Regents of the University of California (San Francisco Medical Center) (PERB 0516H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL 	EMPLOYEES
LOCAL 1650,
Charging 	Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA 	(SAN FRANCISCO MEDICAL
CENTER),
Respondent.
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) 	Case No. 	SF-CE-143-H
PERB 	Decision No. 	516-H
August 	7, 	1985
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Appearances; 	Ellen Shaffer 	for American Federation of 	State,
County and Municipal 	Employees 	Local 	1650; 	Thomas 	E. 	Matteoli
for 	Regents 	of 	the 	University of 	California 	(San 	Francisco
Medical Center).
Before Jaeger, 	Morgenstern and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	by the
American 	Federation of 	State, 	County and Municipal 	Employees
Local 	1650 	(AFSCME) 	to the proposed decision, 	attached hereto,
of a PERB administrative 	law 	judge 	(ALJ) 	which dismisses 	the
charges 	against 	the 	Regents 	of 	the University of 	California 	(San
Francisco Medical Center) 	(University).
In the underlying charge, 	AFSCME alleged that 	the University
failed 	to grant 	casual 	status 	to an 	employee because of his 	union
activity. 	Based on the discussion which 	follows, 	we affirm the
ALJ's 	conclusion 	that AFSCME 	failed 	to prove 	its 	charge by a
preponderance of 	the 	evidence.
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FACTUAL 	SUMMARY
The 	statement 	of 	facts 	set 	forth 	in 	the ALJ's proposed
decision 	is 	free 	from prejudicial 	error, 	and we adopt 	it 	as 	the
findings 	of 	the 	Board 	itself.
To summarize the 	facts, 	the case 	involves 	the employment
status 	of 	Cory Silver, 	hired by the 	University 	in May 1979 	as 	a
staffing coordinator. 	As 	an employee, 	Silver was 	quick 	to offer
innovative 	and helpful 	solutions 	to 	staffing 	difficulties 	and
became an active member 	of AFSCME. 	Silver's 	union activity was
well known at 	the Medical 	Center, 	and his 	superiors 	were aware
of his 	union activity.
In the summer 	of 	1982, 	Silver was 	offered a supervisory
position at a nurses' 	registry outside 	the University.
According to Silver's 	version of 	the 	facts, 	he decided to accept
the 	outside position but hoped 	to continue his 	ties 	with 	the
University. 	Silver 	believed he 	could 	accomplish 	that 	by
switching 	from 	"career status" 	to 	"casual 	status" and working
part 	time 	for 	the 	University while he 	worked 	full 	time 	elsewhere.
Silver 	resigned his 	career 	"staffer" 	position and was 	not
rehired by the 	University 	in a casual 	status. 	The 	crux of
AFSCME's 	case 	is 	Silver's 	claim that his 	resignation was
contingent 	upon being 	rehired and 	that, 	because 	of his 	protected
activity, 	management 	falsely led him to believe 	that 	such a
conversion would 	occur 	and 	that 	the 	denial 	of his 	conversion was
contrary to past practice.
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DISCUSSION
AFSCME claims 	that 	the 	University refused 	to permit 	Silver 	to
change his 	employment 	status 	only because he 	engaged 	in protected
activity. 	The 	record 	fully supports 	the 	fact 	that 	Silver 	was 	a
spokesperson 	for his 	fellow employees, 	and was 	active 	in AFSCME
Local 	1650. 	Similarly, 	it 	is 	not disputed that management was
aware of his 	protected activity. 	The 	issues 	contested on appeal
concern 	the 	reasons 	why supervisors 	Gail 	Oakley and 	Sylvia Hinkle
would 	not permit 	Silver 	to 	convert 	from 	full-time 	status 	to
casual status.
In assessing both decisions, 	the Board must determine what
caused management 	to act 	the 	way 	it 	did 	and may 	look 	to 	various
indices 	of 	improper 	motive 	outlined by 	the 	Board 	in Novato
Unified School District 	(1982) 	PERB Decision No. 	210.
Considering all such factors, 	the ALJ found, 	and we agree, 	that
Oakley did 	not 	prevent 	Silver 	from converting his 	staffing
position 	from career 	to casual 	status 	because of 	the 	fact 	that
Silver 	engaged 	in protected activities.
The 	ALJ 	found 	from the 	weight 	of 	the 	evidence 	that 	Silver 	was
denied 	casual 	status 	by Oakley because 	she had no 	such openings
under her 	control 	and 	efforts 	were being made 	to hold positions
open because 	of 	impending 	layoffs. 	Although AFSCME takes 	issue
with 	the 	University's 	claim of 	impending layoffs, 	it does 	not
dispute 	the 	contention that 	there were no casual positions 	as
staff coordinator available 	in August 1982. 	Therefore, 	while
Oakley and 	other 	administrators 	may have 	erroneously 	relied 	on
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an administrative policy which was 	never 	adopted, 	given 	the 	fact
that 	Oakley could not have hired Silver as 	a casual 	employee, 	we
cannot conclude 	that, 	but 	for his protected activity, 	Silver
would have been able 	to convert 	to a 	casual 	staffer position. 	In
sum, 	Silver sought supervisory experience and, 	therefore, 	left
his position at 	the 	University. 	Although he 	engaged 	in union
activity, 	the motivational 	link 	to the University's 	failure 	to
offer him a casual position is 	absent. 	We, 	therefore, 	affirm
the ALJ's 	conclusion 	that 	Silver's 	protected 	activity played 	no
decisive 	role 	in Oakley's 	decision.
The ALJ also 	reviewed 	Silver's 	application 	for 	a 	float pool
position and Hinkle's 	decision 	in 	the 	spring of 	1983 	not 	to hire
Silver. 	The primary reason given by Hinkle was 	that, 	because of
Silver's 	full-time 	job elsewhere, 	he was 	not 	sufficiently
available 	for work, 	even in a 	float pool position. 	Hinkle also
had 	some 	difficulty with 	Silver's 	attitude 	toward his
application, 	i.e., 	that he was hopeful 	of 	transferring 	into
other positions 	and 	saw the 	float pool position merely as 	a way
of 	getting his 	foot 	in the door. 	The ALJ concluded 	that
Hinkle's 	decision 	appears 	justified 	and 	not 	based 	on 	unlawful
motivation. 	Again, 	we agree.
The 	critical point 	in AFSCME's 	case 	rests 	on 	its 	assertion
that 	Hinkle 	told 	Silver he 	could become 	a 	floater 	if he 	first
resigned his staffer position. 	Hinkle, 	however, 	denies giving
such an assurance. 	In the ALJ's 	opinion, 	Hinkle's 	testimony was
"straightforward," 	"believable," 	and she was 	"one of 	the most
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credible witnesses 	at 	the hearing." 	Based on his 	first-hand
observation of both Hinkle 	and 	Silver 	on 	the witness 	stand, 	the
ALJ credited Hinkle's 	testimony over 	Silver's 	when 	there was 	a
discrepancy. 	Thus, 	since 	the ALJ credits Hinkle's 	testimony
that she gave 	Silver no assurance of 	employment, 	we defer 	to the
ALJ's 	credibility determination. 	Santa 	Clara Unified 	School
District 	(1980) 	PERB Decision No. 	104a.
In sum, 	while we are 	convinced 	that 	Hinkle 	could have hired
Silver as a 	floater and had, 	in fact, 	accommodated other
employees 	in the past by giving 	them such a position, 	Silver 	was
not 	entitled 	to such a position 	either 	on 	the basis 	of 	University
policy or because 	of Hinkle's 	representations. 	The 	Board,
therefore, 	affirms 	the ALJ's decision.
Finally, 	we dismiss 	AFSCME's 	contention that 	the University
failed 	to provide 	it 	with an opportunity to meet 	and discuss 	the
administrative policy 	regarding 	casual 	status 	conversions.
Inasmuch as 	the 	record 	fails 	to establish 	that 	the University
officially adopted 	the policy or 	claimed 	that 	it 	reflected 	the
University's position, 	the Board affirms 	the ALJ's dismissal of
this 	allegation.
ORDER
Upon the 	foregoing findings 	of 	fact, 	conclusions 	of law, 	and
the entire record 	in this 	case, 	the unfair practice charge 	in
Case No. 	SF-CE-143-H is hereby DISMISSED.
Members 	Jaeger 	and 	Porter 	joined 	in 	this 	Decision.
5

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF 	STATE,
COUNTY 	& 	MUNICIPAL EMPLOYEES
LOCAL 	1650,
Charging Party,
v.
REGENTS 	OF THE 	UNIVERSITY OF
CALIFORNIA 	(SAN FRANCISCO MEDICAL
CENTER),
Respondent.
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) 	Unfair 	Practice
Case No. 	SF-CE-143-H
PROPOSED DECISION
(4/27/84)
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Appearances; 	Ellen Shaffer 	for 	Charging Party; 	Tom Matteoli
for Respondent.
Before; 	James W. 	Tamm, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On December 	14, 	1982, 	the American Federation of State,
County 	and 	Municipal Employees 	Local 	1650 	(hereafter AFSCME 	or
Charging Party) 	filed this charge which, 	as amended, 	alleges
that 	the Regents of 	the University of 	California, 	San Francisco
Medical 	Center 	(hereafter 	University) 	violated 	sections 	3565
and 3571(a), 	(b) 	and 	(c) 	of the Higher Education Employer-
Employee 	Relations Act 	(hereafter 	HEERA or 	Act)1 by 	refusing
1The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq. 	All 	references 	are 	to 	the Government Code 	unless
otherwise 	specified. 	Section 	3571 	states 	in 	relevant part 	that:
It 	shall be 	unlawful 	for 	the higher
education 	employer 	to;

to 	grant 	Cory Silver 	status 	as 	a casual 	employee. 	An 	informal
settlement conference was held April 	20, 	1983, 	however, 	the
matter 	was 	not 	resolved. 	A 	formal 	hearing 	was 	held 	on
September 	27 	and 	2 8 , 	1983. 	A 	transcript 	was prepared, 	briefs
were 	filed, 	and 	the 	case 	was 	submitted 	for 	decision 	in
December 	1983.
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	engage 	in meeting 	and
conferring 	with 	an 	exclusive 	representative.
FINDINGS 	OF 	FACT
Cory 	Silver 	was 	first 	hired 	by 	the 	University 	in 	May 	of
1979. 	His 	job 	throughout 	his 	employment 	at 	the 	University was
as 	a 	"staffing 	coordinator." 	The 	job was 	also 	known 	as 	a
"staffing 	assistant" 	or 	a 	"staffer." 	Although 	the 	job 	title
changed 	several 	times 	throughout his 	tenure, 	his 	duties
remained 	essentially 	the 	same. 	As 	a 	staffing 	coordinator, 	he
was 	responsible 	for 	coordinating 	vacancies 	on 	the 	nursing 	staff
due 	to 	absence 	for 	illness 	or 	other 	reasons, 	then 	arranging 	to
fill 	the 	vacancies 	with 	per 	diem 	substitute 	nurses 	obtained
through 	local 	nursing 	registries.
N	2

