Regents of the University of California (California State Employees Association) (PERB 0310H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
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Case No. SF-CE-67-H
PERB Decision No. 310-H
May 19 1 1983
____________________)
Appearances: Ernest Haberkern, Steward, for the California
State Employees Associationi Melvin w. Beal, Attorney for the
Regents of the University of California.
Before Tovar, Jaeger and Morgenstern, Members.
DECISION
JAEGER, Member: This case is before the Public
Employment Relations Board on exceptions filed by the
California State Employees Association to the administrative
law judge's attached proposed decision dismissing its charge
that the University violated subsection 357l(a) of the Higher
Education Employer-Employee Relations Act. l
lHEERA is codified at Government Code section 3560
et seq. Subsection 357l(a) states:
It shall be unlawful for the higher
education employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.

We 	have 	reviewed 	the 	administrative 	law 	judge's 	proposed
decision 	in 	light 	of 	the 	Charging 	Party's 	exceptions 	and 	the
entire 	record 	and, 	finding 	it 	free 	from 	prejudicial 	error,
adopt 	it 	as 	the 	decision 	of 	the 	Board 	itself.
ORDER
Upon 	review 	of 	the 	entire 	record 	in 	this 	case, 	the 	Public
Employment 	Relations 	Board 	ORDERS 	that 	the 	charge 	filed 	in 	Case
No. 	SF-CE-67-H 	is 	DISMISSED.
Members 	Tovar 	and 	Morgenstern 	joined 	in 	this 	decision.
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STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY 	OF
CALIFORNIA,
Respondent.
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_________________ )
Unfair 	Practice
Case No. 	SF-CE-67-H
PROPOSED 	DECISION
(4/27/82)
Appearances: 	Ernest Haberkern, 	steward, 	for 	the 	charging 	party
California State Employees 	Association~ 	Melvin W. 	Beal,
attorney, 	for 	the 	respondent Regents 	of 	the University 	of
California.
Before: 	Barry Winograd, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On July 	17, 	1981 	the 	California State Employees Association
(hereafter 	CSEA or 	charging 	party) 	filed 	an 	unfair 	practice
charge 	against 	the 	Regents 	of 	the 	University of 	California
(hereafter 	University 	or 	respondent), 	alleging 	that 	the
University 	violated 	section 	357l(a) 	of 	the 	Higher 	Education
Employer-Employee 	Relations 	Act 	(hereafter 	HEERA 	or 	Act).l
lThe 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq. 	Hereafter, 	all 	statutory 	references 	are 	to 	the
Government 	Code 	unless 	stated 	otherwise. 	Charges 	arising 	under
the Act 	are 	filed 	with 	the 	Public Employment Relations Board

