 	to 	protected 	conduct. 	As 	has 	been
fully 	discussed 	above, 	Bailey dealt 	with Wong 	for 	approximately
two 	years 	on 	many 	issues, 	and 	there 	was 	no 	convincing 	evidence
to 	indicate 	that 	he 	harbored 	an 	unlawful 	motive. 	In 	my 	view,
their 	problems 	were 	rooted 	in 	personality differences, 	not
protected 	conduct. 	Simply put, 	they had 	an 	extremely hard 	time
139

working
	together.
	And
	the
	fact 	that
	Kelly
	and
	Wong
	were
	so
close 	greatly
	exacerbated 	the
	problem.
The 	same
	thing
	can be
	said
	about
	the
	relationship
	between
Bailey
	and
	Kelly. 	Bailey
	had
	worked
	with 	Kelly 	beginning
before
	Kelly
	went
	to
	Japan.
	Wnile
	not 	as
	volatile
	as
	the
Bailey-Wong
	relationship,
	the 	Bailey-Kelly
	relationship
	left
much
	to
be.
desired.
	They
	regularly
	had
	disagreements
	and
	it
	is
not
	hard
	to
	see
	how 	a 	new
	supervisor
	would
	prefer
	not
	to
	have
to
	deal
	with 	the 	chemistry
	of
	the$e
	three
	employees. 	Again,
	as
with
	Wong,
	the 	evidence
	does
	not
	show
	that
	these
	differences
were
	motivated
	by 	an
	anti-union
	animus.
	Bailey
	and
	Kelly
simply
	were
	not 	very 	compatible 	as 	workers.
It 	is
	also
	important
	to
	underscore 	the
	fact 	that 	Bailey's
relationship
	with 	Kelly 	or
	Wong
	as 	not 	the
	only
	factor.
	Apart
from
	Bailey, 	the 	concern 	about
	Wong
	and
	Kelly being 	unable
	to
work
	together
	was
	not
	new
	by 	any 	means.
	As
	early
	as 	the
	summer
of
	1980,
	after 	their 	return
	from
	Japan
	and
	long
	before
	any
protected 	activity
	took
	place, 	Bailey
	warned
	Kelly
	and
	Wong
	in
separate 	conversations 	that
	he
	would
	not
	tolerate 	their
relationship 	disrupting
	the 	workplace. 	These 	warnings 	were 	not
without
	justification.
	They 	were
	based
	on
	Bailey's 	experience
working 	with
	Wong
	and
	Kelly before 	they
	went
	to 	Japan.
	Hubbs
undoubtedly
	knew
	of
	this 	history.
	Thus,
	her 	concerns 	were 	not
unfounded, 	nor 	were
	they
	new. 	And
	the 	fact 	that,
	as
	a
	result
of 	the 	events 	the 	past 	year, 	Bailey
	was 	now
	at
	odds 	with 	both
140

Kelly
	and
	Wong, 	made
	a
	bad
	situation
	worse.
	Hubbs
	decided 	not
to
	contend 	with
	this 	situation.
	Since 	Kelly,
	an
	on-call
employee,
	was
	most
	expendable, 	he
	was
	eliminated.
After
	Hubbs
	trimmed
	the
	on-call
	list,
	a
	freeze
	was
	imposed
and
	Kelly 	could 	not
	be
	placed
	on
	the
	list
	even
	if
	Hubbs
	had
decided
	to
	do
	so.
	·Thus,
	Kelly
	was
	never
	recalled 	to 	the
Museum.54
Based
	on
	the
	foregoing,
	it
	is
	concluded
	that
	the
	Charging
Party
has 	not
	shown
	that
	but
	for
	his
	protected
	activity
	Kelly
would 	have 	been
	assigned
	work
	after
	July
	1,
	1981.
	The
	real
reasons
	Kelly
	was
	not
	assigned
	work
	after
	July
	27
	were
	the
nature 	of
	his
	work
	and
	the
	potential 	disruption
	due
	to
	his
volatile
	relationship
	with 	Bailey and/or
	Wong.
IV.
	Sam
	Greyson
The
	theory 	of 	the
	Charging
	Party's
	case
	here
	is 	that
Greyson's 	February
	23
	letter
	to
	Egherman
	constituted 	protected
activity,
	and
	the 	subsequent
	refusal 	to 	hire
	Greyson
	was
	in
retaliation
	for
	that 	activity.55	
It
	is
	conceded 	by
	the
541
	draw
	no
	inference 	of 	unlawful 	motive
	from
	the
	fact
that
	Toby
	and/or
	Ross
	may
	have
	told
	Kelly
	on
	July
	27
	that
	he
was 	on
	the
	list
	and
	eligible 	to
	be
	called.
	This
	was
	apparently
done 	without 	consulting
	Hubbs,
	who 	was
	the 	person 	in 	the
position 	to
	make
	such
	a
	decision.
	As
	such, 	she
·was
	not
	bound
by
	their
	comments.
55Greyson 	engaged
	in
	what
	may
	be 	generously 	described 	as
arguably 	protected 	activity 	in
	1980.
	However, 	even
	if
	found
	to
be 	protected, 	that 	activity
	was
	so 	minimal 	and 	remote
	in
	time
that
	it
	has
	no
	probative 	value 	with 	respect 	to 	the 	allegedly
unlawful 	denial 	of
	work
	in 	1981. 	Thus, 	no
	finding 	is
	made 	on
this 	point.
	The
	charge 	with 	respect 	to
	Greyson
	centers
	on 	the
February
	23
	letter.
141

Charging 	Party 	that 	Egherman 1 s 	response, 	which 	was 	received
approximately 	10 	days 	after 	the 	Greyson 	letter 	was 	sent, 	is
time-barred 	and 	cannot be 	considered 	as 	an 	independent
violation.56 	However, 	to 	the 	extent 	Greyson 	was 	denied
on-call hours 	within 	the 	six-month 	statute 	of 	limitations
period, 	the 	denial ~as 	due 	to 	the 	February 	23 	letter; 	and 	since
the 	letter.was 	protected 	conduct, 	the 	Charging 	Party 	argues,
the 	denial 	of hours 	was 	in 	violation 	of 	the 	Act.
Upon 	learning 	of 	the 	work 	cancellation, 	Greyson 	immediately
sat 	down 	and 	drafted 	the 	letter 	to 	Egherman 	without 	discussing
it 	with 	other 	employees. 	Soon 	thereafter 	he 	showed 	the 	letter
to 	Johnson 	and 	Wong.57 	The 	evidence 	shows 	that 	Wong 	said 	she
"supported" 	Greyson's 	letter 	before he 	sent 	it. 	While 	this 	may
not 	constitute 	an 	express 	authorization 	for 	Greyson 	to 	act, 	it
certainly 	supports 	a 	finding 	that, 	at 	minimum, 	Greyson 	acted
with 	Wong's 	implicit 	authorization, 	thus 	bringing 	the 	conduct
within 	the 	parameters 	of 	section 	3565. 	See 	Ohio 	Oil 	Co.,
supra; 	Monsoor, 	supra.
56The 	unfair 	practice 	charge 	was 	filed 	on 	September 	18,
1981. 	Egherman's 	letter 	was 	received 	no 	later 	than 	the 	first
week 	in 	March.
57since 	Johnson 	was 	a 	supervisor 	at 	the 	time, 	he 	cannot
be 	considered 	an 	employee 	with 	whom 	Greyson 	was 	lawfully 	acting
in 	concert. 	As 	a 	supervisor, 	he 	had 	limited 	rights 	under 	the
Act. 	See 	sections 	3580-3581.7; 	See 	also 	and 	compare 	State 	of
California, 	Department 	of 	Forestry 	(1980) 	PERB 	Decision
No. 	119-S. 	In 	any 	event, 	it 	is 	unnecessary 	to 	consider
Greyson•s 	communication 	with 	Johnson, 	since 	Greyson had
contacted 	at 	least 	one 	other 	employee.
142

The 	letter 	itself 	purported 	to
. speak 	for 	other 	employees
and 	addressed 	a 	variety 	of 	employment-related 	subjects 	as 	they
impacted 	on 	on-call 	workers.58 	While 	Greyson 	may 	have 	been
better 	advised 	with 	respect 	to his 	choice 	of 	words 	to 	raise his
complaints, 	he 	was 	understandably 	hot 	about 	the 	last-minute
cancellation of 	work. 	And 	while 	Greyson 	may have 	gone
overboard 	in his 	criticism 	of 	Egherman's 	competence, 	the 	degree
to 	which he 	did 	so 	does 	not 	strip 	the 	letter 	of 	its 	protected
status. 	Criticism 	of 	a 	supervisor 	on 	employment-related
subjects 	is 	protected 	under 	the 	Act 	when 	its 	purpose 	is 	to
advance 	the 	employees' 	interests 	in 	working 	conditions. 	State
of 	California, 	Department 	of 	Transportation 	(11/16/82) 	PERB
Decision 	No. 	257-S. 	Based 	on 	the 	content 	of 	Greyson's 	letter,
it 	can 	reasonably be 	read 	as 	an 	attempt 	to 	advance 	employee
interest 	in 	working 	conditions.
Egherman, 	for 	his 	part, 	was 	also 	justifiably 	upset 	by 	the
manner 	in 	which his 	competence 	was 	criticized. 	However, 	since
Greyson's 	letter 	was 	protected, 	Egherman 	was 	not 	free 	to
retaliate 	against 	him because 	of 	the 	letter.
While 	Egherman's 	response 	to 	Greyson 	was 	generally
unobjectionable, 	the 	comment 	about 	Greyson 	having 	chosen 	to
58For 	example, 	the 	letter 	complained 	about 	such 	issues 	as
advance 	notice, 	cancellation 	of 	work 	assignments, 	and 	the
breakdown 	of 	communication 	between 	"management 	and 	labor" 	at
the 	Museum.
143