Silver 	was 	the 	first 	non-nurse 	hired 	into 	the 	position 	and
soon 	became 	an 	innovator 	on 	the 	job. 	Silver 	developed 	several
format 	changes 	and 	was 	thought of 	as 	a pioneer 	in 	the
position. 	For 	example, 	Silver 	suggested 	the 	idea of 	ranking
nursing 	registries 	in order 	to obtain 	nurses 	at 	the 	most
economical 	rates 	possible. 	When 	the 	issue 	of discontinuing 	the
use of 	"blue 	slips" 	came 	up 	(a method of keeping 	track of 	last
minute 	scheduling 	changes), 	Silver 	argued 	to retain 	them. 	The
form was discontinued 	in 	spite of Silver's 	arguments, 	but 	later
it 	was 	reinstated 	when 	the 	new 	system did 	not 	work 	properly.
Silver 	also 	spent 	time 	on his 	own 	developing 	a 	new 	system
for 	scheduling 	vacancies 	over 	a 	24-hour 	period 	rather 	than 	the
previously 	used 	8-hour 	periods.
Through 	his 	efforts, 	Silver 	became 	a 	leader 	among 	his
co-workers. 	During 	this 	same 	time 	Silver 	became 	active 	in
AFSCME. 	From spring 	1980 	through August 	1983, 	Silver 	was
treasurer 	of AFSCME Local 	1650. 	For 	each of 	those 	same years,
he 	was 	also 	either 	a delegate 	or 	alternate 	to 	statewide
AFSCME. 	For 	two of 	those 	years 	he 	was also a delegate 	to 	the
San Francisco Labor 	Council. 	Silver 	has 	never 	represented
anyone 	in any grievance nor 	has he, 	for example, 	ever been
observed 	handing 	out 	or 	posting 	union 	literature.
Nevertheless, 	the 	testimony 	indicates 	that 	it was 	common
knowledge 	that Silver 	was 	affiliated 	with 	the 	union.
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As his efforts 	gained him 	the 	respect of his 	co-workers, 	it
also 	drew 	the 	attention 	of 	his 	supervisor. 	Charging Party
introduced 	a 	document written 	by Tom Weaver, 	Silver's
supervisor 	in April 	1980. 	The 	document 	summarized 	a
conversation 	between Weaver 	and 	Carol Kreer, 	the 	assistant
director 	of 	nursing 	services. 	At 	the 	time, 	Weaver 	was 	new 	and
Kreer 	was 	conducting 	an 	orientation 	session 	with 	him.2
Weaver's 	notes 	included 	the 	following:
[Kreer] 	privately 	informed 	me 	about 	feelings
that perhaps 	[Silver] 	may be 	involved 	in
union 	activity. 	But nothing 	that 	she
[Kreer] 	could 	act on. 	Allegation 	that C.
[Silver] 	came 	in on day off 	to 	look 	at 9th
Flr. staffing. 	That 	they were 	aware 	that
something 	didn't 	jive 	with 	him 	being 	there.
If 	the allegation was 	true, 	with new Nursing
Supervisor 	coming 	on 	in May, 	he 	will
definitely be 	cut 	back 	in his 	"assumed"
duties 	on 	the 	floors. 	And 	with 	the 	revision
of 	job 	descriptions 	and 	closer 	control 	and
accountability of 	all 	the 	positions 	in N.O.
this may be 	enough 	to 	re-direct 	and 	channel
Cory.
When 	Kreer 	was 	cross-examined 	by 	the 	Charging Party 	and 	the
administrative 	law 	judge, 	she 	appeared 	evasive 	and 	had 	no
recall 	of 	discussing 	Silver's 	union 	activities 	with Weaver.
Kreer 	did 	indicate 	there 	was 	some 	general 	concern 	that 	staffing
coordinators 	on 	duty during 	weekends 	were 	having 	to 	take 	on
responsibilities 	that were out of 	their 	job descriptions. 	This
2Weaver 	is 	no 	longer 	working 	at 	the 	University 	and 	did
not 	testify 	at 	the 	hearing.
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however 	did 	not 	satisfactorily 	explain 	away 	the 	document, 	which
is 	found 	to be 	evidence 	of Kreer's 	anti-union 	feelings.
The 	following month, 	May 	1980, 	another 	incident occurred
between 	Silver 	and 	Kreer. 	Silver 	saw 	a memo 	addressed 	to
"hospital directors" 	which 	indicated 	a 	shift differential 	for
nurses 	had 	been 	approved, 	thereby 	increasing nurses' base 	pay
and 	calling 	for 	a 	retroactive 	payment. 	As 	Silver 	met with
hospital 	staff, 	gathering 	information 	on 	staffing 	vacancies
that day, 	he 	told other 	employees 	about 	the memo.
On May 	26, 	Kreer 	issued 	a memo 	to all 	staff 	informing 	them
of 	the changes. 	The next day, 	on May 27, 	Kreer 	issued a
conference 	form 	(similar 	to 	a written 	reprimand) 	to Silver 	for
disseminating 	information 	that 	was 	addressed 	to 	"hospital
directors" 	without authorization. 	There 	was 	no evidence 	that
any grievance 	was 	filed 	regarding 	the 	conference 	form.
As 	further 	evidence 	of 	the University's 	anti-union 	animus,
two witnesses 	of 	the 	Charging 	Party 	testified 	that 	supervisors
threw away 	union 	literature. 	Susan Beifuss, 	a University
employee, 	testified 	that 	on 	two 	occasions 	she 	observed Weaver
throwing 	out 	union 	literature 	that 	had 	been 	left 	in 	the 	nursing
office. 	Beifuss 	was 	vague 	in 	her 	testimony 	about why Weaver
threw out the material, 	testifying 	that:
[Weaver] 	said we're 	just going 	to dump this
because 	it's 	not 	in 	the 	interest of
management or 	something 	like 	that. 	It's
contrary to our 	policy, 	or 	I 	don't 	know his
exact words, 	but 	it was 	something 	like 	that.
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Beifuss 	did 	not 	indicate when 	this 	incident occurred, 	however,
it 	is 	known 	that Weaver 	was 	being 	oriented 	into 	the 	job 	in
April 	1980 	and, 	according 	to Silver, 	left 	in March 1981.
Therefore, 	it would 	have had 	to occur 	between April 	1980 	and
March 	1981.
Charles Homan, 	a current 	staffing coordinator, 	testified
that 	sometime 	between 	1980 	and 	1981 he 	saw Karen Day, 	the
associate 	director 	of 	nursing, 	throw 	away 	a 	stack 	of material
which he 	thought 	was 	union 	flyers. 	Homan 	said 	the material had
been 	left 	on 	the 	receptionist's 	desk 	in 	the 	nursing 	office.
In 	the 	fall of 	1981 Silver 	got 	a 	new 	supervisor,
Gail Oakley. 	About 	the 	same 	time, 	nursing 	services decided 	to
include 	the 	night 	shift 	as 	part of 	the 	responsibility of
staffing 	coordinators. 	This 	created 	problems 	for 	the 	five
staffing 	coordinators who 	up 	until 	that 	time 	had 	not 	had 	to
cover 	night 	shifts. 	Also 	up until 	that 	time Silver 	usually
made 	up 	the work 	schedule. 	This 	was 	not 	one of his official
duties. 	He was 	simply good 	at 	it 	and 	no one 	else 	wanted 	to do
it, 	therefore Silver 	usually did 	it. 	When 	the night 	shift was
added, 	Silver 	and Oakley 	had 	several 	confrontations 	on how 	to
schedule 	the 	staffing coordinators' 	work 	assignments. 	Silver
represented 	the 	interests 	of 	the 	staffing 	coordinators 	and
argued with 	Oakley 	for 	a 	six 	to eight-week 	period. 	Silver
eventually 	refused 	to continue 	doing 	the 	scheduling 	because 	he
felt 	it 	could 	not be 	done 	in 	an equitable manner. 	This
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resulted 	in Oakley having 	to make 	out 	the work 	schedule. 	At
one 	point 	Silver 	informed Oakley 	that 	the 	schedule 	as 	she
envisioned 	it would 	have 	the 	result of 	forcing 	employees 	to
call 	in 	sick. 	According 	to Silver, 	Oakley's 	reaction was
strong 	and 	bitter, 	with 	Oakley 	storming 	out of 	two meetings
with 	staffing 	coordinators, 	implying 	that Silver 	was 	purposely
getting 	people 	upset 	about 	the 	schedule.
Oakley 	freely 	admitted 	that 	she 	had 	an 	unhappy 	staff 	while
the 	scheduling problems 	were 	being 	resolved, 	and 	that 	some of
the 	discussions 	could be described 	as heated, 	however, 	she
denied 	ever 	storming 	out 	of 	any meetings. 	She 	also claimed
there 	was 	avid 	participation 	of 	all 	staffing 	coordinators 	and
did 	not 	recall 	that 	Silver 	played 	a 	role 	distinctive 	from 	that
of his co-workers.
The 	truth 	seems 	to 	lie 	somewhere 	between 	the 	testimony of
Silver 	and Oakley. 	Charging Party's witness, 	Homan, 	supported
Silver's 	testimony 	that 	Silver 	played 	a 	strong 	role 	in
representing 	other 	staffing 	coordinators, 	and 	that Oakley
seemed 	frustrated 	with 	the 	scheduling 	discussions. 	But Homan
also 	testified 	that 	everyone 	was 	frustrated 	that 	the 	schedule
was 	not 	resolved, 	and 	that he 	felt 	his 	opinions 	and criticisms
of policies or 	practices 	in 	the 	department 	were 	welcomed.
Another 	staffing 	coordinator 	testifying 	for 	the 	Charging
Party was Johnnie 	Carolyn Jones. 	She 	testified 	that 	Silver 	was
the 	only one 	that 	really 	understood 	the 	schedule 	and 	was 	the
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only one who could make 	it work. 	But 	according 	to Jones, 	she
and 	other 	staffing 	coordinators 	complained 	many 	times
themselves. 	Jones 	also 	supported Homan's 	testimony 	that Oakley
was open 	to suggestions.
Q. 	(by Shaffer) 	Did 	[Oakley] 	readily accept
suggestions 	that 	[Silver] 	would make 	about
staffing?
A. 	Yes, 	I would say so.
Q. 	Was 	that true 	in all cases?
A. 	Yes, 	I would say, 	yes.
Michelle Morton, 	a 	former 	staffing 	coordinator, 	testified
that 	Silver 	provided 	leadership 	among 	the 	staffing 	coordinators
and 	was 	consistently 	an 	advocate 	for 	them. 	But Morton 	also
testified 	that 	she 	could 	not 	put 	her 	finger 	on 	any 	particular
animosity because 	of 	his 	assumed 	role.
During his 	employment, 	Silver 	had 	applied 	for 	many
promotions 	at 	the 	University 	and 	had 	been 	turned 	down 	for 	all
of 	them. 	Many of 	the positions 	Silver 	sought 	were 	supervisory
in 	nature, 	and Silver 	felt 	his 	lack of 	any 	supervisory
experience 	hampered 	his 	competitive 	standing.3 Silver 	was
then offered 	a 	supervisory 	job outside of 	the 	University. 	The
job would 	have 	given 	him 	the 	supervisory 	experience 	he 	felt 	he
lacked, 	so he decided 	to accept 	the 	job. 	At 	the 	same 	time,
3There 	was 	no 	allegation 	that 	the 	lack 	of promotions 	was
in 	any way discriminatory 	towards 	Silver.
8

