State of California (Department of the Youth Authority) (PERB 0432S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
DAVID H. 	GOGGIN,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF THE YOUTH AUTHORITY),
Respondent.
Case No. 	S-CE-118-S
PERB Decision No. 	432-S
November 15, 	1984
Appearances; 	McMaster 	& Lobel, 	by Loren E. McMaster, 	Attorney
for 	David H. 	Goggin; 	Jeffrey L. 	Gunther 	and Juan Perez 	for
State of California 	(Department of 	the Youth Authority) .
Before Hesse, 	Chairperson; 	Jaeger and Morgenstern, Members.
DECISION
JAEGER, 	Member: 	David H. 	Goggin appeals the attached
dismissal 	of 	his 	charge 	that he was 	terminated 	by 	the 	State 	of
California 	(Department 	of 	the Youth Authority) 	(CYA) 	because 	of
his 	activities 	on behalf 	of 	Teamsters 	Local 	960 	and 	the
California Youth Counselors Association 	(CYCA). 	After 	a
hearing, 	the 	administrative 	law judge 	(ALJ) 	concluded 	that
Goggin had 	failed 	to 	establish 	a prima 	facie case.
Goggin has 	filed 	a considerable 	number 	of 	exceptions 	to 	the
findings 	and conclusions 	of 	the 	administrative 	law judge.
Except 	as modified herein, 	the Board 	adopts 	the ALJ's 	findings
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of 	fact. 	Goggin's exceptions may be 	summarized: 	He 	complains
that 	the ALJ's 	finding 	that his 	absence 	after August 	4 was 	not
authorized 	is 	incorrect. 	He 	points 	out 	that his 	form 	634
showed 	him on 	leave 	from August 	3 	to August 	13 	and 	on paid
vacation 	from August 	14 	to August 	19. 	He 	claims 	that 	CYA
witness 	Jane Nye 	testified 	that 	the 	"L" 	on 	the 	form for 	the
period August 	20 	to August 	31 	represents 	informal 	leave. 	He
further 	argues 	that his doctor 	informed his 	supervisor, 	Pete
Rios, 	on August 	3 	that he would 	recommend 	leave 	for 	Goggin
because 	he 	could 	not 	function 	in his present 	state 	of mind.
Goggin disputes 	the 	finding 	that 	CYA made 	a diligent 	effort
to 	find 	him while he 	was 	on 	leave. 	He 	asserts 	that Andrew
Jackson, 	his 	team leader, 	and Rios made 	no 	effort 	to 	find him
after August 	1, 	and 	that 	Rios did 	not 	tell him that he had 	been
looking 	for 	him or 	order 	him 	to 	report 	back 	at 	any particular
time. 	Rios' 	notes 	used 	at 	the 	State 	Personnel Board 	hearing 	do
not 	indicate 	that 	he 	contacted 	the 	doctor 	and 	informed 	him 	of
the 	attempt 	to 	find Goggin. 	According 	to Goggin, 	Rios met with
him 	on August 	1 	and 	had 	no 	need 	to 	try 	to 	find 	him only 	two
days later.
Goggin 	objects 	to 	the 	ALJ's 	adverse 	credibility 	findings
concerning 	his 	own witnesses. 	The 	testimony of 	neither was
impeached 	and 	support of Goggin 	is 	not 	a proper 	basis 	for
making 	such 	findings.
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He 	challenges 	the 	credibility 	of 	Institutions 	Chief
Ron Lopez1 assertion 	that 	because 	of Goggin's 	union activities,
he 	was 	only concerned with 	"covering 	all 	the 	bases" 	in dealing
with 	his 	absence. 	When Lopez 	was 	asked 	if he decided 	on the
absence-without-leave 	transaction 	before 	he 	called 	the 	doctor,
he answered, 	"No." 	But, 	Goggin points out, 	the termination
notice 	was 	issued 	the day 	before 	Lopez 	called 	the doctor, 	and
Mary Calhoun, 	assistant 	superintendent at Nelles, 	had 	already
received Lopez' 	approval for 	this action.
