State of California (Department of Developmental Services) (PERB 0619S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
V.
STATE OF CALIFORNIA 	(DEPARTMENT OF
DEVELOPMENTAL 	SERVICES,
Respondent.
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) 	Case No. 	S-CE-238-S
PERB Decision No. 	619-S
April 	17, 	1987
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Appearances; 	William L. Williams, 	Jr., 	Attorney, 	Peace Officers
Research Association 	of 	California, 	for 	California 	Union 	of
Safety Employees; 	Edmund K. 	Brehl, 	Attorney, 	Department of
Personnel 	Administration, 	for 	Department 	of 	Developmental
Services.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case 	comes before 	the 	Public
Employment 	Relations 	Board 	(PERB) 	on 	exceptions 	filed by
California 	Union 	of 	Safety 	Employees 	to 	the 	proposed 	decision,
attached hereto, 	of a PERB administrative 	law 	judge 	(ALJ). 	In
that 	decision, 	the ALJ 	ruled 	that 	the principle 	of 	collateral
estoppel 	applied 	to 	the 	question of 	whether 	Steven 	Pimentel 	was
unlawfully 	disciplined by 	the 	Department 	of 	Developmental
Services. 	Hence, 	the 	determination by the 	State 	Personnel
Board 	(SPB) 	that 	Pimentel's 	discipline 	was 	not 	unlawful 	was
binding 	on 	PERB.
The 	ALJ 	correctly 	relied 	upon 	United 	States 	v. 	Utah
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Construction and Mining 	Co. 	(1966) 	384 U.S. 	394 and 	People 	v.
Sims 	(1982) 	32 Cal.3d 	468, 	and 	fully tested 	the 	facts here 	to
the 	standards 	set 	forth 	in 	those 	cases 	for 	the 	application 	of
collateral estoppel.1
We 	adopt 	the ALJ's 	findings 	of 	fact, 	finding 	them 	to be
free 	of 	prejudicial 	error. 	We 	also 	concur with his 	discussion
of 	collateral 	estoppel, 	and 	rule 	that 	the doctrine 	is
appropriate 	in 	this 	case 	for 	the 	reasons 	set 	forth by 	the ALJ.
Finally, 	we 	agree 	with 	the ALJ 	that 	the 	termination 	of Mr.
Pimentel 	was 	not 	motivated by 	an 	unlawful 	intent 	to 	retaliate
against him 	for participation 	in 	union 	activities, 	and,
accordingly, 	adopt 	the ALJ's 	findings 	and 	conclusions 	on 	this
issue as well.
ORDER
The 	complaint 	in 	Case No. 	S-CE-238-S 	is hereby DISMISSED.
1A 	petition 	for 	a 	writ 	of mandamus 	was 	filed 	against 	the
SPB 	action 	after 	the ALJ's 	decision 	was 	issued. 	We 	do 	not
believe, 	however, 	that 	the petition 	for a writ prevents 	the
SPB's 	decision 	from being 	considered 	"final" 	for 	the 	purpose 	of
collateral 	estoppel. 	We 	concur 	with 	the ALJ's 	reasoning 	on
this 	point 	at pages 	20-21 	of 	the proposed 	decision. 	(See 	also
Traub v. 	Board 	of Retirement 	of 	the 	Los Angeles 	Employees
Retirement Association 	(1983) 	34 	Cal.3d 	793.)
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA UNION 	OF 	SAFETY
EMPLOYEES.
Charging 	Party.
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF DEVELOPMENTAL 	SERVICES).
R e s p o n d e n t .
Unfair 	Practice
Case No. 	S-CE-238-S
PROPOSED 	DECISION
(6/12/86)
Appearances: 	William L. 	Williams. 	Jr., 	Attorney for 	the
California Union of 	Safety Employees; 	Edmund K. 	Brehl. 	Attorney
for 	the 	State 	of 	California. 	Department 	of 	Developmental 	Services
Before Ronald E. 	Blubaugh. 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A union 	activist was 	dismissed 	by 	a 	state 	agency 	for
allegedly falsifying his 	time 	records. 	Ultimately, 	his
punishment 	and 	that 	of 	three 	similarly 	accused 	co-workers 	was
reduced 	to 	a 	60-day 	suspension without 	pay. 	All 	four were
reinstated 	on the 	order 	of 	the 	State Personnel 	Board. 	The
union activist 	here 	claims 	that 	his 	dismissal was 	motivated 	by
employer 	retaliation 	for 	engaging 	in 	protected 	conduct 	and
seeks 	reimbursement 	for 	the 	lost wages.
The 	state 	agency defends 	on 	both 	procedural 	and
substantive grounds. 	Procedurally, 	the 	state 	contends 	that 	the
alleged 	retaliation 	argument was 	made 	and 	lost 	before 	the 	State
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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Personnel 	Board 	and 	is 	thus 	barred 	here 	by the 	doctrine 	of
collateral 	estoppel. 	Substantively, 	the 	state 	argues 	that
there 	is 	no 	evidence 	to 	link 	the union activist's 	protected
conduct 	to 	his 	subsequent 	termination.
The 	charge 	which 	commenced 	this 	action was 	filed 	on
September 	26, 	1984, 	by the California Union of 	Safety Employees
(CAUSE). 	As 	originally filed, 	the 	charge 	alleged 	retaliatory
conduct 	by the 	state 	in the dismissal 	of 	six employees, 	the
four 	accused 	of 	falsifying 	time 	sheets, 	a 	fifth dismissed 	for
theft 	and 	the 	former 	supervisor 	of 	the 	department where 	they
all worked.
On November 	28, 	1984, 	the Sacramento Regional Attorney of
the Public Employment Relations 	Board 	(PERB 	or Board) 	dismissed
the 	charge 	as 	it 	pertained 	to 	all 	employees 	except 	the union
activist. 	With respect 	to 	the 	supervisor, 	the 	charge was
dismissed 	on 	the 	ground 	that 	the 	PERB 	has 	no 	authority 	to
enforce 	the 	provisions 	of 	the 	State Employer-Employee Relations
Act 	(SEERA) 	which pertain to 	supervisors. 	Regarding the 	other
employees, 	the 	charge was 	dismissed 	on 	the 	ground 	that 	the
charging 	party 	had 	not 	demonstrated 	that 	the 	employees 	had
engaged 	in protected 	conduct 	of 	which 	the 	employer 	was 	aware.
These 	dismissals 	were upheld 	by 	the Board 	itself 	in 	State 	of
California 	(Department 	of Developmental 	Services) 	(1985) 	PERB
Decision No. 	551-S.
On 	the 	same 	day 	as 	he 	dismissed 	the 	charge with 	respect 	to
the 	other 	employees, 	the 	regional 	attorney 	issued 	a 	complaint
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regarding 	the 	termination of 	the union activist. 	The 	complaint
alleges 	that 	the 	state 	employer 	dismissed 	Steven Pimentel
because 	of 	his 	participation 	in 	protected 	conduct 	and 	thereby-
violated SEERA sections 	3519 	(a) 	and 	(b). l
The 	state answered 	the complaint on December 	19. 	1984,
denying 	that 	its 	action against Mr. 	Pimentel was 	motivated 	by
his 	participation 	in protected 	conduct. 	At 	the 	request 	of 	the
parties, 	a hearing 	in the matter was 	postponed 	to 	allow
completion of 	proceedings 	before 	the 	State Personnel 	Board. 	A
PERB 	hearing 	eventually was 	conducted 	on October 	21 	through 	23
and December 	9. 	1985. 	At 	the commencement of 	the hearing, 	the
respondent 	filed 	a motion 	to 	dismiss 	on 	the 	theory of
collateral 	estoppel. 	The motion was 	taken under 	submission.
With the 	filing 	of 	post-hearing 	briefs, 	the matter was
submitted for decision on June 2, 	1986.
1Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code. 	The State Employer-Employee Relations Act 	is
found at 	section 3512 	et 	seq. 	In relevant 	part, 	section 3519
provides as 	follows:
It 	shall 	be unlawful 	for 	the 	state 	to:
(a) 	Impose or 	threaten to 	impose reprisals
on employees, 	to discriminate or 	threaten to
discriminate against employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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FINDINGS 	OF FACT
The 	events 	at 	issue 	took 	place 	in the 	Stockton
Developmental 	Center, 	a 	facility for 	developmentally disabled
persons 	that 	is 	operated 	by the 	State Department 	of
Developmental 	Services. 	The department 	is 	a 	state 	employer
under SEERA. 	Steven Pimentel, 	the complainant, 	is a 	state
employee 	holding the 	position of Hospital 	Peace Officer 	I 	at
the 	Stockton 	center. 	Hospital 	peace 	officers 	are 	employed 	by
the 	department 	to 	maintain 	security 	and 	provide 	police
protection at 	the 	center. 	The 	hospital 	protective 	services
unit maintains 	security round-the-clock, 	seven days 	a week.
After 	an 	investigation that 	focused 	on 	theft, 	the 	abuse 	of
time 	records 	and 	other 	irregularities, 	the 	department 	during
the 	summer 	of 	1984 	dismissed 	six 	employees 	from the 	Stockton
protective 	services unit. 	The effective date 	of Mr. 	Pimentel's
dismissal was June 20. 	1984. 	Following a 	16-day hearing, 	an
administrative 	law 	judge 	for 	the 	State 	Personnel 	Board 	on June
10, 	1985. 	ordered the reinstatement of Mr. 	Pimentel and the
other 	three 	officers 	accused 	of 	falsifying time 	sheets. 	Each
was 	ordered 	reinstated 	with 	back 	pay 	except 	for 	a 	60-day
suspension without 	pay. 	The 	punitive 	actions 	ultimately were
upheld 	by 	the 	State 	Personnel 	Board 	itself.
Of 	the 	four 	employees 	who were 	dismissed 	for 	falsifying
time 	sheets. 	Mr. 	Pimentel was 	the only one with a history of
union advocacy and 	leadership. 	Mr. 	Pimentel 	commenced working
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for 	the 	state 	in May of 	1969, 	originally at 	the California
Youth Authority. 	He 	accepted 	a 	position at 	the 	Stockton 	State
Hospital, 	as 	the developmental 	center 	then was 	known, 	and went
to work there on October 	17, 	1974. 	Mr. 	Pimentel's union
activities 	date 	from October 	of 	1980 when he 	joined 	the
Hospital Police Association. 	In February of 	1981, 	he became a
director 	of 	the 	police 	association 	and was 	named 	interim
president. 	He 	later was 	elected 	president 	of 	the 	association.
Prior 	to 	the 	selection of 	CAUSE 	as 	the 	exclusive
representative of 	state employee 	bargaining unit no. 	7, 	the
Hospital 	Police Association became 	a 	CAUSE 	affiliate.
Mr. 	Pimentel 	toured 	the 	state 	hospitals 	in the 	spring of 	1981
and 	campaigned 	on 	behalf 	of 	CAUSE 	in 	the 	elections 	for
exclusive 	representative. 	He 	also 	served 	on the 	CAUSE 	board 	of
directors. 	Mr. 	Pimentel's 	activity as 	an officer 	and
campaigner 	for 	both 	the 	association 	and 	CAUSE was 	known 	by
department 	administrators. 	Beginning 	in 	1981 	and 	continuing
throughout 	the 	relevant 	period, 	Mr. 	Pimentel was 	the 	shop
steward 	for 	CAUSE 	at 	Stockton. 	Both Harry Olson, 	the hospital
administrator, 	and Rene Diaz, 	the assistant administrator, 	knew
of Mr. 	Pimentel's 	role as 	a 	shop steward.
In addition to 	serving as 	an organization officer,
Mr. 	Pimentel 	also 	participated 	in well-publicized 	union 	events
and 	represented 	employees 	during grievances. 	In one 	of 	his
more 	colorful 	activities. 	Mr. 	Pimentel 	arranged a 	bake 	sale
UT	5

