State of California (Department of Corrections) (Martin) (PERB 1224S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTOR 	LEE MARTIN,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
) 	Case No. 	LA-CE-345-S
PERB Decision No. 	1224-S
October 	31, 	1997
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Appearance: 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	by Robert K. 	Roskoph, 	Labor Relations Counsel,
for State of 	California 	(Department 	of 	Corrections).
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the State of California 	(Department of Corrections) 	(State) 	to a
proposed decision 	(attached) 	by a 	PERB 	administrative 	law judge
(ALJ). 	In the proposed decision, 	the ALJ dismissed the unfair
practice 	charge 	and 	complaint 	alleging 	that 	the 	State 	laid 	off
Victor Lee Martin 	(Martin) 	because 	of his union activities 	in
violation of section 3519(a) 	of the Ralph C. 	Dills Act 	(Dills Act).1
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519 	states, 	in
pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
The State, 	while prevailing on the merits 	in this 	case,
excepts 	to 	the ALJ's 	finding 	that Martin was 	a 	civil 	service
employee within the meaning of Dills Act 	section 3513(c).2 As a
result, 	the State 	contends 	that 	PERB lacks 	jurisdiction over the
instant 	unfair practice 	charge 	and 	complaint.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	proposed decision and 	the 	State's 	exceptions
2Dills Act section 3513 	states, 	in pertinent part:
As used 	in 	this 	chapter:
(c) 	"State employee" means any civil 	service
employee 	of 	the state, 	and the 	teaching staff
of 	schools 	under 	the 	jurisdiction of 	the
State Department 	of 	Education or 	the
Superintendent 	of 	Public 	Instruction, 	except
managerial employees, 	confidential employees,
supervisory employees, 	employees 	of 	the
Department 	of 	Personnel Administration,
professional 	employees 	of 	the Department 	of
Finance 	engaged 	in 	technical 	or analytical
state budget preparation other 	than 	the
auditing staff, 	professional 	employees 	in the
Personnel/Payroll 	Services 	Division of 	the
Controller's 	office 	engaged 	in 	technical 	or
analytical 	duties 	in support 	of 	the 	state's
personnel 	and payroll 	systems 	other 	than 	the
training staff, 	employees 	of 	the Legislative
Counsel Bureau, 	employees 	of 	the Bureau of
State Audits, 	employees of the board,
conciliators 	employed by 	the 	State
Conciliation Service within 	the Department 	of
Industrial Relations, 	and intermittent
athletic 	inspectors who are 	employees 	of 	the
State Athletic 	Commission.
22

thereto.3 The 	Board 	finds 	the ALJ's 	findings 	of 	fact 	and
conclusions 	of 	law to be 	free 	of prejudicial 	error and hereby
adopts 	them as 	the decision of 	the Board 	itself, 	consistent with
the 	following discussion.
DISCUSSION
As 	the ALJ notes, 	the Board specifically addressed the
definition of 	state 	civil 	service 	employee under the Dills Act 	in
State 	of 	California 	(Department 	of 	Personnel Administration)
(1990) 	PERB Decision No. 	787-S 	(DPA I ) . 	The Board noted that
Article VII, 	section 1 of 	the California Constitution4 states
that 	the 	civil 	service 	includes 	every employee 	of 	the 	state
"except 	as 	otherwise provided 	in 	this 	Constitution."
Article VII, 	section 45 then lists 	thirteen specific exemptions
3The 	State's 	request 	for oral 	argument 	in this 	case was
denied on October 22, 	1997.
4The 	relevant 	portion of 	the 	California 	Constitution,
Article VII, 	section 1 provides:
(a) 	The 	civil 	service 	includes 	every officer
and employee of 	the 	State 	except 	as 	otherwise
provided 	in 	this 	Constitution.
5California Constitution, 	Article VII, 	section 4 provides:
The 	following are 	exempt 	from civil 	service:
(a) 	Officers and employees appointed or
employed by the Legislature, 	either house, 	or
legislative 	committees.
(b) 	Officers and employees appointed or
employed by councils, 	commissions 	or public
corporations 	in 	the 	judicial 	branch or by a
court 	of 	record or officer 	thereof.
(c) 	Officers 	elected by the people and a
deputy 	and an 	employee 	selected by 	each
33

from the civil 	service, 	none of which is 	relevant 	to this 	case.
The 	Board 	concluded:
elected 	officer.
(d) 	Members of boards and commissions.
(e) 	A deputy 	or employee 	selected by each
board 	or 	commission 	either 	appointed by 	the
Governor 	or authorized by 	statute.
(f) 	State 	officers 	directly anointed by the
Governor with 	or without 	the 	consent 	or
confirmation of 	the 	Senate 	and 	the 	employees
of 	the Governor's 	office, 	and the employees
of 	the 	Lieutenant 	Governor's 	office 	directly
appointed 	or 	employed by 	the 	Lieutenant
Governor.
(g) 	A deputy or 	employee 	selected by each
officer, 	except members 	of boards and
commissions, 	exempted under Section 4(f).
(h) 	Officers and employees 	of 	the University
of 	California and 	the 	California 	State
Colleges.
(i) 	The 	teaching staff 	of 	schools under the
jurisdiction of 	the Department 	of 	Education
or 	the 	Superintendent 	of 	Public 	Instruction.
(j) 	Member, 	inmate, 	and patient help in
State homes, 	charitable or correctional
institutions, 	and State 	facilities 	for
mentally 	ill 	or 	retarded persons.
(k) 	Members 	of 	the militia while engaged in
military 	service.
(1) 	Officers and employees 	of district
agricultural 	associations 	employed 	less 	than
6 months 	in a 	calendar year.
(m) 	In addition to positions 	exempted by
other provisions 	of 	this 	section, 	the
Attorney General 	may appoint 	or 	employ 	six
deputies or employees, 	the Public Utilities
Commission may appoint 	or 	employ 	one 	deputy
or employee, 	and the Legislative Counsel may
appoint 	or employ two deputies 	or employees.
4

