State of California (Department of Transportation) (PERB 0268S)

STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
STATE 	EMPLOYEES 	TRADES 	COUNCIL
LOCAL 1268, LIUNA, AFL-CIO,
Charging 	Party,
v.
STATE 	OF CALIFORNIA,
(DEPARTMENT OF TRANSPORTATION),
Respondent.
Case No. 	SF-CE-16-S
PERB Decision No. 	268-S
December 21, 	1982
Appearances; 	Thomas E. 	Rankin, 	Attorney 	for 	State Employees
Trades Council, Local 1268, LIUNA, AFL-CIO;
William M. 	McMillan, 	Attorney 	for 	State 	of 	California,
Department 	of 	Transportation.
Before Tovar, 	Jaeger 	and Jensen, Members.
DECISION
TOVAR, 	Member: 	This case 	is 	before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed 	by 	the
State 	of 	California, 	Department 	of 	Transportation 	(Department
or 	Respondent) 	to a hearing officer's proposed decision which
finds 	that 	the Department violated 	subsections 	3519(a) 	and 	(b)
of 	the 	State 	Employer-Employee 	Relations Act 	(SEERA or 	the
Act)1 by engaging 	in 	intimidating, 	coercive 	conduct 	against
1SEERA 	is 	codified 	at 	Government 	Code 	section 	3512 	et
seq. 	All 	statutory 	references 	herein 	are 	to 	the Government
Code 	unless 	otherwise 	noted.
Section 	3519 	provides 	in 	relevant part 	as 	follows:
It shall 	be unlawful for 	the 	state 	to:
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one 	of 	its 	employees 	because of 	her 	exercise 	of 	rights
protected 	by 	the Act.
After 	considering 	the 	proposed 	decision, 	the 	exceptions
thereto, 	and 	the 	entire 	record 	in 	this case, 	the Board 	reverses
the 	hearing 	officer 	and 	dismisses 	the 	charge.
FACTS
Lanell 	Zaragoza 	was 	hired 	by 	the 	Department 	on
April 1, 	1980, 	as a landscape maintenance worker 	and was
assigned 	to work 	out 	of 	the 	Orinda 	yard 	of 	the Department's
Walnut 	Creek District. 	Her 	duties 	involved 	working 	on 	the 	side
of 	the 	freeway clearing weeds, 	pruning 	trees 	and 	spraying
chemicals. 	She 	joined 	the 	State Employees 	Trades Council,
Local 	1268, 	LIUNA, 	AFL-CIO 	(SETC) 	during her 	first month of
employment 	there.
In May 	1980, 	Zaragoza encountered 	a problem regarding
bathroom procedures. 	Because 	the 	bulk of 	her 	work 	time 	is
spent working on 	the 	side of 	the 	freeway, 	going 	to 	the 	bathroom
(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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• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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may 	require 	driving 	the maintenance 	truck 	some 	distance 	to 	the
nearest 	available 	facility. 	A dispute 	developed 	concerning 	how
often 	she 	should 	be making 	these 	trips, 	and 	where. 	She
contacted her 	union representative, 	Bill McCune, 	for
assistance. 	McCune 	and 	Zaragoza met 	with 	her 	immediate
supervisor, 	Jim Masterson, 	and 	the problem was 	resolved 	to 	the
satisfaction of all parties.
The 	Job Performance 	Reports
Later 	that 	summer 	Supervisor 	Masterson 	and 	Zaragoza 	became
involved 	in 	another 	controversy 	which 	began 	when 	she 	asked 	why
an 	employee 	cannot 	be 	issued 	a copy of 	his 	or 	her 	performance
evaluation 	report, 	which 	is 	known 	in 	the Department 	as a
"report of performance" 	(ROP), 	as soon as the employee has
signed 	it. 	Masterson's 	response 	at 	the 	time 	Zaragoza 	first
raised 	the 	point was 	that 	he 	didn't 	know why, 	but 	that 	it was
Department 	procedure.
Zaragoza 	became 	involved 	in 	another 	controversy 	in
August 	1980, 	when Masterson presented 	her 	with her 	second ROP.
The 	report 	incorrectly 	stated 	that 	she 	had 	nine 	absences 	during
the 	review period. 	She pointed 	out 	to Masterson 	that 	the
correct 	figure was 	only 	four, 	and 	on 	that 	ground 	refused 	to
sign 	the 	report. 	She 	told Masterson 	that 	she 	was 	going 	to
telephone 	a representative of her 	employee organization, 	SETC,
about 	the matter, 	and 	in fact did 	so. 	Masterson returned later
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that day, 	acknowledged 	that 	the report had 	been 	in error, 	and
said a new, 	corrected 	report 	would 	be prepared.
