Regents of the University of California (Berkeley) (PERB 0534H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA STATE EMPLOYEES '
ASSOCIATION, CHAPTER 41,
AND MICHAEL BOGAN,

Charging Parties, Case No. SF-CE-46-H

Vv. PERB Decision No. 534-H

REGENTS OF THE UNIVERSITY OF
CALIFORNIA (BERKELEY),

November 4, 1985

Respondent.

Ne Ne a Ne Ne Nee ae et Be Ne Ne Be Net

Appearances: Kevin McCurdy and Michael R. Bogan,
Representatives for California State Employees' Association,
Chapter 41 and Michael Bogan; Susan M. Thomas, Attorney for the
Regents of the University of California (Berkeley).

DECISION

This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Charging Parties,
California State Employees’ Association, Chapter 41 and
Michael Bogan, and by Respondent, the Regents of the University
of California at Berkeley (University). Charging Parties
except to the attached proposed decision of an administrative
law judge (ALJ) dismissing their complaint that the University
discharged Michael Bogan and then banned him from certain
library premises in retaliation for protected activities. The

University excepts to the ALJ's determination not to give

collateral estoppel effect to an arbitrator's findings dealing
with the same factual situation as the instant case.
After carefully reviewing the entire record, the Board
finds the ALJ's findings of fact and conclusions of law free of
prejudicial error and adopts the proposed decision as that of
the Board itself.
The University's exception to the determination of the
collateral estoppel issue and Charging Parties' procedural
exception to the substitution of ALJs merit some brief
additional comment, however.
Charging Parties except to the substitution of ALJ
Ronald Blubaugh, who authored the proposed decision, for ALJ	
for
Gerald Becker, who conducted the hearing in this case. 	They
argue that there were significant conflicts in testimony and
that the decision required credibility determinations which
only Becker, who saw and heard the witnesses, could make.
PERB has long since determined that such ALJ substitutions
are proper and permitted by the statute, especially where the
Board itself has rendered a final decision after a de novo
review of the record. 	Fremont Unified School District (1978)
PERB Order No. Ad-28. This is true even where credibility of
witnesses is an issue. 	Regents of the University of California
(UCLA) (1983) PERB Decision No. 267a-H. However, the Board
finds that the decision in this case does not require
N

credibility determinations. 	We conclude from our review of the
extensive record that Charging Parties simply failed to
establish the requisite prima facie case of discriminatory
withtreatment by a preponderance of the evidence, and we agree with
the ALJ that, even if a prima facie case were established, the
University successfully rebutted it.
we
were
With regard to the University's exception on the collateral
estoppel issue, the Board affirms the ALJ's reasoning and
determination. The University's reliance on People v. Sims
(1982) 32 Cal. 3d 468 is misplaced as that case refers to the
deference given an administrative agency's findings and not an
arbitrator's award.
ORDER
Upon the foregoing facts, conclusions of law, and
the entire record in this matter, the Public Employment
Relations Board ORDERS that the unfair practice charge in Case
No. SF-CE-46-H is DISMISSED.
By the BOARD
W

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE EMPLOYEES'
ASSOCIATION ,
Charging Party ,
V .
REGENTS OF THE UNIVERSITY OF
CALIFORNIA (BERKELEY) ,
Respondent .
Unfair Practice
Case No. SF-CE-46-H
PROPOSED DECISION
(4/5/83)
Appearances: Kevin Mccurdy, Steward, for the California State
Employees' Association; Claudia Cate, Attorney, for the Regents
of the University of California (Berkeley) .
Proposed Decision by Ronald E. Blubaugh, Hearing Officer .
PROCEDURAL HISTORY
An employee organization contends here that one of its
members was unlawfully dismissed in retaliation for
participation in protected activity. In addition, the
organization continues , the employer unlawfully interfered with
employee rights to participate in protected activity when it
subsequently banned the former worker from a campus library
building .
The employer defends on both procedural and substantive
theories, arguing first that the Public Employment Relations
Board (hereafter PERB) should afford collateral estoppel to an	PERE)
arbitrator's earlier decision about the dismissal.
Alternatively , the employer argues that the employee

organization has failed to establish that the dismissal was
motivated by the employee's participation in protected conduct
and, in any event, there was ample justification for the
termination and the subsequent decision to ban the employee
from a library building.
The California State Employees' Association (hereafter
CSEA) filed the charge at issue on April 6, 1981. The charge
alleges that the Regents of the University of California
(hereafter University) violated Higher Education
Employer-Employee Relations Act subsections 3571 (a) and (d)1
Unless otherwise indicated, all references are to the
Government Code. 	The Higher Education Employer-Employee
Relations Act (hereafter HEERA) is found at section 3560 	··
et seq. 	In relevant part, section 3571 provides as follows:
It shall be unlawful for the higher
education employer to:
(a) 	Impose or threaten to impose reprisals
on employees , to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter .
(d) Dominate or interfere with the
formation or administration of any employee
organization, or contribute financial or
other support to it, or in any way encourage
employees to join any organization in
preference to another; provided, however ,
that subject to rules and regulations
adopted by the board pursuant to Section
3563, an employer shall not be prohibited
2

when, on December 31, 1980, it dismissed Michael R. Bogan from
R.
his job at the main library on the Berkeley campus and
subsequently forbade him to enter the library for any reason.
The University answered the charge on April 28, 1982,
admitting that Michael Bogan was dismissed and that he
ultimately was prohibited from entering the main library and
annex but denying that those actions were illegally motivated.
The University raised various affirmative defenses, including
the contention that the charging party had failed to exhaust
the University's internal grievance procedures.
Following a PERB-ordered settlement conference, CSEA on
April 30, 1981 requested that the charge be placed in abeyance
indefinitely. In accord with that request the PERB suspended
further processing on the case. In July of 1981, the dismissal
of Mr. Bogan was submitted to an arbitrator under the
University's internal grievance procedures. 	On November 9,
1981, the arbitrator denied the grievance and upheld the
dismissal of Mr. Bogan . 	On November 23, 1981, CSEA moved to
reactivate its unfair practice charge, asserting that the
arbitrator's award was repugnant to HEERA and that Mr . Bogan 	Mr.
was denied due process in the arbitration proceeding.
from permitting employees to engage in
meeting and conferring or consulting during
working hours without loss of pay or
benefits .
w
PERE-ordered

On December 10, 1981 , the University responded to the
motion to reactivate the case, asserting that the matter of
Mr. Bogan's dismissal had been fully litigated and that the
PERB should defer to the arbitrator's findings of fact and
conclusions of law. On January 15, 1982, the chief
administrative law judge of the PERB issued a complaint and
notice of hearing. On February 18, 1982, the University moved
to amend its answer to assert that Michael Bogan had failed to
mitigate his damages by seeking other employment.
A hearing was commenced on March 1, 1982 before PERB
Hearing Officer Gerald Becker and conducted in Berkeley over 13
nonconsecutive days, concluding on June 29, 1982. At the start
of the hearing, the hearing officer accepted the University's
amended answer but reserved a ruling on a University motion
that PERB should defer to the finding of the arbitrator. In
the brief it ultimately filed in this case, the University
withdrew its motion for deferral, relying instead upon an
assertion it made during the hearing that the PERB should
afford collateral estoppel to the findings of the arbitrator.
The parties' final written briefs were received on
November 8, 1982. Due to the resignation of Mr. Becker , the
case was transferred to the undersigned hearing officer 2 on
2See California Administrative Code, title 8, part III,
section 32168 (b) .
PERB
November

February 24, 1982, and was submitted for decision as of that
date .
FINDINGS OF FACT
The University of California is a higher education employer
under HEERA. During the period relevant to this case there was
no exclusive representative for employees at the Berkeley
campus library although CSEA was engaged in an organizing
campaign . 	The general library at Berkeley is comprised of the
Doe Memorial Library (known colloquially as the main library)
plus about 20 branch libraries. It has between 900 and 1, 000
employees of whom 130 are academic employees , 250 to 300 are
career staff employees and the remainder are student
employees . 	Approximately half of the employees work in the
main library and its annex and the remainder are spread through
the various branches.
The complainant in this case is Michael Ralph Bogan, a
former employee of the main Berkeley campus library . Mr. Bogan
was hired to work in the library circulation department in 1965
when he was a student. He stopped taking classes at the
University in 1968, resumed taking classes briefly in the early
1970's but then quit again. 	Throughout this period, whether a
student or not, Mr . Bogan continued to work in the library. He
was promoted to the position of student supervisory Library
Assistant I in 1969, became a Library Assistant II in 1973 and
attained career , rather than casual, employee status in 1975.