"burn
bridges"
	cannot
	be
	overlooked.
	It
	is
	the 	kind
	of
statement
	which,
	on
	its
	face,
	delivers
	the
	message
	that
	Greyson
would
	suffer
	some
	adverse
	consequences
	for
	having 	spoken
	out 	in
a
	manner
	protected
	by
	the 	Act.
	As
	such,
	it
	is
	reasonable
	to
infer
	an
	unlawful
	motive
	from
	this
	statement.
	However,
notwithstanding 	the
	presence
	of
	protected
	conduct
	and
	evidence
which
	suggests
	an
	unlawful 	motive,
	there
	has
	been
	no
	showing
	of
harm.
59
As
	it
	turned
	out,
	Greyson
	suffered
	no
	adverse 	consequences
as
	a
	result
	of
his
	protected
	conduct.
	It
	appears
	that
	Egherman
never 	intended
	to
	permanently
	deny 	Greyson
	work
	as
	a
	result
	of
the
	letter.
	Even
	Johnson
	agreed
	that
	Egherman
	had
	not
precluded 	the
	possibility
	of
	Greyson
	continuing
	at
	the
	Museum.
Nor
	did
	Egherman
	take
	any
	actions
	to
	preclude
	hiring
	Greyson.
He
	immediately
	told
	Johnson
	that
	he
	wanted
	to
	meet
	with
Greyson. 	This
	was
	interpreted
	by 	Johnson
	to
	mean
	only
	that
Egherman 	wanted 	Greyson
	to
	apologize 	or
	make 	some
concessions.60
59It
	is
	noted 	here
	that
	Egherman's
	letter,
	in
	itself,
	may
have
	constituted
	an 	independent
	violation
	under
	the 	Act.
However,
	since 	the
	letter
	cannot 	be 	considered 	as
	such 	due
	to
the 	six-month
	limitation
	on
	unfair 	practice
	charges,
	we
	are
left
	with 	the 	sole 	issue 	of 	whether 	the 	subsequent
	denial 	of
on-call
	hours 	within 	the 	six-month 	period
	was
	retaliation
	for
protected
	conduct.
	As
	such, 	the 	"but 	for"
	test 	set 	forth 	in
Novato 	must 	be 	applied 	to 	resolve 	the 	dispute.
6
0Johnson, 	as
	a
	supervisor 	and,
	ostensibly 	as 	agent 	of
Egherman,
	told
	Greyson
	that
	Egherman 	wanted 	concessions 	and/or
an 	apology.
	Under 	some
	circumstances, 	persisting 	in 	exacting
144

In 	any
	event,
	Johnson
	apparently
	did 	not 	take
	Egherman
seriously,
	for 	as 	the
	Charging
	Party
	correctly
	points
	out 	in
its
	brief,
	he
	attempted
	to
	hire
	Greyson
	almost 	immediately
	and
on
	several
	occasions
	thereafter,
	but
	they
	were
	never
	able 	to
make
	contact7
	when
	they
	did
	make
	contact
	Greyson had
	other
-commitments.
	There
	were
	occasions
	when
	Greyson
	approached
Johnson, 	b~t
	each 	time
	there
	was
	no 	work
	available.61
Thus,
	despite
	Egherman's
	"burning
	bridges"
	memo
	(and
	the
fact 	that
	he
	may
	have 	wanted 	an
	apology),
	Greyson
	never
suffered
	any
harm
	because
	of
	his
	February
	23
	letter.
	The
	real
reason
	he
	was
	not
	awarded
	on-call
	hours
	was
	because 	he 	and
Johnson
	couldn't
	make
	contact.
	When
	they 	did 	connect,
	there
was
	either
	no 	work
	or
	Greyson
	was
	not
	available.
Nor
	does
	th_e
	limited
	evidence 	support 	the
	cla.im
	that
	Bailey
retaliated
	against
	Greyson
	while
	he
	(Bailey)
	was
	still
	a
supervisor,
	by 	not 	awarding
	him
	on-call
	hours 	in 	the
preparation
	department.
	On
	the
	one
	occasion
	when
	Greyson
	came
into
	the
	Museum
	he 	and
	Bailey
had
	a
	conversation 	during
	which
an 	apology
	or 	concessions
	from
	an 	employee
	because 	he 	engaged
in 	protected
	activity
	may
	constitute
	an 	independent
	violation.
However, 	even
	this
	comment
	by 	Johnson
	to
	Greyson
	istime-barred, 	since
	it
	occurred 	in 	early
	March, 	o_utside
	thesix-month 	period.
	And,
	as
	more
	fully 	explained
	below,
	this
	was
never pursued 	since
	Johnson 	immediately 	attempted 	to
	hire
Greyson.
61The
	fact 	that
	Greyson 	never
	filed
	a
	grievance 	over
	thismatter 	(as 	did
	Wong,
	Kelly 	and 	Johnson) 	suggests 	that
	he
	may
have 	had
	other
	commitments 	and 	was
	not 	seriously 	interested
	in
on-call
	work
	at
	the 	time.
145

Bailey 	offered 	Greyson 	work. 	Greyson 	suggested 	Bailey 	clear 	it
with 	Egherman, 	but 	Bailey 	responded 	that 	that 	wouldn 1 t 	be
necessary. 	Bailey 	then 	hired 	Greyson 	for 	one-half 	day 	(5
hours). 	This 	indicates 	that 	Egherman had 	not 	put 	out 	the 	word
to 	"blacklist" 	Greyson. 	It 	is 	true 	that 	from 	February 	24 	to
July 	1, 	the 	date 	Bailey 	gave 	up his 	supervisory 	duties, 	this
was 	the 	on~y 	time 	he 	called 	Greyson 	to 	work, 	but 	this 	is 	not
unusual. 	In 	the 	eight 	months 	prior 	to 	February 	24, 	Bailey had
called 	Greyson 	to 	work 	in 	the 	preparation 	department 	on 	only
two 	occasions 	for 	a 	grand 	total 	of 	15 	hours.62
On 	July 	1 	Johnson 	was 	laid 	off 	and 	Bailey 	gave 	up his
superv_isory 	duties. 	It 	was 	then 	up 	to 	Hubbs 	to 	decide 	whom 	to
call 	in 	and 	when. 	There 	was 	no 	convincing 	evidence 	presented
to 	show 	that 	Egherman 	blacklisted 	Greyson 	to 	Hubbs. 	Nor 	was
there 	any 	evidence 	presented 	to 	show 	that 	Hubbs 	did 	not 	call
Greyson 	to 	work 	because 	of 	protected 	conduct. 	What 	seems 	more
likely 	is 	that 	Hubbs, 	in 	deciding 	to 	trim 	the 	on-call 	list,
excluded 	Greyson because 	the 	number 	of hours 	he 	worked 	in 	the
past 	year 	had 	not 	been 	great, 	and 	even 	these 	hours 	were 	almost
exclusively 	in 	the 	shop.
62It 	is 	noted 	here 	that, 	except 	for 	these 	15 hours, 	all
of 	Greyson's 	work 	for 	the 	period 	July 	1, 	1980 	to 	February 	24,
1981, 	was 	in 	the 	shop 	department. 	Even 	there 	Greyson 1 s 	hours
were 	not 	great. 	For 	the 	eight 	months 	immediately 	preceding
February 	24 he 	worked 	only 	187 	hours, 	or 	about 	23 hours 	per
month.
146

Based 	on
	the 	foregoing,
	it
	is
	concluded
	that
	the
	Charging
Party
	has 	not
	shown
	that
	but
	for 	Greypon's
	protected
	conduct
	he
would
	have
	received
	on-call
hours
	after
	February 	24,
	1981.
While
	Egherman'
s
	"burning
	bridges"
	comment
	may
	show
	an
	unlawful
motive
	and
	may
	well
	have 	been 	viewed
	as
	an
	independent
violation
	if
	filed
	•timely, 	Johnson
	in
	effect
	ignored
	it
	with
respect
	to.his 	efforts
	to
	hire
	Greyson.
	The
	real
	reasons
Greyson
	was
	not
	hired
	have 	been
	described
	above.
	To
	summarize,
Johnson
	tried
	to
	hire
	Greyson,
	but
	Greyson
	was
	not
	available,
they
	could 	not
	make
	contact, 	or 	there
	was
	no
	work.
	Moreover,
given
	his
	work
	record
	with
	respect 	to
	total
hours,
	it
	was
	not
out
	of
	the 	ordinary 	for
	Greyson
	not
	to
	be
	called
	in
	by
	Bailey
or
	Hubbs.
V.
	Andre
	Johnson
The
	Charging
	Party here
	argues
	that
	Johnson,
	a
	supervisor,
was
	laid 	off
	and
	then 	denied
	on-call
hours
	because 	he
	refused
to
	carry
	out
	Egherman's 	unlawful
	directives
	to
	retaliate
	and/or
discriminate 	against
	Kelly 	and 	Greyson.
	The
	Charging
	Party
points 	to 	State
	of
	California,
	Department
	of 	Health 	(1/10/79)
PERB
	Decision
	No.
	86-S and
	State 	of
	California,
	Department
	of
Forestry, 	supra,
	PERB
	Decision
	No.
	119-S,
	and
	correctly 	asserts
that
	an 	employer's
	retaliatory
	conduct
	against
	a
	supervisor
that
	has 	an 	adverse 	impact 	on
	the 	protected 	rights 	of
non-supervisory
	employees
	may
be 	challenged 	via 	the
	unfair
practice 	route.
	The
	Charging 	Party
	would
	thus 	conclude
	that
147