All 	personnel 	appointments 	other 	than 	the
specific 	exempt 	appointments 	are 	therefore
part 	of 	the 	civil 	service 	system and have
some 	form of 	civil 	service status, 	whether it
be seasonal, 	limited term, 	permanent, 	part-
time, 	or any other type.
(DPA I at p. 	14.)
Similarly in State 	of 	California. 	Department 	of 	Personnel
Administration 	(1991) 	PERB Decision No. 	871-S 	(DPA II), 	PERB held
that members 	of 	the 	California Conservation Corps 	are 	state 	civil
service 	employees 	under 	the Dills Act 	because 	they are 	not
specifically exempted 	from the 	civil 	service 	in Article VII,
section 4 	even 	though 	they 	lack 	the 	traditional 	civil 	service
attributes 	of 	permanent 	appointment 	from an 	employment 	list
resulting 	from a 	competitive 	examination.
Noting 	that Martin's 	appointment 	as 	a 	casual 	laborer also 	is
not 	specifically exempted 	from the 	civil 	service 	in Article VII,
section 4, 	the ALJ concludes 	that Martin was 	a 	state 	employee
under 	the Dills Act. 	The ALJ also notes 	that Martin's 	official
separation notice 	lists 	his 	appointment 	status 	as 	"Civil 	Service
Temporary."
The 	State 	contends 	that 	PERB 	lacks 	jurisdiction over this
unfair practice 	charge because Martin was 	not 	a 	"state 	employee"
under Dills Act 	section 3513(c). 	Dills Act 	section 3513(c)
defines 	"state 	employee" 	as 	"any civil 	service employee of 	the
State." 	The 	State maintains 	that 	temporary employees 	such as
Martin are 	exempted 	from the 	civil 	service under 	the 	California
Constitution. 	The State asserts 	that 	the Board erred in DPA I
and DPA II by failing to recognize 	that Article VII, 	section 5
55

provides 	an exemption from the 	civil 	service. 	Article VII,
section 5 	states:
A temporary appointment 	may be made 	to 	a
position 	for which 	there 	is 	no 	employment
list. 	No person may serve 	in one 	or more
positions 	under 	temporary 	appointment 	longer
than 9 months 	in 12 	consecutive months.
In construing 	constitutional provisions, 	we must 	first 	look
to 	the 	language 	of 	the 	constitutional 	text 	and give 	the words
their ordinary meaning. 	(Powers v. 	City of 	Richmond 	(1995)
10 	Cal.4th 85 	[40 	Cal.Rptr.2d 839].) 	Nothing 	in section 5
conveys 	the 	intent 	to 	create 	a 	separate 	exemption 	from civil
service. 	Unlike 	section 4, 	which clearly states 	that 	"the
following are 	exempt 	from civil 	service," 	section 5 	provides 	no
statement 	that 	temporary appointments 	are 	exempt. 	Giving 	the
words 	their ordinary meaning, 	the provision serves 	to define
temporary appointments 	to positions within state 	service, 	not
temporary appointments which are 	exempt 	from civil 	service.
Legislative 	efforts 	to 	interpret 	a word 	in 	the 	Constitution
are 	upheld unless 	they are 	clearly 	inconsistent 	with 	the 	express
language 	of 	the Constitution. 	(People v. 	8.000 	Punchboard Card
Devices 	(1983) 	142 	Cal.App.3d 618 	[191 Cal.Rptr. 	154].) 	A review
of 	the State 	Civil 	Service Act 	confirms 	that 	temporary
appointments 	are not 	exempt 	from civil 	service. 	Government 	Code
section 	18500 	states 	that 	the purpose 	of 	the State 	Civil 	Service
Act 	is 	to 	"facilitate 	the 	operation of article VII 	of 	the
Constitution." 	Government 	Code 	section 	18525 	defines
"appointment" 	as 	the 	"offer 	to and acceptance by a person of 	a
66