The 	charge 	sets 	forth 	a 	course 	of 	conduct 	involving
employee Martha LeFils, 	including 	denial 	of 	her 	right 	to 	union
representation 	at 	meetings 	with 	her 	supervisor, 	a 	suspension
following 	her 	requests 	for 	union 	assistance, 	and, 	eventually, 	a
demotion. 	The 	charge 	claims 	that,
Ms. 	LeFils 	was 	demoted 	in 	retaliation 	for
her 	seeking 	union 	representation 	and 	for
refusing 	to 	answer 	questions 	without 	her
union 	representative 	present. 	The 	charge 	of
unsatisfactory 	performance 	was 	a 	pretext.
The 	University 	filed 	its 	answer 	on August 	12, 	1981,
admitting 	certain 	particulars 	but 	generally 	denying 	the
allegations 	of 	unlawful 	conduct. 	The 	University 	also 	raised
several 	affirmative 	defenses. 	Admissions, 	denials, 	and
defenses 	will 	be 	considered 	below 	as 	relevant 	to 	this 	decision.
An 	informal 	conference 	was 	scheduled 	for 	August 	17, 	1981
but 	the 	charge 	was 	not 	resolved. 	On September 	28, 	1981 	a
complaint 	and 	notice 	of 	hearing 	was 	issued.
The 	formal 	hearing 	was 	conducted 	on 	December 	2, 	3 and
16, 	1981 	at 	Berkeley, 	California. 	At 	the 	start 	of 	the 	hearing
(hereafter 	PERB 	or 	Board). 	Section 	3571(a) 	states:
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
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the 	parties 	agreed 	upon 	issues 	in 	dispute 	and 	several
foundation 	facts 	in 	the 	chronology 	of 	case-related 	events. 	The
stipulated 	issues 	referred 	to 	allegations 	of 	the 	denial 	of
representation 	at 	meetings, 	the 	subsequent 	suspension, 	and 	the
eventual 	demotion. 	Factual 	stipulations 	are 	recorded 	and
incorporated, 	without 	separate 	identification, 	in 	the 	findings
of 	facts 	set 	forth 	below. 	Post-hearing 	briefs 	were 	filed 	by
each 	side 	and 	the 	matter 	was 	submitted 	on March 	2, 	1982.2
FINDINGS 	OF 	FACT
A. 	Backgr·ound.
At 	the 	time 	of 	the 	hearing 	in 	this 	case, 	Martha 	LeFils 	had
worked 	nearly 	20 	years 	for 	the University, 	largely 	doing 	data
entry work 	in 	the 	employer's 	computer 	operations. 	The 	last 	six
years 	had 	been 	spent 	as 	a 	lead 	key 	entry operator. 	Through
July 	1980 	LeFils 	received 	satisfactory evaluations. 	LeFils'
duties 	included 	assisting 	the 	shift 	supervisor 	in 	distributing
work 	assignments, 	training 	and 	instructing 	new 	operators, 	key
editing 	and 	verification 	of 	data 	on machine 	terminals, 	and
processing 	new 	data 	in 	preparation 	for 	key
2After 	the 	close 	of 	the 	hearing, 	at 	the 	direction 	of 	the
administrative 	law 	judge, 	respondent 	filed 	a 	documentary
exhibit 	in 	response 	to 	a 	request 	for 	information 	made 	by 	the
charging 	party 	during 	the 	trial. 	The 	exhibit 	was 	received 	to
augment 	the 	record 	(as 	"Charging 	Party Exh. 	No. 	7"). 	The
charging 	party made 	no 	further 	motion 	or 	objection 	regarding
this 	exhibit, 	and 	referred 	to 	the 	information 	in 	its 	final
brief.
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editing 	and 	entry 	by 	others. 	The 	processing 	function 	involved
"batching," 	or 	grouping 	of 	materials, 	as 	well 	as 	"peeling," 	or
separating materials 	from 	a 	larger 	store 	of 	information.
In 1979 	the 	University 	undertook 	a 	comprehensive
reorganization 	of 	its 	computer 	operations, 	including 	a 	merger
of 	administrative 	and 	academic 	uses. 	The 	administrative
operation, 	on 	which LeFils 	had 	worked, 	was 	moved 	from 	an
off-campus 	location 	to 	a 	building 	that 	housed 	the 	academic
functions 	on 	the 	Berkeley 	campus. 	The 	changeover 	also 	involved
new 	equipment, 	new 	processing 	formats, 	a 	revised 	supervisory
structure, 	and 	a 	substantial 	transition 	period 	as 	problems 	were
ironed 	out, 	especially with 	the 	new 	machinery. 	According 	to
LeFils, 	her 	duties 	were 	significantly expanded, 	she 	was
retrained 	on 	the 	new 	machinery, 	and, 	she 	"had 	to 	learn
everything 	from 	scratch."
By 	summer 	1980 most 	of 	the 	difficulties 	associated 	with 	the
merger 	were 	resolved. 	One 	of 	the 	developments 	included 	the
employer's 	appointment 	of Ann Walls 	as 	the 	new 	data 	entry
supervisor. 	She 	assumed 	control 	in late July 	1980, 	but 	had 	had
no 	role 	in 	formulating 	the 	content 	of 	LeFils' 	then-recent
performance 	evaluation. 	Walls 	supervised 	day 	and 	night 	shift
supervisors 	who, 	in 	turn, 	supervised 	about 	20 	key 	entry
operators, 	including 	lead 	operators 	on 	each 	shift. 	Over 	the
summer 	Walls 	and 	her 	supervisory 	staff 	prepared 	new 	job
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descriptions 	and 	standards 	for 	these 	employees, 	as 	part 	of 	an
overall 	review 	of 	the 	revamped 	computer 	unit.
A new 	job 	description 	was 	completed 	for 	LeFils 	in
October 	1980. 	Her 	previous 	duties 	remained 	intact, 	although
described 	and 	expanded 	upon 	in much 	greater 	detail. 	The 	new
job description 	also 	specified 	her 	role 	as 	a 	supervisory
assistant 	for 	training, 	for 	coaching 	operators 	on 	problems, 	and
for 	monitoring 	discipline 	problems. 	According 	to 	the 	job
description, 	the 	lead 	key 	entry operator 	was 	to 	spend 	20
percent 	time 	operating 	the 	key-editing 	equipment; 	that 	is,
machine 	time 	for 	keypunching 	and 	verification. 	The 	lead
operator 	was 	also 	to 	spend 	20 	percent 	time, 	respectively, 	on
batching 	and 	assignments, 	on 	answering 	operator 	questions, 	and
on 	servicing 	key 	entry 	users. 	A final 	15 percent 	was 	for
specialized 	key 	editing 	tasks.
Walls 	was 	uncertain 	as 	to 	the 	original 	source 	of 	the
figures 	in 	the 	job 	description, 	but 	testified 	that 	the 	20
percent 	machine 	time 	figure 	was 	only 	intended 	to 	be 	a 	rough,
minimal 	estimate 	for 	days 	when 	other 	functions 	diverted 	the
lead 	operator. 	Walls 	told 	LeFils 	when 	the 	job description 	was
prepared 	that 	the 	lead 	operator, 	as 	a 	general 	rule, 	should
spend 	up 	to 	five 	hours 	a 	day 	on 	machine 	time. 	(This 	was 	later
revised 	down 	to 	four 	hours, 	or 	about 	50 	percent 	time.) 	Regular
operators 	worked 	six hours 	a 	day 	key 	editing 	on 	the 	machines.
LeFils 	concurred 	that 	she 	was 	given 	these 	verbal 	instructions
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and 	that 	in 	the 	past 	she 	had 	also 	spent 	70 	percent 	to 	80
percent 	of 	her 	time 	doing 	key-editing 	work. 	Documentary
evidence 	for 	the 	period 	after 	the 	merger 	showed 	that LeFils, 	on
occasion, 	did 	work 	the 	required 	four 	hours 	or 	more, 	and,
regularly 	exceeded 	the 	20 	percent 	figure 	in 	the 	job 	description.
B. 	December 	1980.
By 	December 	1980 	Walls 	was 	beginning 	to 	have 	doubts 	about
LeFils' 	ability 	to 	carry 	out 	her 	newly 	described 	job. 	At 	a
meeting 	with 	LeFils 	on December 	8 Walls 	presented 	several
criticisms, 	which 	were 	then memorialized 	in 	a memo 	on
December 	10. 	The 	December 	8 	meeting 	was 	intended 	to 	be 	a
preliminary 	discussion 	for 	a 	new 	evaluation 	which 	was 	being
deferred 	for 	another 	month 	at 	LeFils' 	request. 	The 	criticisms
included 	reference 	to 	abuse 	of 	overtime, 	inadequate machine
time, 	failure 	to 	follow 	directions, 	problems 	with 	training 	and
giving 	instructions, 	a 	keystroke 	average 	below 	other 	operators,
and 	on-the-job conduct 	that 	was 	a 	poor 	example 	for 	unit
employees. 	LeFils 	claimed 	that Walls 	threatened 	LeFils 	with
possible 	demotion 	at 	the 	December 	8 	meeting. 	Walls 	denied 	the
alleged 	threat 	and 	her 	notes 	of 	the 	meeting make 	no 	reference
to 	the 	subject. 3
On December 	16, 	Ernest 	Haberkern, 	a 	CSEA 	on-campus 	steward,
3credibility 	findings 	on 	disputed 	facts 	will 	be
summarized 	at 	the 	end 	of 	the 	"Findings 	of Fact."
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initiated 	a 	p~otest 	about 	the December 	10 	document 	in 	a 	meeting
with Welvin Walker, 	manager 	of 	computer 	operations 	and 	Walls'
supervisor, 	and Ella Wheaton, 	an 	analyst 	in 	the 	Berkeley
personnel 	office 	with 	responsibility 	for 	advising 	a 	number 	of
departments 	on 	employment matters. 	The meeting 	was 	brief, 	with
Haberkern 	explaining 	his 	view 	that 	the 	memo 	was 	an 	improper
warning 	letter 	and 	threatening 	to 	file 	a 	grievance. 	The
dispute 	was 	left 	unresolved 	awaiting Wheaton's 	return 	from 	a
holiday 	vacation 	and 	further 	contact 	in January 	1981.
Meanwhile, 	another 	issue 	arose 	during 	the 	holiday 	period.
For 	three 	days 	in 	late December Walls 	was 	on 	vacation 	and 	Katie
Flanders, 	the 	night 	shift 	supervisor, 	assumed 	responsibility
for 	supervising 	day 	employees, 	including LeFils. 	Because 	the
unit 	was 	short 	of 	staff, 	LeFils 	was 	directed 	to 	spend 	most 	of
her 	time 	key-editing 	and 	Flanders 	took 	over 	LeFils' 	lead
operator 	duties. 	Twice, 	according 	to 	Flanders, 	she 	asked
LeFils 	to 	do 	less 	talking 	and 	more 	machine 	editing. 	LeFils
denied 	these 	complaints 	were 	made.
C. 	January 	1981.
When Walls 	returned 	in 	the 	first 	week of January 	1981,
Flanders 	reported 	that LeFils' 	production 	time 	was 	not 	what 	it
should 	have 	been 	for 	the 	period 	that 	LeFils 	had 	been 	reassigned
to 	regular 	operator 	status. 	Walls 	did 	not 	immediately 	raise
the 	issue 	with 	LeFils, 	but 	monitored 	her 	machine 	time 	for 	a 	few
days 	during 	that 	week. 	Walls 	testified 	that 	the 	unit
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production 	statistics 	continued 	to 	present 	questions 	about
LeFils' 	machine 	time. 	Copies 	of 	these 	production 	statistics
were 	routinely made 	available 	to 	operators 	in 	order 	to maintain
awareness 	of 	their 	daily 	figures.
On January 	8 Walls 	and 	day 	shift 	supervisor 	Darlene Evans
requested 	LeFils' 	presence 	at 	a 	meeting 	away 	from 	her 	normal
work 	station 	to 	ask 	LeFils 	to 	account 	for 	32 out 	of 	56 	hours
over 	a 	seven-day 	period 	in December 	and 	January, 	including 	the
period 	under 	Flanders' 	supervision. 	At 	the meeting, 	Walls
showed 	LeFils 	written 	figures 	detailing 	LeFils' 	work
activities, 	including 	regular 	key-editing 	duties, 	as 	well 	as
lead 	operator 	functions, 	such 	as 	peeling 	new 	material. 	LeFils
was 	equivocal 	when 	she 	denied 	being 	shown 	statistical
compilations 	on January 8.
It 	is 	undisputed, 	however, 	that 	during 	the 	meeting 	LeFils
told Walls 	that 	she 	assumed 	she 	was 	doing 	her 	lead 	operator
duties 	on 	the 	days 	in 	question, 	except 	for 	about 	two 	days 	when
Flanders 	was 	supervising. 	LeFils 	also 	indicated 	that 	she 	had
personal 	notes 	regarding 	her 	work 	assignments 	and, 	as 	LeFils
conceded 	in 	her 	testimony, 	she 	promised 	that 	reference 	to 	these
notes 	would 	enable 	her 	to 	account 	for 	the 	time 	in 	question.
Walls 	stated 	that 	the 	meeting 	would 	be 	rescheduled 	for 	the 	next
day 	to 	get 	LeFils' 	response, 	but 	denies 	that 	she 	instructed
LeFils 	to 	produce 	the 	actual 	notes.
There 	was 	no 	threat 	of 	discipline 	at 	the 	January 8 meeting,
nor 	any 	supervisory 	suggestion 	that 	LeFils 	was 	not 	at 	work 	at
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the 	times 	in 	doubt. 	Although 	LeFils 	initially 	testified 	that
she 	requested 	union 	representation 	during 	this 	meeting, 	on
cross-examination 	she 	corrected 	her 	testimony 	and 	stated 	that
no 	such 	request 	was 	made. 	Walls 	also 	denied 	that 	a 	request 	was
made 	on 	this 	date.4
Separate 	from 	the 	meeting 	just 	described, 	during 	the 	day 	on
January 	8, 	LeFils' 	formal 	grievance 	was 	filed 	seeking
withdrawal 	of 	the 	December 	10 memo. 	On January 	20, 	in 	its
reply 	to 	the 	grievance, 	the 	University 	indicated 	the memo 	would
be 	withdrawn. 	Wheaton 	and 	Walls 	testified 	that 	this 	decision
was 	made 	because 	the memo 	carried 	the 	unintended 	implication
that 	it 	was 	a 	formal 	warning 	letter 	and 	was 	therefore
procedurally 	improper.
LeFils 	and 	Haberkern 	also 	testified 	that, 	contemporaneous
with 	the 	first Walls-LeFils 	meeting 	and 	the 	grievance 	filing,
they 	had 	a 	meeting 	of 	their 	own 	to 	discuss 	Walls' 	request 	that
LeFils 	account 	for 	her 	time. 	Although Haberkern 	and LeFils
4Haberkern 	testified 	that 	this 	first 	encounter 	in January
occurred 	on January 	7, 	according 	to 	his 	recollection 	of 	a
subsequent 	meeting 	he 	had 	with 	LeFils 	to 	go 	over 	the 	question
of 	her 	personal 	work 	notes 	and 	how 	she 	should 	respond 	to Walls'
inquiry. 	This 	assertion 	was 	inconsistent 	with 	a 	February 4
grievance 	claim 	of 	a 	first 	meeting 	on January 	8. 	This 	claim
was 	signed 	by 	LeFils 	and 	was 	presumably prepared 	by Haberkern,
who 	was 	described 	on 	the 	document 	as 	her 	representative. 	The
testimony 	of 	Walls 	and 	LeFils 	also 	contradicted 	Haberkern 	about
the 	date 	of 	their 	first 	meeting 	in January 	and, 	in 	the 	charging
party's 	briefs, 	there 	is 	no 	reference 	to 	a 	meeting 	on January 	7.
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contradicted 	each 	other 	regarding 	the 	precise 	date 	(January 	7
or 	8) 	of 	this 	meeting, 	they 	concur 	that 	Haberkern, 	in LeFils'
presence, 	called Walls 	to 	remind 	her 	that 	he 	was LeFils' 	union
representative. 	Walls 	admitted 	receiving 	a 	call 	from
Haberkern, 	but 	she 	placed 	the 	call 	on January 	9. 	Walls 	claimed
that 	Haberkern 	merely 	announced 	his 	representative 	status 	and
made 	no 	reference 	to 	any 	subject, 	whether 	the 	December 	10 memo
grievance, 	the 	January 8 	accounting 	inquiry, 	or 	a 	request 	to 	be
present 	on January 	9 when 	the 	discussion 	with 	LeFils 	was 	to
resume. 	To 	further 	complicate 	findings 	on 	the 	subject 	of 	a
LeFils-Haberkern meeting, 	other 	evidence, 	including 	a 	LeFils'
request 	for 	released 	time, 	shows 	that 	she 	and 	Haberkern 	met 	on
January 	9, 	prior 	to 	the Walls-LeFils 	meeting 	that 	had 	been
rescheduled 	after 	the 	inconclusive 	January 	8 meeting.
At LeFils' 	second meeting 	with Walls 	and Evans 	on
January 9, 	the 	supervisors 	again 	asked 	LeFils 	to 	account 	for
her 	time 	on 	the 	days 	in 	question. 	LeFils 	gave 	no 	explanation
and 	stated 	that 	she 	had 	given 	her 	notes 	to Haberkern, 	who 	had
advised 	her 	that 	the 	notes 	were 	personal 	property 	and 	that
production 	could 	not 	be 	compelled 	by Walls. 	Walls 	denied 	that
she 	requested 	the 	notes 	themselves, 	and 	stated 	she 	sought 	only
the 	information 	that 	LeFils 	said was 	in 	the 	notes. 	LeFils
testified 	that 	she 	asked 	to 	phone 	her 	union 	representative
during 	this 	conference, 	which 	Walls 	would 	not 	permit, 	but 	that
Walls 	agreed 	to 	reschedule 	the 	sessions. 	Walls 	denied 	a
10