During his later years at the library, Mr . Bogan supervised
student workers and was responsible for such tasks as
reshelving books, issuing library cards and similar duties.
His supervisory role with student workers was confined to
giving them work assignments. He had no authority to hire or
discipline student workers. During the years 1978 through
1980, Mr. Bogan worked in the library about 30 hours per week,
on rotating shifts.
The annual performance evaluations of Mr. Bogan were
generally favorable from 1966 until late 1978. During those
years he variously was described as "accurate, fast,
dependable, one of the finest workers on the staff," "a quiet,
responsible worker ," "courteous . . 	mature, observant and
effective ," "capable, valuable . 	conscientious .
relaxed . 	unusually quiet for a supervisor , " "the de facto
dean of the supervisors crew . 	invaluable." 	The student
crews that worked under him were praised for getting their work
done correctly and on time. 	The only break in the pattern of
praise occurred in 1968 when Mr. Bogan was given an
unsatisfactory rating because of excessive lateness . ' He was
placed on probation briefly.
The Judey Wall Incident
Michael Bogan's relationship with his employer began to
deteriorate in December of 1978. His slide from favor
commenced with what the University believed to be a death

threat against his supervisor, something Mr . Bogan considered
to be nothing other than a manifestation of his "gallows humor."
On December 18, 1978, a student library assistant named
Deborah Callon went to Kenneth Legg , the head of the main
library circulation department, and told him that she had
overheard Mr. Bogan say that he would like to have his
supervisor killed. The threatened individual, Judey Wall , had
just been named circulation supervisor and thus became
Mr. Bogan's boss.
According to a written statement Ms. Callon prepared on the	
Callon
date of the incident, she was working near Mr . Bogan and
overheard a conversation between him and a student employee.
She said that Mr. Bogan was calling Judey Wall names "and then
after awhile started talking about how he would like to kill
her . " 	The other person in the conversation said that he knew
of some people who, for $150, would kidnap a person, take the
person to a deserted road and then kill the person. 	Ms . Callon
wrote that Mr. Bogan then commented that "he wouldn't want
Judey drugged because he wanted her to suffer as much pain as
possible and that drugs would be too expensive." Ms: Callon 	Ms;
wrote that the incident was not the first time she had heard
such comments from Mr. Bogan . 	She wrote:
When I came to work one morning, he told me
that one of these days he was going to bring
his gun to work. Then he was going to shoot
Jim Nasir , Fred Develbiss, three other

people and himself. He told me that I was a
strong candidate for one of the three other
people he was going to kill.
Mr. Legg testified that he had not met Ms. Callon prior to
when she visited his office to tell him about Mr. Bogan's
statements . He said that she appeared to be truly frightened
of Mr. Bogan. Mr. Legg said that he encouraged Ms. Callon to
put her statements about the threat into writing so that he
could take the matter up with the library administration. She
complied with his request.
Mr. Legg met with Mr. Bogan shortly after the visit from
Ms. Callon and told Bogan of the accusation without identifying
who had made it. Mr. Legg said that Bogan responded that some
people did not understand his black humor and seemed obsessed
with learning the identity of the person who had reported the
comment . Mr. Legg testified that Mr . Bogan approached Legg's
desk, demanding to know who had told Legg about the alleged
threat. Mr. Legg testified that Mr. Bogan brought his hands
down hard on the desk, causing Mr. Legg's ashtray to flip up
into the air and land on Legg's lap. At that point , Mr . Legg
continued , he stood up and he and Bogan looked directly at each
other until Bogan left the room.
On December 21 , 1978, Mr. Legg wrote a "Letter of Warning"
to Mr . Bogan, describing the threat purportedly made by Bogan
and informing him that "such conduct on your part is
inappropriate and will not be tolerated by the Library." 	The
was

letter advised Mr. Bogan that the statement attributed to Bogan
had a negative effect on many library staff members who
interpreted his remarks as threats against their lives and the
lives of others . The letter directed Mr. Bogan to give his 	to
"immediate, full and continuing cooperation" to his new
supervisor , Ms. Wall, and warned that repetition of such
conduct could lead to dismissal . 3
33The text of the December 21, 1978, letter of warning	The
reads as follows:
TO: 	Michael Bogan, Library Assistant II,
Circulation Department
FROM: Kenneth Legg , Head, Circulation Dept.
SUBJECT : Letter of Warning
On Monday, 18 December 1978, I met with you
to talk about evidence I had concerning your
attitude toward Ms. Judey Wall who had been
recently appointed to the position of
Circulation Supervisor and who, because of
this position, had become your immediate
supervisor . 	It had been reported to me that
you called her names and followed this with
a statement about how you would like to kill
her. During our meeting you did not deny
making these statements , but rather
commented at length on the fact that people
who know you understood such statements.
The purpose of this letter is to inform you'
that such conduct on your part is
inappropriate and will not be tolerated by
the Library. Your statements have had a
serious negative effect on many of the staff
members in the Circulation Department and
have been interpreted by some as threats on
their lives or the lives of others. 	This
will advise you that I expect your
immediate, full and continuing cooperation
with your new supervisor , MS . Wall, and
9

On the last day of the PERB hearing, MS. Callon was called
as a witness by Mr. Bogan. Prior to that time, her identity as	
den
Mr. Bogan's accuser in December of 1978 had never been
disclosed. At the hearing, she testified that while her fears
of Mr. Bogan were real at the time she later concluded that
they were overstated. She said that she had been "brainwashed"
by Mr. Legg and Ms. Wall into believing that Mr. Bogan was
dangerous . 	She testified that she later concluded that she had
taken the death threat too seriously and that Mr . Bogan
actually was only joking.
On cross-examination, however , Ms. Callon reaffirmed all of
the statements she had made in the December 18, 1978 written
statement . 	She specifically affirmed that Mr. Bogan had made
the statements about wanting to kill Judey Wall and that one
day he would bring a gun to work and shoot various employees
and himself.
behavior on your part which is appropriate
to your status as a student supervisor in
the Circulation Department . 	If I receive
further evidence that you continue to make
statements which in any way threaten other
employees the Library will take necessary
corrective action which could include your 	your·
dismissal from employment with the
University of California.
If you wish to discuss this situation with
me or others in the Library Administration,
please let me know.
10

On January 18, 1979, Mr. Bogan requested an administrative
review of the letter of warning. In a letter to the campus
personnel manager , Mr . Bogan disputed the conclusions in
Mr. Legg's letter of warning. Mr. Bogan tacitly acknowledged
that he had engaged in a conversation about the death of
Ms. Wall but denied that it was a threat. He described his
comments as "black humor" and as "gallows humor . " He wrote
11
that although there have been a number of conversations in the
department involving death, he has "yet to find anyone who
considers such joking seriously." Mr. Bogan complained that
the letter unfairly depicted him as an unstable or potentially
homicidal person which is a false characterization.
Mr . Bogan's appeal went to University Librarian
Joseph A. Rosenthal who delegated responsibility for
investigating the situation to William E. Wenz, library
1~
personnel officer . Mr. Wenz met on a number of occasions with
Mr. Bogan to discuss the accusations against him. Mr . Wenz met
also with Judey Wall. Mr. Bogan was cooperative in the
investigation and ultimately acknowledged that his behavior
could be misinterpreted and taken seriously by others. 	Because
Mr. Bogan was a long-time employee with a satisfactory work
record, Mr. Wenz recommended that the letter of warning be made
"null and void." Mr. Rosenthal agreed to this settlement and
Mr. Wenz drafted a letter for Rosenthal's signature which
11

confirmed the resolution of the grievance . 4 The original
letter of warning, although nullified, was retained in
Mr. Bogan's personnel file so that the University would have a
record of the incident.
4	4Mr. Rosenthal agreed to a resolution of the grievance in	Mr.
a February 8, 1979 letter to Jack Webb of the Berkeley campus
personnel office. 	The text of his letter reads as follows:
Dear Mr . Webb:
In response to your letter of January 22,
1979 concerning the administrative appeal of
Michael Bogan, I have had Mr. Wenz consult
with both Mr. Legg and Mr . Bogan in an
effort to resolve the matter in a mutually
satisfactory manner .
As a result of this consultation we feel
that we are able to resolve this matter in
the following manner .
1. Mr. Bogan has freely admitted in his
letter of January 18, 1979 to you that his
conversation with another member of the
Circulation Department staff which had been
overheard by a third member of this staff
was a joke, i.e., "gallows humor" which	a 	humor"
should not have been taken seriously.
2. Nevertheless, some individuals did not
perceive this as a joke and did take
Mr. Bogan's comments seriously, i.e ., as
threats of violence against his supervisor , .
Ms. Wall .
3. Mr. Bogan, therefore, has agreed to make
it clear to Ms. Wall, in a personal meeting
with her that his remarks were intended
humorously and has further agreed to
apologize to her for any emotional anguish
that this misunderstanding might have caused.
4. Having agreed to this approach the
Library will attach this letter to the
12