position 	in 	the 	state 	civil 	service 	. . . " 	Government 	Code
section 	18529 	defines 	"temporary appointment" 	as 	"an appointment
made 	in 	the 	absence 	of any appropriate 	employment 	list permitted
by section 5 	of Article VII of 	the Constitution." 	Thus, 	as
defined by the 	Legislature, 	a 	temporary appointment made pursuant
to Article VII, 	section 5 	is an appointment to a position in the
state 	civil 	service.
To 	support 	its 	position that 	section 5 	creates 	an additional
exemption to the 	civil 	service, 	the State points 	to Spaulding v.
Philbrick 	(1940) 	42 	Cal.App.2d 58 	[108 	P.2d 59] 	(Spaulding). 	In
-
that 	case, 	the 	court 	held that 	temporary employees 	have no 	civil
service 	status 	because 	they 	lack 	the procedural 	protection 	of
permanent 	employees. 	Spaulding deals with the procedural
protections 	offered to permanent 	civil 	service employees, 	not 	the
definition of 	"civil 	service" 	under 	the 	California 	Constitution
or 	"state employee" 	under Dills Act 	section 3513(c). 	The courts
have 	distinguished between 	the 	procedural 	rights 	granted by 	the
merit 	system of 	civil 	service and employees' 	collective
bargaining 	rights. 	The 	State 	Personnel 	Board 	is 	charged with
protecting 	the 	civil 	service 	employee's 	substantive 	and
procedural 	rights under 	the merit 	system. 	PERB has 	the 	task of
administering 	the Dills 	Act 	protections 	against violation of
collective bargaining rights. 	(Pacific 	Legal 	Foundation v. 	Brown
(1981) 	29 	Cal.3d 168 	[172 	Cal.Rptr. 	487].) 	The Dills Act assigns
those 	rights 	to 	"any civil 	service employee of 	the State" 	not
expressly excluded. 	As 	a 	temporary employee, 	Martin did not 	fall
77

under any of 	the 	exemptions 	to 	the 	civil 	service 	listed 	in
Article VII, 	section 4. 	Therefore, 	Martin was a state employee
under Dills Act 	section 3513(c), 	PERB has 	jurisdiction over this
case, 	and the State's 	exceptions are without merit.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CE-345-S 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
88

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTOR LEE 	MARTIN,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-345-S
PROPOSED DECISION
(3/19/97)
)
)
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;
Appearances: 	Victor Lee Martin, 	on his own behalf; 	Robert K.
Roskoph, 	Labor Relations Counsel, 	for State of California
(Department of Corrections).
Before Thomas J. 	Allen, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In this 	case, 	Victor Lee Martin 	(Martin) 	alleges that 	the
State of 	California 	(Department 	of 	Corrections) 	(State) 	laid him
off because of union activities, 	in violation of 	section 3519(a)
of 	the Ralph C. 	Dills Act 	(Dills 	Act).1 The 	State 	contends 	that
Martin was 	not 	a 	state employee under 	the Dills Act 	and that 	his
layoff was not 	discriminatory 	in any case.
Martin 	filed an unfair practice 	charge 	against 	the 	State 	on
June 14, 	1996. 	On July 31, 	1996, 	the Office of the General
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
and following. 	Unless otherwise 	indicated, 	all 	statutory
references herein are 	to the Government 	Code. 	In relevant part,
section 3519 	provides 	that 	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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
e

Counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB) 	issued a
complaint, 	alleging that Martin was 	laid off on May 13, 	1996,
because 	he 	attended 	a 	union 	event 	and 	then 	discussed union
politics at work, 	on May 11 and 13, 	1996. 	On August 14, 	1996,
the 	State 	filed an answer to 	the 	complaint, 	denying all
allegations. 	An 	informal 	settlement 	conference 	scheduled 	for
September 10, 	1996, 	was cancelled.
A formal 	hearing was held on November 	7 	and 21, 	1996. 	After
the 	filing of post-hearing briefs, 	the matter was 	submitted 	for
decision on January 27, 	1997.
FINDINGS 	OF 	FACT
Martin was 	hired by the 	State 	on February 7, 	1996, 	and laid
off 	on May 13, 	1996. 	The official 	Report 	of 	Separation 	issued by
the 	State 	gave Martin's 	appointment 	status 	as 	"Civil 	Service
Temporary" 	and his 	classification 	title 	as 	"Skilled Trades
Journeyperson 	(Casual Employment) 	(Laborer)."
Martin was 	hired through the hiring hall 	of Local 	22 0 	of 	the
Laborers' 	International Union of North America 	(LIUNA), 	to work
in the 	construction of additional 	dormitories at 	state prisons.
Martin was 	told it 	was a nine-month position. 	He 	started work at
the North Kern State 	Prison in Delano, 	but 	sometime 	later he was
transferred to work at 	the Wasco State 	Prison, 	where he worked
directly under carpenter 	foreman Ray Hollibaugh 	(Hollibaugh). 	In
March or early April 	of 	1996, 	Dan Rippee 	(Rippee) 	began working
at Wasco State 	Prison as a Construction Supervisor 	I, 	with
Hollibaugh and Martin under him. 	In 	late April 	or early May,
Rippee 	transferred Martin 	to work 	directly under 	labor 	foreman
22

Mario Ortiz 	(Ortiz), 	a recently hired casual 	employee 	from LIUNA
Local 	22 0, 	who was also under Rippee.
At 	the 	hearing, 	Martin testified under oath that 	on
Saturday, 	May 11, 	1996, 	he attended a LIUNA delegates meeting, 	at
the 	invitation of members of LIUNA Local 	300 	in Los Angeles. 	In
his opening statement, 	before he was under oath, 	Martin stated
that on Monday, 	May 13, 	1996, 	when he got back to work, 	he told
his 	fellow employees 	about 	the meeting, 	bragging that 	he was 	the
only laborer 	from Local 	220 	there, 	and 	later heard that 	Ortiz 	was
displeased by this. 	When Martin took the 	stand as 	a witness
under oath, 	however, 	he did not 	testify about 	any of 	these
discussions, 	nor did any other witness. 	Therefore, 	although I
find that Martin attended the union event on May 11, 	1996, 	as
alleged in the 	complaint, 	I 	cannot 	find that Martin discussed
union politics at work on May 13, 	1996, 	as 	is also alleged in the
complaint.2
Martin testified that on May 13, 	1996, 	Ortiz 	told him he was
laid off. 	According to Martin, 	Ortiz 	also told him the 	reason
for his 	layoff was 	that 	"Mike 	Cunningham 	[a Construction
Supervisor 	II 	and Rippee's 	superior] 	and Ray 	[Hollibaugh]
believed 	I 	[Martin] 	was 	standing around on work time 	and
discussing politics." 	Martin 	testified 	that 	a 	superintendent
named Bruce 	"gave 	other 	reasons 	dealing with qualifications."
2PERB Regulation 32176 	states 	in relevant part, 	"Oral
evidence 	[in unfair practice 	cases] 	shall 	be 	taken only on oath
or 	affirmation." 	(PERB 	regulations 	are 	codified at 	California
Code of Regulations, 	title 8, 	section 31001 and following.)
W
	3