On August 	21, 	Masterson came 	to 	Zaragoza with 	the 	corrected
second 	ROP. 	Zaragoza signed 	the 	ROP at 	that 	time, 	but 	again
raised 	the 	question 	of 	why 	she 	could 	not 	receive 	a 	copy of 	the
report 	upon 	signing 	it. 	This 	time Masterson 	responded 	that 	he
didn't 	know, 	but 	that he would 	find 	out 	the 	reason 	for 	the
policy. 	The 	regular 	second 	line 	supervisor 	was 	on 	vacation
that day, 	and 	his place had 	been 	filled 	by another 	supervisor,
Willard Oneth. 	Oneth 	was 	on 	temporary assignment 	to 	the Walnut
Creek-Orinda 	area 	to 	serve 	during 	the 	two weeks 	that 	the
regular 	second 	line 	supervisor 	was 	away. 	Masterson 	relayed
Zaragoza's 	question 	to Oneth, 	explaining 	that 	this 	was 	the
second 	time 	she 	had 	raised 	the 	issue 	without 	getting 	an
answer. 	In turn, 	the next morning, August 22, Oneth spoke to
Irv Smitten, 	senior 	highway 	superintendent, 	who was Oneth's
supervisor. 	Smitten 	asked 	Oneth 	to 	arrange 	to have 	Zaragoza
come 	to 	the 	Orinda yard 	later 	that 	morning 	to meet 	with 	him 	to
resolve 	the 	question. 	Oneth 	contacted 	Zaragoza, 	who was
working with 	her 	partner, 	Donald Wesley, 	and 	the 	two 	employees
drove 	to 	the Orinda yard. 	Masterson's 	office 	- a 	small,
ground-level 	room 	attached 	to 	a maintenance 	garage 	structure 	-
is 	there 	at 	the Orinda yard. 	Masterson was 	present 	when
Zaragoza 	and Wesley 	arrived, 	and 	Oneth 	and 	Smitten 	arrived
shortly 	thereafter. 	The 	three 	supervisors 	and 	Zaragoza 	then
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entered Masterson's 	office, 	while Wesley worked 	on 	irrigation
equipment 	in 	the 	adjoining maintenance 	garage.
The Meeting
According 	to 	Zaragoza's 	testimony, 	the meeting 	began 	as
follows (transcript, p.9):
Q. 	[following 	Zaragoza's description of
events leading up to 	the meeting]: 	And
could you 	tell 	us what 	happened 	in 	that
meeting?
A. 	Mr. 	Smitten proceeded 	to explain 	to me
the 	procedures on why 	I could 	not 	have my
copy when 	I 	signed 	it.
. .
Q. 	Do you 	recall 	any other 	remarks 	that
Mr. 	Smitten made 	at 	the beginning of 	the
meeting?
A. 	Yes, 	he did 	[sic]. 	He said 	that he
wanted 	to 	let me 	know 	that 	I 	had 	already
been 	brought 	to his attention 	twice 	since 	I
had 	come 	to his 	district. 	Not once 	but
twice had 	I 	asked 	for 	my personnel 	file. 	He
resented 	the 	fact 	that 	I 	had a 	union
representative 	in 	his 	yard 	discussing 	his
policies 	and 	procedures 	on 	bathrooms 	and
that 	he 	felt 	that 	that was 	very unnecessary
and he didn't 	like 	that 	at all.
Zaragoza described 	Smitten's voice 	as 	being 	at 	times 	loud
and 	very 	harsh 	and 	direct. 	She 	testified 	that 	at 	one 	point
Smitten 	told 	her 	"that 	I 	had 	better 	God 	damn wipe 	that 	smile
off my 	face." 	She 	also 	testified 	that Smitten 	at 	one 	point
addressed Masterson, 	criticizing 	his 	handling 	of ROP's 	and
finally 	throwing 	papers 	at 	him.
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• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•• 	• 	• 	• 	•
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Zaragoza's work partner, 	Donald Wesley, 	testified 	that
while working 	on equipment 	in 	the 	garage 	adjoining 	the meeting
room he 	could 	hear 	some 	of 	the 	conversation 	inside 	the 	office.