during October 	of 	1980 	as 	a 	publicity gimmick 	to 	draw attention
to 	the 	hospital's 	need 	for 	a 	second 	patrol 	car. 	Ostensibly,
the 	purpose 	of 	the 	bake 	sale was 	to 	raise 	sufficient 	funds 	to
purchase 	an automobile 	and 	donate 	it 	to 	the 	state. 	But 	the
sale 	achieved 	another 	purpose when The 	Stockton Record
published 	an 	article 	about 	the 	novel 	fund 	raiser. 	At 	the 	time
permission was 	granted 	for 	the 	bake 	sale, 	hospital
administrators 	were unaware 	of 	the 	purported use 	of 	the
proceeds. 	They 	found 	the 	subsequent 	publicity embarrassing 	and
annoying.
Evidence was 	presented 	of 	at 	least 	three 	grievances 	filed
by Mr. 	Pimentel 	against 	actions 	by various 	hospital
administrators. 	In December 	of 	1980. 	Mr. 	Pimentel 	filed a
grievance 	against what 	he understood 	to 	be 	an administrator's
directive 	that 	an officer 	abandon an emergency 	call 	to 	handle 	a
routine 	matter. 	That 	grievance was 	resolved with 	an
understanding 	that 	individual 	officers 	had 	the 	authority 	to
prioritize calls. 	Both Mr. 	Olson and Mr. 	Diaz were aware of
this 	grievance.
In March of 	1983, 	hospital 	police officers were ordered 	to
conduct 	random searches 	of 	automobiles 	as 	they 	exited 	hospital
grounds. 	The purpose of 	the 	searches was 	to 	curtail 	the 	theft
of 	state property. 	Mr. 	Pimentel was 	concerned 	that 	the
searches were unlawful and, 	as a union representative, 	he
protested 	the 	searches. 	They 	subsequently were 	discontinued.
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In October 	of 	1983. 	Mr. 	Pimentel 	filed a grievance against
a 	hospital 	decision 	to 	rescind 	permission 	for 	officers 	to 	leave
hospital 	grounds 	for 	meals. 	The 	ban was 	instituted 	after 	an
officer 	off 	grounds 	on 	lunch 	break 	arrested 	a 	drunk 	driver 	who
damaged 	the 	officer's 	state vehicle. 	Due 	to 	the 	arrest 	and
subsequent 	booking of 	the 	drunk driver, 	the 	officer was 	absent
from work 	for 	a 	long 	period 	that 	night. 	Following 	the
grievance, 	permission to 	purchase meals 	off 	the 	grounds was
reinstated.
Another 	union activity conducted 	by Mr. 	Pimentel was 	to
lobby 	on 	behalf 	of 	legislation 	supported 	by CAUSE 	but 	opposed
by the Department 	of Developmental 	Services. 	In both 1982 	and
and 	1984 	legislation was 	introduced 	at 	the 	request 	of 	CAUSE 	to
transfer 	hospital 	peace 	officer 	jurisdiction 	to 	the 	State
Police. 	CAUSE 	believed 	the 	change would 	lead 	to 	better
training 	and 	promotional 	possibilities 	for 	officers. 	The
Department 	of 	Developmental 	Services 	believed 	such a 	change
would 	hamper 	hospital 	operations 	by 	removing 	from 	local
administrators 	all 	control 	over 	the 	police 	officers 	at 	their
facilities. 	In 1982. 	the 	department openly opposed 	the
measures 	at 	legislative hearings. 	In 1984. 	the governor 	took a
neutral 	position and 	so 	the 	department 	did 	not 	officially
oppose 	the measures. 	However, 	the department's 	disapproval
remained 	firm and was widely 	known. 	Mr. 	Pimentel's 	role 	on
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behalf 	of 	the 	legislation was 	known by Mr. 	Olson and 	other
department 	administrators.
The 	investigation which ultimately 	led 	to 	the 	termination
of Mr. 	Pimentel 	and 	the 	others 	commenced with a 	report 	in
September 	of 	1983 	that another 	officer. 	Gerald Lee. 	had 	removed
certain 	brass 	items 	from a 	house 	on the 	hospital 	grounds.
Officer 	Donald Henderson 	reported 	his 	suspicions 	about Mr. 	Lee
to Debbie Neri, 	a 	special 	investigator 	at 	the 	Stockton
Developmental Center. 	Specifically. 	Mr. 	Henderson reported
that Mr. 	Lee had 	taken brass 	locks 	and 	keys 	from a 	house 	set
aside 	for 	use 	by 	the 	executive 	director. 	These 	items were
considered 	to 	be valuable antiques. 	Mr. 	Henderson demanded
that 	his 	role 	as 	an 	informant 	be 	kept 	confidential 	because 	he
was 	fearful 	about 	his 	personal 	safety 	should 	his 	role 	become
known. 	Although Ms. 	Neri promised confidentiality, 	she
promptly disclosed 	both 	the 	information 	and 	the 	identity 	of 	her
source 	to Douglas Van Meter, 	then newly appointed 	as 	executive
director 	at 	Stockton, 	and Derek Beverly, 	the department's
supervising 	special 	investigator.
In early November 	of 	1983. 	officers 	armed with a warrant
searched Mr. 	Lee's 	home 	for 	the missing brass 	items. 	Shortly
thereafter Mr. 	Henderson began to 	receive 	anonymous 	telephone
calls and. 	fearful 	for 	his 	safety, 	asked Ms. 	Neri 	to see 	if 	she
could 	arrange 	a 	transfer 	to 	another 	hospital 	for 	him.
Mr. 	Henderson linked his 	fears 	to George Cross, 	the 	supervisor
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of 	the hospital 	police department, 	who also was 	the uncle of
Mr. 	Lee. 	Mr. 	Henderson believed Mr. 	Cross 	knew he was 	the
informant. 	Ms. 	Neri 	reported Henderson's 	fears 	to
Mr. 	Van Meter. 	Mr. 	Van Meter, 	however, 	was not convinced there
was 	a 	sufficient 	reason to 	arrange 	a 	transfer. 	He 	said 	he
would have 	to 	know what 	it was 	about Mr. 	Cross 	that made
Mr. 	Henderson fearful.
For 	some 	time, 	Mr. 	Cross 	had 	been regarded unfavorably by
a 	number 	of 	department 	administrators. 	Bamford Frankland,
deputy director 	of 	hospital 	operations 	for 	the 	department,
considered 	the 	Stockton Developmental 	Center 	police 	to 	be 	a
slovenly and 	unresponsive 	group. 	He 	blamed 	Cross 	for 	this
condition 	and 	considered 	Cross 	a 	lax 	administrator 	responsible
for 	the 	problems 	in the 	Stockton police unit. 	Mr. 	Frankland
had 	shared 	these 	concerns with Mr. 	Van Meter 	and 	told 	him 	to
supervise 	the 	police 	closely when he 	took 	over 	as 	executive
director 	at 	Stockton. 	Indeed, 	Mr. 	Cross 	had 	received 	a warning
from another 	hospital 	police 	chief 	that Mr. 	Van Meter was 	going
to 	Stockton to get rid of Mr. 	Cross.
There 	is 	some dispute 	about what Mr. 	Henderson was 	told
that 	he 	need 	do 	in order 	to 	secure 	a 	transfer. 	Mr. 	Henderson
testified 	that 	he was 	called 	to 	the office 	of Rene Diaz, 	the
assistant 	hospital 	administrator, 	who 	said 	that 	if
. 	. 	. 	I gave him two or three good solid
things 	that 	would 	initiate 	an investigation
against Chief 	Cross 	that 	he would 	see 	to 	it
that 	I 	could 	be 	transferred 	or would 	be
transferred 	to 	any 	institution 	of 	my
choosing 	in 	this 	department.
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Mr. 	Diaz 	denied 	telling Mr. 	Henderson that he 	could get 	a
transfer 	only 	by 	producing 	information 	on Cross. 	Other
administrators 	also 	denied 	making 	the 	production 	of 	information
about Mr. 	Cross 	a quid 	pro quo 	for 	a 	transfer.
Despite 	the denial 	by Mr. 	Diaz, 	the evidence 	is 	persuasive
that 	he 	or 	some 	person with authority held 	out 	to Mr. 	Henderson
the 	inducement 	of 	a 	transfer 	to 	elicit 	information about
Cross. 	On November 	30. 	1983, 	Mr. 	Henderson made a written
statement 	accusing Mr. 	Cross 	of 	carrying 	a 	firearm while 	on
duty, 	in violation of 	hospital 	policy. 	The 	statement 	also
suggested 	irregularities 	in 	the 	payment 	of 	overtime 	at
Stockton, 	implicating by name Mr. 	Pimentel 	and 	and 	another
officer. 	Immediately after 	signing 	the 	statement.
Mr. 	Henderson was 	told 	to 	clear 	out 	his 	locker 	and wait 	for
further 	orders. 	About 	two weeks 	later, 	Mr. 	Henderson was
transferred 	to Porterville 	State Hospital. 	On or 	about
December 	12, 	1983, 	Mr. 	Cross was 	demoted 	from chief 	at Stockton
Developmental 	Center 	to 	officer. 	His 	"inability to manage 	his
staff" 	was 	the 	principal 	reason for 	the 	reduction, 	according 	to
Wayne Heine, 	a 	former 	labor 	relations 	analyst 	for 	the
department. 	Mr. 	Cross, 	a union enthusiast who often worked
with Pimentel 	on CAUSE 	business, 	blamed 	his 	troubles 	on the
department's 	alleged 	anti-union attitudes. 	Mr. 	Van Meter
attributed 	the Cross 	demotion 	to Mr. 	Cross's 	method 	of
investigating 	the 	renovation 	of 	a 	historical 	hospital 	residence.
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Mr. 	Henderson's 	accusation about 	overtime 	abuse 	led
promptly to an examination of 	the 	time 	records, 	daily logs 	and
monthly 	attendance 	reports 	for 	protective 	services 	employees 	at
Stockton. 	Hospital 	Administrator 	Olson made 	the 	initial 	check
and 	found 	sufficient 	evidence 	of 	wrongdoing 	to warrant 	a
thorough 	examination 	of 	records. 	Chief 	Investigator 	Beverly
was 	called 	in to 	institute 	an audit.
What Mr. 	Beverly discovered was 	the widespread 	use 	of 	"cuff
time," 	a 	system of 	informal 	compensatory 	time 	off 	for
additional 	time worked. 	Employees 	frequently were 	absent 	from
assigned work 	schedules 	in order 	to 	take 	cuff 	time. 	However.
Mr. 	Beverly could 	find 	no 	records 	to 	establish that 	the
employees 	were 	entitled 	to 	the 	compensatory 	hours 	they were
taking. 	Moreover, 	cuff 	time was 	not an approved 	practice 	at
the 	hospital. 	He 	concluded 	that 	despite 	the 	culpability of 	the
supervisor 	who 	permitted 	the 	situation, 	individual 	employees
should 	have 	had 	sufficient 	common sense 	to 	know that 	they 	had
not 	kept 	proper 	records 	of 	their 	time.
A thorough examination 	of 	the 	records 	then was 	made 	by Dale
Stafford, 	a Personnel Assistant 	II 	from the headquarters 	office
of 	the Department 	of Developmental 	Services. 	In order 	to
determine 	the 	hours 	during which 	employees were 	at work,
Ms. 	Stafford 	relied 	heavily upon 	the 	daily patrol 	log. 	At 	the
top of 	the 	log 	is 	listed 	the 	daily work 	shift. 	Below are
entries 	about 	events 	which 	occurred 	during 	the 	various 	patrol
11