Martin testified he 	did not 	get 	any paperwork at 	the 	time 	of
his 	layoff, 	which other witnesses 	testified was unusual. 	About
two weeks 	later, 	Martin received 	from the 	State 	an official
Report of Separation. 	It bore an issue date of 	"5/14/96," 	but 	it
was 	in an envelope postmarked May 23, 	1996. 	At 	the hearing, 	no
explanation 	for 	the 	delay was 	given. 	The 	Report 	of 	Separation
gave Martin's 	separation 	type 	as 	"Termination Without 	Fault."
After his 	layoff, 	Martin went 	to the 	office 	of 	LIUNA
Local 	220 	and spoke 	to Mario Hernandez 	(Hernandez), 	who was the
dispatcher and office manager. 	Hernandez 	testified at 	the
hearing 	that 	he 	called Rippee 	and 	asked why Martin 	had been 	laid
off, 	and that 	the best answer Hernandez 	got was 	that 	there had
been a reduction in 	force. 	Rippee's own testimony at 	the 	hearing
confirmed 	that 	Martin's 	layoff 	was 	officially designated 	a
reduction 	in force.
No other employees were 	laid off 	during the week of 	May 	13,
1996, 	or the week thereafter. 	In fact, 	four additional 	laborers
were hired through LIUNA Local 	22 0 	to work at Wasco State 	Prison
the week of May 13, 	1996.3 Eight 	laborers were 	laid off 	during
the week of May 27, 	1996, 	however, 	including two of the 	laborers
hired 	just 	two weeks 	earlier.
One 	of 	the 	laborers 	hired during the week of May 13, 	1996,
was 	Greg Humpheres 	(Humpheres). 	Martin testified that 	Humpheres
3Rippee 	and 	another witness 	for 	the 	State 	testified 	that 	as
various 	stages 	of 	construction ended and others began 	it 	was 	not
unusual 	for 	there 	to be 	reductions 	in 	force 	and hirings 	at 	the
same 	time. 	A witness 	for Martin from LIUNA, 	however, 	testified
that 	this was rare.
4

told Martin 	that 	Rippee 	told Humpheres 	that 	Martin 	had been 	laid
for talking about union politics. 	In his 	testimony, 	Rippee
denied making such a 	statement. 	Humpheres 	himself 	did not
testify, 	and there was no evidence 	to 	corroborate what 	Martin
said Humpheres 	said. 	I 	therefore 	cannot 	find that 	Rippee 	told
Humpheres 	that 	Martin had been 	laid off 	for 	talking about 	union
politics.4
Clifford Shears 	(Shears), 	who volunteered in the LIUNA
Local 	220 	office, 	testified he 	overheard a conversation 	in the
office between Ortiz 	and LIUNA Local 	220 	President 	Jeremias 	Lopez
(Lopez) 	on or about May 20, 	1996. 	Shears testified he heard
Ortiz 	and Lopez 	laughing and 	joking about 	a 	layoff 	"like 	it 	was
funny." 	Martin was 	the only laborer who had been 	laid off 	at 	the
time. 	Shears 	interpreted what 	he 	heard as 	evidence 	that 	Ortiz
was 	directly involved in Martin's 	layoff, 	but 	I 	find Shears
testimony 	insufficient 	in 	itself 	to 	support 	such a 	finding.
Rippee 	testified he 	himself 	had made 	the 	decision 	to 	lay
Martin off, 	after consulting with two other construction
supervisors. 	Rippee 	further testified that, 	although he knew a
big 	layoff was 	coming up, 	the 	real 	reason he 	laid Martin off 	was
that 	Martin's work performance was 	unsatisfactory. 	Rippee's
testimony was 	corroborated by Rippee's 	own 	daily 	diary 	report 	for
May 13, 	1996, 	which stated in relevant part, 	"Talked to Mario
Ortiz. 	Victor Martin to be 	laid off 	unsatisfactory performance."
4PERB Regulation 32176 	states 	in relevant part, 	"Hearsay
evidence 	[in unfair practice 	cases] 	is 	admissible but 	shall 	not
be 	sufficient 	in 	itself 	to 	support 	a 	finding unless 	it 	would be
admissible 	over objection 	in civil 	actions."
55