He 	twice 	testified 	that 	he 	could 	not 	make out 	the 	conversation
when 	it occurred 	in a normal speaking 	volume, 	but could only
hear 	it clearly when 	the 	speaker's voice was 	raised. 	He
testified 	(transcript, p. 	18) 	that:
A. 	The 	first 	thing 	that 	happened 	was
Lanell goes 	in, 	they close 	the door, 	and he
is yelling 	at 	Lanell 	about 	her 	bathroom
habits 	and 	that 	was 	totally different 	from
what 	we were 	to 	understand 	the 	conversation
was to be 	about.
Q. 	So you 	heard 	him 	saying 	something 	about
her 	restroom habits?
A. 	Yes. 	This was 	the 	second 	time 	that 	we
have had 	to 	talk 	to, 	of matters concerning
yourself, 	of herself 	and 	the 	first one was
her 	bathroom habits.
Q. 	Did 	you 	hear 	anything 	Lanell 	said?
A. 	She 	talked 	in a normal 	tone 	to him as,
you 	know, 	you don't need 	to 	talk 	to me 	that
loud, 	I am right here.
Wesley 	testified 	that 	other 	than 	this 	initial 	exchange 	between
Smitten 	and 	Zaragoza 	he could 	not 	recall 	the 	content 	of 	any of
their 	remaining 	conversation, 	other 	than 	their 	incidental
closing 	remarks, 	but 	that 	he 	could 	recall 	generally 	that 	the
meeting 	thereafter 	was 	conducted 	at more 	or 	less 	normal volume,
Bill McCune, 	the SETC representative, 	testified 	that
Zaragoza 	called 	him 	in May 	regarding 	the 	bathroom 	problem,
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which 	he 	assisted 	her 	in 	resolving. 	She 	also called 	him about
the 	error 	regarding 	the 	number 	of 	absences 	in her 	second 	ROP,
but 	later 	notified 	him 	that 	the 	problem had 	been 	corrected.
After 	the meeting of August 	22, 	she 	called and 	told McCune
about 	the 	meeting, 	which 	prompted McCune 	to 	file 	this 	unfair
practice charge. 	He also 	testified 	that 	in his past 	dealings
with Smitten on 	behalf of 	the 	union Mr. 	Smitten has 	been
cooperative, 	He offered 	hearsay 	testimony 	that 	union members
have 	told 	him 	that 	Smitten's 	behavior 	has 	been 	inconsistent 	and
frequently 	volatile.
Erv 	Smitten 	testified, 	consistently with 	Zaragoza, 	that 	the
meeting 	began with 	his 	effort 	to 	explain 	to 	Zaragoza why 	she
cannot 	receive 	a copy of her 	ROP upon 	signing 	it. 	He 	flatly
denied, 	however, 	that he yelled 	at 	Zaragoza or Masterson, 	that
he 	threw paperwork, 	that 	he 	expressed 	a negative opinion
regarding 	union 	representatives 	being 	in 	his 	yard 	discussing
rules, 	or 	that 	Zaragoza had made a request 	for 	union
representation 	at 	the meeting. 	He 	testified 	that 	it was
Zaragoza who 	first 	raised 	the 	subject 	of 	the 	bathroom dispute:
Q. 	Was 	the 	subject 	of 	bathroom policy
discussed 	at 	this 	meeting?
A. 	Yes. 	It was 	brought 	up by Ms. 	Zaragoza.
Q. 	And 	do you 	recall 	what 	she 	said 	about
the 	policy?
A. 	I 	believe 	right 	at 	the outset of 	the
meeting 	when 	I 	explained 	to her 	the 	reason
that 	I was 	there 	and why 	I 	had 	called 	it,
7

she 	made 	the 	charge 	that Jim Masterson 	had
made 	her 	sign 	a 	report of performance
blank. 	And when we, 	Jim and 	I, 	talked 	this
over 	and 	he 	explained 	to her 	how 	she may
have 	been confused on 	it, 	I 	think 	it was
because 	the 	facing 	copy 	had 	pulled 	off 	the
ROP or 	something. 	When he 	explained 	that 	to
her 	I 	think Lanell made 	the 	statement, 	well,
it's 	the 	same 	as 	the 	bathroom, 	I had to get
the 	union 	in here 	to get 	that 	straightened
out. 	I 	think 	that's 	the way 	the 	bathroom
conversation came 	up at 	all. 	Prior 	to that
I had 	very 	little, 	if 	any 	knowledge of what
had 	gone on at all.