request 	for 	representation 	was 	made 	either 	in 	the 	morning
before 	the 	meeting, 	when 	LeFils 	was 	given 	advance 	notice 	of 	the
rescheduled 	time, 	or, 	during 	the 	meeting, 	when 	the 	questions
were 	posed.s
Regardless 	of 	whether 	a 	specific 	request 	for 	assistance 	was
made, 	both Walls 	and 	LeFils 	agree 	that 	once 	LeFils 	indicated
her 	inability 	to 	respond, 	Walls 	ceased 	all 	questioning 	and
stated 	the 	meeting 	would 	be 	rescheduled 	so 	that LeFils 	could
provide 	an 	accounting. 	LeFils 	also 	concurred 	with Walls'
testimony 	that 	there 	was 	no 	discussion 	of 	the 	December
grievance 	issue 	at 	this 	meeting.6
5 rnconsistent 	with Walls' 	testimony was 	the 	University's
reply 	to 	an 	eventual 	grievance 	over 	these January meetings,
indicating 	that 	a 	LeFils 	request 	for 	representation 	was 	made 	on
January 	9. 	The 	author 	of 	the 	response, 	Joseph Yeatori--;-the
director 	of 	computer 	facilities 	and 	operations 	and 	the
supervisor 	of Walker 	and Walls, 	was 	not 	called 	as 	a 	witness.
The 	source 	of 	his 	information, 	although 	presumably Walls, 	was
never 	identified, 	and 	the 	charging 	party 	did 	not 	otherwise 	lay
a 	foundation 	to 	impeach Walls' 	testimony on 	the 	basis 	of
Yeaton's 	statement. 	For 	reasons 	noted 	hereafter, 	even 	if
Walls' 	testimony 	was 	not 	credited 	on 	this 	point, 	the
disposition 	of 	the 	case 	would 	not 	be 	affected.
6ouring 	the 	hearing 	there 	was 	a 	testimonial 	dispute
between LeFils 	and Haberkern, 	on 	the 	one 	hand, 	and Walls 	and
Wheaton, 	on 	the 	other, 	about 	whether 	an 	earlier 	morning 	meeting
took 	place 	on January 	9 	in 	connection 	with 	the 	grievance 	filed
on January 8. 	Haber kern 	stated 	that 	such 	a 	meeting 	took 	place
and 	that 	he 	was 	rebuffed 	in 	an 	attempt 	to 	raise 	a 	protest 	over
the 	January 8 	meeting. 	LeFils 	also 	testified, 	but 	with
noticeable 	doubt, 	that 	this 	morning 	meeting 	occurred. 	The
claim 	about 	a 	January 9 	morning 	meeting 	was 	not 	discussed
further 	when 	the 	case 	was 	briefed 	and 	no 	finding 	is 	therefore
made 	that 	this 	alleged 	encounter 	actually 	took 	place.
11

On January 	13 Walls 	wrote 	a memo 	to LeFils 	directing 	that
she 	account 	for 	the 	time 	in 	question 	at 	a 	meeting 	on
January 	20. 	In 	the memo Walls 	also 	disclaimed 	any 	desire 	to
actually 	review 	LeFils' 	personal 	notes.
Haberkern, 	on January 	16, 	wrote 	a 	letter 	to Wheaton 	that,
in 	part, 	appeared 	responsive 	to 	the 	January 	13 memo. 	In 	brief,
Haberkern 	stated 	that 	he 	could 	not 	attend 	a 	meeting 	on
January 20 	and 	he 	protested 	the 	attempts 	by Walls 	to 	meet 	with
LeFils 	without 	the 	presence 	of 	her 	union 	representative.?
Haberkern 	did 	not 	send 	a 	copy 	of 	this 	letter 	to Walls, 	Evans 	or
Walker, 	whose 	names 	were 	all 	on 	the 	January 	13 memo.
Wheaton, 	who 	had 	not 	been 	sent 	a 	copy 	of 	the Walls
January 	13 memo, 	did 	not 	respond 	to 	the 	Haberkern 	letter
because, 	as 	she 	explained, 	she 	was 	not 	involved 	in 	scheduling
any 	meetings 	with 	LeFils 	and 	thus 	didn't 	believe 	she 	had 	a 	role
to 	play. 	Wheaton 	did 	not 	send 	a 	copy 	of 	Haberkern's 	letter 	to
either 	Walls 	or 	Walker, 	but 	simply placed 	it 	in 	the 	folder 	for
the 	then-pending 	grievance 	over 	the 	December 	10 memo.
7aaberkern's 	letter, 	however, 	also 	referred 	to 	a
Walls-LeFils 	meeting 	on January 	7, 	and 	to 	the 	alleged morning
meeting 	on January 9 	between Haberkern 	and 	employer 	agents.
These 	disputed 	references, 	no 	longer 	advanced 	by CSEA 	in 	its
briefs, 	cast 	doubt 	on 	the 	accuracy 	of 	another 	claim 	in 	the
letter 	that Walls 	had 	been 	attempting 	to meet 	with 	LeFils 	about
the 	December 	memo 	grievance. 	Even LeFils 	did 	not 	contend 	in
her 	testimony 	that Walls 	had 	intermingled 	the 	events 	during
their 	January meetings.
12

Just 	before 	the January 	20 	meeting, 	LeFils, 	knowing 	that
Haberkern 	would 	be 	unable 	to 	attend, 	called 	in 	sick. 	The
meeting 	was 	cancelled 	and 	re-set 	for 	January 	22. 	Walls
testified, 	contrary 	to 	LeFils, 	that 	advance 	notice 	was 	given
during 	the 	afternoon 	of 	January 	21 	of 	the meeting 	time 	and
place 	the 	next 	day. 	According 	to Walls, 	LeFils 	did 	not 	request
the 	presence 	of 	a 	union 	representative.
When 	the 	January 	22 	meeting 	got 	under 	way, 	LeFils, 	without
a 	union 	representative, 	indicated 	she 	could 	not 	answer Walls'
inquiry 	because Haberkern 	still 	had 	her 	personal 	notes. 	LeFils
testified 	that Walls 	asked 	her 	to 	leave 	the 	office 	in 	order 	to
contact Haberkern 	for 	the 	information. 	Walls 	maintained 	that
it 	was 	LeFils 	who 	asked 	to 	leave 	to 	reach Haberkern.
Regardless, 	when 	LeFils 	could 	not 	find 	Haberkern 	at 	his 	nearby
work 	site, 	and 	could 	not 	reach 	him 	by 	phone, 	she 	spoke 	with
another 	CSEA 	steward 	who 	advised 	LeFils 	to 	decline 	to 	answer
questions 	without 	the 	presence 	of 	her 	representative. 	Walls
stated 	that 	LeFils 	then 	returned 	to 	the 	meeting 	and 	requested
representation.
Walls 	claimed 	that 	the 	January 	22 	meeting 	was 	the 	first
time 	a 	specific 	request 	was 	made 	in 	the 	three 	meetings 	to 	that
date 	on 	the 	accounting 	issue. 	In 	any 	event, 	according 	to 	both
principal 	witnesses, 	once LeFils 	made 	it 	clear 	that Haberkern's
presence 	was 	necessary 	to 	pursue 	the 	inquiry, 	Walls 	again
stopped 	the 	meeting 	and 	stated 	that 	it 	would 	be 	rescheduled.
13

D. 	February 	1981.
Two 	events 	occurred 	on February 3 	related 	to 	the 	case.
First, 	Walls 	wrote 	a 	memo 	to LeFils 	informing 	her 	that 	another
meeting 	would 	take 	place 	on February 	10 	regarding 	the
accounting matter. 	Walls 	said 	that 	continued 	refusal 	by LeFils
to 	account 	for 	her 	time 	would 	constitute 	insubordination.
Walls 	warned 	that 	if 	LeFils 	failed 	to 	account 	for 	the 	time 	on
February 	10 	11 further 	disciplinary 	action 	will 	be 	taken; 	i.e.,
suspension. 11
Second, 	on February 3 	LeFils 	also 	received 	a 	performance
evaluation, 	as 	discussed 	and 	deferred 	in December, 	covering 	the
period 	from 	the 	preceding 	September 	through 	January. 	The
overall 	rating 	given LeFils 	was 	"improvement 	needed." 	The
criticisms 	made 	in 	the 	evaluation 	were 	similar 	in 	nature 	to
issues 	raised 	in 	the 	December 	10 memo 	that 	had 	been 	withdrawn
on January 	20. 	Specific problem 	areas 	identified 	included:
ineffective 	training 	and 	poor 	guidance 	to 	operators;
inefficient 	batching 	and 	organization 	of 	materials; 	lack 	of
responsiveness 	leading 	to 	disruption 	of 	workflow; 	insufficient
familiarity 	with 	certain formats; 	inadequate 	machine 	time; 	and,
inability 	to 	limit 	distractions 	caused 	by 	work 	interruptions.
Comments 	attached 	to 	the 	evaluation 	characterized 	LeFils'
deficiencies 	as 	a 	problem 	of 	accommodation 	to more 	complex
duties 	and 	to 	new 	standards 	following 	the 	computer 	operation
merger. 	A cover 	letter 	for 	the 	evaluation 	informed LeFils 	that
14