Rippee 	gave 	the 	following explanation why Martin's 	layoff 	was
nonetheless 	officially designated 	a 	reduction 	in 	force:
. 	. 	. 	I don't like to fire anybody unless
it's a real 	extreme circumstance, 	a fight 	or
something that 	really is 	dramatic 	and 	I 	have
to deal 	with that problem right 	now.
I 	realize 	that 	these men 	that 	come 	and work
for me have 	families. 	And if you 	fire 	a man
on a job, 	then he can't 	draw his
unemployment. 	And what 	little bit you 	can
get 	from unemployment 	could buy groceries 	for
your 	family. 	And it's 	kind of 	my conviction
and 	I 	believe 	it's 	the 	right 	thing to do.
Rippee 	testified 	he 	first 	became 	concerned about 	Martin's
performance 	while 	Martin was 	working under Hollibaugh. 	Rippee
testified 	that 	on 	one 	occasion Hollibaugh 	reported Martin was 	not
doing his 	job while 	assigned to work with the backhoe, 	and that
on 	another 	occasion Hollibaugh 	reported Martin 	had 	hit
construction 	"batter boards" 	with a dump truck. 	Rippee's
testimony was 	corroborated by Hollibaugh's 	daily diary 	report 	for
April 	10, 	1996, 	which stated in relevant part, 	"1 labor working
with backhoe. 	Warned to work not 	stand around," 	and by
Hollibaugh's daily diary report 	for April 	15, 	1996, 	which stated
in 	relevant 	part, 	"Labor hit 	batter board with dump 	truck." 	A
later memo by Hollibaugh 	stated 	that 	these 	reports 	referred 	to
Martin, 	who had been one of 	three 	laborers 	on Hollibaugh's 	crew.
Rippee 	testified 	that 	Hollibaugh's 	reports 	led 	to Martin's
transfer 	to work under Ortiz. 	Rippee 	explained as 	follows:
. 	. 	. 	I'm a firm believer, 	like I said, 	that
a man may not 	work good with a 	certain group
of people or doing a certain task, 	but 	he may
have 	a talent 	for another area. 	So after
conferring with Ray Hollibaugh, 	I went 	to
Mario Ortiz 	and 	I 	said, 	why don't we put Mr.
66

Martin maybe 	on 	a 	rock 	and 	sand 	crew or 	in
another portion of 	the work. 	Just 	trying to
give 	him the benefit 	of 	the 	doubt.
I'm a 	firm believer that 	you 	-- 	I 	have 	to
evaluate a man. 	And I got to 	-- 	I have to be
involved, 	too. 	If 	I'm going to terminate a
man, 	I want 	to know that 	it's 	correct and
it's 	true. 	And it's 	the 	only fair thing to
do; 	give a man a 	few chances 	and see where 	he
can work.
Rippee 	further 	testified 	that 	Ortiz 	also 	reported problems 	with
Martin's performance. 	On one 	occasion, 	which Rippee 	described as
"the 	straw that 	broke 	the 	camel's back," 	Rippee 	noticed a
concrete 	truck 	on prison grounds 	without 	the 	required 	labor
escort. 	Rippee 	told Ortiz 	the 	situation was unacceptable 	and
asked who was 	supposed to be 	the 	escort, 	and Ortiz 	said it was
Martin. 	Rippee's 	testimony is 	corroborated by Ortiz's 	daily
diary report 	for May 3, 	1996, 	which stated in relevant part, 	"I
had problem with Martin. 	Left 	concrete 	truck, 	find another
escort," 	and by Rippee's 	own daily diary report 	for the 	same
date, 	which stated in relevant part, 	"Advised foreman Mario Ortiz
laborer escort 	must 	stay with 	truck 	drivers 	as 	per 	institution
policy."
Rippee 	also 	testified 	that 	on 	another occasion Ortiz
reported Martin had been 	assigned to 	lead 	some 	inmate 	laborers 	in
laying down rock and 	sand to prepare 	a 	foundation, 	and when Ortiz
came 	back 	hardly anything 	had been 	accomplished. 	This 	testimony
appears 	to be 	corroborated by Ortiz's 	daily diary report 	for
May 13, 	1996, 	which stated in relevant part, 	"Victor Martin
cleaning 	Pad D 	and rocking. 	Talked to Victor 	-- 	rocking 	too 	slow
and inmates not working." 	The date of 	this,report, 	however, 	was
7
7

Martin's 	last 	day of work, 	and it 	is not 	clear whether the
decision 	to 	lay Martin off 	had 	already been made.
Ortiz's daily diary report 	for May 3, 	1996, 	stated in part,
"Victor Martin was 	working on 	cleaning 	Pad A and D. 	Spoke 	to
Victor. 	Does not 	follow orders." 	Rippee testified, 	however, 	he
did not 	remember Ortiz 	reporting 	such an 	incident 	to 	him.
Rippee 	testified he 	made 	the 	decision 	to 	lay Martin off
after consulting two other construction 	supervisors, 	Nate Wright
and Bruce Hubble. 	Rippee 	described the 	conversation as 	follows:
. 	. 	. 	I had discussed with Nate and Bruce
what was going on with Victor. 	And 	I 	felt 	at
that 	time 	that we had really tried, 	I 	had
really 	tried to work Victor Martin 	in various
places 	on the 	job 	site. 	And he 	just wasn't
working out. 	He was not performing.
And so 	I 	had asked Bruce 	and Nate, 	you know,
would you consider working Victor. 	And 	it
was 	all 	three of 	our consensus 	that he 	should
be 	laid off 	and 	it 	would be 	better off 	that
way. 	He was not meeting our standards. 	He
was 	not performing as we 	thought 	he 	should be
performing. 	And it was 	just better off 	to
lay him off 	rather than to pass 	on a problem.
Martin 	testified 	that 	no 	one 	had 	spoken 	to 	him about 	problems
with his 	performance, 	and that 	on only one 	occasion was 	there 	any
disagreement 	regarding his 	work.5 Rippee 	testified 	that
Hollibaugh 	and 	Ortiz 	told 	him 	they 	had 	discussed Martin's
performance with Martin, 	and that 	Rippee 	had no 	reason to
distrust Hollibaugh and Ortiz. 	I 	cannot, 	however, 	find that
5It 	is 	not 	clear 	from Martin's 	testimony what 	that 	one
occasion was, 	but 	from Martin's 	opening statement 	it 	appears 	it
may have 	been 	an occasion when Ortiz 	yelled at 	Martin 	for not
jumping up on the 	concrete 	trucks. 	It 	is 	not 	clear when this may
have 	happened.
8