Silver 	testified 	he 	wanted 	to 	continue 	his 	ties 	with 	the
University 	in 	hopes 	of 	returning 	to 	a 	better 	University 	job
after 	getting 	some 	supervisory experience. 	Silver 	felt 	he
could 	accomplish 	that 	by 	switching 	from 	"career 	status" 	to
"casual 	status" 	and 	working 	part-time 	for 	the University 	at 	the
same 	he 	worked 	full-time 	elsewhere.
An employee with 	career 	status 	is 	employed 	to work 	at 	least
50 	percent 	of 	a 	full-time position. 	A casual employee 	is
either 	not 	committed 	to a 	fixed 	amount of 	time, 	or 	is 	committed
to 	less 	than 50 	percent of 	a 	full-time 	position. 	Casual
employees 	are paid 	a different 	rate 	than 	career 	employees, 	and
they do 	not 	receive 	University benefits.
According 	to Silver, 	he 	first 	looked 	into converting 	to 	a
casual 	status 	as 	a 	staffing 	coordinator, 	but when he 	found out
there weren't 	any 	such positions 	he 	then 	looked 	into a 	casual
position within 	the 	secretarial 	float 	pool. 	The 	float 	pool
consists 	of 	secretaries 	on casual 	status 	used 	to 	fill 	in 	for
short-term 	vacancies.
On 	several 	occasions 	in 	the 	past 	Silver 	had 	filled 	in 	for
the 	supervisor 	of 	the 	float pool 	who 	at 	that 	time 	was
Sylvia Hinkle. 	It was Silver's 	understanding 	that Hinkle 	had
complete 	control 	over 	hiring 	and 	scheduling 	the 	float 	pool
secretaries, 	so he 	spoke 	to her 	about 	the 	possibility of being
hired 	into 	the 	float pool. 	According 	to Silver, 	Hinkle 	assured
him 	there 	would 	be 	a position 	for 	him, 	but 	told 	him 	it was
9

necessary 	for 	him 	to 	resign 	from his 	career 	status 	position 	in
order 	to 	be hired 	as 	a casual employee. 	Silver 	testified 	that
Hinkle 	told 	him 	it would 	be 	a 	pleasure 	to 	have 	him 	in 	the 	float
pool.
Resigning 	from 	a 	career 	position 	prior 	to 	being 	hired 	into
a 	casual position 	was 	consistent 	with 	Silver's 	own
understanding 	of 	the 	procedure. 	Silver 	was 	personally 	aware 	of
several 	other 	employees 	who had 	done 	just 	that. 	He 	understood
that 	if 	an 	employee 	did 	not 	resign 	prior 	to converting 	to
casual 	status, 	then 	there was no break 	in 	service 	and 	the
University was 	required 	to 	continue 	providing 	benefits 	to 	the
employee, 	even 	though 	the 	employee 	worked 	less 	than 50 	percent
time.
Hinkle's 	testimony 	supported 	Silver 	on 	several counts, 	but
disputed 	him on 	others. 	Her 	testimony 	was 	straightforward,
consistent with her 	earlier 	actions, 	and believable. 	She
demonstrated 	no 	animosity 	towards 	Silver 	and, 	although 	she 	had
trouble 	recalling 	dates, 	her 	recall 	of 	facts 	regarding 	the
hiring 	and 	transfer 	of 	employees 	in 	the 	float pool 	was
thorough. 	In 	all, 	she was one 	of 	the most 	credible witnesses
at 	the hearing. 	For 	those 	reasons, 	where 	there 	is a
discrepancy 	between 	her 	testimony 	and Silver's, 	Hinkle's
testimony will 	be 	credited.
Hinkle 	testified 	that Silver 	came 	to her 	and 	asked 	if
working 	on 	the 	float pool 	would 	be 	a possibility. 	She
10

indicated 	that 	it would 	be 	a possibility. 	He 	told 	her 	that 	he
needed 	to maintain his 	benefits 	until 	a 	three-month 	waiting
period 	at his 	new 	job allowed 	him coverage, 	and 	that 	he 	wanted
to maintain 	his 	affiliation with 	the 	University. 	Silver
indicated 	that 	he 	wanted 	to be 	a 	casual 	staffing 	coordinator,
and 	if 	that 	plan 	failed, 	then Silver 	was 	going 	to get 	back 	to
Hinkle 	and 	apply to 	the 	float pool. 	According 	to Hinkle, 	she
made 	no 	commitment 	to Silver 	nor 	did 	she 	even 	interview 	him.
She 	was 	waiting 	for 	him 	to exhaust his 	other 	possibilities 	and
then 	get 	back 	to her 	to 	set 	up an 	appointment 	for 	an
interview. 	Hinkle 	stated 	she 	doesn't 	even 	have 	the 	authority
to make 	such 	a commitment 	to Silver 	without 	the 	approval 	of 	the
personnel department. 	There 	is 	no credible 	evidence 	on 	the
record 	that 	Silver 	went 	back 	to Hinkle 	until 	substantially
after his 	resignation 	from 	the University. 	Nor 	is 	there
evidence 	that 	Silver 	ever 	mentioned Hinkle's 	alleged 	"promise"
of 	employment 	to 	any 	other 	management 	employee of 	the
department 	until 	well 	after 	his 	resignation.
Hinkle 	supported 	Silver's 	testimony 	that 	to 	change 	from 	a
career 	position 	to a casual one, 	an 	employee must 	first 	resign
from 	the University 	and break 	service. 	Then 	the 	employee 	can
be hired 	as casual. 	Hinkle did 	not 	tell Silver 	that before 	he
could be 	hired, 	he would 	have 	to 	apply 	to 	the 	personnel office
because 	she 	assumed 	he 	knew 	the 	procedure.
11

There 	was 	evidence 	that 	in 	the 	past employees 	could 	switch
from casual 	to 	career 	and 	back 	to casual 	without 	formal 	action
by 	the personnel department. 	For 	instance, 	Dan Parker
testified he was 	hired 	in August 	1980 	as 	a casual 	unit
secretary, 	working 40 percent of 	a 	full-time position.
Approximately 	a year 	later 	he 	added 	an 	extra night 	to his
schedule, 	thereby he 	increased his 	hours 	to 60 	percent which
gave him career 	status. 	In October 	1981 he got 	a different 	job
outside 	the University, 	reduced his hours 	at 	the University,
presumably dropping 	him back 	to casual 	status, 	and 	began
floating 	as 	vacation 	relief. 	His 	outside 	job 	lasted 	three
months, 	then he 	increased his 	hours 	at 	the University 	to
75 percent. 	According 	to Parker, 	he didn't recall having 	to
fill 	out 	any 	forms 	or 	go 	through 	any 	formal personnel procedure.
This 	apparently 	is 	not 	the 	case 	for 	employees 	seeking 	to
change 	classifications. 	Kreer 	testified 	that 	anytime 	an
employee 	would 	transfer 	from one 	classification 	to 	another,
such 	as 	staffing 	coordinator 	to 	unit 	secretary, 	it must 	be done
through 	the personnel department. 	Charging Party, 	however, 	was
able 	to 	show 	at 	least one 	exception 	to 	that 	rule.
Allie Farnlof, 	a unit secretary, 	began doing 	staffing
coordinator 	work 	on 	a 	temporary 	and 	part-time 	basis 	to 	fill 	in
for 	another 	employee on 	leave. 	Farnlof 	did 	not 	have 	to go
through 	the 	personnel department. 	According 	to Kreer, 	the
temporary 	nature 	of Farnlof's 	assignment distinguishes 	it 	from
other 	cases.
12