it 	was 	designed 	to 	help 	improve 	her 	performance 	and 	that 	a
follow-up 	evaluation 	would 	be 	given 	in mid-April 	in 	accord 	with
University 	policy 	regarding 	less-than-satisfactory
evaluations.a
The 	next 	day, 	February 	4, 	a 	grievance 	was 	filed 	challenging
the 	warning 	letter, 	the 	performance 	evaluation, 	and 	the 	lack 	of
representation 	at 	the 	January meetings. 	This 	grievance 	was
eventually 	denied 	on February 	19. 	The 	denial, 	signed 	by
Yeaton, 	rejected 	any 	claim 	that 	the 	disputed 	actions 	were 	in
reprisal 	for 	LeFils' 	involvement 	with 	a 	union, 	or 	that LeFils
had 	been 	improperly deprived 	of 	union 	representation 	at 	the
January meetings.
On February 	10, 	while 	the 	grievance 	was 	pending, 	the
meeting 	announced 	in 	the 	February 	3 warning 	letter 	took 	place
to 	discuss 	the 	accounting 	matter. 	Haberkern, 	LeFils, 	Wheaton
8There 	was 	testimony 	that 	LeFils 	also 	requested 	union
assistance 	on 	or 	about January 	29, 	at 	a 	pre-evaluation
conference 	with Walls 	that 	was 	intended 	to 	review 	a 	tentative
draft, 	but 	that 	this 	request 	was 	denied. 	The 	issue 	of
representation 	at 	the 	January 	29 	meeting 	was 	not 	one 	of 	the
matters 	raised 	by CSEA 	either 	in 	its 	charge, 	or 	as 	an 	amendment
at 	the 	time 	of 	the 	hearing 	or 	in 	its 	briefs. 	Nonetheless,
Walls 	testified, 	as Wheaton 	confirmed, 	that University
personnel 	practice 	precluded 	the 	involvement 	of 	an 	outside
representative 	at 	the 	evaluation 	preparation 	and 	issuance 	stage
(in 	contrast 	to 	representation 	at 	grievance 	steps 	after 	an
evaluation). 	No 	contrary 	evidence 	about 	this 	practice 	was
introduced 	by 	the 	charging 	party. 	LeFils 	did 	not 	participate
in 	a 	substantive 	talk 	with Walls 	about 	the 	contents 	of 	the
proposed 	evaluation, 	and 	no 	action 	was 	taken 	against 	her 	for
this 	position.
15

and Walls 	were 	present. 	Haberkern 	spoke 	for 	LeFils, 	without
management 	objection, 	and 	claimed, 	as 	had 	LeFils 	on January 8,
that LeFils' 	best 	recollection 	was 	that 	she 	did 	her 	normal
assigned 	work on 	the 	days 	in 	question, 	except 	for 	a 	brief
period 	when Flanders 	was 	supervising 	in December. 	During 	the
meeting, 	according 	to 	Wheaton, 	following 	Haberkern's 	request
for 	the 	employer's 	supporting 	data, 	he 	showed 	some 	surprise
when Walls 	pointed 	out, 	and 	LeFils 	conceded, 	that 	daily
production 	figures 	were 	regularly 	provided 	and 	that LeFils 	had
been 	shown 	her 	relevant 	statistics. 	After 	Haberkern 	and 	LeFils
caucused, 	at 	which 	time 	he 	examined 	her 	personal 	notes 	of 	the
days 	at 	issue, 	they 	returned 	to 	the 	room 	and 	restated 	the
previous 	response 	that LeFils 	had 	worked 	as 	assigned. 	Walls
expressed 	dissatisfaction 	with 	this 	response, 	in 	light 	of 	the
earlier 	promises 	by LeFils 	that 	details 	could 	be 	provided, 	and
the 	meeting 	ended. 	Both Haberkern 	and 	LeFils 	deny 	that
management 	expressed 	dissatisfaction 	with 	the 	answer 	given.
A week 	later, 	on February 	17, 	a 	formal 	suspension 	notice
was 	issued, 	effective February 	23, 	24 	and 	25. 	The 	ground
stated 	was 	insubordination. 	LeFils 	was 	also 	warned 	that
continued 	insubordination 	could 	result 	in 	disciplinary 	action,
including 	demotion 	and 	dismissal. 	The 	accounting 	issue 	was 	not
pursued 	further 	by 	the University, 	however, 	and 	the matter 	was
dropped.
16

E. 	Events 	related 	to 	the 	LeFils 	demotion.
The 	follow-up 	evaluation 	described 	in 	the 	February
evaluation 	cover 	letter 	was 	issued 	April 	27. 	The 	evaluation
observed 	that 	there 	had 	been 	a 	slight 	improvement 	in LeFils'
keystroke 	average 	during 	the 	interim, 	but 	noted 	that 	the
variety of 	problems 	identified 	previously were 	continuing. 	The
rating 	given LeFils 	was 	"unsatisfactory," 	since 	there 	had 	been
minimal 	improvement.9
According 	to 	Walls, 	her 	evaluation 	critique 	was 	based 	on
employee 	complaints 	about LeFils, 	in 	addition 	to 	personal
observation. 	These 	complaints 	included 	claims 	that 	LeFils 	was
loud 	and 	disruptive, 	that 	she 	gave 	inadequate 	training 	or
confusing 	instructions, 	and 	that 	she 	sifted 	through 	the
assignment 	basket 	to 	take 	easier 	jobs 	herself 	(thereby 	boosting
her 	keystroke 	average). 	Specific 	employees 	were 	identified 	by
Walls 	as 	the 	sources 	of 	her 	information. 	Neither 	side 	called
these 	employees 	as 	witnesses. 	Flanders' 	testimony 	also
provided 	corroboration 	for 	Walls' 	analysis. 	On 	rebuttal,
LeFils 	disputed 	the 	allegation 	that 	she 	sifted 	through 	the
assignment 	basket 	for 	self-serving 	purposes, 	claiming 	it 	was
9Neither 	the 	February 	nor 	the 	April 	evaluation 	included
any 	reference 	to 	the January-February 	time 	accounting 	and
insubordination 	dispute. 	Walls 	testified 	that 	she 	perceived
that matter 	as 	a 	one-of-a-kind 	problem, 	unrelated 	to 	the
general 	employment 	concerns 	usually 	reserved 	for 	overall
evaluations.
17

part 	of 	her 	assignment 	distribution 	task, 	but 	offered 	no 	denial
of 	the 	other 	criticisms 	leveled 	against 	her.
The 	evaluation 	also 	repeated 	the 	previous 	criticisms 	that
LeFils' 	machine 	time 	production 	was 	inadequate. 	Documentary
evidence 	reflecting 	several 	months 	performance 	was 	offered 	in
support 	of 	this 	point, 	effectively demonstrating 	machine 	time
that 	was 	usually 	far 	below 	the 	announced 	standard. 	As 	a 	means
of 	impeaching 	the 	value 	of 	this 	evidence, 	CSEA 	relied 	not 	only
upon 	the 	job 	description 	standard 	of 	20 	percent 	time, 	discussed
above, 	but 	also 	argued 	that 	documentary 	evidence 	based 	on 	the
statistical 	performance 	of 	another 	lead 	key 	operator,
Aurora 	Fernandez, 	revealed 	disparate 	treatment 	by Walls. 	This
documentary 	evidence, 	however, 	submitted 	after 	the 	hearing,
does 	not 	provide 	conclusive 	support 	for 	CSEA.
The University 	introduced 	explanatory 	evidence, 	through
Walls' 	testimony, 	that 	Fernandez' 	actual 	duties 	were 	rarely
comparable 	to 	those 	of LeFils. 	In 	fact, 	the 	sample 	comparison
prepared 	after 	the 	close 	of 	the 	hearing, 	for 	a 	limited 	period
when 	some 	comparability 	could 	be 	valid, 	showed 	that Fernandez
performed 	at 	least 	as 	well 	as, 	and 	perhaps 	better 	than 	LeFils,
in 	terms 	of 	machine 	time 	and 	peeling 	duties. 	The 	sample
comparison 	also 	shed 	no 	light 	on 	the 	performance 	of 	other 	lead
operator 	tasks. 	In 	the 	last 	analysis, 	the 	issues 	of
comparability and 	disparate 	treatment 	were 	only 	one 	element 	in
CSEA's 	attempt 	to 	challenge 	the 	accuracy 	of 	the 	April
18

evaluation. 	As 	explained 	elsewhere 	in 	this 	decision, 	a
substantial 	body 	of 	other 	criticisms 	and 	complaints 	set 	forth
in 	the 	April 	27 	evaluation 	were 	supported 	by 	the 	evidence.
A day 	later, 	April 	28, 	Walls 	officially 	notified 	LeFils 	of
management's 	intent 	to 	demote 	her 	to 	regular 	entry operator
status. 	The 	demotion 	decision 	had 	been 	reached 	that 	month 	as
the 	re-evaluation 	was 	prepared. 	Walls 	testified 	that 	a
decision 	was 	made 	to 	demote, 	rather 	than 	to 	fire 	LeFils 	because,
••• 	[she 	had] 	been 	with 	the 	University 	for
18 years 	and 	I 	felt, 	if 	she 	had 	been 	a 	key
entry operator 	she 	probably 	would 	have 	been
fired, 	but 	I 	felt 	that 	it 	was 	only 	fair 	to
give 	her 	the 	opportunity 	to 	perform 	at 	a
satisfactory level 	in 	the 	key 	entry operator
position. 	I 	just 	didn't 	feel 	it 	was 	fair 	to
fire 	her.
Walls 	stated 	in 	the 	notice 	and 	in her 	testimony 	that 	the
demotion 	was 	tied 	to 	the 	prior 	evaluations 	and 	that 	the 	primary
factors 	were 	LeFils' 	unprofessional 	disruptive 	conduct, 	poor
batching, 	instruction 	and 	training 	problems, 	and 	insufficient
machine 	time. 	Walls 	testified 	that 	no 	warning 	letter 	preceded
the 	demotion 	because, 	under 	University 	policy, 	LeFils 	had
reason 	to 	know 	about 	potential 	corrective 	action 	if 	her 	conduct
did 	not 	improve 	after 	the 	February 	evaluation. 	(See University
Staff 	Personnel Manual 	(1980) 	sec. 	270.6.) 	The 	charging 	party
failed 	to 	offer 	contrary 	evidence 	about 	established 	practice 	at
the 	University. 	The 	formal 	demotion 	notice 	was 	issued May 	5
and 	took 	effect 	on May 	13. 	A protest 	letter 	submitted 	by
19