these 	discussions 	actually took place, 	whatever Rippee may have
reasonably 	believed.6
Rippee 	testified he 	"probably heard" 	but 	couldn't 	really
remember being 	told 	that 	Ortiz 	and Martin were 	in opposite
factions within LIUNA Local 	220, 	something Rippee 	regarded as not
really his 	concern. 	Rippee 	also testified he was unaware 	that
Martin attended the 	LIUNA delegates meeting on May 11, 	1996.
Rippee was 	a credible witness. 	He 	testified with
confidence, 	and his 	testimony was 	internally consistent. 	He
remained 	calm 	and 	responsive 	under 	cross-examination 	by Martin.
His 	concern 	for 	the 	fair treatment 	of 	employees 	seemed sincere.
I 	credit 	Rippee's 	testimony as 	a whole, 	and 	I 	specifically credit
Rippee's 	testimony that 	he 	himself 	made 	the 	decision 	to 	lay
Martin off, 	that 	he 	did not 	know about Martin's 	attendance 	at 	the
LIUNA delegates meeting, 	that 	the 	decision to 	lay Martin off was
based on concerns 	about Martin's performance, 	and that 	those
concerns 	predated the 	LIUNA delegates 	meeting.
ISSUES
1. 	Was Martin a 	state 	employee?
2. 	If the answer to No. 	1 	is yes, 	did the State lay Martin
off because 	of 	his 	union activities?
CONCLUSIONS 	OF 	LAW
Status of Martin as 	a State Employee
Dills Act 	section 3513(c) 	states a 	"state employee" 	for
purposes 	of 	the Dills Act 	means 	"any civil 	service 	employee 	of
6PERB Regulation 	32176.
99

the 	state" 	(with specific 	additions 	and exceptions 	not 	relevant
here). 	The State argues 	that 	as a casual 	laborer Martin was not
a 	"civil 	service 	employee" 	and thus not 	a 	"state 	employee" 	under
the Dills Act.
In 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1990) 	PERB Decision No. 	787-S 	(DPA I ) , 	PERB
specifically addressed the 	definition of 	a 	state 	civil 	service
employee. 	PERB noted that Article VII, 	section 1(a), 	of the
California Constitution 	(Constitution) 	states, 	"The 	civil 	service
includes 	every officer and employee 	of 	the 	state 	except 	as
otherwise provided in this 	Constitution." 	Article VII, 	section
4, 	of 	the 	Constitution then lists 	a dozen specific positions
(none 	relevant here) 	as exempt 	from civil 	service. 	PERB
concluded as 	follows:
. 	. 	. 	All personnel appointments other than
the 	specific 	exempt 	appointments 	are
therefore part 	of 	the 	civil 	service 	system
and have 	some 	form of 	civil 	service 	status,
whether it be 	seasonal, 	limited term,
permanent, 	part-time, 	or any other type.
(DPA I at p. 	14.)
PERB 	thus held that 	lifeguards whose positions were 	seasonal, 	who
did not 	compete 	in an examination, 	and who were not promoted by
examination and tenure, 	were nonetheless 	state 	civil 	service
employees under the Dills Act.
In 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1991) 	PERB Decision No. 	871-S 	(DPA II), 	PERB
followed and confirmed its decision 	in DPA I. 	In DPA II, 	PERB
noted that 	members 	of 	the 	California Conservation Corps 	"are 	not
listed under Article VII, 	section 4, 	as one of 	the 	categories of
10