Profanity and Vulgarity in the Library
A key element in the University's dismissal action against
Mr . Bogan was his abusive use of profanity and vulgarity
against library employees and others . The record establishes
that the use of profanity is not uncommon in the University
library . 	One witness estimated that profanity is regularly
used by approximately 20 of the 100 employees in the library
circulation department. Profanity is frequently used, for
example, when a library employee describes a rude or demanding
patron in conversation with another employee outside of the
patron's hearing.
Mr. Bogan's use of profanity differed from other employees
in that it was more pointed and personal. Various witnesses
letter of appeal received from Mr. Bogan and
the letter of warning sent to Mr . Bogan by
Mr. Legg on 21 December 1978. This will
document the fact that the warning letter
has been made null and void on the basis of
the understanding outlined in Nos . 1, 2 and
3 above .
With Mr. Bogan's agreement , I trust this
will resolve the appeal.
Sincerely,
Joseph A. Rosenthal
Acting University Librarian
I have read the above and accept this
arrangement as a suitable resolution of my
administrative appeal .
Michael Bogan
13

testified that Mr. Bogan regularly said, "Kiss my ass, " to
employees . He also referred to individual female employees as
"bitch," both directly to them and in reference to them. 	In
particular , Mr. Bogan directed such comments to Joyce M. Ford,
a Library Assistant III who was Mr . Bogan's supervisor during
the several hours daily that he worked on the service desk.
Mr . Bogan testified that such vulgarity as he used with
Ms. Ford was in humor and that she readily went along and used
profanity back at him. Ms. Ford acknowledged that she used
profanity and vulgarity toward Mr. Bogan but stated that it was
in response to comments he made toward her. She testified that
when he said, "Kiss my ass ," she responded, "Kiss your own
ass . " 	When he called her a "bitch" she called him a "shit
II
ass . " 	She testified that she did not regard their exchanges as
good natured joking. There is no University or library rule
about the use of profanity or vulgarity in the work place.
However , the library administration had conducted staff
meetings about the proper public service atmosphere which is to
be projected by employees.
Mr . Bogan was criticized in his January 30, 1979 evaluation
for writing vulgarities on walls. Mr . Bogan responded that he
had commenced writing graffiti only in self defense after
another person wrote things about him on the walls. 	He was
directed to cease writing graffiti on the walls and to report
incidents of graffiti about him to his supervisor.
14

The California Hall Meeting
In early January and February of 1980, six female library
employees complained about Bogan to library circulation
department head Kenneth Legg. The gist of their complaint was
that Mr. Bogan had called the women, "bitch, " "long-legged
bitch ," "slut, " and "whore." Some of the women also told
Mr. Legg that they were afraid of Bogan. Mr. Legg urged them
individually to put their complaints into writing so he would
have something to take to the library administration. Five of
the women complied with his request.
In a statement dated January 30, 1980, student employee
Joyce Emerson wrote that for two years she "had been subjected
to numerous instances of harassment and verbal abuse" by"
Michael Bogan . 	She described Bogan as "abusive, arrogant and
most unfit" to supervise student workers. She wrote that
Mr. Bogan had an "extremely sexist (attitude ) toward women."
She stated that she had heard him downgrade women on a number
of occasions by calling them "bitches," "whores ," 	"
"good-for-nothing-whores," and "fat slobs." She wrote that
once , when she was wearing a dress , he approached her and said,
"Now who are you seducing?" Ms. Emerson accused Mr . Bogan of
intimidating her and other students, of playing favorites by
giving undesirable assignments to persons he disliked. She
described him as filled with "hostility and frustration" and
said that he looks for trouble.
15

In a statement dated January 31 , 1980, co-worker Joyce Ford
complained that Mr . Bogan had been harassing her for some
time . 	She wrote that Mr. Bogan made comments designed to annoy
her . As an example, she said that Mr. Bogan regularly said to
her , "You remind me of my mother , and I hate her ." Ms. Ford
described Mr. Bogan as "an unfit supervisor and a total
nuisance to the department."
In a statement dated January 31, 1980, Deborah Callon
stated that the work environment in the library had "become
increasingly intolerable" because of Michael Bogan. She
described him as a disruptive and detrimental influence who
treats female employees as though they were "inferior beings,"
calls them "bitches" and makes "vulgar remarks concerning their
sexual conduct." She said that when he wants the attention of
a female employee, "he snaps his fingers at her as though she
were a dog." 	She accused Mr . Bogan of being an unfair
supervisor who used his authority to give pleasant jobs to
persons he liked and unpleasant jobs to those he disliked.
Ms. Callon also accused Bogan of spreading "false and vicious
gossip" about library employees and of writing graffiti about
employees in the bathrooms and elevators. She stated that he
refused to help student employees when they were rushed.
In a statement dated February 12, 1980, Diane Lazzari wrote
that during the three years she worked in the main library she
heard Michael Bogan make "uncountable malicious statements"
16

about other employees. "Comments directed at women (were)
particularly glaring ," she stated. Ms. Lazzari wrote that
Mr. Bogan particularly vilified his one-time supervisor ,
Judey Wall, calling her a "bitch" and making references to her
sexual character . Ms. Lazzari also criticized Mr . Bogan for
interfering with students who reported to her .
Finally, in a statement dated February 12, 1980,
Regina Manion (Fanelli) stated that during the four years she
worked in the main library circulation department she found
Michael Bogan to be an intimidating person. She wrote that he
"found great pleasure in scaring, criticizing, and demeaning
other employees ." She stated that she had heard him refer to	
employees...
Female employees as ," 	" sluts ," "whores ," and "bitches . " She
stated that she had heard Mr. Bogan harangue a student employee
"because she did not use cocaine." Ms . Manion stated that she
had overheard Mr. Bogan make numerous derogatory remarks about
Judey Wall and on one occasion, she "heard him talk about
killing her ." 	She said Mr. Bogan "boasted often of ways to
mutilate animals" and said she had seen him "swinging around
such dangerous things as bicycle chains while claiming that he
would hit someone if they did not watch out."
Upon receipt of the written statements, Mr. Legg went to	apon
Elaine Sloan, associate University librarian who was the	
University
library's coordinator for equal rights activities. Ms. Sloan
arranged a meeting between the employees and several library
17

and campus administrators, including herself , Mr . Wenz and
Michael Smith, assistant vice chancellor for legal affairs.
Because of the concerns by the women that Mr. Bogan would learn
about the meeting, it was conducted in California Hall, a
campus administrative building, rather than at the library.
At the outset, the female employees insisted that the
meeting be conducted on a confidential basis and sought
assurances that they would in no way be identified to Mr . Bogan
as his accusers. 	Vice Chancellor Smith found the women to be
visibly upset , very nervous and quite hesitant to be at the
meeting. At their insistence, he promised not to take notes of
their statements. He told them that if any action were to be
taken against Mr. Bogan they would at some point have to come
forward and be identified. 	They wanted assurances that if they
did testify , Mr. Bogan would be dismissed, but Smith told them
he could give no such assurances .
During the meeting, each of the women individually recited
their grievances against Mr. Bogan, in large part through
elaboration upon their written statements. They told the vice
chancellor that Mr . Bogan engaged in intimidating hostile
behavior , that he made personal comments of a sexual nature,
made vulgar and derogatory comments about people, talked about 	about
killing people and talked about his gun .5 At the conclusion
about
5During the PERB hearing, Mr. Bogan denied many of the
accusations which the female employees had made against him in
18