Haberkern 	on May 	5 apparently 	was 	either 	not 	received, 	or 	had
no 	influence 	on 	the 	decision.
F. 	Credibility 	determinations.
The 	quality of 	testimony 	offered 	by 	the 	charging 	party was
generally 	not 	persuasive 	on 	the many 	factual 	discrepancies
related 	to 	a 	disposition 	of 	the 	case. 	LeFils, 	for 	example, 	who
gave 	only 	limited 	direct 	testimony 	in 	the 	case-in-chief, 	was
often 	vague 	and 	uncertain 	about 	specific 	events 	and 	about 	who
said 	what 	in meetings. 	In 	other 	instances, 	her 	representative
at 	the 	hearing 	asked 	leading 	questions 	about 	crucial 	elements
of 	the 	charge, 	further 	damaging 	the 	believability 	of LeFils'
presentation. 	Her 	demeanor 	showed 	evident 	nervousness,
especially 	during 	her 	explanation 	of 	the 	procrastinating
interactions 	with Walls 	over 	the 	accounting 	issue. 	The 	weight
to 	be 	given LeFils' 	testimony 	was 	also 	affected 	by 	the
contradiction 	within 	her 	account 	on 	whether 	she 	requested
representation 	on January 	8, 	as 	well 	as 	by 	the 	conflict 	between
her 	recollection 	and 	Haberkern's 	regarding 	the 	date 	of 	their
private 	interchange 	in 	early January.
Finally, 	the 	rebuttal 	testimony offered 	by 	LeFils, 	failing
almost 	completely 	to 	come 	to 	grips 	with 	the many 	damaging
aspects 	of 	the 	University's 	defense, 	cast 	further 	doubt 	on 	the
credibility of 	her 	account 	of 	her 	performance. 	Indeed, 	as 	to
some matters, 	LeFils 	made 	significant 	concessions 	during 	both
her 	initial 	and 	rebuttal 	testimony, 	including: 	the 	major
20

changes 	after 	the 	computer 	merger, 	the 	low 	keystroke 	average 	up
to 	the 	February 	evaluation, 	and 	the 	reports 	that 	she 	gave
confusing 	training 	or 	instructions 	to 	other 	key 	entry operators.
LeFils' 	testimony 	was 	not 	enhanced 	by Haberkern 	as 	a
witness. 	Haberkern 	was 	more 	assured 	and 	to-the-point 	than
LeFils, 	but 	his 	own 	testimony was 	weakened 	by 	its 	conflicts
with 	that 	of 	other 	witnesses. 	For 	example, 	his 	insistent 	claim
that 	a 	meeting 	between LeFils 	and 	Walls 	took 	place 	on January 7
was 	supported 	by 	no 	other 	witness 	and 	was 	at 	odds 	with 	the
February 4 	grievance 	claim 	that 	bore Haberkern's 	name 	as
LeFils' 	representative. 	Haberkern's 	reference 	to 	a 	January 	9
morning 	meeting 	about 	the 	December 	10 memo 	grievance 	was
supported, 	with 	visible 	hesitancy, 	by LeFils, 	and 	was
convincingly denied 	by Walls 	and 	by Wheaton, 	the 	latter 	having
testified 	to 	another 	event 	taking 	place 	the 	entire 	day 	in
question. 	In 	the 	end, 	these 	matters 	alluded 	to 	in 	the 	hearing
were 	simply 	dropped 	from 	the 	charging 	party's 	case 	in 	its
briefs.
Last, 	Haberkern's 	testimony 	as 	a 	whole 	was 	marred 	by 	his
improbable 	explanation 	of 	his 	role 	in 	the 	January-February
accounting 	dispute, 	in 	relation 	to 	which 	he 	guided 	LeFils
through 	a 	series 	of 	meetings 	while 	remaining 	largely
behind-the-scenes. 	But 	for 	his 	brief 	phone 	call 	to Walls 	on
January 	8 	or 	9, 	and 	his 	misdirected January 	13 	letter 	to
Wheaton, 	Haberkern 	barely 	resembled 	the 	diligent 	steward 	who,
21

in 	the 	space 	of 	six 	days 	from December 	10 	through 	16, 	had
arranged 	a 	multi-party meeting 	with 	a 	personnel 	department
representative 	to 	consider 	a 	potential 	grievance 	over 	a memo.
In 	comparison, 	the 	testimony 	of 	both Walls 	and 	Flanders,
central 	to 	respondent's 	case, 	was 	of 	superior 	quality. 	Walls
was 	both 	careful 	and 	prompt 	in her 	responses, 	and 	her
recollection 	was 	largely 	in 	accord 	with 	the 	voluminous
documentary 	record 	she 	maintained 	about 	the 	day-to-day 	events
as 	the 	disputes 	developed. 	Her 	conscientious 	approach 	toward
her 	job--and 	to 	testimonial 	recitals--was 	evident 	not 	only 	on
direct 	examination 	but 	on 	cross-examination 	as 	well, 	when
efforts 	were 	made 	to 	test 	her 	precision 	and 	motivation. 	As 	a
whole, 	Walls' 	testimony 	had 	a 	ring-of-truth 	and 	her 	account 	of
events, 	particularly 	in January, 	held 	together.
Key 	aspects 	of Wall's 	testimony 	were 	corroborated 	by
Flanders, 	who 	testified 	not 	only 	about 	the 	holiday 	season
machine 	time 	issue 	involving 	LeFils, 	but 	also 	about 	her
extensive 	working 	history with 	LeFils 	and 	her 	familiarity 	with
complaints 	made 	by 	other 	employees. 	Flanders 	is 	deaf 	and
testified 	by 	reading 	the 	lips 	of 	her 	examiners. 	Perhaps 	in
part 	for 	this 	reason, 	her 	account 	assumed 	an 	air 	of 	exceptional
concern 	and 	attentiveness 	to 	the 	truth. 	At 	the 	same 	time, 	she
also managed 	to 	convey 	a 	personal 	liking 	for 	LeFils 	that 	was
the 	product 	of 	years 	of 	comraderie 	on 	the 	job. 	Thus, 	from
Flanders' 	point 	of 	view, 	LeFils's 	somewhat 	loud 	and 	disruptive
22

nature may 	well 	have 	interfered 	with 	her 	job 	performance, 	but
also, 	on 	an 	interpersonal 	level, 	these 	attributes 	made 	LeFils 	a
livelier, 	friendlier 	person 	to 	be 	around. 	There 	was 	no
evidence 	in 	the 	record 	to 	suggest, 	as 	the 	charging 	party
claimed 	in 	its 	brief, 	that Flanders' 	testimony 	could 	be
discounted 	as 	back-biting 	by 	a 	disgruntled 	co-worker.
For 	the 	reasons 	set 	forth 	above, 	respondent's 	view 	of 	the
facts 	is 	credited, 	to 	the 	extent 	a 	material 	dispute 	has 	been
identified. 	Specifically, 	it 	is 	found 	that: 	(1) 	no 	demotion
threat 	was 	made 	on 	December 	8; 	(2) 	Flanders 	did 	comment 	to
LeFils 	about 	excessive 	talking 	and 	insufficient machine 	time 	in
December; 	(3) 	Walls 	showed 	production 	and 	machine 	time
statistics 	to LeFils 	on January 	8; 	(4) 	Haberkern, 	in 	a 	phone
call 	on January 8 	or 	9, 	made 	no 	request 	to 	be 	present 	at 	the
accounting 	discussion 	set 	for 	January 	9; 	(5) 	no 	request 	for
union 	representation 	was 	made 	by 	LeFils 	on January 9; 	(6)
LeFils 	had 	advance 	notice 	of 	the 	times 	of 	the 	meetings
requested 	by 	Walls 	on January 9 	and 	January 	22; 	(7) 	Walls
never 	asked 	LeFils 	to 	produce 	her 	personal 	work 	notes 	for
supervisory 	inspection; 	(8) 	Walls 	expressed 	dissatisfaction
with 	the 	adequacy 	of LeFils' 	explanation 	(via Haberkern) 	of 	the
accounting 	issue 	on February 	10; 	and, 	(9) 	in 	addition 	to
Walls' 	personal 	observation 	of 	performance 	deficiencies,
employee 	complaints 	about 	LeFils 	had 	been 	conveyed 	to Walls.
23

ISSUES
1. 	Did 	the 	University 	interfere 	with 	and 	deny LeFils'
right 	to 	union 	representation 	on January 8, 	9 and 	22, 	1981?
2. 	Did 	the 	University 	suspend LeFils 	in February 	1981 	in
retaliation 	for 	the 	exercise 	of 	protected 	representation 	rights?
3. 	Did 	the University 	demote 	LeFils 	in May 	1981 	in
retaliation 	for 	the 	exercise 	of 	protected 	representation 	rights?
CCNCLUSIONS 	OF 	LAW
A. 	Introduction.
There 	is 	no 	real 	dispute 	between 	the 	parties 	about 	the
legal 	principles 	and 	tests 	relevant 	to 	a 	disposition 	of 	this
case. 	For 	example, 	the 	University concedes 	that 	under
section 	3565 	of 	the Act,
••• 	filing 	a 	grievance 	and 	requesting
representation 	are 	protected 	and 	any 	act
aimed 	against 	an 	employee 	for 	undertaking
such 	activities 	would 	be 	in 	violation 	of
HEERA. 	(Respondent's Brief 	at 	p. 	16.)10
The University 	also 	concedes 	that 	an 	employee 	has 	a 	correlative
right 	to 	request 	union 	assistance 	at 	investigatory 	interviews
which 	the 	employee 	reasonably 	believes 	could 	result 	in
lOsection 	3565 	states, 	in 	relevant 	part:
Higher 	education 	employees 	shall 	have 	the
right 	to 	form, 	join and 	participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of 	employer-
employee 	relations 	and 	for 	the 	purpose 	of
meeting 	and 	conferring •...
24