Johnson's 	layoff 	was 	an 	illegal 	retaliation 	and 	employees
viewed 	it 	as 	such.
It 	has 	been 	found 	that 	Greyson 	and 	Kelly 	engaged 	in 	a
limited 	amount 	of 	protected 	activity. 	It 	has 	also been 	found
that 	Egherman 	at 	some 	point 	told 	Johnson 	that 	Kelly 	was 	a
troublemaker 	and he 	suggested 	Johnson 	would be 	well 	advised 	not
to 	hire 	Kelly. 	Egherman 	responded 	to 	Greyson's 	February 	23
letter, 	which 	I 	have 	found 	to be 	protected, 	with 	the 	"burned
bridges" 	response, 	and 	he 	told 	Johnson 	that 	he 	wanted 	to 	meet
with 	Greyson before 	Johnson 	offered him 	any 	more 	work. 	After
each 	of 	these 	episodes, 	Johnson 	ignored 	Egherman. 	He 	continued
to hire 	Kelly, 	and 	he 	made 	attempts 	to hire 	Greyson, 	but 	he 	was
unsuccessful. 	Thereafter, 	on 	July 	1, 	1981, 	Johnson 	was 	laid
off, 	and 	for 	at 	least 	two 	months, 	not 	called 	in 	on 	an 	on-call
basis. 	Since 	these 	circumstances 	present 	sufficient 	evidence
from 	which 	an 	unlawful 	motive 	may be 	inferred, 	I 	conclude 	that
a 	prima 	facie 	case 	has 	been 	presented.
However, 	when 	one 	looks 	at 	the 	circumstances 	surrounding
the 	layoff, 	the 	Charging 	Party's 	case 	completely 	evaporates.
The 	Charging 	Party 	first 	argues 	that 	the 	layoffs 	were
implemented 	in 	violation 	of 	the 	SPP 	and 	that 	there 	were 	no
satisfactory business 	reasons 	for 	the 	layoff. 	As 	has 	been 	more
fully 	explained 	above, 	there 	were 	ample 	reasons 	for 	the
layoff. 	The 	Museum 	was 	facing 	a 	huge 	deficit 	and 	the 	budget
needed 	to 	be 	cut 	drastically. 	That 	was 	the 	real 	reason 	for 	the
148

layoff,
	not
	an
	attempt
	to
	retaliate
	against
	Johnpon.
In
	addition,
	it
	has
	been
	determined
	that
	the
	layoff
decision
	was
	implemented
	in
	accordance 	with 	the 	requirements 	in
SPP
	section
	760.
	Two
	other 	career
	employees
	in 	the
	shop
department
	were
	also 	laid 	off,
	and 	Ross,
	the
	chief 	curator,
	met
with 	the
	same
	fate.·
	The
	shop
	department
	was
	eliminated 	as
	part
of
	the
	reorganization.
	Cuts
	were
	made
	in 	administration,
curatorial,
	and
	the
	Pacific
	Film
	Archives.
	As
	Egherman
persuasively
	testified,
	the
	whole
	structure
	and
	character
	of
the
	Museum
had
	to
	be 	changed
	because
	of 	the
	dire 	financial
conditions 	that 	existed.
	These 	were
	the
	real
	reasons
	for
Andre
	Johnson's
	layoff.
	In
	my
	view,
	to
	suggest
	that,
	but 	for
his
	so-called
	support
	or 	protection 	of
	Greyson
	or 	Kelly,
Johnson
	would
	not
	have 	been
	laid 	off 	is
	nothing
	more
	than
	an
exercise
	in
	self-delusion.
Furthermore, 	the
	blame
	for
	Johnson 	not 	being
	called 	in 	for
on-call
	work
	in
	July
	and 	August
	is 	appropriately
	placed
	on
	his
own
	doorstep.
	Based
	on
	the 	record 	evidence,
	I
	conclude
	that 	at
the
	time
	of 	the
	layoffs
	Hubbs
	and
	Egherman 	were
	justifiably
under 	the 	impression
	that
	Johnson
	was
	not
	interested
	in
receiving 	on-call
	work. 	This 	conclusion
	rests
	on 	two
	reasons.
First,
	based
	on
	his
	own
	statements 	to 	the
	effect 	that
	he 	wanted
to
	spend
	some
	free 	time,
	collect
	unemployment
	compensation
	and
pursue 	other 	interests, 	practically
	every 	worker 	in 	the
	Museum
who
	testified 	also
	had 	tne
	same
	impression 	(from 	Johnson
149

directly)
	as 	did
	Hubbs
	and
	Egherman.
	It 	is 	diffcult
	to
	ignore
such
	overwhelming
	testimony.63	
Second, 	Johnson
	himself
testified
	that
	he
	wanted
	the
	work
	only
	if
	it
	did
	not
	jeopardize
his
	rehire 	rights,
	and
	he
	told
	this
	to
	Hubbs
	at
	the 	time.
	He
again
	cited 	this
	"problem"
	to
	Hubbs
	in
	September
	when
	she
called
	him
	after
	the 	grievance
	was
	filed.
	Johnson
	did
	not 	find
out
	that
	apcepting
	on-call
	hours
	would
	not 	jeopardize
	his
rehire 	rights
	until
	mid
	to
	late
	July
	or
	early
	August.
	And
	it
wasn't
	until 	late
	August
	that
	CSEA
contacted
	Egherman
	and
	told
him
	that
	Johnson
	was
	interested
	in
	working.
	The
	logical
inference 	to
	draw
	from
	this 	is 	that
	Johnson,
	in
	fact, 	did
	not
want
	to
	commit
	to
	accepting
	on-call
	hours
	until
	his 	rehire
rights
	were
	finally
	determined.
	When
	this
	was
	done 	and
	he
learned
	he 	could
	accept 	the
	hours 	without 	jeopardizing 	these
rights,
	he
	contacted
	Egherman
	through
	CSEA
and
	told
	him
	for 	the
first
	time
	that
	he 	wanted
	to
	work. 	Moreover,
	Hubbs
	credibly
testified
	that
	when
	she
	confronted
	Johnson 	about 	the
	fact 	that
he
	had
	told 	her
	earlier
	that
	he
	did 	not
	want
	the 	hours, 	Johnson
said
	he
	changed
his
	mind
	and
	indicated 	that 	other 	personal
problems 	had 	accounted 	for
	his
	earlier
	statement.
Giving 	Johnson
	the
	benefit
	of 	the 	doubt,
	it
	is 	possible
63As
	fully 	set 	forth 	in 	fn.
	30,
	supra, 	each 	of 	these
witnesses
	testified
	about
	a
	different 	story
	they had
	heard
	from
Johnson 	about
	his 	plans 	for 	the 	future.
	I
	find
	it
	extremely
unlikely 	that
	seven 	witnesses
	would
	all
	manufacture 	such
detailed 	facts 	about 	Johnson's 	future.
150

not
	that
	he
	never
	intended
	to
	leave 	the 	impressions
	that
	he
	did
want
	to
	work
	on-call
	hours
	after
	the
	layoffs.
	Nevertheless,
the
	evidence
	is
	overwhelming
	that 	his
	statements
	at
	the
	time
were 	such
	that
	any
	reasonable 	person
	would
	justifiably
have
formed
	the
	impression
	that
	he
	did 	not
	want
	to
	work,
	and
	this
	is
precisely
	what
	Hubbs
	and
	Egherman
	thought
	at
	the 	time.
Therefore,.
it
	is
	concluded
	that
	Johnson's
	own
	conduct
	and/or
statements
	were
	the
	real
	reasons 	for
	his
	not 	being
	called 	to
work
	after
	the
	layoff.
A
	further
	observation
	adds
	to
	this
	finding. 	After
observing
	all
	the 	witnesses
	and
	reviewing 	the
	record,
	it
	is
	my
sense
	that
	Johnson
	was
	an
	employee
	who
	was
	well
	liked
	by
Egherman,
	Hubbs
	and
	Bailey.
	While
	these 	three
	had
	their
problems 	with
	Wong
	and
	Kelly,
	no
	such 	problems
	existed
	with
Johnson.
	They 	were
	more
	than
	willing 	to
	work
	with
him
	and, 	in
fact,
	would
	have 	enjoyed having
	him 	on
	staff.
Nor
	does
	Johnson's 	treatment 	as
	an
	on-call
	employee
	support
the
	Charging
	Party's
	claim 	of
	retaliation.
	By
	the
	time 	he
	was
finally
	hired
	as 	an
	on-call
	employee,
	the
	crew had
	already
	been
picked 	for 	the
	daVinci
	exhibit
	and 	Clausen
	and
	Beecroft,
Johnson's
	former
	subordinates,
	had
	already
	been 	picked 	as
leadpersons 	for 	the
	crew. 	Thus,
	it
	was
	not 	unusual
	that
Johnson 	found
	himself 	in 	the
	position 	of 	taking 	orders
	from
employees 	he 	supervised 	in 	the 	past,
	and 	working 	fewer
	hours
than 	these 	employees 	during 	this 	period.
	That 	Johnson 	was
151