On August 9, 	1982, 	having decided 	to 	take 	the new job
outside 	the 	University, 	Silver 	submitted 	the 	following 	letter
to his supervisor, 	Gail Oakley:
I 	have 	been offered 	and 	have 	accepted, 	a
position 	as Assistant 	Director 	at 	the
San 	Francisco office 	of Nursing 	Services
International. 	As such, 	I wish 	to resign my
position 	as Hospital Staffing Assistant 	II
and 	convert 	to a 	casual 	appointment.
My 	reason 	for 	accepting 	this 	position 	is 	to
pursue my 	career 	goals 	in 	health 	service
management. 	It was with 	great difficulty
that 	I made my decision. 	My commitment 	and
ties 	to 	this department 	run very deep.
This 	letter 	being 	the 	standard 	two week
notice, 	my 	last 	working 	day would 	fall 	on
August 	23. 	I 	look 	forward 	to discussing my
change 	to casual 	status.
That 	same 	day Silver 	spoke 	to Kreer 	and 	told 	her 	that 	he
had 	accepted 	another 	job 	and 	was 	resigning. 	According 	to
Kreer, 	at no 	time did Silver 	ever 	discuss with 	her 	his 	desire
to convert 	to a casual position.
Oakley was 	somewhat 	confused 	about 	exactly what 	Silver 	was
seeking, 	however, 	she 	interpreted Silver's 	letter 	as an 	actual
resignation 	from 	the 	University 	rather 	than merely 	a 	procedural
step 	toward 	changing 	from career 	to 	casual 	employment 	status.
Silver 	had 	never 	mentioned 	anything 	about 	going 	on 	casual
status 	to Oakley prior 	to his 	resignation. 	Silver's 	reasons
for 	not 	doing 	so 	are 	very unclear. 	At one point Silver
testified he 	didn't 	discuss 	it with Oakley 	because 	"[he] 	didn't
want 	to." 	At 	another 	point 	Silver 	testified 	that 	there 	was 	no
13

reason 	to discuss 	it with Oakley, 	presumably because 	he was
seeking 	a position 	as 	a casual 	unit 	secretary, 	which was 	not
under 	Oakley's 	control.4
Oakley 	testified 	there 	were 	two 	reasons 	for 	not 	approving
Silver's 	request 	to change 	to casual 	status. 	The 	first was
that 	she 	had 	no casual positions 	at 	all 	under 	her 	supervision,
so 	she 	had 	no casual positions 	into which 	Silver 	could 	have
moved.
The 	second 	was 	that Oakley was 	aware 	that 	there was 	a
commitment 	from University management 	to 	hold 	as 	many 	jobs 	open
as 	possible 	to 	be 	filled 	by 	employees 	affected 	by 	a drop 	in 	the
hospital 	census 	and 	potential 	layoffs 	from 	hospital 	closures.5
Around 	the 	same 	time 	as 	Silver's 	request 	for 	a 	casual
position, 	the University was 	anticipating 	the 	closure of
several 	units 	in one of 	the 	hospitals. 	One 	24-bed 	nursing 	unit
was 	closed, 	with 	the 	nurses 	and 	secretaries 	from that 	unit
expected 	to be 	absorbed 	into 	available 	open positions.
4This 	position 	is 	also 	inconsistent 	with 	Silver's 	later
testimony 	that 	he 	was 	still 	seeking 	a position as 	a 	casual
staffing 	coordinator.
5Kreer 	and Hinkle 	differ 	slightly 	in 	their 	testimony
about 	when 	the 	drop 	in hospital census 	occurred. 	Kreer
testified 	that 	it 	started 	dropping 	in July 	1982. 	Hinkle
testified 	that 	it 	did 	not 	go 	down 	drastically 	until
September 	1982. 	Both 	Kreer 	and Hinkle 	agreed 	that 	the 	census
started 	climbing 	again 	in 	February 	1983 	when 	the 	University 	was
awarded 	a 	large MediCal contract. 	Both 	also 	agreed 	that 	in
August 	1982, 	the 	time of Silver's 	resignation, 	the University
was 	facing 	potential 	layoffs 	as 	a 	result of hospital closures.
14

Additionally, 	there was 	a potential 	reduction 	in workforce 	in
the whole hospital. 	The University was 	in 	the 	process of
closing 	the U.C. 	Hospital, 	which had 	103 	beds 	at 	that time, 	and
opening 	up two new units 	in Long Hospital, 	which had 72 	beds.
This 	left 	15 	unit 	secretaries 	from U.C. 	Hospital 	that 	nursing
administration was 	trying 	to place 	into 	jobs.
For 	those 	reasons, 	on August 10, 	the day after 	receiving
Silver's 	resignation 	letter, 	Oakley 	sent 	the 	following 	letter
to Silver:
I 	accept 	your 	resignation of August 9, 	1982.
Congratulations 	and 	I 	do wish you well.
According 	to the August 	schedule, 	including
your 	pre-scheduled 	vacation, 	your 	final work
day will be August 	18.
I 	appreciate your 	interest 	in 	and offer 	to
help with 	staffing 	in 	the 	future, 	but at 	this
time Nursing Administration 	is 	not 	approving
changes 	in 	status 	from career 	to casual.
Thank you 	and 	again, 	congratulations.
Silver 	testified 	that when 	he 	received Oakley's 	letter, 	he
discussed 	it with 	her. 	Silver's 	account of 	the 	conversation
was 	vague, 	saying 	only 	that he was not 	satisfied with her
response. 	Oakley 	denied 	this 	conversation 	ever 	took 	place.
Silver 	then 	requested 	to 	speak 	with 	Karen Day, 	the 	associate
director 	of 	nursing 	and 	also Oakley's 	supervisor. 	Day 	and
Silver 	were 	not 	able 	to meet 	until 	a day or 	two 	later. 	At 	the
meeting, 	Silver 	was 	still exploring 	whether 	there were 	casual
staffing 	coordinator 	positions 	available. 	This 	lends 	credence
15

to Hinkle's 	claim 	that 	Silver 	had 	indicated 	his 	intention 	to
first 	seek 	a casual 	staffing 	coordinator 	position, 	and 	that he
would 	get 	back 	to Hinkle 	if 	he 	wanted 	to pursue working 	in 	the
float pool.
Day 	referred 	to 	a University 	policy 	which 	supposedly 	gave
her 	the 	ultimate 	right 	to grant or 	deny 	changes 	from career 	to
casual 	status, 	and 	denied his 	request. 	Silver 	was not 	shown a
copy of 	that policy 	at 	that 	time. 	However, 	Day did 	have Oakley
get 	a copy 	to Silver 	later 	that 	same 	week.
The 	following 	week 	Silver 	went 	on 	vacation 	and 	was 	out of
town 	until August 	29.
In 	either 	Silver's 	conversation with Day, 	or 	his
conversation with 	Oakley 	later 	that 	week 	when 	he 	was 	shown 	a
copy of 	the 	University policy, 	Silver 	raised 	the 	possibility of
converting 	to casual 	status 	as 	a 	unit 	secretary. 	On August 	18,
Oakley 	sent 	Silver 	the 	following 	response:
Karen 	[Day] 	and 	I 	have discussed your 	request
for 	change 	in 	status 	from career 	to casual,
if 	not as 	a Staffing Coordinator, 	then as 	a
Unit Secretary. 	As 	you 	and 	I 	discussed,
there 	are 	not now, 	and 	haven't been 	any
opportunities 	to make 	this change 	as 	a
Staffing Coordinator, 	and 	the Unit Secretary
positions 	are 	subject 	to 	the 	approvals
detailed 	in 	the policy you 	reviewed. 	In 	the
past, 	Unit Secretaries may have 	changed
status, 	but as 	the policy states, 	approval
will 	not 	be granted 	in 	the 	future. 	In
addition, 	approval could clearly not be
granted 	to 	someone 	requiring 	orientation.
16
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

Please 	stop 	at Nursing Payroll 	before 	you
leave 	today 	in order 	to 	sign your 	final
papers. 	If 	this 	is not completed now, 	it
will 	be handled 	by mail.
The 	policy 	to which 	Day 	and 	Oakley 	referred 	was 	only 	a 	draft of
a policy which 	reads 	in pertinent 	part 	as 	follows:
III. 	Change 	of Employment Status
A. 	Career 	employees
1. 	The 	employee will 	request 	a change 	in
percentage 	of 	time 	worked 	from 	the Head
Nurse 	on 	the 	Recruitment/Change of
Status 	form.
2. 	The 	Head Nurse 	may 	approve 	changes 	to
no 	less 	than 50% 	time 	and 	send 	the
Recruitment/Change 	of 	Status 	form 	to
the Personnel Assistant.
3. 	If 	the 	employee 	is 	requesting 	to work
less 	than 50% 	time 	(a casual 	status with
career 	benefits), 	the Head Nurse will
forward 	the 	request 	to 	the Assistant 	or
Associate 	Director 	of Nursing 	with 	any
recommendations.
4. 	The Assistant or Associate Director 	of
Nursing 	will 	review 	each 	request 	and
make 	a 	decision 	based 	on 	the 	individual
circumstances 	whether 	to grant 	the
reduction 	in work 	time 	for 	a 	specific
period 	of 	time 	or 	recommend 	that 	the
employee 	resign 	and 	be 	rehired 	as 	a Per
Diem RN or LVN or 	a 	casual
(classifications other 	than RN or LVN).
5. 	The 	employee 	will be 	paid 	all 	accrued
comp 	time 	and 	vacation 	time 	prior 	to
change 	in 	status 	to Casual/Per 	Diem.
There 	was 	some 	vague 	and 	uncertain 	testimony 	that 	the 	draft
policy did 	nothing 	more 	than 	recite 	the 	existing 	practice,
however, 	there 	was 	never 	any 	evidence 	submitted 	showing 	the
17