discipline. 	Both 	parties 	cite Weingarten 	v. 	p.s. 	(1975)
420 	U.S. 	251 	to 	support 	their 	respective 	applications 	of 	this
fundamental 	representational 	principle.11 	Additionally, 	as
amply 	demonstrated 	by 	the 	testimony 	of Wheaton 	and Walls,
established 	University policy 	allows 	for 	union 	representation
at 	such 	investigatory 	encounters 	even 	if 	there 	is 	no 	certified
exclusive 	representative. 	(Also 	see 	University 	Staff Personnel
Manual 	(1980) 	sec. 	280.31; 	accord Anchortank, 	Inc. 	v. 	NLRB
(5th 	Cir. 	1980) 	615 	F.2d 	1153 	[104 	LRRM 2689].)
The University 	and 	CSEA 	concur 	as 	well 	that 	in 	resolving
the 	claim 	of 	retaliatory discrimination 	against 	LeFils, 	for 	her
suspension 	and 	demotion, 	the 	trier 	of 	fact 	is 	obliged 	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. 	See,~, 	Carlsbad Unified
School District 	(1/30/79) 	PERB 	Decision No. 	89; 	Belridge School
District 	(12/31/80) 	PERB 	Decision No. 	157 	at. 	p. 	5; 	Martori
Brothers Distributors 	v. 	Agricultural 	Labor 	Relations Bd.
(1981) 	29 	Cal.3d 	721, 	729-730; 	Wright 	Line, 	Inc. 	(1980)
251 	NLRB 150 	[105 	LRRM 1169] 	enf. 	(1st Cir. 	1981) 	F.2d_
[108 	LRRM 2513].
llThe 	construction 	of 	similar 	or 	identical 	provisions 	of
the National Labor 	Relations Act 	(hereafter 	NLRA), 	as 	amended,
29 	u.s.c. 	151 	et 	seq., 	may 	be 	used 	to 	guide 	interpretation 	of
the 	HEERA. 	See,~, 	San Diego Teachers Assn. 	v. 	Superior
Court 	(1979) 	24 	Cal.3d 	1, 	12-13; 	Fire 	Fighters 	Union 	v. 	City of
Vallejo 	(1974) 	12 	Cal.3d 	608, 	616.
25

Assuming 	a 	prima 	facie 	case 	is 	presented, 	an 	employer
carries 	the 	burden 	of 	producing 	evidence 	that 	the 	action 	"would
have 	occurred 	in 	any 	event." 	Martori Brothers Distributors 	v.
Agricultural Labor 	Relations 	Bd., 	supra, 	29 	Cal.3d 	at 	730.
Thus, 	once 	employee 	misconduct 	is 	demonstrated, 	the 	employer's
action,
.•• 	should 	not 	be 	deemed 	an 	unfair 	labor
practice 	unless 	the 	board 	determines 	that
the 	employee 	would 	have 	been 	retained 	"but
for" 	his 	union membership 	or 	his 	performance
of 	other 	protected 	activities. 	(Ibid.)
Although 	the 	parties 	generally 	agree 	about 	the 	appropriate
legal 	standards 	to 	be 	utilized, 	they 	are 	sharply 	at 	odds 	over
the 	application 	of 	these 	principles 	to 	the 	facts 	of 	this 	case.
B. 	The 	union 	representation 	issue.
At 	the 	outset, 	it 	should 	be 	observed 	that 	the 	charging
party's 	claim on 	this 	issue, 	based 	on 	the 	evidence 	ultimately
argued 	in 	its 	briefs, 	goes 	to 	the meetings 	of January 	8, 	9 and
22, 	1981. 	At 	these 	meetings, 	according 	to 	CSEA, 	the 	University
denied 	LeFils 	an 	adequate 	opportunity 	to 	secure 	representation,
and, 	when 	a 	request 	was 	made, 	it 	should 	have 	been 	granted.
Under Weingarten 	and 	related 	cases, 	several 	questions 	must 	be
resolved 	to 	determine 	whether 	LeFils' 	representation 	rights
were 	interfered 	with 	or 	denied.12 	First, 	were 	the 	meetings
for 	an 	investigatory 	purpose 	which 	the 	employee 	objectively
12The 	Weingarten 	rule 	has 	been 	adopted 	in California.
26

perceived 	as 	a 	possible 	pre-disciplinary 	inquiry? 	Second, 	did
the 	employee 	request 	union 	assistance 	prior 	to 	or 	during 	the
meeting? 	And, 	third, 	if 	such 	a 	request 	was 	made, 	did 	the
employer 	persist 	in 	conducting 	the 	meeting 	without
representation, 	or 	otherwise 	infringe 	on 	the 	employee's 	right
to 	representation? 	Applying 	this 	analytical 	approach, 	it 	is
concluded 	that 	there 	was 	no 	violation 	of LeFils' 	right 	under
the 	HEERA.13
See,~, 	Social Workers' 	Union, 	Local 	535 	v. 	Alameda 	County
Welfare Dept. 	(1974) 	11 Cal.3d 	382: 	Robinson 	v. 	State Personnel
Bd. 	(1979) 	97 	Cal.App.3d 	994: 	Marin Community College 	District
(11/19/80) 	PERB 	Decision No. 	145.
13Alternatively, 	two 	of 	the 	meetings, 	on January 8 	and 	9,
took 	place 	more 	than 	six months 	prior 	to 	the 	filing 	of 	the
instant 	charge 	on 	July 	17, 	1981 	and 	are 	therefore 	subject 	to 	a
limitations 	bar 	under 	section 	3563.2(a) 	of 	the Act:
••• 	the 	board 	shall 	not 	issue 	a 	complaint
in 	respect 	of 	any 	charge 	based 	upon 	an
alleged 	unfair 	practice 	occurring 	more 	than
six months 	prior 	to 	the 	filing 	of 	the 	charge.
Although 	this 	defense 	was 	not 	argued 	by 	the 	respondent 	at
the 	hearing 	or 	in 	its 	brief, 	the 	employer 	did 	set 	it 	forth 	as
affirmative 	defense 	in 	its 	answer. 	Aside 	from 	the 	question 	of
possible 	employer 	waiver 	or 	abandonment 	of 	the 	claim, 	the 	fact
that 	an 	internal University grievance 	was 	filed 	and 	pursued
raises 	the 	issue 	that 	the 	six-month 	limitations 	bar 	was
equitably 	tolled, 	at 	least 	until 	the 	grievance 	about 	these
meetings 	was 	denied 	on February 	19. 	See State 	of 	California
(Dept. 	of 	Water 	Resources) 	(12/29/81) 	PERB 	Order 	No. 	Ad-122-S:
San Dieguito Union High School District 	(2/25/82) 	PERB 	Decision
No. 	194. 	Regardless, 	it 	was 	still 	necessary 	to 	receive
evidence 	about 	these 	meetings 	in 	order 	to 	shed 	light 	on 	the
timely-raised 	disputes 	over 	the 	January 22 	meeting 	and 	the
subsequent 	suspension 	and 	demotion.
27

1. 	The 	January 	8 meeting.
It 	is 	undisputed 	that 	the 	Weingarten principle 	does 	not
attach 	to 	"run-of-the-mill 	shop 	floor 	conversations."
Weingarten 	v. 	U.S., 	supra, 	420 	U.S. 	at 	257-258, 	citing 	Quality
Mfg. 	Co. 	(1972) 	195 	NLRB 197, 	199 	[79 	LRRM 1269], 	enf. 	Garment
Workers 	v. 	Quality Mfg. 	Co. 	(1975) 	420 	U.S. 	276. 	Although 	the
January 	8 meeting 	was 	not 	foreshadowed 	by 	any 	supervisory
interaction 	indicating 	displeasure 	other 	than 	Flanders'
comments 	in December 	to LeFils, 	or 	by 	any 	warning 	at 	the 	outset
of 	the 	meeting, 	the 	interchange 	cannot 	be 	easily 	dismissed 	as 	a
passing 	"shop 	floor" 	exchange. 	LeFils 	was 	summoned 	from 	her
usual 	work 	site 	and 	was 	questioned 	in 	the 	presence 	of 	two
supervisors. 	The 	subject matter 	of 	the 	inquiry--unaccounted
work 	time--was 	inherently 	and 	potentially 	serious, 	even 	if 	no
threat 	against 	her 	was 	formally made. 	Given 	these
circumstances, 	the 	benefit 	of 	doubt 	should 	yield 	to 	the
possible 	benefit 	of 	assistance:
A single 	employee 	confronted 	by 	an 	employer
investigating 	whether 	certain 	conduct
deserves 	discipline 	may 	be 	too 	fearful 	or
inarticulate 	to 	relate 	accurately 	the
incident 	being 	investigated 	or 	too 	ignorant
to 	raise 	extenuating 	factors. 	(Id.,
420 	U.S. 	at 	262-263; 	also 	see 	U.S. 	Postal
Service 	(1981) 	256 	NLRB 	No. 	12
[107 	LRRM 	11 72] • )
Irrespective 	of 	the 	possibility of 	discipline, 	it 	is
conceded 	by LeFils 	that 	she made 	no 	request 	for 	union
assistance, 	the 	second 	prerequisite 	for 	invocation 	of 	the
28

Weingarten 	right. 	As 	CSEA 	itself 	observed, 	in 	its 	opening
brief 	(at 	p. 	5), 	citing 	that 	seminal 	decision,
••• 	the 	right 	[to 	a 	representative] 	arises
only 	in 	situations 	where 	the 	employee
requests 	union 	representation. 	In 	other
words, 	the 	employee 	may 	forego 	his 	guaranteed
right 	and, 	if 	he 	prefers, 	participate 	in 	an
interview 	unaccompanied 	by 	his 	union
representative. 	(Id., 	420 	U.S. 	at 	257.)
Finally, 	even 	if 	LeFils' 	direct 	testimony 	that 	a 	request
was 	made 	had 	not 	been 	retracted 	during 	cross-examination, 	it 	is
still 	plain 	that 	Walls 	did 	not 	pursue 	the 	meeting 	but 	told
LeFils 	that 	it 	would 	be 	rescheduled 	the 	next 	day 	to 	allow
LeFils 	to 	refer 	to 	her 	notes. 	In 	this 	regard, 	Walls' 	conduct
was 	also 	consistent 	with 	the Weingarten 	option 	of 	discontinuing
the 	meeting. 	(Id., 	420 	U.S. 	at 	258-259.)
2. 	The January 	9 meeting.
The 	factual 	pattern 	relevant 	to 	this 	meeting 	is 	similar 	to
events 	of 	January 	8. 	Granted, 	the 	January 	9 meeting may 	have
carried 	a 	more 	serious 	implication 	of 	potential 	discipline
because Walls 	was 	sufficiently 	concerned 	about 	the 	subject
matter 	to 	reschedule 	the 	conference. 	Nevertheless, 	Walls'
testimony 	has 	been 	credited 	that 	no 	request 	for 	union
assistance 	was 	made, 	either 	before 	the 	meeting, 	when 	LeFils 	was
told 	of 	the 	time, 	or, 	during 	the meeting. 	Further, 	even 	if 	the
request 	was 	made, 	Walls 	stopped 	the 	meeting 	once 	she 	understood
that LeFils 	could 	not 	answer 	the 	questions 	posed 	because
Haberkern 	possessed 	the 	personal 	notes 	containing 	the
information LeFils 	needed.
29