shifts. 	The 	document was 	not 	designed 	as 	an attendance 	device
and 	its 	exact uses 	were 	never 	explained 	to Ms. 	Stafford 	before
she 	commenced 	her 	analysis. 	Nor was 	she 	advised 	of 	the 	meaning
of 	certain abbreviations used 	on the 	log. 	Thus, 	for 	example,
she 	did 	not 	know that 	an 	officer 	on 	"CPR 	train" 	was 	taking
authorized 	cardio-pulmonary-respiratory 	training. 	Officers 	who
were 	absent 	for 	such 	approved 	purposes 	were 	marked 	as 	absent
without 	justification 	on 	the 	tabulation 	sheets 	which
Ms. 	Stafford 	prepared 	during 	her 	investigation.
Mr. 	Beverly accepted Ms. 	Stafford's 	analysis 	at 	face value
and 	did 	not 	check 	either 	the 	assumptions 	upon which 	it was
predicated 	nor 	the 	arithmetic 	which 	produced 	the 	totals.
Relying upon 	the 	Stafford 	analysis, 	Mr. 	Beverly concluded 	that
six officers 	had 	falsely billed 	the 	state 	for 	866 	hours, 	valued
at $8,585.50, 	that 	they did not work 	in 1984. 	The same
officers, 	he 	concluded, 	had 	falsely billed 	the 	state 	for 	1,665
hours 	valued 	at 	$16,384.61 	during 	1982 	and 	1983.
Mr. 	Beverly 	took 	the 	Stafford 	analysis 	to 	the 	San Joaquin
District 	Attorney 	for 	review of 	whether 	criminal 	actions 	should
be 	instituted 	against 	the 	employees. 	The 	district 	attorney
refused 	to 	prosecute 	and 	suggested 	that 	the matter 	was 	more
appropriate 	for 	administrative 	action 	by 	the 	department.
Dismissal 	actions were 	then 	commenced 	against 	all 	of 	the
employees 	except 	for Mr. 	Henderson. 	He was 	granted 	immunity
12