draft policy was 	ever 	revised, 	finalized or 	ever 	adopted 	by 	the
University. 	One 	thing 	that 	is 	clear 	is 	that Oakley was 	not
correct 	in 	claiming 	the 	policy prevented 	approval of 	changes 	in
the 	future, 	within her 	unit.
Oakley 	admitted 	that 	she 	didn't 	state 	her 	position 	clearly
and 	that 	the 	letter 	was 	a more 	general 	statement 	than 	it 	should
have 	been. 	According 	to Oakley, 	what 	she 	was 	trying 	to 	tell
Silver 	was 	that 	under 	the 	circumstances 	she 	would 	not grant
approval 	for 	the 	kind of change he was 	requesting. 	Silver 	did
not 	receive 	the 	letter 	immediately because 	he 	was 	on
vacation.6
Two days 	later, 	on August 	20, 	Oakley sent Silver 	another
letter 	informing 	him 	that 	the 	use 	of 	vacation 	time 	following 	an
employee's 	last 	working 	day 	was 	prohibited 	by University
policy. 	She 	indicated 	that 	he would 	be 	paid 	in 	full 	for 	any
vacation 	and 	comp 	time 	on his 	record, 	and 	reiterated 	that
Silver's 	last working day would be 	considered August 	18, 	as
spelled 	out 	in Oakley's August 	10 	letter.
When 	Silver 	returned 	home 	from vacation 	on August 	29, 	he
also 	found 	a 	letter 	from 	the 	payroll 	department 	dated
6There	6There 	is 	a discrepancy 	about when Silver 	left 	on
vacation. 	Oakley's 	letter 	of August 	10 	informed Silver 	that
the 	University 	considered 	his 	last 	working 	day 	to 	be
August 	18. 	Silver 	testified 	that 	he 	left on vacation on
August 	14 	or 	15, 	but 	that 	he 	considered 	his 	last day on payroll
to be August 	23. 	Although 	the 	final 	work 	date may have 	had
some 	significance 	to 	the 	timeliness 	of Silver's 	grievance 	on
this matter, 	it 	is 	if 	little 	importance 	to the ultimate
resolution of 	this 	unfair 	practice 	charge.
18

August 	23, 	informing him 	that 	his 	termination 	had 	been
processed 	and 	requesting 	him 	to 	sign 	some 	forms 	so 	he 	could 	get
his 	retirement 	refund. 	According 	to Silver, 	he called 	someone
in payroll 	and 	told 	them he 	was 	not 	terminating, 	so 	there was
no need 	to 	fill 	out 	the 	forms.
On September 	16, 	almost one 	full month 	after 	his 	last
workday, 	Silver met with Helen Ripple, 	director of 	nursing, 	to
discuss 	his 	status. 	Ripple 	indicated 	that 	she 	no 	longer
considered him to be 	an employee of 	the University, 	but would
meet 	with 	him as 	a courtesy. 	According 	to Silver, 	he 	discussed
with 	Ripple 	his 	feeling 	that 	his 	resignation was 	contingent
upon 	casual 	status 	and 	that 	he 	would 	reconsider 	his 	decision
and 	take 	back 	his 	resignation. 	Ripple 	told 	him his position
was 	absurd. 	Silver 	asked 	if 	he 	could 	apply 	from the 	outside
and 	was 	told 	that 	he would 	be 	considered 	as 	anyone 	else would.
Silver 	also 	testified 	that 	he 	asked Ripple 	if 	she 	would
consider 	reinstating 	a grievance 	on 	the 	subject which,
according 	to Silver, 	had 	been 	declared 	untimely. 	According 	to
Silver, 	Ripple declined. 	This 	testimony 	is 	confusing 	and
damaging 	to Silver's 	credibility 	in 	light of 	the 	fact 	that 	the
grievance 	to which 	he 	was 	referring 	was 	not 	even 	filed 	until
October 	1, 	1982, 	two weeks 	after 	the 	alleged conversation with
Ripple 	took 	place.
In any case, 	a grievance was 	filed on October 	1, 	1982, 	on
the 	issue of Silver's employment 	status 	as well as 	removal of
19

conference 	forms 	from his 	file.7 On October 	11, 	1982,
Silver's 	grievance 	was 	denied 	as 	untimely 	by 	the 	University.
Silver 	appealed 	that decision and on November 	22, 	1982, 	the
appeal 	was 	denied 	by University 	systemwide 	administration.
Silver 	testified 	that 	he 	would 	not 	have 	resigned 	if 	he 	had
known he 	could 	not 	have 	converted 	from 	career 	to casual 	status
and 	that, 	in 	fact, 	his 	resignation was 	contingent 	upon casual
status. 	When questioned 	on 	this point 	by 	the 	administrative
law 	judge, 	Silver 	indicated 	that his 	efforts went 	into getting
a 	new 	casual position 	rather 	than 	regaining 	his 	old 	staffing
coordinator 	position. 	Silver 	made 	it 	clear 	at 	the hearing 	that
he was not, 	even at 	that point, 	seeking 	to retain his 	former
staffing 	coordinator 	position.8
Silver 	testified 	that 	he 	turned 	in 	an 	application 	form 	to
the personnel department 	some 	time 	in 	fall 	1982, 	however Hinkle
testified 	that 	she 	never 	received 	that 	application. 	Silver
apparently did 	not 	follow 	up on 	the 	application 	at 	that 	time.
Then, 	in 	late 	spring 	1983 or 	early 	summer, 	pursuant 	to 	informal
settlement discussions of 	this 	unfair 	practice 	charge, 	Silver
reapplied 	for 	a casual unit 	secretary position 	in 	the 	float
7The 	conference 	form 	issue 	is 	dealt 	with 	later 	in 	this
decision.
8At 	a 	later 	point 	in 	the 	hearing 	Silver 	did 	indicate 	that
he would 	be 	willing 	to 	take his 	old 	job back 	if 	it would 	settle
the matter, 	however, 	that was clearly a change 	from an earlier
position.
20

pool. 	The 	application 	was 	eventually 	forwarded 	by personnel 	to
Hinkle, 	and Silver 	was 	interviewed.
Hinkle 	testified 	that 	her 	first 	concern 	in 	interviewing
candidates 	is 	the 	amount of 	time 	they would 	be 	available 	to
work 	and 	the 	flexibility of 	their 	schedule. 	Her 	second 	concern
is 	their 	qualifications. 	Hinkle 	places 	greater 	weight on 	the
applicants' 	availability 	and 	schedule 	flexibility, 	because
personnel 	has 	already 	screened 	applicants 	for 	their 	job
skills. 	Hinkle 	looks 	for 	applicants 	who can work either 	on
short 	notice 	(within 	two hours) 	or 	frequently enough 	that 	she
can 	depend 	on 	them being 	available 	when 	she 	needs 	them.
On 	his 	application 	Silver 	indicated 	that 	he 	had 	a 	current
full-time 	position 	that 	required 	in excess 	of 	40 	hours per
week. 	During 	the 	interview, 	Silver 	also 	indicated 	that 	his
real 	reason 	for 	applying 	for 	the 	position 	was 	to get 	his 	foot
in 	the 	door 	in case 	another 	job 	should 	come 	up 	to which he
could 	transfer. 	Silver 	told 	Hinkle 	he 	could be 	available 	to
work 16-24 	hours 	per week, 	however, 	Hinkle had 	serious doubts
that 	Silver 	would 	maintain 	that 	commitment 	for 	any 	length 	of
time. 	Silver 	was working 	8:00 	a.m. 	to 5:00 	p.m., 	which
overlapped 	the 	two day 	shifts 	at 	the 	hospital. 	The morning
shift 	was 7:15 	a.m. 	to 	3:45 	p.m. 	The 	evening 	shift 	was
3:15 	p.m. 	to 	11:45 	p.m. 	Silver 	indicated 	that 	he 	could 	leave
his 	full-time 	job early 	a couple 	of 	nights 	a week 	to make 	the
evening 	shift. 	However, 	that 	was 	complicated 	by 	the 	fact 	that
21

in his 	full-time 	job he 	had 	to carry a beeper, 	which he would
have had 	to give 	to his 	boss 	if he 	left early. 	Hinkle doubted
any 	employer 	would 	allow 	that 	to go on 	over 	a 	long 	period.
Although Hinkle had 	no questions 	as 	to his 	job skills, 	she
testified 	that 	she 	did 	not believe 	Silver 	about 	his 	work
availability, 	nor 	did 	she 	see much value 	in 	investing 	in 	an
employee 	who would,
. 	. 	. 	come 	in to a job interview and say
that 	they 	are 	really 	looking 	for 	another
job, 	but 	they will 	take what you 	can 	give
them for 	the 	time 	being.
Hinkle 	has 	had 	experience 	with 	float 	pool 	employees 	who
have 	had 	full-time positions 	outside 	the University, 	and 	has
found 	their 	value minimal. 	These 	employees 	had 	already 	been
hired 	when Hinkle 	became 	supervisor. 	She 	finds 	they work 	only
when 	it 	fits 	into 	their 	schedule, 	varying 	from once 	per 	month
to once 	every 	three 	months. 	Hinkle 	never 	has 	hired 	an outside
applicant with 	a 	full-time 	job elsewhere, 	and 	has on occasion
removed 	casual 	employees 	from 	the 	float pool because of 	their
lack 	of 	availability.
From August 18, 	1982, 	Silver's 	last day, 	up through
January 	1983, 	Hinkle 	hired 	only 	one 	outside 	applicant 	into 	the
float pool. 	Patrick Browning 	was 	hired 	in October 	1982.9
9The 	record 	is 	devoid 	of 	any 	information 	about 	the 	number
of 	hours 	he worked or 	the 	shifts 	he worked.
22