Smitten denied 	using 	profanity at 	the 	meeting, 	and 	denied
throwing 	papers 	at Masterson, 	testifying 	instead 	that 	after
discussing 	the 	ROP 	forms 	with Masterson 	he 	had 	simply 	laid 	them
on 	the 	desk.
Master son's 	testimony was 	consistent 	for 	the most 	part 	with
Smitten's. 	He 	affirmed 	that 	Smitten had 	during 	the meeting
pointed 	out 	to 	him 	that 	he 	had 	not 	fully completed 	the 	ROP's 	on
three 	employees, 	including 	Zaragoza. 	But he 	specifically
denied 	that 	Smitten 	yelled 	at 	him or 	threw 	paperwork 	at 	him.
He 	also denied 	that 	Smitten 	said 	anything 	about 	not 	liking
union representatives 	in his yard discussing 	rules, 	or 	that
Smitten had 	used profanity. 	He 	testified, 	as did Smitten, 	that
the 	only 	time 	Smitten mentioned 	union 	representation was 	in
explaining 	to 	Zaragoza 	that, 	if 	she was 	dissatisfied with 	the
Department's policies 	and procedures, 	she 	could 	try 	to have
them changed, 	and 	that 	she 	could 	seek 	the 	assistance of 	her
employee organization 	in doing 	so. 	Masterson 	also
88

inadvertently 	illuminated 	one 	possible 	explanation 	for 	the
conflicting 	versions 	of 	the meeting 	dialogue. 	He 	said 	that 	at
the 	beginning 	of 	the 	meeting Mr. 	Smitten 	said words 	to 	the
effect 	that 	this 	is 	the 	second 	time 	she 	had 	been 	upset with
district 	procedures. 	Masterson 	indicates 	that he 	thought
Smitten was 	making 	reference 	to 	the 	fact 	that 	Zaragoza had 	been
party to 	the 	bathroom dispute 	in May, 	and 	thus 	that 	the 	instant
dispute was 	the 	"second 	time 	she 	had 	been 	upset." 	But
Masterson 	was clear 	in 	saying 	that 	Smitten 	never 	actually
mentioned 	the 	bathroom dispute 	in any way. 	In fact, 	the
testimony 	of 	both Masterson 	and 	Smitten 	indicates 	that 	Smitten
played no part 	in the May bathroom dispute, 	that Masterson, 	who
handled 	the matter 	on 	behalf of 	the Department, 	had 	never 	told
Smitten 	anything 	about 	it, 	and 	that 	Smitten was 	probably at
best only minimally 	aware 	that 	such 	a 	dispute 	had 	ever
occurred. 	On the other 	hand, 	Smitten, 	Masterson and Willard
Oneth 	agree 	that 	Smitten 	had 	been 	apprised 	of 	Zaragoza's
twice-expressed 	objections 	to 	the ROP procedures, 	and 	Smitten
testified 	specifically 	that 	it 	was 	upon 	learning 	of 	Zaragoza's
second 	unanswered 	challenge 	to 	the 	ROP procedures 	that 	he was
prompted 	to call 	the August 	22 meeting. 	Thus, 	when he opened
the meeting 	by 	saying 	that 	this was 	the 	second 	time 	she 	had
been upset with procedures, 	it 	appears 	that he may have 	been
referring 	to 	the 	two 	times 	she 	had 	questioned Masterson 	about
the 	ROP policy. 	The 	testimony 	is 	unrefuted 	that Willard Oneth
99

came 	to Smitten 	about 	9:00 a.m. 	on August 	22 	to 	inform him of
Zaragoza's 	second 	questioning 	of 	the procedures. 	Smitten
thereupo	- 	n 	asked Oneth 	to 	arrange 	for 	Zaragoza 	to 	come 	meet 	with
him, 	and 	the meeting occurred at about 10:30. 	Thus, 	since he
had 	just 	learned 	of 	her 	second 	complaint 	an 	hour 	and 	a half
before, 	Smitten 	started 	by 	saying 	that 	this was 	the 	second 	time
Zaragoza 	had 	been 	upset with 	the procedures. 	Zaragoza
apparently 	thought 	he was 	referring 	to 	the 	bathroom dispute 	and
in response 	commented 	in some way about 	that dispute. 	Thus,
Smitten 	says 	that 	Zaragoza 	raised 	the 	subject of 	the 	bathroom
dispute, 	while 	Zaragoza charges 	that Smitten first 	brought 	it
up. 	Masterson's actual testimony was 	as 	follows:
Q. 	(By Mr. 	Rankin) 	All right. 	In the
meeting 	of 	the 	22nd 	do you 	recall 	what
Mr. 	Smitten 	said 	about 	the 	restroom problem
with Ms. 	Zaragoza?