because 	of 	his 	role 	in disclosing 	information about 	problems 	in
the 	police 	force 	at 	Stockton Developmental 	Center.
During 	the 	disciplinary proceeding. 	Mr. 	Pimentel 	was
treated 	no 	differently 	than 	any 	of 	the 	other 	accused
employees. 	The 	information 	against 	him was 	neither 	more
reliable 	nor 	less 	reliable 	than 	the 	information 	against 	the
three 	others 	who 	ultimately were 	reinstated. 	When mathematical
errors 	and 	miscalculations 	in 	the 	analysis 	were 	discovered
during 	the 	Personnel 	Board 	hearing 	the 	accusations 	were
modified as 	to Mr. 	Pimentel 	as well 	as 	the others.
LEGAL 	ISSUES
1) 	Is 	CAUSE 	barred 	by the 	doctrine 	of 	collateral 	estoppel
from 	asserting 	that 	the 	state 	employer 	was 	motivated 	by
unlawful 	retaliatory 	intent 	in 	discharging 	Steven Pimentel 	from
his 	job 	as 	a 	hospital 	peace 	officer?
2) 	If 	collateral 	estoppel 	is 	not a 	bar. 	did 	the 	state
violate 	SEERA sections 	3519(a) 	and 	(b) 	by discharging Steven
Pimentel?
CONCLUSIONS 	OF 	LAW
Collateral 	Estoppel.
The 	doctrine 	of 	collateral 	estoppel 	precludes 	a 	party 	to 	an
action 	from 	relitigating 	in 	a 	second 	proceeding 	matters
litigated 	and 	decided 	in a 	prior 	proceeding. 	People v. 	Sims
(1982) 	32 Cal.3d 468. 	477 	[186 Cal.Rptr. 	77]. 	Collateral
estoppel 	is 	an aspect of, 	but 	not 	coextensive with, 	the 	broader
13