upset 	and 	even hostile 	at 	this 	situation 	is 	perfectly
understandable. 	He 	was 	placed 	in 	the 	embarrassing 	situation 	of
taking 	direction 	from 	those 	whom he 	formerly 	supervised.
However, 	nothing 	could 	be 	done 	about 	it 	at 	this 	point. 	In
fact, 	it 	may have 	been disruptive 	of 	the 	work 	and 	would 	have
definitely 	been 	unfair 	to 	Beecroft 	and 	Clausen 	for 	Hubbs, 	at
such 	a 	late 	date 	during 	preparation 	for 	the 	major 	daVinci
exhibit, 	to 	unilaterally
. yank 	Beecroft 	and 	Clausen 	out 	of 	their
lead 	roles 	and 	insert 	Johnson 	in 	their 	place. 	As 	I 	have 	found
above, 	Johnson's 	own 	statements 	about 	his 	intentions 	after 	the
layoff 	were 	the 	real 	reasons 	he 	was 	not 	offered 	on-call hours
until 	September. 	It 	was 	this 	delay 	which 	put 	him 	in 	a 	role
subordinate 	to 	Beecroft 	and 	Clausen 	during 	the 	daVinci 	exhibit,
not 	an 	unlawful 	motive 	on 	Hubbs' 	part.64
Once he 	was 	hired, 	he 	naturally 	needed 	to 	be 	informed 	about
the 	proper 	chain 	of 	command 	and, 	under 	the 	circumstances, 	was
obligated 	to 	take 	direction 	from his 	former 	subordinates. 	Nor
were 	the 	orders 	from 	Beecroft 	and/or 	Clausen 	in 	and 	of
themselves 	discriminatory. 	Even 	Johnson 	admitted 	that 	everyone
took 	out 	trash. 	No 	concrete 	evidence 	was 	introduced 	to 	show
that, 	as 	a 	general 	rule, 	Johnson 	was 	given 	assignments
64Even 	if 	Hubbs 	had 	called 	Johnson 	to 	work 	on 	the 	exhibit
at 	the 	same 	time 	as 	she 	called 	Clausen 	and 	Beecroft, 	the
Charging 	Party has 	offered 	no 	argument 	that 	required 	Hubbs 	to
place 	Johnson 	in 	a 	leadperson 	role.
152

requiring 	less
	skill,
	or
	that
	he
	was
	isolated
	from
	other
employees. 	In
	fact,
	it
	is
	claimed
	by
	Charging
	Party
	that
	both
Johnson
	and
	Williams
	were
	isolated
	in 	the
	Museum.
	If 	this
	is
so,
	I
	fail
	to
	see
	how 	a
	discrimination
	theory
	can
	seriously
	be
pursued, 	since
	Williams
	engaged
	in
	no
	protected
	conduct,
	and
other
	employees,
	including 	Beecroft,
	worked
	along 	with
Johnson.
	Jam
	more
	convinced by
	Hubbs'
	testimony
	that
	it
	would
have
	been
	pointless 	to
	hire
	Johnson
	and
	Williams,
	and
	then
spend 	time
	scheming
	about
	how
	to
	isolate
	them 	from
	other
employees.65
To
	the
	extent
	that
	Johnson
	and
	Clausen
	or 	Beecroft
	had
unpleasant
	exchanges
	during
	this
	period, 	as 	for
	example
	during
the 	skylight 	incident,
	I
	conclude
	this
	was
	not
	surprising
	due
to
	Johnson's
	hostility
	and
	probable
	embarrassment 	about
	the
difficult
	position
	he
	was
	in,
	and
	not
	to
	any
	unlawful 	motive 	or
attempt 	to harrass
	him
because 	he
	refused 	to 	carry
	out
	illegal
acts
	against
	Kelly 	or
	Greyson,
	or 	because
	of
	any
	other
protected
	activity
	on
	his 	part.
Lastly,
	as
	I
	have
	already
	found,
	given 	the 	tenuous
relationship
	between 	Johnson 	and
	Beecroft,
	it
	is
	highly
65The 	work
	orders
	about 	which
	the
	Charging
	Partycomplains
	were
	given 	largely
	by Beecroft
	and
	Clausen,
	bothnon-supervisory 	employees. 	There 	has 	been
	no
	concrete 	evidenceproduced 	which 	would
	support 	the 	conclusion 	that
	Hubbs 	was
directly
	connected 	to 	these 	orders 	or 	the
	manner
	in
	which 	theywere
	given.
153

unlikely 	that
	she
	would
	approach 	Johnson
	and
	tell
	him
	not
	to
associate
	with
	Wong
	because
	of
	her
	union
	activities.
	Moreover,
it
	is
	not
	unlikely,
	given 	the
	size
	and
	closeness 	of 	the
	Museum
staff
	that
	Beecroft
	knew
	at
	the
	time
	that
	Johnson
	too
	had
	gone
to
	the 	union,
	making
	her
	comment
	about
	Wong
	even
	more
improbable. 	In
	my'view,
	it
	is
	more
	believable
	that
	Johnson
	and
Beecroft
	h~d
	a
	conversation
	at
	some
	point
	and
	Beecroft
	told
him,
	in 	essence,
	that
	there 	are
	two
	sides 	to
	every
	story.
	And
even
	if
	Beecroft 	did 	suggest
	to
	Johnson
	to 	stay
	away
	from
	Wong
because
	of her
	union
	activities,
	it
	is
	nothing
	more
	than
	a
statement
	from
	one
	non-supervisory
	employee
	to 	another.
	As
such,
	it
	has
	little
	or
	no
	bearing
	on
	this
	case 	in 	the
	absence
of
	some
	evidence
	that
	Hubbs
	or
	some
	other
	management
	person
	was
somehow
	connected
	to
	the 	statement.
VI. 	Processing 	Grievances.
The
	Charging
	Party here 	argues
	that
	the
	failure 	to 	properly
process
	many
	grievances
	filed
	by
	the 	discriminatees
	constitutes
a
	form
	of 	discrimination 	and/or 	evidence
	from 	which 	an
	unlawful
motive 	can be
	inferred.
	Before 	approaching
	this 	issue,
	it
	is
noted
	that,
	as
	a
	general 	rule,
	it
	is
	not 	unusual 	for 	the
employer
	to 	take
	a 	more
	narrow
	reading 	of
	its
	regulations,
grievance 	procedures, 	or 	other
	documents 	which
	purport 	to
govern
	employment
	relations,
	seeking
	to 	preserve 	the
	most
	in
the
	way
	of
	management
	options.
	By
	contrast,
	it
	is
	not 	unusual
for 	the 	union 	to 	take 	the 	most
	expansive
	interpretation 	of 	such
154 	.

documents, 	seeking 	to 	gain 	the 	maximum protections 	for 	its
members. 	Sometimes 	the 	employer 	prevails; 	sometimes 	the 	union
prevails. 	It 	would 	be 	unrealistic 	to 	attribute 	an 	unlawful
motive 	to 	the 	employer 	simply because 	it 	took 	a 	position 	in
which 	it 	opposed 	the 	union. 	In 	my 	view, 	the 	inference 	of 	an
unlawful 	motive 	should 	be 	reserved 	for 	situations 	during
grievance 	processing 	where 	the 	employer 	stakes 	out 	positions
which 	are 	not 	even 	arguable, 	or 	where 	a 	clear 	pattern 	of
obstructionist 	conduct 	emerges. 	The 	employer 	cannot 	be
criticized 	for 	taking 	arguably 	correct 	positions. 	It 	is 	from
this 	viewpoint 	that 	I 	will 	approach 	the 	grievances 	at 	issue
here.
1. 	Wong's 	Grievances.
Setting 	forth 	no 	argument, 	Charging 	Party 	summarily 	asserts
in 	its 	brief 	that,
. 	there 	is 	no 	need 	for 	argument 	her
[sic] 	since 	a 	careful 	reading 	of 	[the
grievances 	and 	their 	attachments] 	will 	show
a 	failure 	to 	properly 	process 	these
grievances.
I 	disagree.
The 	grievances 	at 	issue 	are 	those 	relating 	to: 	(1) 	the
June 	12, 	1981 	"specifications" 	memo; 	(2) 	the 	July 	16 	and 	20,
1981 	memos 	regarding 	keys; 	(3) 	the 	July 	14, 	1981 	layoff; 	(4)the
July 	20, 	1981 	"banning" 	memo; 	and 	(5) 	the 	July 	20 	and 	21, 	1982
lighting 	files 	and 	Xerox 	memos. 	The 	Charging 	Party does 	not
contest 	the 	processing 	of 	grievances 	concerning: 	{l) 	the
155