A. 	Actually he didn't, 	as 	far 	as 	I 	know,
he 	didn't 	say 	anything 	other 	than 	the 	fact
that he 	said 	this 	is 	the 	second 	time 	that
she has 	been upset over 	our, 	the
procedures. 	And 	I was 	thinking 	that he was
referring 	to 	the 	restroom policy. 	At 	the
time, 	he didn't, 	I don't believe he had
mentioned 	it. 	[Transcript, p. 	78]
The 	testimony of Willard Oneth provides 	the clearest, 	most
detailed 	narration of 	the meeting. 	It convincingly resolves
some of 	the conflicts 	in 	the 	testimony of previous 	witnesses.
In connection with 	the 	above 	discussion of 	Smitten's opening
comments 	regarding 	Zaragoza's 	twice-stated 	objections 	to
procedures, 	Oneth's 	unrefuted 	testimony was 	that 	Smitten asked
10

him 	to 	arrange 	the 	meeting 	with 	Zaragoza only 	after 	Oneth 	told
Smitten 	that 	Zaragoza 	had 	twice 	asked 	about ROP procedures
without getting an answer 	and 	that, 	in Oneth's opinion, 	she
deserved 	to get 	an answer. 	Oneth 	also 	testified 	as 	follows 	(at
p. 83) :
Q. 	Was 	there 	any 	discussion 	concerning
restroom 	policy?
A. 	Yes, 	there was. 	But she said at that
point, 	she 	said, 	this 	is 	twice now I've had
trouble 	understanding policies. 	She 	said 	I
had 	to 	get 	the 	union 	representative 	to 	solve
it 	the 	first 	time. 	And Erv 	looked 	somewhat
surprised; 	I don't 	think he 	knew 	there was
any 	problem 	but 	they went 	to 	the 	union over
her 	of 	going 	to 	the 	restroom.
Q. 	So Ms. 	Zaragoza 	initiated 	the comment
about 	restroom policy, 	is 	that correct?
A. 	Yes, 	she did.
Oneth 	also 	testified 	that 	the 	only mention Smitten made 	of
employee 	representation was 	in 	stating 	that 	if 	Zanagoza 	wanted
to change 	Department 	procedures 	she 	should 	"get 	together" 	with
her 	employee 	organization.
In 	connection with 	Zaragoza's 	allegation 	that 	Smitten 	had
spoken 	"loudly, 	harshly and directly" 	and 	told 	her 	to 	"wipe
that 	God damn 	smile off your 	face," 	Oneth 	testified 	that 	on one
occasion Smitten had 	become 	stern, 	raising 	his voice 	somewhat,
and 	telling 	Zaragoza 	that 	her 	accusation 	of 	misconduct 	against
Masterson was 	a 	serious charge 	and 	that 	it was no 	laughing
matter. 	Oneth 	testified, 	however, 	that he remembered no other
11

time 	when Smitten 	raised 	his 	voice, 	and denied 	that Smitten had
used 	profanity.
In connection with 	Zaragoza's 	allegation 	that 	Smitten 	had
berated Masterson 	and 	thrown ROP 	forms 	at 	him, 	Oneth 	testified:
And 	[Smitten] 	asked me, 	I had 	three ROP's 	in
my 	folder 	and Erv 	asked 	me 	for 	them. 	So 	I
took 	them out 	and 	I 	laid 	them on Jim's desk
and 	Erv 	says 	I'll 	show 	you 	why 	you 	can't
have 	a copy of 	it. 	And 	he 	showed 	her 	on
there 	where 	she 	had, 	where Jim had 	not
marked 	in 	the 	blank 	that 	she was 	supposed 	to
been discussed with her. 	He 	said, 	when you
receive 	these 	there 	should 	be 	no errors 	in
them. 	And 	then he 	said 	a 	few other 	words
. 	. 	. 	And then he, 	had them and he tossed
them back on the edge of Jim's desk. 	. 	. 	.