of the meeting, Mr. Smith told the women that if they refused
to come forward the University could do nothing about
Mr . Bogan. 	The reaction of the women was that the meeting had
been a waste of time.
After the meeting, Vice Chancellor Smith told
Mr. Rosenthal, the librarian, that the University faced a
serious problem with Mr . Bogan. 	In effect, Mr. Smith said that
the library had been put on notice about the problem but ,
because the women refused to testify, it was powerless to act.	F,Owerless
Mr. Smith said that he found the employees to be highly
credible and that he believed them. Mr. Smith told the library
administrators that he was afraid that if Mr . Bogan took some
their written statements and at the California Hall meeting.
He denied Ms. Emerson's contentions that he had given
disfavored employees onerous assignments and that when she wore
a dress one time he asked who she was seducing. 	He denied
Deborah Callon's contention that he talked about killing
employees at work. He denied Regina Manion's statement that he
had swung bicycle chains in a threatening manner . He denied
general accusations that he often called female employees
bitches , whores and sluts.
It is unnecessary here to resolve the disputes in
testimony . 	The issue before PERB is not whether or not the
University had good cause to terminate Mr . Bogan. 	The issue
before PERB is whether or not the University had anti-union
motivation in the termination of Mr. Bogan. A determination
about the University's motivation can be made by analysis of
whether or not it acted on a reasonable, good faith belief that
the accusations against Mr. Bogan were true. 	Baldwin Park
Unified School District (6/30/82) PERB Decision No. 221. 	The
underlying truthfulness of the contentions against Mr. Bogan
was a matter for the arbitrator .
19

improper action the University might face legal liability
because it had been warned.
Because of the reluctance of the female employees to be
identified publicly , no action was taken against Mr. Bogan
following the California Hall meeting. He was not notified of
the charges against him nor were they further investigated.
that point, the matter was left unresolved.
The Joyce Ford Mother-in-law Incident
On May 28, 1980, Joyce Ford went to Mr. Legg and told him
that on the previous Saturday Michael Bogan had called her
mother-in-law a "bitch ." Ms. Ford, who had learned of the
incident from her mother-in-law, said that from the library
Mr. Bogan had telephoned the Ford home looking for her . "Her
mother-in-law answered and after she and Mr . Bogan had
exchanged some words , he called the mother-in-law a bitch.
Ms. Ford told Legg that she had confronted Bogan about the
incident and that Bogan had admitted it. 6 Ms. Ford demanded
that Mr. Legg take some action against Mr . Bogan . Mr. Legg
confronted Bogan about the accusation. Mr. Bogan listened and
responded , "It won't fly."
6	6At the PERB hearing, Mr. Bogan denied that he used the	At
word "bitch" in a conversation with Ms. Ford's mother-in-law.	Ms.
He acknowledged, however , that during his subsequent
conversation with Ms. Ford he said to her in a humorous
fashion, "Well, you know your mother-in-law is a bitch."
20

At Mr. Legg's request, Ms. Ford made a written statement
about the incident. Mr . Legg consulted with Associate
Librarian Sloan and library Personnel Officer Wenz and
ultimately it was agreed that Mr. Wenz should write a letter of
warning to Mr . Bogan. The letter, dated June 12, 1980, recites
Joyce Ford's version of the incident and informs Mr. Bogan that
such behavior is "totally inappropriate." The letter warns
that any repetition of such vulgar and abusive language would
lead to "the appropriate corrective action up to and including
your dismissal. "7
7 The June 12, 1980, warning letter reads as follows:
: Michael Bogan, Circulation Department
FROM: Kenneth Legg , Head, Circulation Dept.
RE : Letter of Warning
On Friday, 30 May 1980, I met with you to
discuss the matter described below:
On 28 May, Mrs . Joyce Ford spoke with me and
related the following incident: At about
10:00 on the morning of 24 May, you called
her home while on duty at the Library and
spoke with her mother-in-law during the
course of which conversation you referred to
her mother-in-law as a "bitch". Further ,
that when Joyce spoke with you about the
incident on 27 May, following her return to
work after the Memorial Day holiday , you
admitted to having called her mother-in-law
a "bitch".
This is to inform you that such conduct on
the part of any Library employee is totally	
Library
inappropriate behavior . If any further
instance of your use of vulgar or abusive
language in your capacity as an employee of
21

On June 15, 1980, Mr. Bogan appealed the letter of
warning. In the appeal, Mr. Bogan denied that he had called
Ms. Ford's mother-in-law a bitch and denied that he had told
Ms. Ford that he had done so. Mr. Bogan asked that the letter
of warning be withdrawn. On June 24, 1980, University
Librarian Joseph Rosenthal denied the requested recission of
the letter of warning . Mr. Rosenthal stated that based upon
the information provided to him, he had concluded that
Mr. Bogan had in fact called Ms. Ford's mother-in-law a bitch.
Therefore, he upheld the letter and the warning that repetition
of such behavior would lead to corrective action including
dismissal. Mr. Rosenthal stated that he found the conduct "all
the more reprehensible in view of previous occasions in which which
this sort of attitude and behavior" has been exhibited.	behavior 11
Mr. Rosenthal wrote that the most recent incident indicates
that prior discussions and warnings had been " insufficient to
impede this sort of unacceptable behavior on your part."
Mr. Bogan asked for an administrative review of the letters
he received from both Mr. Legg and Mr. Rosenthal. The
administrator who conducted the factfinding review made no
the Library is reported to me, I will take
the appropriate corrective action up to and
including your dismissal.
You have the right to request review of this
action under Staff Personnel Policy 280 and
290 as appropriate. Copies are enclosed for
your information.
22

finding about whether or not Mr . Bogan actually called the
mother-in-law a bitch while in telephone conversation with
her. He did conclude, however , that Mr. Bogan had called the
mother-in-law a bitch in conversation with MS. Ford. Upon
receipt of the factfinder's report and other documents,
Berkeley campus Chancellor Ira Michael Heyman upheld Mr. Legg's
letter of warning . Chancellor Heyman concluded that "a letter
of warning against any further use of vulgar or offensive
language while on the job is fully justified."
The 1980 Anonymous Telephone Calls
On June 4, 1980, Ken Legg advised Associate Librarian
Elaine Sloan that he had been receiving anonymous telephone
calls . 	The calls commenced on May 30th and he had received
between three and four per day. At first, there was only
silence from the person on the other end of the line. However ,
on June 3, a male voice hissed in a low tone, "First there was
Tim, then Judey, and you're next." In another call later that
night the voice said, "You're dead." Mr. Legg presumed the
references were to Timothy Dewolf and Judey Wall, both of whom
had worked in the main library and been Mr . Bogan's supervisors.
Mr . Legg suspected that the anonymous caller was
Michael Bogan. He believed he could identify the caller by the
sound of his voice. In addition, the calls commenced shortly
after Mr. Legg had spoken to Mr. Bogan about the Joyce Ford
mother-in-law incident and the caller's references to persons
23

linked up with former supervisors of Mr. Bogan. Nevertheless,
it was never proven that Mr. Bogan made the calls.
The incident was reported to Mr. Rosenthal and the campus
police were called upon for assistance. The campus police	
J?Olice
placed a wire tap on Mr. Legg's telephone and issued him a
silent alarm which he could use to summon assistance. Mr. Legg
wore the alarm for at least a year . Mr. Legg also obtained a
new, unlisted telephone number .
The Profanity Complaints of October 1980
In early October of 1980, Virginia Loza approached Ken Legg
and complained about Michael Bogan's continued use of abusive
profanity. Ms. Loza was upset and frustrated at what she
considered an unpleasant working environment caused by
Mr. Bogan. Mr. Legg told her to put her complaints into
writing. She did and on October 3 she gave Mr. Legg a memo
complaining that Mr . Bogan had called Joyce Ford a "bitch" and
that he persisted in using the obnoxious expression, "Kiss my
ass ," when told to do something. Ms. Loza complained that no
one should have to work under the conditions caused by
Mr. Bogan's use of vulgar language . She asked for some
protection against him . 8
8Ms. Loza's October 3, 1980 memo reads as follows:
TO: Ken Legg
FROM: 	Virginia Loza
On the morning of the week of September 15th
24

On October 17, 1980, Ms. Loza wrote another memo to
Mr. Legg , again complaining about Mr . Bogan . 	She complained
that as she passed his desk on that date he called her name.
She said that she turned to see what he wanted "and then he
said, 'Kiss my ass. '" Ms. Loza wrote that she could not take
such abuse any longer . 	"I heard about a Title 9 for women who
can find out about their rights and I'm going to certainly
try," she concluded.
1980, I was approached by Mike Bogan and
asked if I knew the whereabouts of Joyce
Ford. 	I answered that I did not know. He
continued by saying that she is never around
when needed. He then got angry at the fact
he could not find her and proceeded to call
her a "bitch". 11
I turned around and told him
that comment was uncalled for. I said I was
going to tell and he told me not to because
he was already being accused of using the
name on someone else.
He also has the terrible habit of constantly
using this obnoxious statement of "kiss my
ass" when asked to do something. For
example, one day I asked him if he would do
an hour on the Service Desk because we were
short of SD staff, and he answered by saying
I will if you "kiss my ass". I looked at	if
him and just walked away. This goes on
constantly in the department with him.
My reason for writing this memo on Mike
Bogan is because I feel that no one should
have to work under conditions of listening
to vulgar language that is being spoken by
Mike Bogan .
I'm sure that something can be done, there
just has to be, I feel that there has to be
some type of protection against people like	people
Mike .
25