July
	31,
	1981
	file-copying
	memo
	or
	(2)
	the
	September 	2,
	1981
suspension.
	The
	contested
	grievances
	will
	be
	considered 	in
order.
The
	University
	would
	not 	process 	the 	grievance
	challenging
the
	June
	12
	"specifications"
	memo
	under
	SPP
	section
	280
because,
	in
	its
	view,
	the
	memo
	did 	not
	constitute 	"corrective
action
	with
	the
	meaning
	of
	the
	SPP.
11
66	
Instead, 	the
University
	agreed
	to
	review
	the 	matter
	under
	SPP
section
	290.67
665pp
	section
	280
	covers
	Employee
	Grievances.
Section
	280.2
	states,
	in 	relevant
	part:
An
	individual
	employee
	may
	request
	resolution
under
	this
	policy
	of 	complaints
	pertaining
to:
a.
	the
	corrective 	actions 	of
	temporary
	or
indefinite
	within-range
	salarydecrease,
	demotion,
	suspension 	withoutpay,
	and
	written
	warnings
	pertaining 	to
such
	actions 	(note: 	complaints
regarding 	other 	unspecified 	corrective
actions
	and
	the 	written
	warnings
pertaining 	to
	such
	actions 	are
	reviewed
under
	Staff
	Personnel 	Policy
	290);
	.
The
	term
	corrective 	action
	is
	more
	broadly 	defined
	in.
SPP
section
	270.5:
Types
	of 	Corrective 	Action. 	Corrective
actions 	include 	written
	warning; 	tempor~ry
or
	indefinite
	within-range 	salary 	decrease;
corrective
	demotion; 	suspension 	without 	pay;
or 	other 	action
	deemed
	appropriate
	under
	the
circumstances.
67The
	scope 	of
	SPP
	section
	290
	is 	set 	forth 	atsection
	290.2:
156

A
reading 	of 	the
	plain
	language
	in
	the
	SPP
	arguably
supports
	the
	University's 	position 	that
	the
	June
	12
	letter
	was
not
	corrective 	action
	as
	that
	term
	is
	defined
	by
section
	280.2.
	While
	section
	270.5
	contains
	a
	broader
definition,
	section
	280.2
	appears
	to
	more
	narrowly
	define
	that
term.
	Thus,
	for
	a·memo
	to
	be
	considered
	corrective 	action
under 	sec~ion
	280.2,
	it
	appears
	that
	it
	must
	pertain
	to
	one
	of
the
	expressly
	enumerated 	items
	in
	that 	section.
	The
	June
	12
letter
	does
	not
	pertain 	to
	any
	of
	the
	enumerated 	items 	and
therefore
	arguably
	would
	not
	fall
	within 	the
	section
	280
definition
	of 	corrective 	action.
	It
	might 	be
	argued
	that
	the
June
	12
	letter
	pertained 	to
	the
	enumerated 	item
	"suspension
without 	pay."
	However,
	since
	the 	evidence
	showed
	there
	was
An
	individual
	employee
	may
	request
resolution
	under
	this
	policy 	of
	any
complaint 	regarding
	a
	specific
	management
action
	which
	adversely
	affects
	the
employee
I s
	terms 	and
·conditions 	of
employment. 	These
	complaints 	include but
are
	not
	limited 	to
	those 	regarding:
a. 	selection
	for
	transfer
	or 	promotion;
b. 	position 	classification;
c.	
merit 	salary 	increase 	or 	other 	salary
action;
d. 	the 	content 	of
	a
	performance
	evaluation;and,
e. 	release 	prior 	to 	attaining 	regular
status 	or 	prior 	to 	the
	first
	of 	the
month
	following 	thirteen 	consecutivemonths 	on 	pay
	status.
157

never
	an
	intent 	to
	suspend
	Wong
	for
	this
	incident,
	this
argument
	must
	fail.
During
	the 	course
	of 	the 	grievance 	the
	Charging
	Party
argued
	that
	the
	determination 	of
	grievability
	should
	be
	left
	to
the
	hearing
	officer,
	and
	not
	to
	any
	University
	official.
	While
section
	280.20
	arguably gives 	the 	hearing
	officer
	the
	authority
to
	do
	so,
	μnder
	the
	University's
	argument,
	which
	I
	find
	to
	be
far
	more
	convincing,
	that 	section
	is
	not
	directly
applicable.68	
More
	on
	point
	for 	our 	purposes
	here
	is
	SPP
section
	280.3,
	which
	expressly 	gives 	the 	personnel
	manager
	the
initial
	right
	to
	determine 	the
	scope
	of 	the
	procedure
	and
68gpp
	Section
	280.20
	provides
	that
	the 	decision-maker 	has
the
	authority 	to:
Responsibility
	and
	Authority 	of 	the
	Hearing
Committee
	or 	Officer.
	The
	Hearing
	Committee
or 	Officer
	shall:
a. 	Identify
	the 	grievance
	issues
	submitted
in 	the
	original, 	written
	grievance 	for
hearing;
b.	
conduct
	a
	hearing 	to
	determine 	the
facts
	and
	whether
	the
	management
	actiongrieved
	was
	in 	violation
	of
	Staff
Personnel 	Policy 	or 	the 	Chancellor's
implementing 	procedure
	or,
	if
	the
grievance 	involves
	corrective 	action 	or
dismissal,
	whether 	the
	management.
action
	was
	reasonable 	under 	the
circumstances;
	and
c.	
submit
	a
	hearing 	report, 	in 	writing, 	tothe 	Chancellor.
158

provides
	an
	appeal
	route
	if
	the
	grievant 	objects.69	
Since
this
	route
	was
	taken
	on
	many
	occasions
	in
	the
	processing 	of
Wong's
	grievances,
	and
	since
	the
	language
	in
	SPP
	section
	280.3
is
	clear,
	it
	is
	difficult
	to
	see
	how
	the
	Charging
	Party
	can
seriously
	argue
	that
	the
	University's 	actions
	were
	somehow
improper.
For
	the
	same
	reasons
	it
	is
	concluded
	that 	similar
University
	responses
	to
	Wong's
	grievances 	challenging, 	as
corrective 	actions,
	the 	July
	16 	and
	July
	20
	memos
	about
	keys,
were
	at
	least
	arguably
	correct
	and
	therefore
	do
	not
	constitute
reprisals
	for
	engaging
	in
	protected
	activity.
	Nor
	can 	an
unlawful
	motive 	be
	inferred
	based
	on
	the 	evidence
presentea.70	
Toby
	again
	informed
	Wong
	that
	she
	could
69section
	280.3
	states:
The
	Personnel
	Manager
	shall
	determine
whether
	a
	complaint
	is
	within 	the
	scope
	of
Staff
	Personnel 	Policy
	280
	or 	Staff
Personnel 	Policy
	290.
	An
	employee
	may
appeal 	the 	Personnel 	Manager's
	decision
	to
the 	Assistant
	Vice
	President-Staff
	and
Management
	Personnel
	who
	shall
	have
	final
responsibility
	for 	determining 	whether
	a
complaint
	is
	within 	the
	scope
	of
	this 	policy.
70tgnoring 	Toby's 	statement
	that
	these
	memos
	are 	not
corrective 	actions, 	the 	Charging
	Party 	during 	the 	grievance
procedure
	essenti~lly
	argued
	that
	grounds 	for 	c6rrective 	action
existed 	in 	the
	memos,
	and
	to 	the 	extent 	that
	the
	memos
	did 	not
fall
	within 	the 	section
	280.2
	definition
	they
	were
"defective."
	It
	appears
	that 	the 	Charging 	Party here 	actually
invites 	corrective 	action,
	a
	serious 	step, 	in 	the 	face 	of
University 	statements 	that 	the
	letters
	are 	not 	intended 	as
159

challenge 	these 	matters 	as 	corrective 	actions 	under 	the 	SPP
section 	290 	review 	process. 	A reprisal 	allegation 	remained,
and 	Toby 	informed 	Wong 	that 	she 	could 	grieve 	under 	SPP
section 	280 	only 	the 	claim 	that 	the 	July 	16 	key 	memo 	was 	a
reprisal 	for 	using 	the 	grievance 	procedure. 	However, 	Toby
correctly 	stated 	that 	this 	issue 	cannot 	be 	grieved
simultaneously 	under 	procedures 	of 	SPP 	sections 	280 	and 	290.71
On 	July 	14, 	1981, 	Wong 	filed 	another 	grievance 	under 	SPP
section 	280. 	This 	one 	alleged 	that: 	(1) 	the 	department 	had 	not
documented 	her 	layoff 	with 	lack 	of 	work 	or 	lack 	of 	funds 	as
required 	by 	the 	SPP; 	and 	on-call 	employees 	were 	being 	called 	to
do 	her 	work 	in 	violation 	of 	SPP 	section 	760.5; 	and 	(2) 	the
layoff 	constituted 	a 	further 	act 	in 	a 	series 	of 	punitive
actions, 	including 	the 	June 	12 	"specification" 	memo 	and 	the
negative 	June 	18 performance 	evaluation. 	As 	a 	remedy, 	Wong
requested 	that 	the 	June 	12 memo 	and 	the 	evaluation be 	removed
from 	her 	personnel 	file, 	and 	that 	the 	layoff 	be 	rescinded.
such. 	Certainly 	the 	University's 	decision 	to 	take 	steps 	short
of 	corrective 	action--when 	grounds 	to 	take 	corrective 	action
exist--cannot 	be 	construed 	as 	retaliatory.
7lspp 	Section 	290.3 	states:
An 	employee 	may 	elect 	to 	have 	a 	complaint
which 	qualifies 	for 	review 	under 	Staff
Personnel 	Policy 	280 	reviewed 	under 	this
policy. 	However, 	the 	same 	complaint 	shall
not 	be 	reviewed 	under 	both 	Staff 	Personnel
Policies 	280 	and 	290.
160