concept of 	res 	judicata. 	"Where res 	judicata 	operates 	to
prevent 	relitigation of 	a 	cause 	of 	action once 	adjudicated,
collateral 	estoppel 	operates 	. . . 	to 	obviate 	the 	need 	to
relitigate 	issues 	already 	adjudicated 	in 	the 	first 	action."
Lockwood v. 	Superior Court 	(1984) 	160 Cal.App.3d 	667. 	671 	[206
Cal.Rptr. 	785]. 	The purpose of 	the doctrine is 	"to promote
judicial 	economy by minimizing 	repetitive 	litigation, 	to
prevent 	inconsistent 	judgments 	which undermine 	the 	integrity 	of
the 	judicial 	system, 	[and] 	to protect against vexatious
litigation." 	(Ibid.)
Collateral 	estoppel 	traditionally 	has 	barred 	relitigation
of 	an issue 	if 	(1) 	the 	issue 	is 	identical 	to one necessarily
decided 	at a previous proceeding; 	"(2) 	the previous
[proceeding] 	resulted 	in a final 	judgment on the merits; 	and
(3) 	the 	party against whom collateral 	estoppel 	is 	asserted was
a 	party or 	in privity with a 	party at 	the prior 	[proceeding]."
People v. 	Sims, 	supra. 	32 Cal.3d at p. 	484 	(citations omitted).
For 	cases 	involving 	the 	collateral 	estoppel 	effect 	of
administrative decisions, 	the California 	Supreme Court 	in
People v. 	Sims, 	supra, 	adopted 	the 	standards formulated by the
United 	States 	Supreme Court 	in United 	States v. 	Utah Constr. 	&
Min. CO. 	(1966) 	384 U.S. 	394 	[16 L.Ed.2d 642, 	86 S.Ct. 	1545].
There, 	the United 	States 	Supreme Court 	stated: 	"When an
administrative 	agency 	is 	acting 	in 	a 	judicial 	capacity 	and
resolved 	disputed 	issues 	of 	fact 	properly 	before 	it which 	the
14

parties 	have 	had 	an adequate 	opportunity to 	litigate, 	the
courts 	have not 	hesitated 	to 	enforce 	repose." 	( I d . 	at 	p. 	422.)
Thus, 	collateral 	estoppel 	effect will 	be 	granted 	to 	an
administrative 	decision made 	by an agency 	(1) 	acting 	in a
judicial 	capacity. 	(2) 	to 	resolve 	properly raised 	disputed
issues 	of 	fact where 	(3) 	the 	parties 	had 	a 	full 	opportunity to
litigate 	those 	issues.
In its motion to dismiss, 	the 	state cites 	the decision of
the 	State 	Personnel 	Board which was 	entered 	as 	evidence 	in 	the
PERB 	hearing. 	The 	Personnel 	Board 	administrative 	law 	judge,
whose decision was 	upheld 	by 	the Personnel 	Board 	itself, 	made 	a
specific 	finding 	that Mr. 	Pimentel was 	an officer 	in 	the union
certified as 	exclusive 	representative. 	Moreover, 	the
administrative 	law 	judge 	found. 	Mr. 	Pimentel 	"in the 	course 	of
his 	duties 	as 	job 	steward 	and Officer 	of 	the 	collective
bargaining organization, 	has 	represented 	employees 	in
grievances 	and 	other 	matters 	connected 	to 	his 	position 	in 	the
union." 	This 	finding was 	in response 	to 	a 	contention by
Mr. 	Pimentel 	that 	the 	"personnel 	actions were 	for 	improper
motive, 	to wit; 	retaliation for 	those 	[union] 	activities."
Relying upon 	the 	California 	Supreme 	Court 	decision 	in
Bekiaris v. 	Board 	of Education 	(1972) 	6 	Cal.3d 	575 	[100
Cal.Rptr. 	16], 	the 	judge concluded 	that he was 	required under
California 	law to 	consider 	the 	alleged 	unlawful 	retaliation.
As 	an analytical 	approach, 	he 	adopted what 	he 	characterized 	as
15

the 	"but for" 	test found 	in Martori Brothers v. 	ALRB 	(1981) 	29
Cal.3d 721 	[175 Cal.Rptr. 	626] 	and Mt. 	Healthy City Board of
Education v. 	Doyle 	(1977) 	429 U.S. 	274 	[50 L.Ed.2d 471, 	97
S.Ct. 	568]. 	Applying that test, 	the administrative 	law judge
concluded 	that 	the 	action against Mr. 	Pimentel was 	"for 	cause"
and 	"not 	for 	official 	dissatisfaction" 	with Mr. 	Pimentel's
protected conduct. 	Moreover, 	the 	judge continued, 	even if 	the
dismissal was 	in part motivated 	by 	improper 	purposes, 	the
action would 	have 	been 	taken 	anyway.
The 	state 	notes 	that 	the Mt. 	Healthy 	test 	subsequently was
adopted 	by 	the National 	Labor 	Relations 	Board 	in Wright 	Line.
Inc. 	(1980) 	251 NLRB 	1083 	[105 LRRM 1169] 	which in turn was
adopted 	by 	the 	PERB 	in 	State 	of 	California 	(Department 	of
Developmental Services) 	(1982) 	PERB Decision No. 	228-S. 	It 	is
therefore clear, 	the 	state asserts, 	that 	the precise contention
advanced 	by 	the 	charging 	party 	here 	was 	considered 	and 	rejected
in the 	earlier 	Personnel Board 	proceeding. 	Accordingly, 	the
state 	concludes, 	the present charge 	is 	subject 	to 	collateral
estoppel 	and 	should 	be 	dismissed.
CAUSE 	makes 	three 	arguments 	against 	the 	application 	of
collateral 	estoppel 	in this 	case. 	First, 	CAUSE asserts 	that
the PERB 	previously 	has 	encouraged 	litigants 	to 	present 	before
the 	State 	Personnel 	Board 	evidence 	of 	anti-union motivation.
To 	now punish a 	party for 	following 	that 	advice would 	be 	an
untenable result, 	CAUSE argues. 	Second, 	the elements 	of
16

collateral 	estoppel 	have not 	been met 	here. 	Third, 	granting
collateral 	estoppel 	effect 	to 	the 	decisions 	of 	the 	State
Personnel 	Board would 	divest 	the 	PERB 	of 	its 	jurisdiction 	over
unfair 	practices.
Regarding PERB's 	alleged 	encouragement 	of 	parties 	to 	raise
unlawful 	motivation 	issues 	before 	the 	State Personnel 	Board,
CAUSE points 	to 	footnote No. 	7 	in Department of Developmental
Services, 	supra. 	PERB Decision No. 	228-S. 	There, 	the PERB
cited 	as 	"an additional" 	basis 	for 	discrediting 	the 	testimony
of 	the 	charging 	party his 	failure 	to 	assert 	before 	the
Personnel 	Board 	alleged 	expressions 	of 	threats 	for 	union
activity. 	The 	PERB 	observed 	that 	the 	charging 	party's 	case
would 	have 	been 	helped 	by 	such evidence 	at 	least 	to 	the 	extent
of 	showing bias 	on the part of 	the 	employer's witnesses. 	The
raising 	of 	such evidence 	for 	the 	first 	time 	in 	the PERB
proceeding 	rendered 	it 	"somewhat 	suspect." 	the Board 	concluded.
As 	the state responds 	in 	its 	brief, 	however. 	Department 	of
Developmental 	Services 	has 	nothing 	to 	do with 	collateral
estoppel. 	It 	concerns 	only the 	credibility of 	a witness. 	The
PERB's 	comments 	in that 	case 	shed 	no 	light 	on the 	issue 	of
whether 	or 	not 	collateral 	estoppel 	effect 	must 	be 	granted 	to
Personnel 	Board 	decisions 	under 	California 	law. 	The 	PERB 	has
yet 	to 	consider 	that 	question. 	If 	the Board ultimately does
conclude 	that 	collateral 	estoppel 	effect 	must 	be 	given 	to
Personnel 	Board 	decisions, 	it may then conclude 	that 	tactical
17