Mr . Legg took the two memoranda to the administration , said
that he had given Mr. Bogan a warning letter for such conduct
and that it had done no good . Mr . Legg complained that
Mr . Bogan continued to engage in the same types of conduct as
before and that something had to be done. When he was informed
of the new complaints against Mr. Bogan, Vice Chancellor Smith
ur ged that Mr . Bogan be terminated. His recommendation to
terminate was based upon the nature of Ms. Loza's complaint in
light of the clarity of the previous warning letters about the
same type of behavior .
On October 24, 1980, Mr. Rosenthal placed Mr. Bogan on
leave "to investigate further complaints of your misconduct,
similar in nature to those addressed in the letter of warning	
warning
you received dated 12 June 1980." The letter informing
Mr. Bogan of the action advised him that the leave would be in
effect until further notice and directed him "to remain out of
the library and not return to the premises until you are
invited to do so as part of the investigation." The letter
further informed Mr. Bogan that upon completion of the leave he
might be paid for all , part or none of the leave, dependent
upon the decision reached.
Mr. Rosenthal testified that he was motivated to place
Mr . Bogan on investigatory leave because of the complaints of
Ms. Loza and the other female employees . He concluded that
there had been a pattern of conduct and that the complaints of

the women appeared valid. Mr. Rosenthal testified that he
concluded that Ms. Loza's complaints were serious and that
Mr. Bogan's presence in the library was having a serious
negative effect upon the library's female employees.
During the investigation which followed Mr. Rosenthal met
personally with some of the principals, assigned various
subordinates to gather information and report back to him and
examined all documents and statements which previously had been
collected about Mr. Bogan. Mr. Rosenthal asked that a notice
to employees be posted in the library, soliciting any
information they might have about Mr . Bogan and he also asked
Mr. Legg to contact the women who had made written statements
prior to the California Hall meeting and seek permission for
those statements to be used in any subsequent proceeding.
who
On November 17, Mr. Rosenthal met with both Ms. Loza and
Ms. Ford and questioned them about the various complaints they
had made against Mr. Bogan. After the one-hour meeting,
Mr. Rosenthal concluded that the women were telling the truth
in their accusations. He also called Joyce Emerson who
described her dealings with Mr. Bogan and orally affirmed the
comments she had made in her January 30, 1980, written
statement .
On November 20, Mr. Rosenthal met with Mr. Bogan and his
CSEA representative, Kevin Mccurdy. By the date of the meeting
it had been nearly a month from when Mr. Bogan first was placed
27

on investigatory leave and Mr . Bogan already had filed a
grievance about the length of the investigatory leave.
Mr . Mccurdy also had complained to Mr. Rosenthal about the	McCu.rdy 	Mr.
length of the investigation and the November 20 meeting was
held against a backdrop of CSEA agitation about the delay.
Present at the meeting in addition to Bogan, Mccurdy and
Rosenthal was library Personnel Officer Wenz.
From Mr. Rosenthal's perspective , the purpose of the	purp)se
meeting was to afford Mr. Bogan the opportunity to respond to
the derogatory information which had been developed against
him. Mr. Rosenthal summarized the information against
Mr. Bogan and read the two memoranda from Ms. Loza. He asked
Bogan if he had any response to the accusations. Throughout
most of the meeting, Mr . Mccurdy responded on behalf of	resp)nded
Mr . Bogan. 	Toward the end of the session, Mr . Bogan himself
responded by denying the accusations . He gave very little
explanation. 	Rosenthal wanted to engage in a discussion about
the charges and he sought to elicit further explanation from
Bogan. 	Bogan , however , stood by his summary denial.
Mr. Bogan's response struck Mr . Rosenthal as being evasive and
as a result Mr . Rosenthal concluded that MS. Loza was more
credible than Mr . Bogan .
On December 1, 1980, the Berkeley campus personnel office
denied Mr. Bogan's grievance about his placement on
investigatory leave . The University took the position that
28
p)sition

Mr . Bogan had not been deprived of any grievable right under
the University staff personnel policy. The University advised
Mr. Bogan that if he incurred an adverse effect upon completion
of the investigation he could file a grievance at that time.
The Dismissal of Michael Bogan
On December 5, 1980, University Librarian Joseph Rosenthal
notified Michael Bogan that he would be dismissed from the
library staff. The letter of intent to dismiss afforded
Mr. Bogan five days for response and promised that any response
would be carefully considered before final action was taken.
The letter offered as specific grounds for dismissal the
two October memoranda from Joyce Loza. Mr. Rosenthal
acknowledged that Mr . Bogan had denied the assertions in
Ms. Loza's memoranda but credited Ms. Loza's statements ,
nonetheless . Mr. Rosenthal wrote:
On the basis of her statements and the
record of your behavior in the past I find
her assertions to be credible and
persuasive . 	am deeply concerned with the
fact that this behavior followed the
attached (June 12, 1980) letter of warning
regarding the same kind of behavior on your
part. 	The letter expressly informed
you that your behavior had been unacceptable
and that 'any further instance of your use
of vulgar or abusive language' might lead to
dismissal .
The December 5 notice of intent to dismiss also cited the
1978 threat against Judey Wall and corrective action which
followed. In light of these various incidents, Mr. Rosenthal
concluded , the continued pattern of misconduct was
29

" unacceptable and inexcusable." Mr. Rosenthal concluded that	•
11
Mr. Bogan's behavior not only constituted serious misconduct
"but also has had damaging effects on the working conditions
and morale of other employees of the Library." In his letter
of intent to dismiss , Mr. Rosenthal made no reference to the
California Hall meeting or the written statements of female
employees which preceded the meeting .
On December 11, CSEA Steward Kevin Mccurdy and Mr . Bogan
met with Mr. Rosenthal a final time and gave him a letter
challenging most of the assertions in the December 5 notice of
intent. Mr . Mccurdy discounted the significance of the
incidents discussed in Mr. Rosenthal's letter and questione
whether they occurred in the way the University believed they
did. Moreover , Mr. Mccurdy asked, under what University policy
or rule is the use of profanity prohibited. Mr. Mccurdy
asserted that Mr. Bogan had been singled out for unfair
treatment. At the meeting , Mr . Bogan was again asked whether
he had made the abusive statements to Ms. Loza . 	He denied it.
d
On December 18, Mr. Rosenthal notified Mr. Bogan that his
dismissal would occur effective December 31 , 1980 and that he
would be paid from the date he was placed on investigatory	
fran
leave through December 31 . In his letter , Mr. Rosenthal stated
that he had considered Mr . Mccurdy's December 11 letter and all
other available information and had concluded that the
allegations were true. Because of the repetitive nature of the
30
ar_id
a.'1d

action , Mr . Rosenthal concluded that dismissal was the
appropriate course of action
At the PERB hearing Mr. Rosenthal testified that he	
PERB
considered other , lesser actions against Mr. Bogan but rejected
other responses as inappropriate. He said he discounted the	
responses
idea of doing nothing because he did not doubt the validity of
the complaints and he believed it imperative to protect the
health and well being of library employees and to try to
maintain effective work performance . He rejected the idea of
another letter of warning because the repetitive nature of
Mr. Bogan's conduct showed that letters of warning were not
effective. He did not favor a suspension because that would
return Mr. Bogan to the work place after completion of the
suspension , something the employees in the library feared and
opposed. Finally, he rejected the idea of a transfer because
that would simply move the problem to another location.	
would
Mr. Rosenthal concluded that because Mr. Bogan had evidenced
threatening behavior , his dismissal was the most reasonable
alternative .
On December 31 , 1980, Mr. Bogan appealed the dismissal . In
his appeal , he argued that the library acted "unfairly and
excessively by dismissing" him without just cause. 	He denied
that he had engaged in abusive behavior during the 15 years in
the library and challenged the contention that the use of
profanity "is serious misconduct . 	. that . 	. . has negative
31