employees 	specifically exempt 	from civil 	service." 	(Id. 	at
p. 	18.) 	PERB concluded corpmembers were 	state 	civil 	service
employees under the 	Dills Act. 	PERB 	reached this 	conclusion 	even
though a 	court 	had held corpmembers 	lacked the 	traditional 	civil
service 	attributes 	of 	permanent 	status 	and 	selection 	for
employment 	or promotion by 	competitive 	examination under 	the
merit 	system. 	(Bush v. 	California Conservation Corps 	(1982) 	136
Cal.App.3d 194 	[185 Cal.Rptr. 	892], 	cited in DPA II at pp. 	16-
17.)
In arguing that Martin was not 	a 	state 	employee, 	the 	State
does 	not 	distinguish or even mention PERB's 	decisions 	in DPA 	I
and DPA II. 	The 	State argues 	that Martin's 	appointment 	as 	a
casual 	laborer was 	a 	"temporary appointment" 	under Article VII,
section 	5, 	of 	the 	Constitution and he 	therefore 	could not 	serve
longer than 	9 months 	in 	12 	consecutive months.7 The 	State goes
on to 	argue 	that 	Martin was 	therefore 	not 	entitled to 	the 	same
benefits 	and protections 	as permanent 	civil 	servants, 	including
rights under the Dills Act. 	Both DPA I 	and DPA II, 	however,
stand 	for 	the 	proposition 	that 	an 	employee 	need not 	have
permanent 	status 	in order 	to be 	a 	state 	employee under 	the 	Dills
Act.
The 	State 	offers 	no 	reason to distinguish or depart 	from
PERB's decisions 	in DPA I 	and DPA II. 	Martin's appointment 	as 	a
casual 	laborer was 	not 	specifically exempt 	from civil 	service.
7Article VII, 	section 5, 	states in relevant part, 	"No person
may 	serve 	in one 	or more 	positions 	under 	temporary appointment
longer than 	9 months 	in 12 	consecutive months."
11

The 	official 	Report 	of 	Separation 	the 	State 	issued 	to Martin gave
his 	appointment 	status 	as 	"Civil 	Service 	Temporary." 	Martin's
appointment 	thus 	fell 	within 	the 	broad category of 	"personnel
appointments 	. 	. 	. 	with some form of civil service status,
whether it be seasonal, 	limited term, 	permanent, 	part-time, 	or
any other type." 	(DPA I 	at p. 	14.) 	I 	therefore conclude 	that
Martin was 	a 	state 	employee under the 	Dills Act.
Alleged 	Discrimination Against 	Martin
The 	complaint 	alleges 	Martin was 	laid off 	by Rippee 	and
Ortiz 	in May 13, 	1996, 	because Martin attended a union event 	and
then discussed union politics 	at work, 	on May 11 	and 13, 	1996.
The 	State 	denies 	such discrimination 	took place.
In order to prove an allegation of 	discrimination, 	the
charging party must 	first 	demonstrate 	that 	the 	employee 	engaged
in protected conduct. 	The 	charging party must 	next 	show that 	the
employer 	knew of 	the 	employee's 	protected conduct8 and 	that 	the
employer 	took 	an 	adverse 	action against 	the 	employee.
Upon a showing of protected conduct, 	employer knowledge, 	and
adverse 	action, 	the 	charging party must 	then make 	a prima 	facie
showing of 	unlawful 	motivation. 	Under Novato Unified 	School
District 	(1982) 	PERB Decision No. 	210, 	unlawful motivation occurs
where 	the 	employer's 	action 	against 	the 	employee 	was 	motivated by
the 	employee's 	participation 	in 	the protected conduct.9
8Moreland Elementary School 	District 	(1982) 	PERB Decision
No. 227.
9Indications 	of 	unlawful 	motivation 	have 	been 	found 	in many
aspects 	of 	an employer's 	conduct. 	Words 	indicating retaliatory
intent 	can be persuasive 	evidence 	of unlawful motivation. 	(Santa
12

Clara Unified School 	District 	(1979) 	PERB Decision No. 	104.)
Other 	indications 	of 	unlawful 	motivation 	have 	been 	found 	in 	an
employer's: 	failure to follow usual procedures 	(id.); 	shifting
justifications 	and 	cursory 	investigation 	(State 	of 	California
(Department of Parks and Recreation) 	(1983) 	PERB Decision No.
328-S); 	disparate treatment of a union adherent 	(State of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S); 	timing of the action 	(North Sacramento School
District 	(1982) 	PERB Decision No. 	264); 	and pattern of antagonism
toward 	the 	union 	(Cupertino 	Union 	Elementary 	School 	District
(1986) 	PERB Decision No. 572) .
This 	test, 	applied by PERB 	in all 	discrimination cases 	since
Novato, 	is 	consistent with other California and federal
precedent. 	Under both state 	and federal 	cases, 	the 	trier of 	fact
is 	required 	to weigh both direct 	and 	circumstantial 	evidence 	to
determine whether 	an 	action would not 	have 	been 	taken 	against 	an
employee 	"but 	for" 	the exercise 	of protected rights.10 After the
charging party has 	made 	a prima 	facie 	showing 	sufficient 	to
support 	an 	inference 	of unlawful motive, 	the burden shifts 	to the
respondent 	to produce 	evidence 	that 	the 	action against 	the
employee 	"would have 	occurred 	in any event."11
In the present 	case, 	it 	is 	clear that Martin engaged in
protected 	conduct 	by attending 	the 	LIUNA delegates 	meeting 	on
May 11, 	1996. 	Dills Act 	section 3515 	specifically protects 	the
right 	of 	state 	employees 	to 	"participate 	in the 	activities 	of
employee 	organizations." 	I 	cannot 	conclude 	that Martin engaged
in protected 	conduct 	by 	talking about 	the 	meeting at 	work 	on
10See Martori Brothers Distributors v. 	Agricultural 	Labor
Relations Bd. 	(1981) 	29 Cal.3d 721, 	727-730 	[175 Cal.Rptr. 	626];
Wright Line. 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM 1169] 	enforced,
in relevant part, 	(1st Cir. 	1981) 	662 	F.2d 899 	[108 LRRM 2513].
11Martori Brothers Distributors 	v. 	Agricultural 	Labor
Relations Bd.. 	supra, 	29 Cal.3d at 730.- -
13