The 	University 	responded 	to 	the 	June 	12 	"specifications"
issue 	in 	the 	same 	way 	it 	had 	when 	this 	subject 	was 	grieved
earlier. 	With 	respect 	to 	the 	performance 	evaluation 	issue, 	the
University correctly 	responded 	that 	performance 	evaluations 	are
not 	grievable 	under 	SPP 	section 	280.72 	Regarding 	the 	layoff
issues, 	the 	University 	responded 	that 	Wong 	received her 	layoff
notice 	on May 	26, 	1981, 	and 	the 	grievance 	was 	filed 	on 	July 	14,
1981. 	Since 	SPP 	section 	280.9 	imposes 	a 	30-day 	statute 	of
limitations 	on 	grievances, 	Toby 	determined 	that 	the 	grievance,
to 	the 	extent 	it 	challenged 	the 	layoff, 	was 	untimely.73
After 	much 	communication 	and 	disagreement 	about 	the 	scope 	of
the 	grievance 	and 	the 	remedy, 	the 	University 	eventually 	agreed
to 	process 	the 	the 	grievance 	on 	the 	basis 	of 	alleged 	violations
of 	SPP 	sections 	760.1 	and 	760.S.74 	In 	other 	words, 	the 	issue
72spp 	Section 	280.2.d 	expressly 	excludes 	"evaluation 	of
performance. 11
735pp 	section 	280.9 	states, 	in 	relevant 	part, 	that 	the
grievance 	must 	be 	filed
••. 	within 	thirty 	calendar 	days 	after 	the
date 	on 	which 	the 	employee 	could be 	expected
to 	know 	of 	the 	event 	or 	action 	which 	gave
rise 	to 	the 	grievance 	or 	within 	thirty
calendar 	days 	after 	the 	date 	of 	the
separation, 	whichever 	occurs 	first.
(Emphasis 	added.)
74section 	760.1 	states:
The 	policy 	of 	the 	University 	to 	minimize 	the
effects 	of 	indefinite 	layoffs 	and 	reductions
in 	time 	of 	employees 	in 	career 	positions
161

accepted 	into 	the 	grievance 	procedure 	was 	whether 	the 	Museum
violated 	SPP 	section 	760 	by 	employing 	on-call 	workers 	to
perform 	tasks 	Wong 	could have 	performed.
Next, 	Wong 	filed 	a 	grievance, 	under 	both 	SPP 	sections 	280
and 	290, 	challenging 	the 	action 	which banned her 	from 	the
Museum before 	8:30 ·a.m. 	on 	July 	20, 	1981. 	As 	a 	remedy, 	she
sought 	equ~l 	access 	to 	the 	Museum.
Once 	again, 	exercising 	the 	SPP 	section 	280.3 	authority,
Toby 	responded 	that 	this 	memo did 	not 	constitute 	corrective
action 	under 	SPP 	section 	280.2. 	Therefore, 	it 	was 	not
grievable 	as 	such. 	Also, 	as 	Toby 	correctly 	pointed 	out, 	the
grievance 	could 	not 	be 	processed 	under_ both 	the 	section 	280 	and
the 	section 	290 	procedure.75 	Eventually, 	the 	University
when 	layoffs 	or 	reductions 	in 	time 	are
necessitated 	by 	lack 	of 	funds 	or 	lack 	of
work. 	To 	minimize 	the 	effects 	of 	layoff,
the 	University 	shall 	give 	employees
preferential 	opportunities 	for 	reassignment
or 	transfer 	prior 	to 	layoff, 	the 	right 	to 	be
recalled 	to 	the 	department 	from 	which 	laid
off, 	and 	preference 	for 	reemployment 	in all
departments 	of 	the 	campus 	or 	Laboratory.
Section 	760.5 	is 	set 	forth 	at 	page 	106, 	supra.
75spp 	section 	280.2 	states:
An 	employee 	may 	elect 	to 	have 	a 	complaint
which 	qualifies 	for 	review 	under 	this 	policy
reviewed 	under 	Staff 	Personnel 	Policy 	290.
However, 	the 	same 	complaint 	shall 	not 	be
reviewed 	under 	both 	Staff 	Personnel 	Policies
280 	and 	290.
162

agreed 	to 	process 	the 	grievance 	to 	consider 	the 	issue 	of
whether 	the 	memo 	was 	a 	reprisal 	for 	the 	exercise 	of 	section 	280
or 	290 	rights. 	The 	University 	maintained, 	however, 	that 	the
arbitrator's 	remedial 	authority was 	limited 	to 	a 	determination
that 	the 	banning 	memo 	be 	"reappraised 	without 	reprisal. 11 76
It 	was 	the 	University 	position 	that, 	under 	SPP 	section 	280.27,
since 	Wong.did 	not 	lose 	any 	"pay, 	benefits, 	or 	rights 11 	as 	a
result 	of 	the 	action, 	the 	arbitrator 	was 	powerless 	to 	make 	an
award 	beyond 	the 	reappraisal 	remedy. 	It 	cannot 	be 	said 	that
this 	interpretation 	of 	SPP 	section 	280.27 	is 	totally 	without
merit. 	Moreover, 	since 	the 	banning 	memo 	applied 	to 	only 	one
day 	which had 	long 	passed, 	one 	must 	strain 	to 	fashion 	an
appropriate 	remedy 	regarding 	Wong's 	access 	in 	the 	future. 	In
any 	event, 	presumably 	the 	Charging 	Party 	was 	free 	to 	argue 	for
another 	remedy 	at 	the 	hearing 	and 	the 	arbitrator 	was 	free 	to
consider 	the 	argument.
Wong's 	grievance 	challenging 	the 	July 	20, 	1981 	memo 	about
76The 	remedial 	authority 	of 	arbitrator 	is 	set 	forth 	at
SPP 	section 	280.27:
Remedy. 	If 	the 	management 	action 	grieved 	is
determined 	to be 	in 	violation 	of 	Staff
Personnel 	Policy .or 	the 	Chancellor's 	.
implementing 	procedure 	or 	if 	the 	corrective
action 	or 	dismissal 	is 	determined 	not 	to be
reasonable 	under 	the 	circumstances, 	the
remedy 	shall 	not 	exceed 	restoring 	to 	the
employee 	the 	pay, 	benefits, 	or 	rights 	lost
as 	a 	result 	of 	the 	action, 	less 	any 	income
earned 	from 	any 	other 	employment.
163

possession
	of
	lighting
	files
	was
	accepted
	by
	the
	University
under
	the
	SPP
	section
	280
	grievance 	procedure.
	Aside
	from
	the
substance 	of 	the
	memo,
	the
	reprisal
	aspect
	was
	also
	accepted 	as
grievable.
	However, 	Toby
	again
	correctly
	refused
	to 	accept
this
	grievance
	under
	SPP
	section
	290
	because
	of 	the
section
	280.2
	prohibition 	against
	processing 	the
	same
	claim
under
	both.
procedures.
Wong's
	related
	grievance 	challenging
	the
	July
	21,
	1981
	memo
about
	use
	of 	the
	Xerox
	machine
	was
	rejected
	as
	a 	SPP
section
	280
	grievance 	because,
	once
	again,
	it
	was
	found
	that
	it
did
	not
	constitute 	corrective 	action
	as
	that
	term
	is
	defined
	in
section
	280.2.a.
	Wong
	was
	advised
	that
	she
	could
	pursue
	this
complaint
	under
	SPP
	section
	290.
	Further, 	the
	July
	21 	memo
	was
accepted
	under
	SPP
	section
	280
	for 	the 	sole
	purpose
	of
determining
	whether
	it
	was
	issued 	as
	a
	reprisal
	for 	the
exercise
	of
	section
	280
	and/or
	290
	rights.
	As
	with
	the
	banning
memo
	grievance, 	the 	University 	asserted 	that
	the
	arbitrator
	did
not
	have 	the
	authority 	to 	order 	the
	Xerox 	machine
	memo
	removed
from 	Wong's
	personnel
	file.
	Although
	the
	validity
	of
	this
position
	may
	be 	questioned,
	it
	was
	not
	totally
	unreasonable
and, 	as
	stated,
	the 	Charging
	Party 	could 	always 	argue
	its
position
	on 	remedy
	to 	the
	arbitrator.
2.
	Kelly's 	Grievances.
Under
	SPP
	Sections
	280 	and 	290,
	Kelly 	grieved 	the 	so-called
"banning"
	memo
	of 	July
	20, 	and
	the 	denial 	of 	on-call 	hours.
	As
164