reasons 	justify a 	party's 	failure 	to 	earlier 	raise 	the
motivation argument. 	In such a 	context, 	no 	inference 	against
credibility could 	be drawn. 	See 	Id. 	at footnote No. 	7. 	In any
event, 	the PERB's 	discussion about 	credibility 	in Department 	of
Developmental 	Services 	is 	dispositive 	of 	no matter 	at 	issue
here.
CAUSE 	argues 	that 	the 	PERB 	already has 	refused 	to 	give 	res
judicata 	effect 	to 	a Personnel Board decision, 	citing State 	of
California 	(Department 	of 	Transportation) 	(1984) 	PERB Decision
No. 	459-S. 	However, 	collateral estoppel was not argued 	in
Department 	of 	Transportation and 	has 	not 	been argued 	in 	any
other 	case 	involving 	a 	decision 	by 	the 	State Personnel 	Board.
In 	the most 	closely analogous 	case. 	Regents 	of 	the University
of California 	(Berkeley) 	(1985) 	PERB Decision No. 	534-H. 	the
Board 	refused 	to 	grant 	collateral 	estoppel 	effect 	to 	the
decision of 	an arbitrator. 	There, 	no 	showing was 	made 	that 	the
issue 	of 	unlawful 	motivation was 	ever 	placed 	before 	the
arbitrator. 	Thus 	collateral 	estoppel would 	not 	have 	been
appropriate. 	Moreover, 	as 	the state argues 	in its 	brief.
Regents 	stands 	essentially 	for 	the 	proposition 	that 	the 	PERB
does 	not 	accord 	collateral 	estoppel 	effect 	to 	the 	decisions 	of
an arbitrator. 	At 	issue 	here 	is 	the 	collateral 	estoppel 	effect
of 	decisions 	made 	by an administrative agency. 	There 	is.
therefore, 	no PERB 	precedent which runs 	counter 	to 	the 	granting
of 	collateral 	estoppel 	effect 	to 	decisions 	of 	the 	State
Personnel 	Board.
18

CAUSE 	next 	argues 	that 	several 	prerequisites 	for 	the
doctrine 	of 	collateral 	estoppel 	have 	not 	been met. 	These
requirements were set out 	in People v. 	Sims, 	supra. 	32 Cal.3d
468. 	Initially, 	CAUSE asserts, 	it has not been established
that 	the 	identical 	issue 	in 	the 	present 	case was 	litigated
before 	the 	State Personnel Board. 	On the 	contrary, 	it 	is 	clear
that 	both 	cases 	present 	the 	issue 	of 	the 	motivation underlying
the state's 	termination of Mr. 	Pimentel.
Ordinarily, 	the Personnel 	Board 	is 	concerned 	only with the
issue 	of 	cause 	for 	termination and 	not 	the 	underlying
motivation, 	a quite different question. 	Here. Mr. 	Pimentel
asserted 	before 	the 	Personnel 	Board 	that 	his 	termination was 	in
retaliation 	for 	engaging 	in 	protected 	conduct. 	Once
Mr. 	Pimentel made 	that 	assertion, 	the 	issue 	of motivation was
squarely 	before 	and 	was 	necessarily decided 	by 	the 	Personnel
Board. 	It 	is 	the precise 	same 	issue which Mr. 	Pimentel.
through CAUSE, 	now attempts 	to 	relitigate here.
CAUSE next 	asserts 	that 	collateral 	estoppel 	is 	not
applicable 	because 	the 	Personnel 	Board 	decision 	is 	not 	yet
final.2 CAUSE cites People v. 	Sims, 	supra. 	32 Cal.3d 	468.
for 	the 	proposition 	that 	only 	judgments 	which are 	free 	from
direct 	attack 	are 	final 	and 	may not 	be 	relitigated. 	Because
2Under 	Government 	Code 	section 	19630 	a 	decision of 	the
Personnel Board 	is 	subject 	to 	legal 	attack 	for 	one year. 	One
year 	has 	not yet 	elapsed 	since 	the 	Personnel 	Board's 	final
action 	in the Pimentel 	case.
19

the 	Personnel 	Board 	decision 	is 	still 	subject 	to 	attack 	through
mandamus, 	CAUSE reasons, 	it 	is not yet final and thus cannot be
used for 	collateral estoppel. 	But People v. 	Sims, 	supra, 	did
not 	resolve 	the question of whether 	the 	time 	for 	the 	filing 	of
mandamus 	must 	have 	elapsed 	before 	an 	administrative 	agency's
decision 	is 	final. 	Because 	the deadline 	for mandamus 	had
passed 	by the 	time 	the 	Sims 	matter 	reached 	the 	Supreme 	Court,
the 	Court 	concluded 	that 	it 	need 	not 	decide when an
administrative 	agency's 	decision 	becomes 	final 	for 	the 	purposes
of 	collateral 	estoppel.
Nevertheless, 	it 	is 	interesting to note that 	the effect 	of
the Supreme Court's 	decision 	in People v. 	Sims was 	to uphold 	a
trial 	court which granted 	collateral 	estoppel 	effect 	prior 	to
the 	running of 	the 	appeal 	period. 	This 	seems 	to 	be 	the most
logical 	result. 	To 	require 	that 	the mandamus 	appeal 	period
must 	have 	run would 	in 	some 	cases 	vitiate 	the 	effect 	of
collateral 	estoppel. 	Here, 	for 	example, 	an entire year would
have 	to 	elapse 	before 	collateral 	estoppel 	effect 	could 	be
granted 	to 	a 	decision of 	the Personnel 	Board. 	This 	period
would 	be 	further 	lengthened 	if 	a 	mandamus 	action were 	commenced
on the 	last 	day of 	the 	time period. 	Presumably, 	the decision
would 	not 	then 	be 	final 	until 	the 	last 	day 	for 	appeal 	from the
final 	action of 	the 	highest 	court 	to which the mandamus 	case
ascended. 	If 	such were the 	rule, 	the 	idea of 	collateral
estoppel 	for 	administrative 	decisions 	would 	be 	stillborn.
20