May 13, 	1996, 	however, 	because, 	as stated above, 	there was no
sworn 	testimony that 	Martin 	actually did 	so.
It 	is 	also 	clear that 	the 	State 	took 	adverse 	action against
Martin by 	laying him off.12 With regard 	to 	the 	State's 	knowledge
of Martin's protected conduct, 	however, 	I 	have credited Rippee's
testimony that 	he 	did not 	know about 	Martin's 	attendance 	at 	the
LIUNA delegates meeting. 	In the 	absence 	of 	sworn testimony that
Martin talked about 	the meeting at work, 	I 	have no basis 	for
concluding that 	the 	State 	knew about 	Martin's 	protected 	conduct.
This 	in itself 	is 	fatal 	to Martin's case, 	and the 	charge and
complaint 	must 	be 	dismissed 	for 	that 	reason.
If 	Martin had proved that 	the 	State 	had knowledge 	of 	his
protected conduct, 	he 	could have made 	a prima 	facie 	showing of
unlawful 	motivation. 	Martin was 	the 	only laborer 	laid off 	on
May 13, 	1996, 	while other laborers were being hired, 	and the
paperwork 	on 	his 	layoff 	was 	unusually 	and unaccountably 	slow.
According to Martin's 	testimony, 	he was 	given varying reasons 	for
his 	layoff, 	different 	from the performance problems 	cited by
Rippee 	in his 	testimony, 	and those performance problems 	had not
been discussed with Martin. 	Finally, 	Martin was 	laid off
immediately after 	he 	returned 	to 	work 	from 	the 	LIUNA delegates
meeting. 	Although timing alone 	is 	not 	adequate 	to 	support 	an
12Cupertino Union Elementary School 	District, 	supra, 	PERB
Decision No. 	572.
14

inference of unlawful motivation,13 it may, 	along with other
factors, 	constitute a basis 	for such a conclusion.14
The State, 	however, 	produced credible evidence 	that Martin's
layoff would have 	occurred 	in any event. 	Rippee 	testified
credibly that 	he made 	the 	decision to 	lay Martin off 	due 	to
unsatisfactory work performance, 	after Martin had worked on 	two
different 	crews with two different 	foremen. 	Rippee's 	daily diary
report 	for May 13, 	1996, 	corroborates Rippee's 	testimony that
Martin was 	laid off 	for unsatisfactory performance, 	while 	the
daily diary reports 	of 	Hollibaugh and Ortiz 	corroborate 	Rippee's
testimony that 	concerns 	about 	Martin's 	performance 	predated 	the
LIUNA delegates meeting on May 11, 	1996. 	Rippee 	testified
credibly that 	the 	"straw that 	broke 	the 	camel's 	back" 	was 	an
incident 	Rippee 	himself witnessed, 	when he 	found Martin was 	not
with a 	truck Martin was 	assigned to escort. 	According 	to Ortiz's
daily diary report, 	this 	incident 	occurred on May 3, 	1996, 	eight
days 	before 	the 	LIUNA delegates 	meeting and 	ten days 	before
Martin's 	layoff.
Rippee 	credibly 	explained why Martin's 	layoff 	was 	formally
treated as 	a 	"reduction 	in 	force" 	or a 	"termination without
fault" 	rather than a 	termination 	for cause: 	to make 	it 	easier
for Martin to receive unemployment benefits. 	If, 	as Rippee
testified, 	Martin's 	layoff 	was 	for unsatisfactory performance
13Charter Oak Unified School 	District 	(1984) 	PERB Decision
No. 404.
14Moreland Elementary School District, 	supra, 	PERB Decision
No. 	227; 	Campbell Union High School District 	(1988) 	PERB Decision
No. 701.
15

rather than 	lack of work, 	then there was 	no 	inconsistency in the
continued hiring of 	other 	laborers. 	No witness 	explained why
Martin was 	given varying reasons 	for his 	layoff, 	why the
paperwork was 	slow, 	or why the performance problems 	had not 	been
discussed with Martin 	(as Martin testified), 	but overall 	there
appears 	to be 	no 	reason to attach a 	sinister meaning to 	these
circumstances.
Ultimately, 	the burden of proof 	in this case 	is on Martin,
to prove 	the 	complaint 	by a preponderance 	of 	the 	evidence.15
Hearsay evidence, 	although admissible, 	is generally not
sufficient 	in 	itself 	to 	support 	a 	finding.16 Given the 	limited
amount 	of 	nonhearsay evidence presented by Martin, 	and given 	the
credible 	testimony of Rippee, 	I 	cannot 	find that Martin's 	layoff
would not 	have 	occurred 	"but 	for" 	his 	union activities.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and upon the entire 	record in this matter, 	it 	is ordered
that 	the 	complaint 	and the 	underlying 	charge 	in Unfair 	Practice
Case No. 	LA-CE-345-S, 	Victor Lee Martin v. 	State of California
(Department of Corrections), 	are hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
15PERB Regulation 32178.
16PERB Regulation 32176.
16

2 0 days of 	service of this Decision. 	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 Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before the close of business 	(5 p.m.) 	on the 	last 	day
set 	for filing 	". 	. 	. o r when sent by telegraph or certified or
Express United States 	mail, 	postmarked not 	later than 	the 	last
day set for filing 	. 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each 	copy 	served on a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
THOMAS J. ALLEN
Administrative 	Law Judge
17