a
	remedy,
	this
	grievance, 	as
	amended,
	sought
	a
	statement
	from
management
	that
	Kelly
	had
	the
	same
	right
	of 	access 	as
	other
employees.
	The
	remedy
	also
	sought
	the 	scheduling
	of 	future
on-call
	hours,
	and
	back
	pay
	for
	hours 	unlawfully denied.
The
	grievance
	was
	initially
	rejected
	by
	Toby
because:
(1)
	SPP
	section
	290.3
	prohibits
	a
	grievance
	from
	being 	heard
under
	both.
SPP
	section
	280
	and
	290:
	(
2)
	the
	"banning"
	memo
	was
not
11
corrective
	action"
	under
	SPP
	section
	280.2.a:
	(3)
	the
right
	of 	access 	statement 	as
	a
	remedy
	was
	"tnappropriate,"
	and,
in
	any
	event, 	the
	hours 	Kelly
	was
	allegedly
	banned
	were
non-work
	hours;
	and 	(4)
	under
	SPP
	section
	280.27
	the
	requested
remedy
	(scheduling 	hours)
	is
	beyond
	the
	authority
	of 	the
arbitrator,
	since
	under
	that 	section
	the
	arbitrator 	is
	limited
to 	"restoring.
	the
	pay,
	benefits, 	or
	rights
	lost.
11
Apparently,
	it
	was
	the
	University's 	position 	that
	.the
arbitrator
	had
	no
	authority 	to 	order 	the
	Museum
	to
	schedule
hours 	for 	Kelly 	in 	the
	future.
As
	with
	the
	arguments
	raised
	during
	Wong's
	grievances, 	the
University's 	positions
	taken 	during 	the 	Kelly 	grievance
	are
well-grounded 	in 	the
	SPP.
	To
	the 	extent 	that
	a
	legitimate
dispute 	existed
	with
	respect 	to
	the
	remedy,
	Kelly
	was
	free 	to
argue
	his 	position 	to 	the 	decision-maker.
Toby's 	response
	was
	appealed
	to
	systemwide
	representatives,
and
	a
	lengthy 	appeal 	process 	began. 	After
	much
	disagreement
and 	months
	of 	written
	communications between 	the 	parties, 	the
165

grievance
	was
	accepted
	by
	the
	UniversitY,.
	The
	question 	thus
arises
	as
	to
	whether
	an
	unlawful
	motive 	should
	be
	inferred
	from
this
	long
	delay.
While
	it
	is 	true
	that
	an
	unlawful
	motive
	may
	be
	inferred
from
	the
	outright 	failure
	or
	refusal
	to
	process 	grievances,
that
	is
	not
	what
	happened
	here.
	The
	University
	did 	not
	fail
	or
refuse 	to
	process
	Kelly's
	grievance.
	It
	simply 	took
	positions
different
	from
	those 	taken
	by
	Kelly.
	These
	differences
req~ired
	Kelly
	to
	take 	the 	not 	unusual
	steps 	of
	appealing
through
	established
	procedures
	to higher
	levels
	in 	the
systemwide
	hierarchy.
	The
	grievance
	was
	eventually 	accepted.
Another 	reason 	for 	the 	delay 	in
	getting
	the 	grievances
accepted, 	in 	addition 	to
	the
	time-consuming
	appellate 	process,
was
	the
	number
	and
	complexity
	of 	the 	grievances
	pending
	at
	the
time.
	The
	delay
	was
	not, 	in
	my
	view,
	due
	to
	an
	unlawful 	motive
or
	an
	attempt 	to
	retaliate
	against
	the
	grievants 	for
	protected
conduct.
3.
	Johnson's 	Grievances.
On
	September
	2,
	1981, 	Johnson
	filed
	a
	grievance
	alleging
that:
	(1) 	he
	was
	laid 	off
	on
	July
	1, 	1981,
	in 	violation 	of
	SPP
section
	760; 	(2)
	after
	the 	layoff
	he
	was
	not
	called 	to
	work
while
	less
	experienced
	employees 	were; 	and 	(3)
	these
above-named
	actions
	were
	reprisals
	for 	supporting 	Kelly 	and
Greyson 	in 	their 	conflicts
	with
	UAM
	management 	and
	for
166

participating
	in 	the 	grievance 	procedure.77	
As 	a
	remedy,
Johnson 	sought
	reinstatement
	to
his
	former
	position.
The
	Museum
	took
	the
	position, 	correctly, 	that
	Johnson
received
	his
	layoff 	notice
	on
	May
	26,
	1981;
	since 	grievances
must
	be
	filed
	within
	30
	days 	under
	SPP
	section
	280.9,
	that
	part
of
	the 	grievance
	that
	challenges 	the
	layoff 	decision
	was
untimely
..
Further,
	the 	grievance
	would
	have 	been
	untimely
	even
if
	the
	30-day
	period
	wa~
	calculated
	beginning
	on
	July
	1,
	1981,
the
	day
	the
	layoff
	became
	effective.
The
	Museum
	informed 	Johnson
	that, 	to
	the
	extent
	his
grievance
	argued
	for
	recall 	rights
	to
	casual
	employment,
	there
existed
	no
	right
	under
	the
	SPP
	to
	be
	recalled 	to
	a
	casual
position.
	And,
	to
	the
	extent
	his
	grievance
	argued 	for
	recall
to
	a
	career
	position,
	Johnson
	was
	informed
	that,
	due
	to 	the
layoff,
	there
	were 	no
	vacant
	career 	positions 	in
	the
	Museum
	for
which he
	was
	qualified.78
77The
	August 	25, 	1981, 	meeting 	with
	management 	where
Johnson
	was
	represented
	by
	CSEA
	is
	viewed
	as
	an
	informal 	stage
of
	the 	grievance 	procedure.
78rn
	support 	of
	this 	position, 	the
	Museum
	cited
	SPP
sections
	760.1 	and
	760.14. 	Section
	760.1
	is 	set 	forth
	at
footnote
	74,
	supra. 	Section
	760.14
	states:
Right
	to
	Recall
	to
	Layoff 	Department.
	A
regular 	status
	employee
	who
	is
	separated 	or
whose
	time
	is
	reduced 	because 	of 	indefinite
layoff 	shall
	be
	recalled 	in 	order 	of
seniority 	into
	any
	active
	and 	vacant 	career
position 	for
	which
	the
	employee
	is 	qualified
167

Next,
	regarding
	denial 	of
	on-call
	hours, 	the
	University
took 	the
	position
	that
	the
	denial
	did 	not
	violate
	SPP
section
	760.5.
	There
	seems
	to
	be
	an
	arguable
	position
	on
	the
merits
	of 	the 	grievance, 	but
	I 	am
	unable
	to
	find
	any
	authority
in
	the
	SPP
	for 	the
	University's 	assertion 	that
	the
	alleged
violation 	is
	not
	grievable
	under
	section
	280.
	Nor
	does
	this
part
	of 	the 	grievance
	appear
	to
	be
	time-barred
	under
	SPP
section
	280.9,
	assuming,
	as 	the
	Charging
	Party
.
argued,
	Johnson
didn't
	learn 	of
	the
	violation
	(i.e.,
	that 	less
	experienced
workers
	were
	being
	called
	in)
	until
	August
	12,
	1981.
	However,
in
	view
	of 	the
	University's 	overall
	record 	with
	respect
	to
processing 	the
	large
	number
	of 	grievances 	in
	this
	case,
	along
with
	its
	underlying 	reason 	for
	not
	calling
	Johnson
	to	
work	
in
July
	and 	August 	1981,
	I
	decline 	to
	infer
	an
	unlawful 	motive
from
	the
	fact 	that
	it
	may
have
	taken
	unfounded
	positions
	on
these 	isolated 	issues.
Lastly, 	the 	University
	informed 	Johnson
	that
	it
	would
accept
	that 	part 	of 	the 	grievance
	which
	alleged
	reprisals
	for
participating
	in 	the 	informal 	steps 	of 	the 	grievance
procedure.
	However,
	the
	Museum
	stated 	that
	the
	appropriate
when
	the 	position 	is
	in 	the
	same
	class
	and
department
	and
	at
	the.same 	or
	lesser
percentage 	of 	time
	as 	the 	position 	held
	by
the
	employee
	at
	the 	time 	of 	layoff.
	Right
to 	recall 	is
	not 	extended 	to
	an 	employee
	who
has 	not
	attained 	regular 	status.
168

remedy
	was
	not, 	as
	Johnson
	sought,
	reinstatement
	to
	his
	former
position.
	Rather,
	the 	University
	asserted 	that
	the
	appropriate
remedy,
	in
	the 	event
	he
	prevailed,
	was
	to
	make
	Johnson
	whole
for
	those
	on-call
	jobs
	he
	lost
	since
	the
	August 	25,
	1981,
meeting
	as
	a
	result
	of
	reprisals.
Johnson
	filed
	a
	second
	grievance
	on
	October
	2, 	1981.
	He
complained.
that
	he
	had
	recently
	discovered
	a
	series
	of 	negative
letters
	in
	his
	personnel
	file,
	and
	under
	the
	SPP,
	they 	should
have
	been
	removed
	long
	ago.79	
The
	Charging
	Party here
asserts
	that
	the
	University 	re
fused
	to
	process
	this
	grievance.
The
	reason
	the 	grievance
	was
	not 	processed
	was
	that,
	after
requesting
	and
	apparently 	securing
	more
	specificity
	with
respect 	to 	the
	11
	letters,
	the 	University
	removed 	them 	from
Johnson's
	file.
Based
	on
	the 	foregoing,
	I 	am
	unable
	to 	infer
	an
	unlawful
motive
	from
	th.e
	manner
	in
	which
	the 	University
	responded
	to
	the
grievances
	filed
	by
	Wong,
	Kelly 	or 	Johnson. 	Although
	there
were
	many
	issues 	raised
	by
	these
	hotly 	contested 	grievances,
	in
almost
	all
	instances 	the
	University's
	responses
	were
	at 	least
arguable.
	In
	many
	other 	instances, 	the
	University's 	positions
were
	clearly 	correct.
	There
	were
	only
	a 	few
	examples,
	as 	noted
79According
	to 	the 	grievance, 	there
	were
	eleven
	letters
in 	Johnson's 	personnel
	file.
	Their 	dates
	ranged
	from
November 	5, 	1975
	to
	September 	23, 	1976. 	Obviously, 	they 	had
nothing 	to
	do
	with 	the 	instant 	case.
169