He didn't 	throw 	them, 	he 	just 	tossed 	them on
Jim's desk.
DISCUSSION
On exceptions, 	the Department contends 	that 	the hearing
officer 	erred 	in 	finding 	that, 	while meeting with 	Zaragoza,
"Smitten 	raised 	his 	voice 	and 	told 	Zaragoza 	that 	he 	resented
the 	fact 	that 	she 	had 	a union representative 	in his yard 	to
discuss 	bathroom 	procedures."
Central 	to 	that 	finding 	of 	the 	hearing officer 	is 	his
determination 	that Donald Wesley was 	a 	credible 	witness. 	He
reasoned 	that Wesley 	is not 	a member 	of SETC, 	that 	he gave
testimony 	adverse 	to 	his 	employer's 	interests 	while 	still 	an
employee 	(thus 	suggesting 	the 	credibility of 	such 	testimony)
and 	that 	he 	comported 	himself 	in 	a 	forthright 	and 	credible
manner. 	He 	then 	found 	that Wesley's 	testimony corroborated
12

Zaragoza's 	testimony 	that 	Smitten 	began 	the 	meeting 	by yelling
at 	her 	about 	the 	bathroom dispute, 	and 	that 	SETC 	representative
McCune's 	testimony 	further 	corroborated 	Zaragoza's 	account 	of
the August 22 meeting. 	On this 	basis 	he determined 	that
Zaragoza's 	account 	of 	the 	meeting 	should 	be 	favored 	over
Smitten's.
In Santa Clara Unified 	School District 	(9/26/79) 	PERB
Decision No. 	104, 	the Board 	articulated 	the 	standard 	it will
apply in 	reviewing 	its 	hearing officers' 	findings. 	We 	stated
that
. 	. 	. 	while the Board will afford deference 	to
the 	hearing 	officer's 	findings 	of 	fact which
incorporate 	credibility determinations, 	the
Board 	is 	required 	to 	consider 	the 	entire
record, 	including 	the 	totality of 	testimony
offered, 	and 	is 	free 	to draw 	its own and
perhaps 	contrary 	inferences 	from 	the 	evidence
presented.
The 	instant 	case 	requires 	a 	resolution of 	conflicting
accounts 	of 	the August 	22 	meeting 	offered 	by 	Lanell 	Zaragoza on
the 	one 	hand 	and 	three witnesses 	for 	Respondent on 	the 	other.
In 	electing 	to 	credit 	Zaragoza's 	version 	over 	that 	offered 	by
Respondent's witnesses, 	the 	hearing officer 	neither 	made 	nor
relied 	on 	findings 	based 	on 	first-hand 	observation 	of
Zaragoza's demeanor. 	Instead, 	he cites preponderantly
objective 	evidence, 	making 	a 	finding 	based on witness 	demeanor
only 	in 	the case 	of Donald Wesley. 	We do not disturb the
hearing 	officer's 	finding 	that Wesley was 	a 	truthful 	witness.
13

Nevertheless, 	we 	find 	that Wesley's 	testimony 	is 	not 	by 	itself
determinative of 	the 	result.
In 	recounting 	the 	fragment 	of 	Smitten's 	conversation 	which
Wesley 	testified 	he 	overheard, 	he 	does 	not 	verify 	that 	Smitten
said 	anything 	about 	union 	representation. 	He 	testified 	only
that 	Smitten 	yelled 	at 	her 	about 	her 	bathroom habits. 	We 	find
no 	basis 	here 	for 	concluding 	that 	Zaragoza's 	claim 	that 	Smitten
chastised 	her 	for 	availing 	herself 	of 	union 	representation
should be credited. 	So, 	too, 	in 	light of Wesley's testimony
that he 	could 	hear 	only 	those 	parts 	of 	the conversation which
were 	uttered 	at 	higher 	than 	normal volume, 	his 	testimony
provides 	no 	basis 	on which 	to determine who was 	the 	first 	to
raise 	the 	subject of 	the 	bathroom dispute, 	since 	he 	could 	not
hear 	any 	comments 	which 	Zaragoza might 	have made 	prior 	to
Smitten's louder 	speech. 	In fact, 	Wesley's account of 	the
fragment 	of 	conversation 	he 	overheard 	contradicts 	Zaragoza's
testimony 	as much 	as 	that of Respondent's witnesses. 	Wesley
testified 	that 	"[t]he first 	thing 	that happened was 	. 	. 	.