effects on the working conditions of the department ." He said
he had been singled out for punishment under "unclear and	"unclear
un- established codes of behavior . " He argued that his
dismissal was in reprisal for participation in University
grievance procedures .
Mr. Bogan's grievance went through the University's	went
grievance procedures resulting ultimately in a November 9, 1981
arbitrator's decision in favor of the University. In her
decision, the arbitrator concluded that the dismissal of
Mr. Bogan was reasonable under the circumstances . The
arbitrator wrote that Mr . Bogan ,
. was on notice concerning the
unacceptable and inappropriate nature of his
behavior . 	; that he was apprised of the
fact that such conduct disturbed and upset
co-workers but nonetheless persisted in
it . 	; that no apparent remedial purpose
would be served by continuing a pattern of
progressive discipline
The arbitrator concluded that Mr. Bogan's continued presence in
the library, given his pattern of behavior, "was likely to
cause further disruptions and problems in the department."
Accordingly, the arbitrator concluded, the University's
decision to terminate him was "not unreasonable under the
circumstances ."
The arbitrator also rejected the assertion that the
dismissal was in retaliation for the filing of grievances. 	She
wrote that Mr. Bogan carried the burden of showing " a 	"a
32
ar

connection between his activities related to the grievance
procedure . 	. and his discharge ." She concluded that he
failed to make the required showing.
Removal of Mr . Bogan from the Library
On December 5, 1980, the same day as he was given notice of
intent to dismiss, Mr. Bogan returned to the main library. It
was his first visit since he was placed on investigatory
leave . The purpose of his return visit, Mr. Bogan testified,
was to sign up new members for CSEA. After January 1, 1981,
when he no longer was a library employee, Mr. Bogan began to
visit the library two or three times each week. He would enter
the library loan hall and sit at a table within 20 feet of the
service desk. Several witnesses testified that he occupied his
time by staring at the person who worked at the desk, in
particular , Ms. Loza and Ms. Ford.
Ms. Loza's reaction to the return of Michael Bogan was
highly negative. 	She was afraid of him and his presence during
her two to three hour shift on the service desk made her
nervous and upset. 	She went to Mr. Rosenthal and told him that
she was "at the end of her rope" because of Bogan's presence in
the library . 	On February 4, 1981, MS. Loza wrote to Mr . Legg ,
advising him that the situation with Mr. Bogan had put a great
deal of strain on her and that it was causing a recurrence of a
chronic eye condition. Ultimately, she took time off in an
attempt to control an eye disease from which she suffers. 	The
33

University was given a letter from Ms. Loza's physician
describing her condition and its relationship to work-related
press ur es .
Ms. Ford was similarly upset about Mr. Bogan's daily
presence in the library. She said she would sit on the desk ,
knowing Mr . Bogan was staring at her , and think about how he
said she reminded him of his mother and how much he hated his
mother . She would recall the Bogan remarks about the bullet
with no name on it and worry that it had her name on it.
Invariably, she said, Mr. Bogan would make eye contact with
her . 	Ultimately , she went to a doctor for treatment of high
blood pressure. 	After that she resolved that she would not sit
at the service desk under the gaze of Mr. Bogan.
During this period, both Ms. Loza and Ms. Ford began to
receive anonymous telephone calls. On February 4, 1981,
Ms. Loza wrote to Mr. Legg and complained about the calls. 	She
said that from the sound of the voice she believed the caller
to be Mr. Bogan . 	After Ms. Ford began to receive telephone
calls she went to the library card application file and
discovered that the applications were missing for herself,
Ms. Loza and Ken Legg. 	The application cards contain home
telephone numbers and because Ms. Ford had an unlisted	Ms.
telephone number , she believed that the person who made the
calls obtained her number from the library records.
Ultimately , Ms. Ford joined Ms. Loza in stating that she would
34

not work on the circulation desk if Mr . Bogan was seated in the
loan hall .
Even though the anonymous telephone calls were never
conclusively linked to Mr. Bogan, Mr. Rosenthal shared the
belief of Ms. Loza and Ms. Ford that Mr. Bogan was a prime
s us pect .
Mr. Rosenthal's first response was to personally advise
Mr. Bogan that he could not be in the circulation work areas of
the library. Not long after that , however, Mr. Rosenthal
concluded that Mr . Bogan had to be banned from the library ,
altogether . The information he received from Ms. Loza and
Ms. Ford convinced him that Michael Bogan's presence in the
library was detrimental to the health and job performance of
library staff members .
Mr. Rosenthal met with various campus and library
administrators including the campus police chief to consider
whether Mr. Bogan could be banned from the library. Vice
Chancellor Smith was consulted on whether or not Bogan's role
with CSEA would preclude banning him from the library.
Mr. Smith advised Rosenthal that Mr . Bogan could be banned if
there were justification such as fear of intimidation or
threat . Mr. Smith concluded that the information in
Rosenthal's possession was sufficient to meet that requirement.
There was some discussion about whether Mr . Bogan should be
banned from the campus in its entirety but Mr. Smith opposed
35

that idea on the ground that the campus was open to the public
and there was no justification for excluding Bogan from it.
Mr. Smith said that the ban would have to be as narrow as
possible and still achieve the desired result. Ultimately, it
was concluded that the ban should cover only the main library
and its annex because those were the work areas of the female
employees who felt intimidated by Mr. Bogan.
On February 25, 1981, Mr. Rosenthal notified Mr. Bogan that
effective immediately he was no longer permitted in the main
library or its annex. Mr. Rosenthal advised Mr. Bogan that his
presence and behavior in the library since early January 1981
has been perceived by employees "as intimidating and
11 as
threatening ." Mr. Bogan also was advised that the campus
police department would assist if enforcement of the ban were
to become necessary . Mr . Bogan was not banned from any library
facility other than the main library and its annex nor did the
ban pertain to any other CSEA representative or organizer .
Indeed, Philip Encinio, the Berkeley campus manager for
employee relations , wrote to CSEA Chapter President Ed Caine to
assure him that the ban against Mr . Bogan was not designed to
hinder CSEA organizing. He invited the CSEA officer to discuss
with him ways of insuring library access for organizational
activities .
Although Mr. Bogan was banned from the main library and its
annex , University access policies afford organizers the right
36

to solicit among employees during breaks, lunch periods and
other nonworking periods . Other than Mr . Bogan , no CSEA
or ganizer ever sought admission to the working areas in the
circulation department. However , these areas are closed to the
general public because the University stores records there
including library card applications which contain personal
information about patrons .
In February of 1982, Mr. Bogan reentered the library to
inspect the personnel records of an employee he was
representing on behalf of CSEA. Mr. Bogan went to the office
of library Personnel Officer Wenz. After consultation with
Mr. Rosenthal, Mr. Wenz ushered Mr. Bogan out of the library
but made copies of the documents Mr . Bogan sought and gave them 	gave
to him. Mr. Rosenthal testified that he continued the ban
because of Mr . Bogan's past conduct in the library and not
because of his new role as a CSEA organizer .
Mr . Bogan's Participation in Protected Conduct
During his time as a University employee , Mr. Bogan filed
grievances on behalf of himself and participated with others in
the filing of grievances. He also held membership for two
years in the American Federation of State, County and Municipal
Employees and, beginning in October of 1980, membership in
CSEA. Beginning in April of 1981, Mr. Bogan became a CSEA job
steward .
Mr. Bogan filed three grievances on behalf of himself, each
of which has been discussed above. In addition to those ,
37

Mr . Bogan has participated with others in the filing of a
grievance about a purported 1979 reduction in employee work
hours. Later in 1979, and again in concert with others,
Mr. Bogan requested that the number of working hours be
increased for student supervisors on the circulation desk.
Finally, he and three other employees filed a summer of 1980
complaint about reductions in their summer work hours.
LEGAL ISSUES
1 . 	Did the University dismiss Michael Bogan in
retaliation for participation in protected activities and
thereby violate subsection 3571 (a ) and/or (d) ?
2. 	Did the University unlawfully ban Michael Bogan from
access to the main library and annex and thereby violate
subsection 3571 (a ) and/ or (d ) ?
?	~)
CCNCLUSIONS
	LAW
The Dismissal of Michael Bogan
Higher education employees have the protected "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. "9 Under
9 HEERA section 3565 provides as follows:
Higher education employees shall have the
right to form, join and participate in the
activities of employee organizations of
38

section 3571, it is unlawful for a higher education employer to
" impose reprisals on employees, to discriminate . 	or
otherwise to interfere with, restrain, or coerce employees
because of their exercise of (protected) rights."
CSEA contends here that Michael Bogan was dismissed because
he filed grievances on behalf of himself and other circulation
department employees . CSEA asserts that the filing of the
grievances was protected concerted conduct, that the library
management knew that he had filed the grievances , that the
dismissal occurred shortly after Mr. Bogan had requested CSEA
representation and that the University's explanations for the
dismissal are pretextual.
The University argues that the filing of grievances under	
under
the employer-adopted grievance procedure was not protected
conduct , that CSEA has failed utterly to demonstrate any
relationship between the dismissal and the filing of the
grievances , and that in any event the University acted with
justification and only after prior warnings.
their own choosing for the purpose of
representation on all matters of
employer - employee relations and for the
purpose of meeting and conferring. 	Higher
education employees shall also have the
right to refuse to join employee
organizations or to participate in the
activities of these or ganizations subject to
the organizational security provision
, 	permissible under this chapter .
39
impose