above, 	where 	the 	University 	took 	questionable 	positions. 	Given
the 	totality 	of 	the 	University's 	responses, 	it 	would 	be
patently 	unreasonable 	to 	infer 	an 	unlawful 	motive 	because 	on 	a
few 	occasions 	its 	position 	may 	have 	been 	erroneous. 	While 	the
grievants 	and 	CSEA may have 	preferred 	that 	the 	University 	take
a 	more 	conciliatory 	approach 	to 	these 	grievances, 	the 	fact 	that
it 	did 	not. simply does 	not 	translate 	to 	unlawful 	motive.
This 	reasoning 	applies 	as 	well 	to 	that 	part 	of 	the 	Charging
Party's 	case 	which 	claims 	the 	University's 	conduct 	during 	the
grievances 	constituted 	a 	form 	of 	discrimination. 	The 	Charging
Party 	produced 	no 	evidence 	about 	how 	the 	University 	processed
grievances 	filed 	by 	employees 	who 	had 	not 	engaged 	in 	any 	form
of 	protected 	activity. 	In 	the 	absence 	of 	such 	evidence, 	there
is 	absolutely 	no 	basis 	upon 	which 	a 	discrimination 	finding 	can
be 	made.
CONCLUSION
It 	has 	been 	found 	that 	the 	University denied 	Adrienne 	Wong
the 	right 	to 	a 	CSEA 	representative 	during 	the 	desk 	audit
conducted 	in 	conjunction 	with her 	reclassification 	appeal, 	a
significant 	employment-related 	matter. 	This 	conduct 	interfered
with Wong's 	right 	to be 	represented 	by 	an 	employee 	organization
of 	her 	choice. 	It 	also 	violated 	CSEA's 	right 	to 	represent 	one
of 	its 	members 	in 	an 	employment-related 	matter.
All 	other 	aspects 	of 	this 	unfair 	practice 	charge 	are 	hereby
dismissed.
170

REMEDY
Section
	3563.3
	gives
	PERB
	the
	following 	remedial 	powers:
The
	board
	shall
	have
	the
	power
	to 	issue
	a
decision
	and
	order
	directing
	an
	offending
party 	to
	cease
	and
	desist
	from
	the
	unfair
practice
	and
	to 	take
	such
	affirmative
action,
	including, 	but
	not
	limited
	to,
	the
reinstatement
	of
	employees
	with
	or 	without
back
	pay,
	·as
	will 	effectuate
	the
	policies
	of
this
	chapter.
It
	has 	been
	found
	that
	UAM
	unlawfully
	denied
	Wong
	the
	right
to
	be
	represented
	by 	an 	employee
	organization
	during
	a
	desk
audit
	connected
	to
	a
	reclassification
	attempt,
	clearly
	an
employment-related
	matter.
	This 	conduct
	also
	unlawfully
interfered
	with
	the
	employee
	organization's 	right
	to 	represent
its
	members.
	It 	is
	therefore 	appropriate 	to 	order 	the
	UAM
	to
cease
	and
	desist
	from
	this
	conduct.
It
	also
	is
	appropriate 	that
	the 	University
	be
	required
	to
post
	a
	notice 	incorporating 	the
	terms
	of 	the 	order.
	The
	notice
should
	be
	subscribed
	by 	an
	authorized
	agent 	of
	the'University
indicating 	that
	it
	will
	comply
	with
	the
	terms
	thereof.
	The
notice 	shall
	not
	be 	reduced
	in
	size.
	Posting
	such
	a
	notice
will
	provide
	employees 	with
	notice 	that
	the 	University 	has
acted 	in
	an
	unlawful
	manner 	and
	is
	being 	required 	to 	cease
	and
desist
	from
	this 	activity. 	It
	effectuates
	the
	P,Urposes
	of 	the
HEERA
	that
	employees 	be 	informed 	of 	the 	resolution 	of 	the
controversy
	and
	will
	announce
	the 	University's 	readiness 	to
comply 	with 	the 	ordered 	remedy. 	See
	Placerville
	Union 	School
171

District 	(9/18/78) 	PERB 	Decision 	No. 	69; 	Pandol 	and 	Sons 	v.
Agricultural 	Labor 	Relations 	Bd. 	(1979) 	98 	Cal.App.3d 	580, 	587;
NLRB 	v. 	Express 	Publishing 	Co. 	(1941) 	312 	U.S. 	426 	[8 	LRRM 	415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	section
3563.3, 	it- is 	hereby 	ordered 	that 	the 	University 	and 	its
representatives 	shall:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Interfering 	with 	employee 	rights 	to 	be
represented 	in 	employment-related 	matters 	by 	an 	employee
organization;
(b) 	Interfering 	with 	the 	right 	of 	an 	employee
organization 	to 	represent 	its 	members 	on 	employment-related'
matters.
2. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(a) 	Within 	five 	(5) 	workdays 	after 	this 	decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the 	NOTICE 	TO
EMPLOYEES 	attached 	as 	an 	appendix 	hereto, 	for 	at 	least 	thirty
(30) 	workdays 	in 	conspicuous 	places 	at 	the 	locations 	where
notices 	to 	UAM employees 	are 	customarily 	posted._ 	It 	must 	not
be 	reduced 	in 	size 	and 	reasonable 	steps 	should 	be 	taken 	to 	see
that 	it 	is 	not 	defaced, 	altered 	or 	covered 	by 	any 	material.
172

(b) 	Within 	twenty 	(20) 	workdays 	from 	service 	of 	the
final 	decision herein, 	give 	written 	notification 	to 	the
San 	Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	of 	the 	actions 	taken 	to 	comply 	with 	this
order. 	Continue 	to 	report 	in 	writing 	to 	the 	regional 	director
thereafter 	as 	directed. 	All 	reports 	to 	the 	regional 	director
shall 	be 	cpncurrently 	served 	on 	the 	Charging 	Party herein.
Pursuant 	to 	California 	Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on May 	1, 	1984, 	unless 	a 	party 	files 	a 	timely
statement 	of 	except ions. 	In 	accordance 	with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify by 	page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See 	California 	Administrative 	Code 	title 	8,
part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	at 	its 	headquarters 	office 	in
Sacramento before 	the 	close 	of 	business 	(5:00 	p.m.) 	on 	May 	l,
1984, 	or 	sent 	by 	telegraph 	or 	certified 	United 	States 	mail,
postmarked 	not 	later 	than 	the 	last 	day 	for 	filing 	in 	order 	to
be 	timely 	filed. 	See 	California 	Administrative 	Code, 	title 	8,
part 	III, 	section 	32135. 	Any 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently 	with 	its 	filing
upon 	each 	party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be
173

filed
	with
	the
	Board
	itself.
	See
	California
	Administrative
Code,
	title
	8,
	part
	III,
	sections
	32300
	and 	32305.
Dated:
	April
	11,
	1984
174
FRED
	D'ORAZI
Administrative
	Law
	Judge
FRED
	D'ORAZI
Administrative
	Law
	Judge

APPENDIX
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of 	the
	State
	of
	California
0
After
	a
	hearing 	in 	Unfair
	Practice
	Case
	No.
	SF-CE-84-H,
California
	State
	Employees
	Association
	v.
	Regents
	of 	the
Un1vers1ty 	of 	Cal1forn1a, 	in
	which
	all
	parties
	had
	the
	right
	to
part1c1pate,
	1t
	has
	been
	found
	that
	the 	University
	violated
Government
	Code
	sections
	357l(a)
	and 	(b)
.
.As 	a
	result
	of
	this
	conduct
	we
	have 	been
	ordered
	to 	post
this
	Notice,
	and
	will
	abide
	by
	the 	following.
	We
	will:
1.	
CEASE
	AND
	DESIST
	FROM:
(a)	
Interfering
	with
	employee
	rights
	to
	be
represented 	in
	employment-related
	matters
	by an 	employee
organization;
(b)	
Interfering
	with
	the
	right
	of
	an 	employee
organization 	to
	represent
	its
	members
	on
	employment-related
matters.
Dated:	
REGENTS 	OF
	THE
	UNIVERSITY
	OF
CALIFORNIA
By
Authorized
	Agent
THIS 	IS
	AN
	OFFICIAL 	NOTICE.
	IT
	MUST 	REMAIN 	POSTED 	FOR 	AT 	LEAST
THIRTY
	(30)
	WORKDAYS 	FROM 	THE 	DATE 	OF 	POSTING
	AND MUST 	NOT 	BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED 	OR 	COVERED 	BY ANY
	MATERIAL.