[Smitten] 	is yelling 	at Lanell about her 	bathroom
habits 	. 	. 	. 	." 	Zaragoza's testimony, however, was that
Smitten 	began 	the 	meeting 	by 	saying 	that 	she 	had 	already 	been
brought 	to 	his 	attention 	twice, 	then 	commenting 	that 	she 	had
twice asked for 	her 	personnel file, 	and, 	thirdly, 	saying 	that
he 	"resented 	the 	fact 	that 	I 	had 	a 	union 	representative 	in his
14

yard 	discussing 	his 	policies 	and 	procedures 	on 	bathrooms.
. . . " 	Thus, 	Wesley's 	and 	Zaragoza's 	accounts 	are 	inconsistent
as 	to 	the 	first 	subject addressed 	by Smitten 	at 	the meeting 	and
as 	to whether 	"bathroom habits," 	as 	opposed 	to her 	recourse 	to
union 	representation, 	were 	discussed 	at all. 	Wesley's
testimony 	as 	to 	the 	substance 	of 	the 	conversation 	is only
corroborative 	of 	Zaragoza's 	account 	to 	the 	extent 	that 	it 	shows
that 	Smitten 	spoke 	about 	the May, 	1980 	bathroom 	incident. 	Yet
Respondent's 	witnesses 	too 	acknowledge 	in 	their 	testimony 	that
Smitten commented on 	that 	subject, 	though 	they 	suggest 	that 	it
was only 	in 	response 	to 	Zaragoza's 	raising of 	the 	subject.
Again, 	therefore, 	Wesley's 	testimony provides no clear 	basis
for 	crediting 	Zaragoza's 	account 	over 	that 	of 	Respondent's
witnesses.
On collateral matters, Wesley's 	testimony 	is equally
ambiguous. 	Thus, 	on 	the 	subject of 	how 	the meeting 	ended,
Zaragoza 	testified 	that 	she made 	a demand 	for 	union
representation, 	that Smitten denied 	her 	demand, 	that 	she
thereupon 	stated 	that 	the meeting was 	through, 	and 	that 	she 	and
Smitten 	thanked 	each other 	for 	their 	time. 	Smitten, 	however,
in 	his 	testimony 	denied 	that 	Zaragoza made 	such 	a demand 	for
union 	representation. 	Wesley 	testified 	that 	he 	remembered 	the
ending 	and, 	specifically, 	that 	there was 	agreement 	that 	nothing
more 	could 	be 	accomplished 	and 	that 	they 	thanked 	each 	other 	for
their 	time. 	Thus, 	Wesley 	fails 	to support 	Zaragoza's claim
15

that 	she 	demanded 	representation 	at 	the meeting's 	end. 	In our
view, 	therefore, 	while we accept 	the hearing officer's
determination 	that Donald Wesley was 	a 	truthful 	witness, 	his
testimony 	does 	not 	provide 	a 	basis 	for 	concluding 	that
Zaragoza's 	account 	of 	the meeting 	should 	be 	credited 	over 	the
accounts 	of 	three 	witnesses 	of 	Respondent.
As 	a 	further 	basis 	for 	crediting 	Zaragoza's 	account 	of 	the
meeting, 	the 	hearing 	officer 	cited 	the 	testimony of Bill McCune
to 	the 	effect 	that 	Zaragoza 	called 	him 	shortly after 	the
August 	22 	meeting 	and 	told 	him what 	had 	transpired 	at 	the
meeting. 	McCune did not, 	however, 	testify as 	to what Zaragoza
actually said 	to 	him. 	We 	find 	little probative 	value 	in 	the
evidence 	that 	Zaragoza 	had 	a 	telephone 	conversation 	with McCune
about 	the meeting. 	It does 	nothing 	to 	illuminate 	for 	us 	the
conversation 	between 	Zaragoza 	and 	Smitten.
Finally, 	the 	hearing 	officer 	noted 	certain 	inconsistencies
in Smitten's own 	testimony, 	as well as certain particulars 	in
which 	Smitten's observations 	conflict 	with Wesley's 	testimony,
and 	relied on 	these 	factors 	in 	finding 	that 	doubt 	is 	cast on
the 	reliability of 	Smitten's 	testimony. 	Without 	reversing 	this
finding, 	we 	fail 	to 	see 	how 	this evidence 	impeaches 	the
testimony 	of Masterson 	and 	Oneth. 	The 	hearing officer 	fails 	to
note, 	nor 	do we 	find, 	any evidence 	that 	their 	testimony 	is 	not
as credible as 	Zaragoza's.