3. 	The January 	22 meeting.
Although 	LeFils 	(and Haberkern) 	were 	aware 	well 	in 	advance
of Walls' 	intention 	to 	have 	this 	meeting, 	first, 	on January 	20,
and 	then, 	after 	LeFils' 	cancellation, 	on January 	22, 	no 	union
effort 	was 	made 	to 	arrange 	for 	the 	presence 	of 	a
representative. 	And, 	once 	the 	meeting 	started, 	Le Fils, 	by 	her
own 	account, 	made 	no 	request 	for 	representation 	until 	after
Walls 	had 	asked 	LeFils 	to 	contact Haberkern 	to 	secure 	the
information 	necessary 	for 	a 	full 	response. 	Then, 	when LeFils
later 	stated 	she 	did 	not 	want 	to 	continue 	without 	her 	union
representative, 	Walls 	stopped 	the 	meeting 	and 	indicated, 	for 	a
third 	time, 	that 	her 	inquiry would 	be 	deferred 	and
rescheduled. 	Under 	these 	facts, 	no 	interference 	with LeFils'
rights 	can 	be 	found 	since 	Walls' 	postponement 	was 	more 	than 	she
was 	legally 	obligated 	to 	accord. 	Compare Coca-Cola Bottling
Co. 	(1977) 	227 	NLRB 	1276 	[94 	LRRM 1200].
Regarding 	all 	of 	these 	meetings, 	CSEA makes 	an 	underlying
argument 	that 	no 	meetings 	should 	have 	been 	called 	because
LeFils 	was 	deprived 	of 	an 	adequate 	opportunity 	to 	arrange 	in
advance 	to 	have 	her 	union 	representative 	present, 	and 	that 	the
desire 	for 	representation 	was 	already 	known 	to 	the University
in 	regard, 	at 	least, 	to 	the 	December 	10 	grievance. 	This
argument 	is 	unpersuasive. 	Walls' 	testimony 	has 	been 	credited
that 	advance 	notice 	was 	given 	for 	the 	January 9 	and 	January 	22
meetings •. Since 	the 	balance 	of 	the 	testimony 	about 	the
30

January 	8 meeting 	indicates 	that LeFils made 	no 	request 	for
representation 	during 	that 	conference, 	and 	there 	is 	no 	evidence
of 	intimidation 	or 	coercion 	inhibiting 	LeFils, 	it 	is 	unclear
how 	advance 	notice 	would 	have 	guarded 	a 	right 	never 	asserted 	at
the meeting 	by 	the 	employee 	who 	was 	the 	holder 	of 	the 	right.
Appalachian 	Power 	Co. 	(1980) 	253 	NLRB 	135 	[106 	LRRM 1041].
What 	CSEA 	appears 	to 	be 	arguing 	for, 	in 	effect, 	is 	a 	type 	of
labor 	relations 	analogue 	to 	the 	Miranda 	warning 	principle 	in
constitutional 	law 	governing 	police 	investigatory 	procedures.
(See 	Miranda 	v. 	State 	of Arizona 	(1966) 	384 	U.S. 	436.) 	No
authority 	is 	cited 	for 	this 	argument 	and, 	on 	its 	face, 	it 	is
beyond 	the 	mandate 	of 	Weingarten.
Indeed, 	upon examination 	of 	the 	series 	of 	meetings, 	it 	can
hardly 	be 	suggested 	that 	Walls 	disregarded 	LeFils'
representational 	rights. 	All 	three meetings 	were 	rescheduled,
providing 	sufficient 	opportunity 	for 	representation. 	No
express 	or 	even 	implied 	threat 	is 	placed 	at Walls' 	door
regarding 	LeFils' 	reliance 	upon 	union 	representation. 	In 	fact,
on January 	22, 	Walls 	was 	so 	solicitous 	of LeFils' 	position,
according 	to 	the 	charging 	party, 	that 	Walls 	asked 	LeFils 	to
leave 	the 	meeting 	in 	order 	to 	contact Haberkern 	so 	that 	the
merry-go-round 	of 	meetings 	might 	be 	brought 	to 	a 	conclusion.
If 	anything 	can 	be 	inferred 	from 	this 	chain 	of 	events, 	it 	is
that 	Haberkern 	and 	LeFils's 	purported 	utilization 	of 	the
principle 	of 	union 	assistance 	did 	not 	improve 	communication 	and
31

workplace 	stability, 	as 	intended 	under Weingarten 	(id.,
420 	U.S. 	at 	262-263), 	but, 	perhaps 	unintentionally, 	thwarted 	a
legitimate management 	inquiry.
C. 	The 	suspension 	issue.
The 	charging 	party 	asserts 	that 	the 	February 	suspension 	was
given 	in 	retaliation 	for 	LeFils' 	grievance 	filings 	and 	her
requests 	for 	union 	representation. 	CSEA 	argues 	that 	there 	is 	a
temporal 	nexus 	between 	these 	events 	and 	the 	subsequent
disciplinary 	action 	taken 	by 	the 	employer. 	It 	is 	also
contended 	that 	the University's 	claim 	of 	insubordination 	was
unfounded 	and 	therefore 	it 	could 	not 	be 	the 	basis 	for 	the
suspension 	decision.
There 	are, 	however, 	inherent 	limitations 	in 	the 	charging
party's 	case. 	First, 	CSEA presented 	little 	if 	any 	challenge 	to
the 	propriety of 	the 	employer's 	underlying 	inquiry 	about 	the
December-January 	work 	hours 	that 	was 	the 	subject 	of 	the 	later
meetings. 	Without 	this 	challenge, 	it 	cannot 	be 	argued 	that 	the
employer's 	actions 	were 	pretextual. 	Second, 	not 	only 	was 	there
an 	absence 	of 	evidence 	of 	anti-union 	statements, 	express 	or
implied, 	in 	the 	context 	of 	the meetings 	that 	occurred, 	but
CSEA's 	case-in-chief 	showed 	a 	deliberate, 	cautious 	approach 	by
Walls 	in 	her 	communications 	to LeFils 	that 	avoided 	an
implication 	of 	anti-union 	hostility.
Additionally, 	the 	University's 	defense 	provided 	sufficient
evidence 	of 	business 	justification 	for 	the 	suspension. 	The
32

warning 	letter 	on February 	3 followed 	three 	unsuccessful
meetings 	to 	secure 	from 	LeFils 	what 	she 	had 	promised 	to
provide--an 	accurate 	accounting 	of 	her 	time. 	The 	employer's
concern 	was 	corroborated 	by Walls' 	supervisory 	review 	of
production material, 	available 	to 	and 	examined 	by LeFils, 	as
well 	as 	by 	the 	initial 	complaints 	that 	Flanders 	confirmed. 	The
facile 	response 	given 	by LeFils 	(via Haberkern) 	on February 	10,
when 	a 	meeting 	with 	her 	union 	representative 	finally 	occurred,
gave Walls 	no more 	information 	than 	she 	had 	received 	from
LeFils 	on January 8, 	despite 	LeFils' 	assurance 	that 	more
precise 	information 	was 	obtainable 	and 	would 	be forthcoming.
Under 	these 	circumstances, 	the 	LeFils 	suspension 	was 	an
appropriate 	response.
D. 	The 	demotion 	issue.
The 	charging 	party's 	theory 	regarding 	this 	allegation 	is
that LeFils' 	eventual May 	1981 	demotion 	to 	regular 	operator
status 	was 	the 	final 	outgrowth 	of 	the 	retaliatory 	and
discriminatory 	course 	of 	employer 	conduct 	going 	back 	to LeFils'
earlier 	grievances, 	and 	her 	request 	for 	union 	assistance.
Again, 	there 	was 	no 	evidence, 	express 	or 	implied, 	of 	hostile
anti-union 	statements 	in 	the 	context 	of 	the 	demotion. 	However,
the 	CSEA 	claim 	draws 	inferential, 	circumstantial 	support 	from
several 	other 	factors.
Thus, 	for 	years, 	LeFils 	had 	received 	satisfactory
evaluations 	even 	though 	other 	testimony 	by Flanders 	indicated
33

many 	complaints 	had 	long 	existed. 	No 	warning 	letter 	preceded
the 	demotion, 	only 	an 	evaluation. 	Le Fils 	was 	penalized 	for,
among 	other 	complaints, 	insufficient machine 	time, 	while 	her
official 	job description 	stated 	that 	20 	percent 	time was 	in
order. 	Walls 	and 	other 	employer 	agents 	conceded 	that 	no
disciplinary 	action 	was 	contemplated 	before April 	1981, 	thereby
raising 	doubt 	about 	the 	seriousness 	of 	the 	alleged 	premises 	for
the 	adverse 	action.
But, 	despite 	the 	implications 	of 	these 	several 	factors, 	it
is 	concluded 	that 	sufficient 	evidence 	of 	business 	justification
supports 	the 	employer's 	demotion 	decision.
First, 	the 	University's 	evidence 	about 	the 	impact 	of 	the
computer 	operation 	merger 	on 	unit 	work, 	altering 	LeFils'
work-setting 	and 	standards 	of 	many 	years 	duration, 	provded 	a
reasonable 	explanation 	discounting 	weight 	that 	might 	otherwise
be 	given 	to LeFils' 	earlier 	satisfactory 	evaluation 	ratings.
LeFils 	herself 	admitted 	that 	the 	change 	was 	significant 	and
that 	she 	had 	to 	learn 	her 	job from 	"scratch." 	These 	admissions
lend 	credence 	to Walls' 	perspective 	that 	LeFils' 	problem was
accommodating 	herself 	to 	the 	new 	operation.
Second, 	the 	failure 	to 	provide 	a 	warning 	letter 	about 	a
possible 	demotion 	was 	adequately 	explained 	by 	the 	employer's
evidence 	that 	LeFils 	had 	been 	told 	when 	the 	February evaluation
was 	given 	that 	another 	evaluation 	would 	be 	forthcoming 	in 	about
three 	months. 	The 	February 	evaluation 	stated 	that 	her
34