It 	is concluded, 	therefore, 	that for 	the purposes of
collateral 	estoppel 	effect 	a 	Personnel 	Board 	decision 	is 	final
when 	issued 	by 	the Personnel 	Board 	itself. 	Here, 	the 	parties
stipulated 	that 	the 	Personnel 	Board 	has 	itself 	issued 	a 	final
decision 	in the Pimentel 	matter. 	The Pimentel 	case 	is
therefore 	final 	for 	the 	purposes 	of 	collateral 	estoppel.
CAUSE 	next 	contends 	that 	the 	instant 	proceeding 	is 	not
between 	the 	same 	parties 	or 	parties 	in privity with 	those 	in
the Personnel Board 	action. 	Only Pimentel 	as 	an 	individual
employee 	and 	not 	as 	a CAUSE 	representative was 	before 	the
Personnel Board. 	Because 	their 	interests 	are 	divergent. 	CAUSE
asserts, 	it 	cannot 	be said 	that 	CAUSE 	is 	in privity with
Mr. Pimentel.
This 	difference 	in the moving 	party 	is 	inconsequential.
Mr. 	Pimentel. 	the party in the Personnel Board action, 	has a
clear 	identity 	of 	interest with CAUSE 	in 	the 	case 	before 	the
PERB. 	Mr. 	Pimentel 	has 	a direct 	financial 	stake 	in the 	outcome
and 	the 	right which CAUSE 	seeks 	to 	vindicate 	through
section 3519(a) 	is personal 	to Mr. 	Pimentel. 	Section 3519(a)
protects 	the right of 	individuals, 	not organizations, 	to engage
in 	protected 	activity.
The 	additional 	allegation of 	a violation of 	CAUSE'S
organizational 	rights 	is 	not 	sufficient 	to 	create 	divergent
interests. 	The alleged violation of 	section 3519(b) 	is
advanced 	as 	a derivative charge. 	It 	cannot 	stand alone. 	As
21

the 	state argues, 	the organizational 	right 	at 	issue 	here 	is 	one
which 	is 	exercised 	only through an officer. 	As Mr. 	Pimentel's
organizational 	activity 	previously was 	determined 	not 	to 	have
been a 	factor 	in his 	dismissal, 	the prior 	holding 	is 	absolutely
dispositive 	of 	the 	alleged 	denial 	of 	organizational 	rights 	as
well.
As 	a 	final 	line 	of 	defense 	to 	the 	collateral 	estoppel
argument. 	CAUSE asserts 	that 	collateral 	estoppel 	is 	precluded
where 	an 	issue 	is 	not within a 	forum's 	power 	to 	decide 	in the
first action. 	Here. 	CAUSE argues. 	Government Code 	section
3514.5 	gives 	to 	PERB 	the 	exclusive 	initial 	jurisdiction 	over
unfair 	practice charges under 	SEERA. 	Therefore, 	CAUSE
concludes, 	the Personnel Board was without 	power 	to 	decide
whether 	an unfair 	practice was 	committed 	against Mr. 	Pimentel.
It 	is doubtless 	true 	that 	the Personnel Board 	is without
power 	to 	decide unfair 	practice 	cases. 	And 	the Personnel 	Board
did 	not 	do 	so 	here. 	What 	the Personnel 	Board 	decided was 	an
issue 	of 	motivation which was 	placed 	before 	it 	by Mr. 	Pimentel
himself. 	There was 	no 	encroachment upon 	the PERB's
jurisdiction. 	Application of 	the 	principle 	of 	collateral
estoppel 	does 	not 	remove 	authority 	from PERB and 	cede 	it 	to 	the
Personnel 	Board.
It 	should 	be noted, 	finally, 	that were 	the PERB 	to reject
out-of-hand 	the 	possibility 	of 	collateral 	estoppel 	effect 	for
decisions 	of 	the Personnel 	Board 	it would 	be 	rejecting 	also 	the
22

explicit 	suggestion of 	the 	California 	Supreme 	Court 	in Pacific
Legal Foundation v. 	Brown 	(1981) 	29 	Cal.3d 	168 	[172 	Cal.Rptr.
487]. 	There, 	the Court pointed out, 	conflicts between the
jurisdiction of 	the PERB 	and 	that 	of 	the 	State Personnel 	Board
could 	be 	"resolved 	by administrative 	accommodation 	between 	the
two agencies 	themselves." 	Ibid, 	at p. 	200. 	The Court then
cited with 	approval 	an 	example 	of 	administrative 	cooperation
between 	a 	civil 	service 	commission 	and 	a 	local 	employment
relations 	commission. 	Id.
The 	Personnel 	Board 	decision 	involving Mr. 	Pimentel 	meets
all 	the 	requirements 	set 	out 	by the 	State 	Supreme 	Court 	in
People v. 	Sims, 	supra. 	32 Cal.3d 468. 	It 	is clear 	that the
Personnel 	Board was 	acting 	in 	its 	judicial 	capacity and 	not
under 	its 	rule-making authority 	in 	the 	Pimentel 	case. 	The
Personnel 	Board 	decision and 	portions 	of 	the 	record 	of 	that
case 	introduced 	into 	the 	PERB 	proceeding 	establish 	that 	the
hearing was 	a 	judicial-like 	adversary proceeding. 	It was
conducted 	in 	an 	impartial 	manner 	with witnesses 	placed 	under
oath or 	affirmation. 	All 	parties were 	entitled 	to 	call,
examine 	and 	cross-examine witnesses 	and 	to 	introduce
documentary evidence. 	A formal 	record was 	made 	and 	a
transcript ultimately was 	prepared. 	The 	proposed 	decision 	of
the 	administrative 	law 	judge 	contained 	findings 	of 	fact 	and
conclusions 	of 	law. 	It was 	reviewed 	by 	the 	State Personnel
Board 	itself 	and 	adopted. 	There were 	disputed 	issues 	of 	fact
which were 	properly 	raised, 	fully 	litigated 	and 	resolved.
-
23

Granting 	collateral 	estoppel 	effect 	to 	such a 	decision 	of 	the
State 	Personnel 	Board 	is 	certainly 	consistent with 	the 	urgings
of 	the Supreme Court.
For 	these 	reasons, 	it 	is 	concluded 	that 	the 	charging party
is 	barred 	by 	collateral 	estoppel 	from asserting 	before 	PERB
that Steven Pimentel was dismissed on June 20, 	1984, 	in
retaliation 	for 	engaging 	in 	protected 	activities.3
Discrimination.
As 	a 	separate and additional 	grounds 	for 	dismissal, 	it
should 	be 	noted 	that 	even 	if 	this 	charge 	and 	complaint were 	to
be 	decided 	on the merits, 	the 	charging party would 	not
prevail. 	Although CAUSE has 	established 	that Mr. 	Pimentel
engaged 	in protected 	conduct, 	it 	has 	failed 	to 	establish by a
preponderance 	of 	the 	evidence 	that 	there 	is 	a 	link 	between that
conduct 	and 	the 	termination.
3under 	ordinary circumstances, 	the 	granting 	of 	a motion
to 	dismiss 	based upon the 	doctrine 	of 	collateral 	estoppel 	would
obviate 	the need 	for 	a 	hearing. 	Here, 	the motion was
distributed 	to 	the 	charging 	party 	and 	the 	administrative 	law
judge at 	the 	start of 	the hearing on October 	21, 	1985. 	This
eleventh 	hour 	motion was 	based upon a 	June 	10 Personnel 	Board
decision which 	counsel 	for 	the 	respondent 	acknowledged 	had 	been
in possession of 	the Department 	of 	Personnel Administration
since at 	least August. 	Prior 	to October 	21, 	the PERB hearing
had 	been 	twice 	cancelled 	at 	the 	request 	of 	the 	parties. 	On
July 10, 	1985, 	the undersigned agreed 	to 	continue 	the hearing
until 	October 	with a warning 	that 	"future 	requests 	for
continuance will 	be 	highly disfavored." 	When these 	facts were
pointed 	out 	to 	counsel 	for 	respondent 	during a 	discussion about
the 	late 	hour 	of 	the 	filing 	of 	the 	motion for 	collateral
estoppel, 	he agreed 	that 	the motion could 	be 	taken under
submission and 	dealt with 	in 	the written decision.
24