Although 	outside 	applicants 	were 	not 	generally hired 	into
the 	float pool, 	there 	were 	several University employees who
transferred 	to 	the 	float pool. 	The 	following 	examples 	are
typical of 	such 	transfers.
Laura Klepfer 	worked 	at 	a 	unit of U.C. 	Hospital which 	was
shut 	down. 	In order 	to keep from laying Klepfer 	off, 	she was
transferred 	into 	the 	float 	pool. 	In 	calling 	float pool
employees 	in 	to work, 	Hinkle would give priority 	to 	those 	like
Klepfer 	whose 	jobs 	had 	been phased 	out.
Mark Barmore 	was 	already 	a 	casual 	unit 	secretary 	when 	he
transferred 	into 	the 	float 	pool. 	By 	transferring 	to 	the 	float
pool 	it opened 	up his 	former 	job, 	so 	the 	transfer 	had no
adverse 	impact on 	the 	total 	number 	of 	positions 	available 	to
employees 	facing 	layoff.
When Roselyn Livingston's 	unit 	was 	closed 	she 	was moved 	to
another 	unit 	secretary position with 	fewer 	hours 	than 	her
former 	position. 	In order 	to maintain her 	same 	number 	of
hours, 	she 	was 	guaranteed one night per 	week on 	the 	float pool.
Judy 	Sorko-Ram was 	transferred 	out 	of 	her 	regular 	unit
secretary 	job 	and 	into 	the 	float pool 	when 	a conflict 	developed
between 	Sorko-Ram and 	her 	supervisor.
Marilyn Gerdason-Bowman had been 	in 	the 	float pool 	in 	1981,
then 	transferred 	out 	to 	take 	a 	temporary 	assignment. 	When 	the
assignment 	ended 	in December 	1982, 	she 	returned 	to 	the 	float
pool.
23

By February 	1983 	the 	hospital 	census 	started 	to 	rise 	again
when 	the University was 	awarded 	a 	large MediCal contract. 	By
June 	1983, 	the 	rise 	in census 	combined with 	attrition 	to open
up 	enough 	jobs 	so 	that 	all 	those 	employees 	facing 	potential
layoff 	were 	no 	longer 	threatened, 	even 	though 	all 	the moves
from one 	hospital 	to 	another 	had 	not 	yet 	been 	completed. 	At
that 	time 	Hinkle 	started hiring 	unit 	secretaries 	for 	the 	float
pool again. 	All 	those hired, 	however, 	had a greater
availability 	and 	flexibility 	than Silver. 	Furthermore, 	none of
those 	hired 	at 	that 	time 	had 	outside 	full-time 	employment.
Charging Party produced 	one witness 	who was 	about 	to 	take 	a
full-time 	job, 	who 	testified 	that Hinkle 	nevertheless 	promised
him a 	job 	in 	the 	float pool. 	This was 	contradicted 	in a
credible manner 	by Hinkle 	who 	testified 	that 	the 	individual 	in
question 	had 	indicated 	to Hinkle 	that 	he 	wanted 	to discuss
being 	a 	casual 	float pool employee. 	Hinkle 	told 	him the
procedure, 	told him 	they could discuss 	it, 	and 	that 	she didn't
see 	any problems with 	it. 	Hinkle 	testified 	that 	she was 	not
aware 	the 	individual 	was 	about 	to get 	a 	full-time 	job outside
the University and, 	if 	in 	fact 	that happened, 	Hinkle would have
a problem hiring 	him. 	Hinkle 	had 	not 	yet 	conducted 	an
interview with 	the 	individual, 	and 	hadn't 	yet hired him 	for
casual 	status 	for 	the 	float pool.
Charging 	Party 	also 	introduced 	testimony 	showing 	that 	there
recently 	existed 	a 	lack 	of 	secretarial 	coverage 	on 	weekends 	and
24

evenings 	that Silver 	could 	have 	filled. 	Hinkle 	disputed 	this
claim, 	explaining 	that 	there 	had 	been 	some 	openings on weekends
and 	evenings, 	however, 	they had been 	filled on a permanent
basis, 	and 	that 	the 	lack 	of coverage was 	a 	temporary
situation. 	According 	to Hinkle, 	the only current 	need 	for
coverage 	is 	for 	the 	Monday 	through Friday 	day 	shift.
Conference 	Forms 	Issue
The 	Charging Party 	entered 	a 	substantial 	amount 	of 	evidence
into 	the 	record 	about 	two conference 	forms 	(similar 	to written
warning 	notices) 	which 	were 	included 	in Silver's 	personnel
file. 	They 	can be 	summarized 	as 	follows:
On August 13, 	1982, 	several days after 	his 	letter of
resignation, 	Silver 	wrote 	to Oakley asking 	that 	she 	remove 	two
1979 	and 	1980 	conference 	forms 	from his 	personnel 	file. 	Oakley
was not 	sure 	if 	that was proper, 	so she 	consulted 	someone 	in
the 	personnel office 	and 	was 	told 	that 	letters 	should 	not 	be
removed 	from personnel 	files 	without permission of 	the 	author.
Therefore, 	in Oakley's August 18 	letter 	to Silver, 	she
wrote,
. 	. 	. 	according to Personnel Policy, 	items
are 	not 	to be 	removed 	from Personnel 	files
without 	the 	consent 	of 	the 	author.
On September 	13, 	prior 	to his meeting with Ripple, 	Silver
wrote 	to Ripple 	requesting 	that 	she 	remove 	the 	two conference
forms 	from his 	file. 	During 	their 	September 	16 	meeting, 	Ripple
told 	Silver 	she 	would 	get 	back 	to 	him 	about 	the 	forms.
25

In Silver's 	October 	1 grievance 	he 	included 	a 	request 	that
the 	conference 	forms 	be 	removed 	from his 	file. 	On October 	7,
four 	days prior 	to Silver's grievance 	being 	rejected 	as
untimely, 	the 	forms 	were 	removed 	from Silver's 	file 	and
returned 	to him.
The 	forms 	were 	not 	entered 	into 	the 	record. 	There was 	no
evidence 	whatsoever 	about 	the 	nature of 	the 	conference 	forms,
nor 	about 	the 	circumstances 	surrounding 	their 	placement 	into
Silver's 	file. 	When Silver 	was 	asked on cross-examination 	if
the 	conference 	form from Kreer, 	referred 	to earlier 	in 	this
decision 	(about 	improperly 	disseminating 	information 	addressed
to 	"hospital directors"), 	was one of the conference 	forms he
was 	seeking 	to have 	removed 	from his 	file, 	Silver 	said 	that 	he
could 	not 	remember.
This 	evidence 	was 	not 	mentioned 	in Charging Party's 	brief
and 	its purpose 	remains 	a mystery. 	If 	its purpose was 	to
demonstrate 	anti-union 	animus 	as 	support 	for 	Charging Party's
claim of unlawful motivation, 	it does not do so, 	especially
since Silver's 	request was granted. 	If 	it was meant 	to 	show
the conference 	forms were discriminatory 	in nature, 	there 	is 	no
evidence 	demonstrating 	that. 	If 	it was meant 	to show
harassment, 	it doesn't do that, 	because 	the 	forms were returned
even 	though 	Silver's 	grievance 	on 	the 	subject was 	held 	to be
untimely. 	Finally, 	if 	it was meant 	to 	show Oakley's 	lack of
understanding 	of University policy, 	it 	is 	redundant. 	Oakley's
26

own 	testimony was more 	than 	sufficient 	to demonstrate 	her 	lack
of 	understanding 	of 	University policies.
Arguments 	of 	the Parties.
The 	Charging Party 	argues 	that Silver 	had 	been promised 	a
casual position 	and 	would 	not 	have 	resigned 	if 	he 	had 	known 	he
would 	not 	have 	been 	allowed 	to work 	as 	a casual 	employee.
Charging Party also 	argues 	that 	there 	exists 	a history of
anti-union 	animus 	and 	that 	management's 	reasons 	given 	to Silver
hinge 	on 	a misapplication of 	a 	University policy which 	also
violated 	the 	University's 	obligation 	to meet 	and 	discuss 	the
policy with 	the 	Charging Party. 	According 	to Charging Party,
management's 	current 	explanations 	for 	its 	actions 	involving 	the
drop 	in 	census 	and 	potential 	layoffs 	of 	unit 	secretaries 	are
inconsistent. 	Furthermore, 	Charging Party argues 	that 	the
University's 	refusal 	to hire 	Silver 	into 	the 	float pool 	in 	the
summer 	of 	1983 was 	an additional violation.
The 	University 	argues 	that 	the 	Charging Party 	has 	failed 	to
show 	that 	any of 	the 	University's 	actions 	were 	motivated 	by
Silver's protected 	activities. 	According 	to 	the 	University,
Silver 	resigned 	and 	indicated 	he 	wished 	to 	be 	considered 	for
casual 	status. 	He didn't 	arrange 	for 	casual 	status with 	the
supervisor 	prior 	to his 	resignation. 	At 	no 	time was he
promised 	such 	status, 	nor 	did 	Silver 	follow 	the 	proper
procedure with 	the 	personnel office. 	Silver 	was 	told 	such
changes 	were 	not being 	approved, 	and 	he 	left on vacation. 	When
27

he 	returned 	he 	was 	no 	longer 	a University employee. 	At 	no 	time
did he 	ever 	tell 	his 	supervisor 	he was 	not 	resigning, 	nor 	did
he 	make 	clear 	that his 	resignation was 	contingent 	upon his
change 	to 	casual 	status. 	The 	University 	argues 	that Silver 	was
denied 	casual 	status 	employment 	in August 	1982 	due 	to potential
hospital closures, 	and 	in 	the 	summer 	of 	1983 	primarily because
of his 	lack 	of 	availability.
DISCUSSION
Section 	3571(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
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.)
28