performance 	needed 	improvement. 	It 	was 	reasonable 	to 	conclude
that 	a 	continuation 	of 	that 	performance, 	if 	assumed 	to 	be 	true,
could 	be 	considered 	unsatisfactory, 	as 	the 	April 	evaluation
declared. 	Since 	LeFils 	had 	ample 	notice 	of 	the 	deficiencies
relied 	upon, 	and 	her 	poor 	rating, 	she 	can 	hardly 	claim 	that 	she
was 	denied 	a 	fair 	opportunity 	to 	correct 	the 	problem. 	Even 	if
CSEA 	had 	shown, 	which 	it 	did 	not, 	that 	customary University
practice 	was 	to 	provide 	a 	warning 	letter 	before 	similar
corrective 	action, 	regardless 	of 	successive 	adverse
evaluations, 	it 	would 	unduly 	elevate 	form 	over 	substance 	to
argue 	that 	the 	failure 	to 	do 	so 	in 	this 	case 	conclusively
proved 	anti-union 	animus.
Third, 	the 	apparent 	contradiction 	between 	the 	claim 	that
LeFils 	had 	insufficient machine 	time, 	one 	of 	the 	bases 	for 	her
demotion, 	and 	the 	job description 	requirement 	of 	20 	percent 	for
that 	duty, 	was 	explained 	by Walls' 	testimony 	that 	the 	20
percent 	figure 	was 	a 	rough 	estimate 	for 	minimal 	time on 	days
when 	other 	duties 	were 	more 	pressing. 	Le Fils 	conceded 	that
under 	the 	old 	system 	she 	worked 	70 	percent 	to 	80 	percent
machine 	time, 	and 	that Walls 	gave 	clear 	verbal 	directions 	that
four 	to 	five 	hours 	of 	machine 	time 	was 	still 	the 	normal
requirement 	when 	the 	computer 	operation 	was 	revised. 	CSEA's
contention 	that 	this 	was 	too 	much 	time 	to 	require 	was 	not
supported 	by 	documentary 	evidence. 	Instead, 	the 	evidence
showed 	that 	LeFils 	was 	able 	to 	produce, 	on 	occasion, 	that
amount 	of 	machine 	time.
35

Further, 	the 	argument 	that 	LeFils 	suffered 	disparate
treatment 	on 	machine 	time measurement 	was 	not 	clearly 	supported
by 	the 	documentary 	evidence 	elicited 	by CSEA 	and 	produced 	after
the 	close 	of 	the 	hearing. 	Those 	figures, 	reflecting 	the 	work
activity 	of 	another 	lead 	key 	entry operator 	in 	a 	comparable
period 	of 	time, 	show 	that 	the 	other 	operator 	performed 	at 	least
at LeFils' 	level, 	if 	not 	better. 	In 	any 	event, 	the
University's 	evidence 	effectively 	arguing 	against 	the 	clear
comparability 	of 	the 	work 	of 	these 	two 	employees 	was 	not
undermined 	by 	any CSEA 	rebuttal.
Fourth, 	the 	absence 	of 	disciplinary 	intent 	prior 	to
preparation 	of 	the 	April 	evaluation 	does 	not 	support 	the 	theory
of 	discriminatory 	motive. 	Rather, 	the 	evidence 	can 	be 	viewed
as 	demonstrating 	that 	Walls 	kept 	an 	open 	mind 	about 	LeFils'
performance 	after 	the 	adverse 	February 	evaluation, 	and 	had 	not
predetermined 	an 	ultimate 	outcome.
Finally, 	there 	was 	substantial, 	largely 	unrebutted 	evidence
supporting 	the 	criteria 	used 	to 	arrive 	at 	the 	demotion
decision. 	Those 	criteria 	were 	explained 	at 	the 	hearing,
consistent 	with 	the 	notice 	given 	to 	LeFils, 	to 	include
insufficient machine 	time, 	unprofessional 	disruptive 	behavior,
problems 	communicating 	work 	information 	and 	training 	operators,
difficulty 	with 	user 	contacts, 	and 	improper 	sorting 	and
assignment 	of 	work. 	In 	addition 	to 	the 	machine 	time 	issue
already 	discussed, 	Walls 	credibly 	testified 	on 	the 	basis 	of
36

personal 	observation 	about 	several 	of 	these 	factors. 	Walls
also 	reported 	corroborating 	hearsay 	comments 	of 	LeFils'
co-workers. 	Flanders, 	too, 	provided 	persuasive 	substantiating
evidence. 	CSEA, 	for 	its 	part, 	made 	a 	minimal 	effort 	to
challenge 	the 	accusations. 	It 	failed 	to 	call 	other 	employee
witnesses, 	and 	it 	conceded 	some 	of 	the 	claims 	made 	(for
example, 	the 	earlier 	complaint 	about 	a 	low 	keystroke 	average
and 	employee 	confusion 	over 	LeFils' 	instructions). 	Also, 	when
LeFils 	was 	called 	on 	rebuttal, 	CSEA 	neglected 	to 	adduce 	crucial
testimony 	relevant 	to 	the 	business 	justification 	defense 	the
University 	had 	just 	concluded.
E. 	Conclusion.
Through 	the 	course 	of 	the 	formal 	hearing, 	and 	in 	its 	brief,
CSEA wove 	a 	claim 	that 	the University's 	actions 	against LeFils
were 	not 	discrete, 	separate 	instances, 	but 	were 	part 	of 	a
larger 	chain 	of 	events 	reaching 	back 	to 	the 	December 	1980
dispute 	and 	designed 	to 	fire 	her 	or, 	at 	least, 	to 	remove 	her
from 	the 	lead 	operator 	position. 	In 	accord 	with 	this 	view 	is
Haberkern's January 	13 	letter 	which 	mixes 	the 	January
accounting 	issue 	with 	the 	previous 	December 	memo 	dispute. 	CSEA
also 	suggests 	that 	LeFils' 	January grievance 	challenging 	the
December 	memo 	was 	successful 	because 	the 	University 	was 	trying
to 	clear 	up 	its 	case 	in preparation 	for 	later 	retaliation.
Similarly, 	CSEA 	claims 	that 	the 	February 	3 warning 	letter 	was
actually 	intended 	to 	be 	a 	warning 	for 	the 	evential 	demotion
37

but, 	for 	reasons 	unexplained, 	that 	use 	was 	abandoned. 	Although
this 	approach 	has 	a 	convenient 	neatness, 	it 	is 	that 	in
appearance 	only. 	Little 	evidence 	supported 	the 	inferences
drawn 	by 	CSEA 	in 	this 	regard 	other 	than Haberkern's 	assertions
as 	a 	witness 	that 	the University 	was 	advancing 	a 	factual
construction 	of 	separate 	incidents 	that 	was 	inconsistent 	with
positions 	previously 	taken. 	Set 	against 	this 	claim 	are 	several
points.
Neither 	LeFils 	nor 	Haberkern 	provided 	any 	credible 	evidence
that University 	officials 	were 	blending 	the 	events 	at 	issue.
Other 	evidence, 	testimonial 	as 	well 	as 	documentary, 	supported
the 	contrary 	view 	that University 	agents 	carefully 	and
scrupulously 	avoided 	the 	cross-fertilization 	inferred 	by 	CSEA.
Thus, 	the 	January meetings 	were 	expressly 	separated 	from 	the
pending December 	memo 	grievance. 	The 	subsequent 	warning 	letter
and 	suspension 	for 	insubordination 	were 	divorced 	from 	the
contemporaneous 	evaluation 	overview 	of 	LeFils' 	performance.
The 	demotion 	also made 	no 	reference 	to 	or 	reliance 	upon 	the
events 	leading 	up 	to 	the 	suspension.
Indeed, 	had 	the University 	been 	less 	careful 	in 	taking
steps 	that 	could 	have 	been misinterpreted--for 	example, 	by
tying 	the 	January 	accounting 	exchanges 	into 	the 	later
evaluations 	and 	demotion--it 	is 	reasonable 	to 	assume 	that 	CSEA
would 	reverse 	field 	and 	argue 	that 	retaliatory 	intent 	was
evident 	because 	the 	University had 	intertwined 	the 	earlier
38

representation 	issue 	with 	those 	subsequent 	occurances. 	In 	any
event, 	each 	of 	the 	University's 	actions 	were 	fully 	examined 	on
the 	merits 	and, 	in 	that 	respect, 	CSEA was 	unable 	to 	prevail 	on
any 	one 	issue, 	much 	less 	on 	the 	type 	of 	conspiracy 	theory
described 	above.
PROPOSED ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	the 	complaint 	against 	the
Regents 	of 	the 	University 	of 	California 	is 	hereby 	DISMISSED.
Pursuant 	to 	California Administrative 	Code, 	title 	8, 	part
III, 	section 	32305, 	this Proposed Decision 	and Order 	shall
become 	final 	on 	May 	17, 	1982 	, 	unless 	a 	party 	files 	a 	timely
statement 	of 	exceptions. 	See California Administrative 	Code
title 	8, 	part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	actually 	received 	by 	the 	executive
assistant 	to 	the 	Board 	at 	the 	headquarters 	office 	of 	the 	Public
Employment Relations Board 	in Sacramento 	before 	the 	close 	of
business 	(5:00 	p.m.) 	on 	May 	17, 	1982 	, 	in 	order 	to 	be 	timely
filed. 	See California Administrative Code, 	title 	8, 	part 	III,
section 	32135. 	Any 	statement 	of 	exceptions 	and 	supporting
brief 	must 	be 	served 	concurrently 	with 	its 	filing 	upon 	each
party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be 	filed 	with
the 	Board 	itself. 	See California Administrative 	Code, 	title 	8,
part 	III, 	sections 	32300 	and 	32305 	as 	amended.
Dated: 	April 	27,_1982
Administrative Law Judge
39