As noted by both parties , the analytical method for
resolving charges of discrimination and retaliation was set out
by the Board in Novato Unified School District (4/30/82) PERB 	PERB
Decision No. 210, adopted for HEERA in California State
University, Sacramento (4/30/82) PERB Decision No. 211-H.
Under Novato and California State University, a party alleging
discrimination within the meaning of subsection 3571 must make
a prima facie showing that the employer's action against the
employee was motivated by the employee's participation in
protected conduct. Because direct proof of motivation is	
of
rarely possible , the Board concluded that unlawful motive could
be established by circumstantial evidence and inferred from the
record as a whole, citing Republic Aviation Corp. v. NLRB
(1945) 324 U.S. 793 [16 LRRM 62 0] .
Proof that the employer had actual or imputed knowledge of
an employee's participation in protected activity is a key
element in establishing unlawful motivation by circumstantial
evidence . Novato, supra, PERB Decision No. 210; Moreland
Elementary School District (7/27/82) PERB Decision No. 227. 	An
employer cannot retaliate against an employee for engaging in
protected conduct if the employer does not even know of the
existence of that conduct.
Once it is shown that the employer knew of the protected
conduct , the charging party then must produce evidence linking
that knowledge to the harm which befell the employee. Among
40
unlawful
~upra,	
PERE
PERE
engaging
if

the factors which have provided that link are, "the timing of
the employer's conduct in relation to the employee's
performance of protected activity , the employer's disparate
treatment of employees engaged in such activity, its departure
from established procedures and standards 	the
employer's inconsistent or contradictory justification for its
actions , " Novato, supra, or the cursory nature of the
investigation which preceded the discipline of the employee.
Baldwin Park Unified School District (6/30/82) PERB Decision
No. 221. Respondent's knowledge of protected conduct together
with some indicia of unlawful intent will establish a prima
facie case. 
Resi;:ondent's
After the charging party has made a prima facie showing
sufficient to support an inference of unlawful motive , the
burden shifts to the employer to prove that its action would
have been the same despite the protected activity. 	If the
employer then fails to show that it was motivated by "
legitimate operational purpose" and the charging party has met
its overall burden of proof, a violation of subsection 3571
will be found. 	Baldwin Park, supra, PERB Decision No. 221 . .
As a first line of defense, the University asserts that
participation in its grievance and administrative review
procedures is not protected conduct . Comparing the wording of
National Labor Relations Act section 7 to that of HEERA section	
HEERA
3565, the University argues that under HEERA there is no right
41
No
HEERA

" to engage in . 	concerted activities" but only a right to
"participate in the activities of employee organizations ."10
Relying upon an Oregon case,Il the University contends that
because the grievances were not filed as part of the activities
of an employee organization, Mr. Bogan did not engage in
protected conduct . 12
It is unnecessary to resolve here the question of whether
the filing of grievances by Mr. Bogan was a protected act.13
10The distinction between "concerted activity" and the
"right to participate in the activities of employee
organizations " may be more illusory than real. See, for
example, Modesto City Schools (3/8/83) PERB Decision No. 291
where the Board wrote:
The only difference we find between the
right to engage in concerted action for
mutual aid and protection and the right to
form, join and participate in the activities
of an employee organization is that EERA 	EERA
uses plainer and more universally understood
language to clearly and directly authorize
employee participation in collective actions
traditionally related to the bargaining
process .
11Carolyn White v. Oakland School District No. 1
(5/30/80) Oregon Employment Relations Board Case No. C-128-78.
12There is no question that the filing of grievances
under a contractually negotiated grievance procedure is a
protected act . North Sacramento School District (12/20/82)
PERB Decision No. 264. However , the PERB has yet to consider a
fact pattern similar to the present case where the grievances
were filed under an employer-instituted grievance procedure.
13It is unnecessary to resolve a legal issue where a
factual determination is dispositive of the case. See State of
California (Franchise Tax Board) (7/29/82) PERB Decision
No. 229-S.
42
l0The
PERB
12There
13rt 	a
PERE

Assuming arguendo that the filing of grievances was protected,
CSEA has failed to establish another vital element in its case,
i.e ., that the filing of grievances was a motivating factor in
the decision to dismiss Mr. Bogan .
CSEA has not even made a prima facie showing that the
University's dismissal of Mr. Bogan was motivated by
retaliatory intent. The best CSEA has done is to show that the
dismissal occurred after Mr. Bogan had sought administrative
review of three managerial decisions and filed three
grievances . However , the timing of the dismissal is not
suggestive of retaliation. Two of the three administrative
actions Mr . Bogan commenced in concert with other employees and
one of the grievances were all filed in 1979. The third
administrative action and another of the grievances were
commenced in the summer of 1980. Mr. Bogan was not dismissed
until December of 1980 and so five of the actions upon which he
relies were not proximate to the dismissal. 	The final
grievance was filed by Mr. Bogan after he already was on the
investigatory leave which led to his dismissal . While that
grievance was close in time to the dismissal, there is nothing
in the record to indicate that it affected the decision to	
decision
dismiss one way or the other .
Indeed, CSEA has shown none of the ordinary indicia of
unlawful motivation. There is no significant indication of
disparate treatment , no significant evidence that the
43

University departed from its established procedures , no
indication of inconsistent explanations for the dismissal , no
significant evidence that the pre-disciplinary investigation
was cursory . 	The record establishes instead that the
University first challenged Mr. Bogan's conduct two years prior
to his dismissal, gave him ample opportunity to modify his
behavior and then dismissed him only after it received
substantial evidence that Mr . Bogan was continuing his old
ways . 	The investigation the University made prior to the
dismissal was thorough and , from persuasive evidence ,
even- handed .
The burden of establishing an unlawful motivation by a
preponder ance of the evidence was that of CSEA. 	The evidence
introduced by CSEA falls far short of meeting that burden. 	It
is concluded that CSEA has failed to establish a prima facie
case that Mr. Bogan's dismissal was unlawfully motivatedl 4
and the charge therefore should be dismissed.
14This conclusion, while closely parallel to that of the
arbitrator , was not reached on the basis of collateral
estoppel . 	The hearing officer reached his conclusion on the
basis of the evidence in the record. The University has asked
that collateral estoppel effect be given to the decision of the
arbitrator . That request is denied. As noted in footnote 5,
supra, the issue before PERB, while similar , is nonetheless
different from that which was before the arbitrator. 	It wa
the arbitrator's duty to determine whether the University had
good cause to dismiss Mr. Bogan. The issue before PERB is
whether the University acted with unlawful, retaliatory
motivation. The two questions are not synonymous. See , e.g.
Morel and Elementary School District (7/27/82) PERB Decision
s
44
Thi
was
Mr.