16

These 	two 	witnesses 	extensively 	corroborate 	Smitten's
account of 	the meeting 	in 	the 	important particulars. 	The
testimony 	of Oneth 	especially was clear, 	consistent 	and
detailed. 	His 	testimony 	clarified 	a 	number 	of otherwise
ambiguous 	aspects of 	the 	events 	at 	issue. 	Oneth was 	not
regularly assigned 	to work with 	any of 	the 	other 	individuals
involved 	in 	this matter, 	being present at 	that 	time only as 	a
result 	of 	a 	temporary 	two-week 	assignment. 	Thus 	he would not
appear 	to 	be 	influenced 	by personal 	affiliations 	with 	any of
these people.
In our 	statement of the 	facts, 	above, 	we noted 	the
possibility 	that 	Zaragoza may 	have 	misconstrued 	a 	reference 	by
Smitten 	to 	the 	fact 	that 	she 	had 	twice 	taken 	issue 	with
Department 	procedures, 	understanding 	those words 	to 	include 	a
reference 	to 	the May 	bathroom 	dispute 	when 	no 	such 	reference
was 	intended. 	We 	need 	not 	find 	that 	this 	is 	in 	fact 	the 	true
explanation of 	the matter. 	It 	is 	sufficient 	that we 	find 	that
the 	charging 	party 	has 	failed 	to prove 	by a preponderance 	of
the 	evidence 	that 	"Smitten 	raised 	his 	voice 	and 	told 	Zaragoza
that 	he 	resented 	the 	fact 	that 	she 	had 	a 	union 	representative
in his yard 	to discuss 	bathroom procedures," 	or 	that 	Smitten
otherwise 	engaged 	in 	speech or 	conduct 	at 	the August 	22 	meeting
which would 	constitute 	a violation 	of 	SEERA 	subsections 	3519(a)
and (b).
17

ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the entire 	record 	in this case, 	it 	is hereby ORDERED that:
The charge 	that 	the State of California, 	Department of
Transportation violated Government 	Code 	subsections 	3519(a) 	and
(b) 	is hereby DISMISSED.
Member 	Jensen 	joined 	in 	this Decision.
Member 	Jaeger, 	dissenting: 	I 	disagree with 	the majority's
basis 	for 	overturning 	the 	proposed 	decision as 	I 	would
summarily 	affirm 	the 	hearing 	officer 	in 	this 	case. 	My
colleagues 	correctly cited 	Santa 	Clara 	Unified 	School 	District
(9/26/79) 	PERB Decision No. 	104 	as 	the applicable precedent.
However, 	they go on 	to misapply the 	case. 	Santa Clara requires
that 	the 	Board 	" . . . 	consider 	the 	entire 	record, 	including 	the
totality of 	the 	testimony offered, 	and 	is 	free 	to draw 	its 	own
and 	perhaps 	contrary 	inference 	from 	the 	evidence 	presented."
(Supra, at p. 12, emphasis added.)
18

The 	evidence 	in 	the 	record does 	not 	support 	the majority 	in
drawing 	an 	inference 	so contrary 	to 	that 	of 	the 	hearing
officer. 	Therefore, 	I 	find no reason 	to reject 	the 	hearing
officer's 	credibility 	resolution 	regarding 	the 	testimony of
Zaragoza. 	To conclude 	that 	the 	hearing 	officer's 	determination
"neither 	made 	nor 	relied 	on 	findings 	based 	on 	first-hand
observation of 	Zaragoza's demeanor" 	is 	illogical. 	The 	hearing
officer 	did make 	a 	specific 	credibility determination 	in 	favor
of 	the Charging 	Party's 	version of 	the meeting. 	It 	is 	clear
that 	in making 	this 	determination 	the 	demeanor 	of 	the 	witness
was 	observed. 	The 	hearing 	officer's 	failure 	to state 	this 	fact
explicitly 	in 	the 	proposed 	decision can 	nonetheless 	be 	readily
inferred 	from 	his 	discussion.
As 	to the crucial 	issue 	in this case, 	not 	a single witness
for 	the Respondent, 	except Supervisor Smitten, 	directly
contradicted 	the 	credited 	testimony 	of 	the 	Charging 	Party
regarding 	the 	union 	representation 	statement.
19