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 Ca.3d 721, 	727-730; Wright Line, 	Inc. 	(1980) 	251 NLRB 150
[105 LRRM 1167] 	enf., 	in part 	(1st Cir. 	1981) 	662 F.2d 899
[108 LRRM 2513]; 	NLRB v. 	Transportation Management Corp.
(6/15/83) 	U.S. 	[113 	LRRM 	2857].10
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
Distributors 	v. 	Agricultural Labor Relations Bd., 	supra,
29 	Ca.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.)
-
10T	10 he	The 	construction 	of 	similar 	or 	identical 	provisions 	of
the NLRA, 	as amended, 	29 U.S.C. 	151 et seq., may be used to
guide interpretation of the EERA. 	See, 	e.g., 	San Diego Teachers
Assn, 	v. 	Superior Court 	(1979) 	12 Ca.3d 608, 	616. 	Compare
section 	3571(a) 	of 	the Act with 	section 8(a)(3) 	of 	the NLRA,
also prohibiting 	discrimination 	for 	the 	exercise 	of 	protected
rights.
29

Silver's 	Protected 	Activity
Applying 	that 	test 	to this 	case, 	it 	is 	found 	that Silver
did 	indeed 	engage 	in protected 	activity. 	Silver 	had 	been
treasurer 	of 	the Local 	for 	several previous years, 	and his
involvement 	with 	the 	union 	was 	generally 	known 	throughout his
work place. 	This, 	however, 	by itself, 	is 	insufficient evidence
from which 	an 	inference 	can 	be 	drawn 	that Silver's 	union
activities were 	of 	the 	nature 	that 	would 	invite 	reprisals.
Silver 	had 	never 	filed 	a 	grievance 	on 	behalf 	of 	another
employee.11 Furthermore, 	no witnesses 	for 	either 	the
Charging Party or 	the 	University 	had 	ever 	seen 	Silver 	handing
out 	union 	literature 	or 	posting 	union 	literature 	on 	bulletin
boards.
Charging Party 	also 	argues 	that 	other 	evidence 	of 	a 	history
of 	anti-union 	animus 	gives 	weight 	to 	the 	inference of 	unlawful
motivation 	in 	this 	instance. 	The 	first 	incident 	cited was 	the
April 	1980 	Weaver 	memo 	reciting 	Kreer's 	comments 	about 	Silver's
possible 	union 	activity. 	Although 	the 	memo 	demonstrates
anti-union 	animus 	on Kreer's part, 	and possibly Weaver's,
neither 	of 	those 	employees 	had 	anything 	to do with 	the 	decision
to 	deny casual 	status 	to Silver. 	Weaver 	left 	the University
over 	a year 	and one-half prior 	to Silver's 	resignation. 	Kreer,
11 The 	only grievance Silver 	ever 	filed was 	his 	own, 	which
was 	filed 	after 	he 	had 	resigned 	and 	was 	denied 	casual 	status.
Therefore, 	that grievance 	could 	not 	have 	had 	a motivating
impact on Oakley's 	decision.
30

although 	still 	at 	the University, 	was 	not 	aware 	that Silver 	had
asked 	for 	casual 	status 	at 	the 	time of his 	resignation. 	Silver
merely 	told 	her 	that 	he 	was 	resigning 	from 	the 	University 	to
accept another 	job. 	There 	was 	no evidence 	that 	she 	had 	any
involvement 	whatsoever 	in 	either 	Oakley's 	or 	Hinkle's 	decision
not 	to grant casual 	status.
The 	second 	incident 	was 	the 	May 	1980 	conference 	form given
to 	Silver 	for 	unauthorized 	dissemination 	of 	information
addressed 	to hospital directors. 	This 	incident 	is 	unconvincing
for 	the 	same 	reason as 	the Weaver 	notes. 	It occurred over 	two
years 	earlier, 	and 	Kreer 	had 	nothing 	to do with 	the 	decision 	to
deny casual 	status 	to Silver.
The 	next 	two 	incidents 	involved 	the 	throwing 	away 	of 	union
literature 	sometime 	during 	1980 or 	1981. 	The 	vagueness of
testimony 	regarding 	these 	incidents 	and 	their 	remoteness 	in
time 	require 	that 	little, 	if 	any, 	weight be given to this
evidence.
Silver's 	role 	in 	representing 	other 	staffing 	coordinators
in 	their 	scheduling disputes 	with 	Oakley 	over 	the night 	shift
addition 	is, 	however, 	also protected activity. 	Section 3565 of
HEERA 	states 	in 	relevant part,
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
meeting 	and 	conferring.
31

To 	find 	any of 	Silver's 	actions 	regarding 	his 	work 	schedule
protected 	under 	this 	section, 	it must be 	found 	that he 	actively
participated 	in an employee organization, 	and 	that 	the
organization 	existed 	for 	the 	purpose 	of 	representation
regarding 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
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
32

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 	employees 	who 	engage 	in 	such 	activity 	has
the 	effect 	of 	discouraging 	employees 	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.
In Silver's 	efforts 	regarding 	the 	scheduling process, 	he
was 	clearly 	representing 	the 	other 	staffing 	coordinators 	at 	the
University 	regarding 	matters 	within 	the 	scope 	of
representation, 	namely, 	wages 	and hours. 	The 	fact 	that he was
leading 	the 	fight not 	in his 	role as 	a union official, 	but
rather 	as 	a 	fellow staffing 	coordinator, 	does 	not alter 	the
protected 	nature 	of 	his 	activity.
Furthermore, 	although management's 	knowledge of 	the
specific 	nature 	of Silver's 	involvement 	with 	the 	union was
never 	clearly established, 	that 	is 	not 	the 	case with 	respect 	to
his 	involvement 	with 	the 	scheduling 	problems. 	The 	primary
management 	representative 	that 	Silver 	dealt 	with 	on 	that 	issue
was Gail Oakley, 	the 	supervisor 	who made 	the decision not 	to
grant 	Silver 	casual 	status 	approximately 	one 	year 	later.
Oakley's 	Decision
The 	University 	argues 	that 	Oakley's 	decision was 	motivated
by 	two factors. 	First, 	that 	she did 	not 	have 	any casual
33

positions 	under 	her 	control. 	That 	fact was 	undisputed 	at 	the
hearing. 	Second, 	that 	the University was 	facing potential
layoffs 	and 	the 	University 	administration 	was making 	an 	effort
to 	hold 	as many open positions 	as possible 	for 	those 	affected
by 	the 	layoff.
This 	second 	reason 	is 	disputed 	by 	the 	Charging Party, 	who
argues 	that 	the 	testimony of 	Oakley, 	Kreer 	and Hinkle was
inconsistent 	and 	unconvincing. 	Quite 	the 	contrary 	is 	true.
Although 	Hinkle 	and 	Kreer 	differed 	in 	their 	testimony 	about
when 	the 	census dropped, 	all 	three 	witnesses agreed 	that 	in
August 	1982 	at 	the 	time of Silver's 	resignation, 	the University
was 	facing 	a 	layoff due 	to hospital closures. 	This meant 	that
positions 	would 	have 	to be 	either 	found 	or 	created 	for 	a 	number
of unit 	secretaries.
That 	testimony 	is 	even 	supported 	by Silver, 	who 	testified
that 	the 	hospital 	moves 	were 	supposed 	to do 	away with 	a 	number
of 	full-time 	positions, 	but 	that 	full-time 	employees were 	not
going 	to 	be 	laid 	off because 	they 	had 	been 	guaranteed 	there
would 	be 	jobs 	found 	for 	them.
Silver 	testified 	that 	the 	hospital closures could 	have, 	in
fact, 	created more 	jobs because 	it was 	at 	the 	end of 	the 	summer
when 	turnover 	was 	high 	anyway, 	and 	because 	a number 	of people
would quit 	rather 	than change positions 	in 	the 	hospital
reorganization. 	This 	testimony, 	however, 	was speculation on
Silver's 	part 	and 	unsupported 	by 	the 	record. 	Thus, 	at 	a 	time
34

when 	the 	University was 	having 	to 	find 	jobs 	for 	full-time
employees whose 	positions 	had 	been 	eliminated, 	Silver 	was
resigning 	and 	then 	asking 	to 	be 	placed 	in 	an open 	job as 	a
casual employee.
The 	Charging Party disputes 	this 	characterization, 	arguing
rather 	that 	Silver's 	resignation 	was 	contingent 	upon him being
given casual 	status. 	This 	argument 	is 	simply not credible.
Silver 	never 	even 	raised 	the 	subject of 	casual 	status 	with 	his
supervisor prior 	to his 	resignation. 	Furthermore, 	there was
not a single 	occasion, 	either 	before or 	after his 	resignation,
in any conversation with Hinkle, 	Oakley, 	Kreer, 	Day or Ripple
that 	Silver 	said 	outright 	that 	he 	would 	not 	resign 	if he 	could
not have 	casual 	status. 	At most, 	Silver 	indicated 	to Ripple
almost 	a 	month 	after 	he 	had 	resigned 	that 	he might 	reconsider
his 	decision 	and 	take back 	his 	resignation. 	The 	day 	after
receiving 	Silver's 	resignation 	letter, 	Oakley 	informed 	him 	that
she would 	not 	approve 	the 	change 	to a casual 	job, 	and yet
Silver 	still 	left 	on 	vacation 	and 	did 	not 	return 	until 	even
after 	his 	proposed 	last 	day on 	the 	University payroll. 	These
are 	not 	the 	actions of 	someone 	whose 	resignation was 	contingent
upon 	anything.
Nor 	is 	it 	any 	easier 	to believe 	that Silver's 	resignation
was merely 	a procedural 	step 	in 	changing 	his 	status 	from career
to casual. 	If 	that were 	the 	case, 	it would 	seem reasonable
that he would 	have 	raised 	the 	issue with his 	supervisor,
35
.