As a further and separate grounds for dismissal of the
charge , it must be observed that even had a prima facie showing
been made , the University has demonstrated conclusively that
Mr. Bogan would have been terminated despite his participation
in the filing of grievances. Beginning in 1978, the University
received information from co-workers and subordinates of
Mr. Bogan that he: stated that he would bring his gun to work
and kill several others and then himself; stated that he would
like to kill or have killed his supervisor, Judey Wall; called
female employees "bitch," "long-legged bitch," "slut," "whore,"
and made generally sexist remarks to them; treated female
employees as inferiors , snapping his fingers at them as if they' 1
were dogs; made pejorative comments about his perception of the
sexual habits of female employees; boasted of ways to mutilate
and kill animals; swung bicycle chains in the library and
warned that he would hit anyone who got too close; engaged in a
graffiti war with a student which resulted in the defacing of
walls in the University library; called the mother-in-law of a
co-worker a "bitch" during a telephone conversation; told a
co-worker to "Kiss my ass" and was otherwise rude to her .
No. 227. Moreover , the forum from which the University seeks
collateral estoppel effect was not court or a constitutional
tribunal or an administrative agency acting in judicial
capacity. The University has cited no persuasive authority
that PERB is obligated to give collateral estoppel effect to a
decision by an arbitrator .
45
be
would
as
bitch"

Against this litany of allegations from what the University
believed to be credible sources were only Mr. Bogan's tacit
admissions and unconvincing denials . Moreover , there developed
what the University concluded was a pattern of conduct despite
repeated warnings that Mr . Bogan should change his ways or face
discipline up to and including dismissal. In its brief, CSEA
dismisses the accusations against Mr. Bogan as being
exaggerated, unspecific, solicited by management ,
uninvestigated , unsubstantiated and otherwise pretextual. 	The
record the University compiled against Mr . Bogan is simply too
extensive to be so lightly dismissed. The condemnations of
Mr. Bogan were made consistently, by too many persons , over too
long a period for the University to ignore. Indeed, as the
University argues , it may well have had an independent legal
obligation under anti-discrimination laws to stop the sex-based
harassment in which Mr . Bogan participated. In any event , the
University has clearly established that Mr. Bogan would have
been dismissed had he never filed a single grievance.
For these reasons , the allegation that the University
violated subsection 3571 (a ) by the dismissal of Michael Bogan
is hereby dismissed. In the absence of any independent
evidence establishing a violation of subsection 3571 (d ) , that
charge is dismissed also.
The Removal of Michael Bogan from the Library
CSEA's final contention is that the University interfered
with protected rights when it banned Mr. Bogan from the
46
fran
University
Mr. 	from

University library and its annex.15 CSEA argues that
Mr . Bogan was active in organizing and recruiting members and
in representation of employees in grievances . Banning
Mr . Bogan from the library, CSEA continues, interfered with
" the rights of the employees in the department to engage in
protective activities ."16
The University argues that banning Mr. Bogan from the
library did not significantly interfere with the rights of
library employees because other CSEA representatives were
permitted access to the library. 	The University contends that ,
in any event, it had justifiable business reasons to keep
Mr. Bogan out of the main library under both PERB and National
Labor Relations Board precedent .
It is a violation of subsection 3571 (a ) for a higher
education employer to interfere with the protected right of
employees to "form, join and participate in the activities of
employee organizations ." In Carlsbad Unified School District
15t should be noted that in its charge CSEA has alleged
violations of subsections 3571 (a ) and (d) . It does not contend
that the ban of Mr. Bogan from the library violated subsection
3571 (b) . The proposed decision does not consider , therefore,
whether the ban interfered with any of CSEA's protected rights
as an organization .
16CSEA does not contend that banning Mr. Bogan from the
library was an interference in his personal right to engage in
protected activities . The only interference CSEA alleges is
with the protected right of other employees . Mr. Bogan, of
course, was no longer a University employee as of the date he
was banned from the library.
47
£ran
rt
CSEA
fran

(1/30/79) PERB Decision No. 89, the Board held that where an
employer's act causes some harm to protected rights, an unfair
practice charge against that employer will be resolved through
a balancing of the employer's operational needs against the
degree of harm to employee rights .17
CSEA introduced evidence that the removal of Mr. Bogan from
the main library and its annex was , at least, inconvenient.
Assuming , for discussion, that CSEA demonstrated slight harm to
17The Carlsbad rule was adopted for cases under HEERA in
Regents of the University of California (4/30/82) PERB Decision 	PERE
No. 212. 	In relevant part , the Carlsbad rule provides as
follows:
2. 	Where the charging party establishes
that the employer's conduct tends to or does
result in some harm to employee rights
granted under the EERA, a prima facie case
shall be deemed to exist;
3. 	Where the harm to the employees' rights
is slight, and the employer offers
justification based on operational
necessity, the competing interest of the
employer and the rights of the employees
will be balanced and the charge resolved
accordingly;
4. 	Where the harm is inherently
destructive of employee rights , the
employer's conduct will be excused only on
proof that it was occasioned by
circumstances beyond the employer's control
and that no alternative course of action was
available;
5. 	Irrespective of the foregoing, a charge
will be sustained where it is shown that the
employer would not have engaged in the
complained-of conduct but for an unlawful	
can
motivation, purpose or intent .
48
PE.RB	
Board
The 	EEERA
4.
ucti
p:,s

protected rights, a balancing of the equities tilts , once
again, in favor of the University.
The evidence is overwhelming that the female co-workers of
Mr. Bogan were frightened of him. In the case of Ms. Loza, it
probably is not too strong to state that she was terrified of
Mr. Bogan. His return to the library to sit and stare seems to
have been designed to aggravate employee fears. If that was
his goal , he achieved it. Ms Loza suffered a return of a
chronic eye condition. Ms. Ford suffered an attack of high
blood pressure. Both of them ultimately told the library
administration that they would no longer work on the
circulation desk if it required them to be under the stare of
Mr . Bogan .
One of the University's primary motivations in the
dismissal of Mr . Bogan was to remove the threatening atmosphere
from the library and to eliminate further disruptions . Yet , by
sitting in the library reading room and staring at employees,
Mr. Bogan had nullified what the University believed it had
achieved by his dismissal. Given the pressure that Mr. Bogan's
presence put on his co-workers, the University had legitimate
business reasons to ban him from the building.18
18A similar conclusion was reached in General Electric
Co. v. NLRB (6th Cir . 1968) 388 F. 2d 213 [67 LRRM 2401] , a case
cited by the University.
49
ANL 	RRM
bytl:ie

Against these reasons must be weighed the inconvenience
that the ban of Mr . Bogan posed to the exercise by other
employees of their right to engage in protected conduct .
Plainly, they were not cut off from CSEA. Only Mr. Bogan was
banned and, in an effort to insure continued access by CSEA,
the University administrators sought a meeting with the CSEA
chapter president to discuss ways to alleviate the problem.
The ban was limited in scope and kept Mr. Bogan only from the
main library and its annex. He otherwise had free movement on
the campus and in the various departmental branches of the
library. The equities in this situation balance in favor of
the University. 	It is concluded, therefore, that banning
Mr . Bogan from the main library and its annex was not an	
an·
unlawful interference within the prohibition of subsection
3571 (a) . Accordingly , that charge must be dismissed. In the
absence of any independent evidence establishing a violation of
subsection 3571 (d) , that charge must be dismissed , also.
PROPOSED ORDER
Based upon the foregoing findings of fact, conclusions of
law and the entire record in this matter , unfair practice
char ge SF-CE-46-H filed by the California State Employees'
Association against the Regents of the University of California
and the companion PERB complaint are here by DISMISSED.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
50
prac::::tice

become final on April 25, 1983, 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	
:r:ortions
exceptions. See California Administrative Code , title 8,
part III, section 32300. Such statement of exceptions and	
part
supporting brief must be actually received by the Public	be
Employment Relations Board itself at the headquarters office in
Sacramento before the close of business (5:00 p .m .) on
April 25, 1983, 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. See California
Administrative Code , title 8, part III, section 32300 and 32305.
Dated: April 5, 1983
Ronald &. BlubaughRonald E. Blubaugh ,1
Hearing Officer
51

PROOF OF SERVICE BY MAIL
C.	
C.C.P:	C. P. 1013a
I declare that I am employed in the County of Sacramento, California.
wit:hin	I am over the age of eighteen years and not a party to the within
entitled cause; my business address is 1031 18th Street, Suite 200
Sacramento, California 95814.
On November 4. 1985 , I served the attached PERB Decision No, 534-H	,
	Decision
	No. 	53t1-H
in Regents of the University of California, Case No. SF-CE-46-H
on the parties listed below 	by placing a true copy thereof enclosed
in a sealed envelope with postage thereon fully prepaid, in the
United States Mail at Sacramento, C 	addressed as follows :
Regents of the Univof Ca.
Attn : 	James Odle
Office of the General Counsel
590 University Hall
Berkeley, CA 94720
California State Employees Assoc.
General Counsel
Attn: Jeffrey Fine
1108 0 Street
Sacramento, CA 95814
Michael R. Bogan
c/o Dave Weldon
P. O. Box 802
El Cerrito, CA 94530
Edward M. Opton, Jr.
Susan M. Thomas
Claudia Cate
Office of the General Counsel
590 University Hall
Berkeley, CA 94720
I declare under penalty of perjury that the foregoing is true and correct,t:::ue
and that this declaration was executed on November 4 1985	
executed
at 	Sacramento 	California.
Noel F. Lawrence
(Type or print name) 	(Signature)
PERB 119 (3/83)	PERB