State 	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.4
It 	is 	an unfair 	practice under 	section 3519 	(a) 	for 	the 	state
to "impose 	. 	. 	. 	reprisals on employees 	(or) to discriminate 	.
. 	. 	against employees 	. 	. 	. 	because of their exercise of
[protected] 	rights." 	In an unfair 	practice 	case 	involving
reprisals 	or 	discrimination, 	the 	charging party must make a
prima 	facie 	showing 	that 	the 	employer's 	action against 	the
employee was 	motivated 	by 	the 	employee's 	participation 	in
protected 	conduct. 	Novato Unified 	School 	District 	(1982) 	PERB
Decision No. 	210. 	adopted 	for 	SEERA in State of 	California
(Department of Developmental Services), 	supra. 	PERB Decision
No. 	228-S. 	See also. 	State of California 	(Department 	of Parks
and Recreation) 	(1983) PERB Decision No. 	328-S.
To meet 	its 	burden of 	establishing a 	prima 	facie 	case, 	the
charging 	party must 	first 	show that 	the 	conduct 	in which 	the
employee 	engaged 	was 	protected 	and 	that 	the 	employer 	had 	actual
or 	imputed 	knowledge 	of 	the 	employee's 	participation 	in 	the
protected 	activity. 	Moreland 	Elementary 	School 	District 	(1982)
PERB Decision No. 	227. 	The 	charging party then must 	produce
evidence 	of 	unlawful 	motivation 	to 	link 	the 	employer's
4section 3515.
25

knowledge 	to 	the 	harm which befell 	the 	employee. 	Indications
of 	unlawful 	motivation have 	been found 	in an employer's:
general 	animus 	toward unions, 	San Joaquin Delta 	Community
College District 	(1982) 	PERB Decision No. 	261; 	disparate
treatment 	of 	a union adherent. 	State 	of 	California 	(Department
of Transportation) 	(1984) 	PERB Decision No. 	459-S; 	inadequate
explanation 	to 	employees 	of 	the 	action. 	Clovis Unified 	School
District 	(1984) 	PERB Decision No. 	389; 	timing of 	the action.
North Sacramento School District 	(1982) 	PERB Decision No. 	264;
failure 	to 	follow usual 	procedures. 	Santa Clara Unified 	School
District 	(1979) 	PERB Decision No. 	104; 	and shifting
justifications 	for 	the 	action. 	State 	of 	California 	(Department
of Parks and Recreation). 	supra. PERB Decision No. 	328-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 	absent 	the 	protected 	activity. 	If 	the
employer 	fails 	to 	show that 	it was 	motivated 	by 	"a 	legitimate
operational 	purpose" 	and 	the 	charging 	party 	has 	met 	its 	overall
burden of 	proof, 	a violation of 	section 3519 	(a) 	will 	be
found. 	See 	generally, 	Baldwin Park Unified 	School District
(1982) PERB Decision No. 	221.
CAUSE 	attempts 	to 	establish unlawful 	motivation 	by 	showing
that 	the 	department 	had 	a 	prior 	plan 	to 	terminate 	Chief 	Cross
for 	his 	union activities 	and 	then 	to 	dismiss 	the 	other 	police
26

officers 	because 	of 	their 	loyalty to Cross. 	While 	there 	is
persuasive 	evidence 	that 	the 	department was 	strongly motivated
to get rid of Chief 	Cross, 	the root of 	this motivation was not
anti-union 	sentiments. 	Department 	administrators 	considered
the Stockton hospital police 	to 	be a 	slovenly, 	unprofessional
group 	supervised 	by a 	lax 	administrator.
More 	fundamentally, 	this 	case 	does 	not 	concern Chief
Cross. 	The 	portion of 	the 	charge 	dealing with him was
dismissed 	and 	the 	dismissal 	was 	upheld 	by 	the 	Board 	itself. 	At
issue here 	is whether 	the dismissal 	of Mr. 	Pimentel was
motivated 	by anti-union sentiments. 	In order 	to make 	this
crucial 	link. 	CAUSE 	argues 	that 	the department's 	conduct 	toward
Mr. 	Pimentel was 	disparate. 	But 	the 	evidence of 	disparity 	is
unconvincing. 	Mr. 	Pimentel was 	one 	of 	four 	officers 	dismissed
for 	the 	falsification of 	time 	records. 	While 	it 	is 	clear 	that
Mr. 	Pimentel 	engaged 	in protected activity, 	there 	is 	no
evidence 	that 	he was 	treated 	differently 	from 	the 	other 	three
officers 	who were 	not union activists.
CAUSE 	points 	to 	the 	inadequacy of 	the 	evidence 	presented
to 	the Personnel 	Board 	regarding Mr. 	Pimentel's 	absences 	from
work. 	It 	is 	obvious 	that 	some 	of 	the 	employer's 	documentation
was weak. 	Indeed, 	some 	of 	the 	accusations were withdrawn by
the 	department 	during 	the 	proceedings 	before 	the 	Personnel
Board. 	But 	the 	evidence 	regarding Mr. 	Pimentel was 	no worse
than 	the 	evidence 	the 	department 	presented 	against 	the
27

employees who were 	not 	union activists 	and who 	had 	not 	engaged
in protected conduct. 	There 	is, 	therefore, 	no showing of
disparate 	conduct 	in 	the 	department's 	approach 	to
Mr. Pimentel.
In 	the 	absence 	of 	other 	evidence 	of 	discriminatory 	intent,
it follows 	that 	the 	termination of Mr. 	Pimentel was 	not
motivated 	by a 	desire 	to 	retaliate 	against 	him for 	the
protected 	participation 	in union 	activities.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law and 	the 	entire 	record 	in this 	matter, 	unfair 	practice
charge 	S-CE-238-S, 	California Union of 	Safety Employees 	v.
State 	of 	California 	(Department 	of 	Developmental 	Services) 	and
the 	companion 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 July 2, 	1986, 	unless 	a party files 	a 	timely
statement 	of 	exceptions. 	In accordance with PERB Regulations,
the 	statement 	of 	exceptions 	should 	identify 	by page 	citation 	or
exhibit 	number 	the portions 	of 	the record, 	if 	any, 	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 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the close of 	business 	(5:00 p.m.) 	on
28

July 2. 	1986. 	or 	sent 	by telegraph or 	certified 	or Express
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.
section 	32300 	and 	32305.
Dated: 	June 12. 	1986 Ronald E. 	Blubaugh
Administrative 	Law Judge
29
I