Oakley, 	prior 	to his 	resignation. 	Furthermore, 	if Silver had
been 	promised 	a casual 	job by Hinkle 	prior 	to his 	resignation,
a 	fact disputed 	by Hinkle, 	it would 	have been 	logical 	for
Silver 	to have 	returned 	to Hinkle 	after 	being 	denied 	by Oakley,
and 	pursue 	the 	issue with Hinkle. 	Hinkle 	denies 	that 	that 	ever
happened, 	and 	her 	testimony 	is 	credited.
Charging Party bases 	a 	large 	part of 	its 	argument 	upon
Oakley's 	misapplication 	of 	the 	draft 	policy 	regarding 	changes
in 	status. 	It 	is clear 	that 	the policy did 	not 	require 	that
Silver's 	request 	be 	denied, 	and 	that Oakley 	was 	incorrect when
she 	stated 	in her August 	18 	letter 	that 	it did. 	However,
Oakley 	amply 	demonstrated 	her 	lack 	of 	understanding 	of
University policy on 	numerous 	occasions, 	in both 	testimony 	and
her 	actions, 	and 	it 	is more 	likely 	that she cited 	the policy 	in
a clumsy 	and 	erroneous 	attempt 	to 	add 	weight 	to what 	was
already 	an 	appropriate 	decision 	under 	the 	circumstances.
Although 	Oakley's 	statement 	lessens 	her 	credibility 	and
arguably 	indicates 	contradictory 	justification 	for 	the
University's 	action, 	the weight of 	evidence 	indicates Silver
was 	denied 	casual 	status 	for 	the 	reasons 	given 	by Oakley 	in her
testimony, 	specifically, 	that 	she 	had no such openings 	under
her 	control 	and 	the 	very 	real 	threat of 	the 	layoff 	facing 	the
University.12
1	12I2rt	t 	should 	be noted 	that 	in 	reaching 	this 	conclusion 	no
weight 	whatsoever 	is 	given 	to 	the 	University's 	argument 	that
36

Silver's 	efforts 	were 	deficient 	because 	he 	never 	went 	through
proper 	personnel 	department procedures. 	No management 	employee
ever 	told 	Silver 	that he 	had 	to work 	though 	the 	personnel
office. 	To 	fault him for 	not 	doing 	so 	is 	unreasonable.
Furthermore, 	even 	if Silver's 	request was 	denied 	by Oakley
for 	unlawful 	reasons, 	there 	were 	no 	such 	jobs 	under 	Oakley's
control. 	Therefore, 	what Silver 	was 	denied was 	an opportunity
to 	be considered 	for 	the 	casual 	float pool position 	by Hinkle.
Denial of 	Casual 	Status 	by Hinkle
There 	was 	no evidence 	of 	any 	animosity 	towards Silver 	by
Hinkle. 	Quite 	the 	contrary 	is 	true. 	They 	seemed 	to have 	had 	a
cordial 	relationship. 	Although Hinkle 	was 	aware 	that Silver
was 	an officer 	in 	the union, 	they had 	had 	no negative 	incidents
regarding 	his 	union 	involvement.
As mentioned 	earlier, 	Hinkle was 	one of 	the 	most 	credible
witnesses 	at 	the 	hearing, 	and 	it 	is 	clear 	that 	she 	based her
decision 	not 	to hire 	Silver 	into 	the 	float pool 	on 	reasons
other 	than 	his 	protected 	activity.
Charging Party 	says 	Silver 	made 	it clear 	that 	he would 	have
been willing 	to work 	16 	to 24 	hours per week, 	which even Hinkle
admitted 	would 	have 	been 	an 	acceptable 	workload. 	He 	also
indicated 	he 	would 	be willing 	to 	leave 	his 	full-time 	job early
a 	couple of 	days 	a 	week 	to make 	the 	University's 	evening
shift. 	According 	to Silver, 	he 	told his 	new employer 	that he
was 	seeking 	evening 	and weekend work with 	the University, 	and
that 	his 	employer 	actually 	encouraged 	it. 	Additionally,
37

Silver's 	new employer was 	a 	nursing 	registry, 	therefore we
should 	assume 	they were 	aware 	that 	the 	University's 	evening
shift 	began 	between 	3:00 	and 	3:30 	p.m., 	thus 	requiring 	Silver
to 	leave work 	early.
However, 	just 	because 	Silver 	said he 	would 	be 	available 	to
work 	does 	not mean 	that Hinkle 	had 	to believe 	him 	in 	the 	face
of 	evidence 	to 	the 	contrary. 	Hinkle 	had 	had 	experience 	with
float pool employees with 	outside 	full-time 	jobs 	in 	the past,
with 	the 	results 	being 	less 	than 	satisfactory. 	Here, 	Silver
indicated 	he 	was working 	in 	excess 	of 40 	hours per 	week 	in his
full-time 	job. 	Hinkle 	knew 	that 	his 	hours 	overlapped 	with 	the
University's, 	and 	that 	for 	Silver 	to 	leave 	early he would 	have
to 	give 	his 	beeper 	to his 	supervisor 	to cover 	for 	him. 	She
reasonably 	felt 	that 	Silver's 	supervisor 	might 	not be 	willing
to 	take on Silver's 	duties 	over 	a 	long 	period 	with 	any
consistency. 	Additionally, 	Hinkle 	was 	not very 	impressed with
Silver's 	attitude 	during 	the 	interview, 	which 	would 	naturally
increase 	concern about his 	willingness 	to work 	the 	16 	to 24
hours per 	week 	he 	said he would 	be 	available. 	Therefore,
Hinkle's 	actions 	appear 	justified 	and 	not 	based 	upon 	unlawful
motivation.
Failure 	to Meet 	and 	Discuss
The 	Charging Party alleges 	in 	its 	charge 	that Silver 	was
shown 	a 	proposed 	policy 	which 	would 	have 	prevented 	all 	changes
from career 	to casual status. 	Furthermore, 	Charging Party
38

alleges 	that 	the 	policy 	had 	not been 	previously 	applied 	to
clerical employees, 	nor 	had 	it 	been circulated 	to employee
organizations 	for 	review and 	comment. 	This was, 	according 	to
the 	Charging Party, 	a violation of 	the University's 	duty 	to
provide 	the 	non-exclusive 	representative of 	its 	employees with
a 	reasonable 	opportunity 	to meet 	and 	discuss 	pursuant 	to
California State University, 	Sacramento 	(4/30/82) 	PERB 	Decision
No. 211-H.
That 	allegation 	is 	not 	supported 	by 	the 	record. 	Oakley
gave Silver 	a 	draft of 	a policy claiming 	that 	it provided 	one
thing when, 	in fact, 	on 	its 	face 	it did not. 	There 	is no
evidence 	that 	the draft was 	ever 	anything 	more 	than a draft.
Charging Party 	admitted 	there 	was 	no evidence 	that 	it 	had 	ever
been adopted. 	Even 	if 	it had been adopted, 	there was 	no
evidence 	showing 	that 	the 	draft 	policy was 	a change 	to 	the
existing practice. 	Furthermore, 	there 	was no 	showing 	that
Oakley's 	assertions 	about 	the 	policy 	had 	any 	generalized 	effect
or 	continuing 	impact 	on 	the 	terms 	and 	conditions 	of 	employment
of 	bargaining 	unit 	members 	as 	required 	by Grant Joint 	Union
High School District 	(2/26/82) 	PERB Decision No. 	196, 	and
Placer 	Hills 	Union School District 	(11/30/82) 	PERB 	Decision
No. 	262. 	A mere 	isolated 	act 	against a single employee 	is
insufficient 	to establish 	a 	unilateral 	change 	in 	or 	repudiation
of 	an 	established 	policy. 	North 	Sacramento School 	District
(12/20/82) 	PERB Decision No. 	264.
39

The 	record 	in 	this 	case 	shows 	little 	more 	than a single
instance 	of 	a 	supervisor 	incorrectly 	citing 	a draft 	of 	a policy
about which 	we 	have 	little 	evidence.
CONCLUSIONS
Cory Silver 	was 	denied 	casual 	status 	by Gail Oakley 	for 	two
reasons. 	First, 	because 	she had no such positions 	under 	her
control. 	Second, 	because 	the University was 	trying 	to keep
positions 	open 	for 	those 	employees 	facing 	a potential 	layoff.
Silver 	was 	denied 	the position 	as 	a casual unit 	secretary on
the 	float pool by Sylvia Hinkle primarily due 	to a perceived
lack 	of 	availability 	for 	work. 	Charging Party 	has 	failed 	to
prove 	by 	a 	preponderance 	of 	the 	evidence 	that 	either 	of 	those
decisions 	were 	unlawfully 	motivated 	by Silver's 	protected
activity.
Charging Party has 	also 	failed 	to 	establish 	that 	the
University 	unilaterally 	changed 	the 	practice 	regarding 	changes
from career 	to 	casual 	status 	in 	violation of 	its 	duty 	to meet
and discuss 	the 	issue with 	the Charging Party. 	Thus, 	it 	is
concluded 	that 	the 	University 	did 	not 	interfere 	with 	any 	rights
protected 	by 	the HEERA.
PROPOSED 	ORDER
Based 	upon 	the 	findings of 	fact, 	conclusions of 	law 	and 	the
entire 	record 	in this matter, 	the 	unfair 	practice charge 	in
Case No. 	SF-CE-143-H 	filed 	by 	the American Federation of State,
County 	and 	Municipal Employees Local 	1650 	against 	the 	Regents
40

of 	the 	University of 	California 	(San Francisco Medical 	Center)
and 	the 	incorporated PERB 	complaint 	are 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final on May 	17, 	1984, 	unless a party files a timely
statement of exceptions. 	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 	17,
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
filed 	with 	the Board 	itself. 	See 	California Administrative
Code, 	title 8, 	part III, 	sections 32300 and 32305.
Dated: 	April 27, 	1984
JAMES W. 	TAMM
Administrative 	Law 	Judge
41