Goggin claims 	he 	was 	subject 	to disparate 	treatment 	and
refers 	to Nye's 	testimony 	that 	after 	18 years 	of 	service 	in 	the
CYA, 	she 	recalled 	no other 	employee 	terminated 	for 	being AWOL,
and 	that 	it 	was 	CYA practice 	to place 	employees 	on extended
leave 	if 	there 	was medical 	substantiation 	of 	their 	illness.
To 	support 	the 	claim 	that 	CYA departed 	from 	established
procedures, 	Goggin 	refers 	to a provision 	in the Department
manual 	for 	leaves 	of 	absence 	in cases 	of 	compensable 	illness.
He 	also 	argues 	that 	CYA has 	offered 	inconsistent
explanations 	for 	its 	action. 	He 	cites 	Lopez1 testimony 	that
the 	termination was 	for 	an abnormally 	long AWOL, 	but points 	out
that 	his 	termination 	took place 	as 	soon 	as 	possible 	after 	the
alleged 	5-day period 	of 	unreported 	absence. 	He 	contends 	that
Lopez' 	explanation 	that 	his 	concern 	was 	with 	filling 	the
vacancy 	if 	Goggin 	did 	not 	return contradicted 	his 	testimony
before 	the 	Personnel 	Board 	that 	he 	was 	contemplating 	taking
disciplinary 	action 	against Goggin.
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Goggin 	argues 	that 	CYA's claim 	that 	he 	was 	given 	ample
opportunity 	to 	request 	an 	extension 	of 	his 	sick 	leave 	is
irrelevant. 	He 	claims 	that CYA's practice 	is 	to place
employees 	on 	leave 	automatically when 	it 	is 	aware 	of 	the
illness. 	He 	asserts 	that 	the 	Personnel Board does 	not 	require
that 	such 	requests 	be made, 	that 	it discourages 	the 	use of AWOL
action, 	and 	encourages granting 	of 	sick 	leave where 	the 	illness
is 	known to the employer.
Goggin 	raises 	broad 	objections 	to 	the 	ALJ's 	findings
concerning 	CYA's 	knowledge 	of 	his protected 	activities,
pointing 	to 	the 	nature 	of 	his 	accusations 	at 	Paso Robles 	School
when Lopez 	was 	its 	superintendent, 	the 	testimony of Nelles'
Superintendent 	Kason 	and 	the 	circulation 	of 	Teamster
newsletters 	featuring 	Goggin's 	activities 	and photograph.
Finally, 	Goggin 	argues 	that CYA's 	use 	of 	the 	"automatic
resignation," 	a method 	of 	termination 	struck down 	by 	the
courts, 	demonstrates 	the Department's desire to get 	rid of him.
DISCUSSION
Goggin 	requested 	oral 	argument 	contending 	that 	the
voluminous 	record 	and great 	number 	of 	exceptions 	made 	such
argument 	necessary 	in order 	for 	the Board 	to 	"ferret [ing] 	out
the critical pieces of evidence 	. 	. 	. 	." 	The Board, 	concluding
that 	oral argument 	is 	unnecessary, 	denies 	the 	request.
The 	preliminary 	issue 	to 	be decided 	is 	whether 	Goggin has
furnished 	sufficient 	evidence 	to 	establish 	that 	but 	for 	his
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participation 	in 	activities 	protected 	by 	the 	State 	Employer
Employee Relations Act 	(SEERA),l he would not have been
terminated 	as 	an 	employee 	of 	the 	Department 	of 	the 	Youth
Authority. 	Monsoor 	v. 	State of California 	(7/28/82) 	PERB
Decision No. 	228-S 	established 	that 	the 	party charging 	unlawful
reprisal has 	the 	burden 	of proving 	that he 	or 	she was 	engaged
in 	activities protected 	by SEERA, 	that 	the 	employer 	had
knowledge 	of 	those 	activities and, 	in taking 	the action 	it did,
was 	motivated 	by 	that 	participation. 2
At 	the 	outset, 	the 	Board 	finds 	that 	Goggin has met 	the
first 	of 	these 	obligations 	by his 	recitation of his 	activities
as 	union 	organizer 	and grievance 	representative 	from 	1977 	to
1979, 	on behalf 	of CYCA until 	January 1979, 	and 	for the
Teamster's 	local 	from January 	1, 	1979. 	That 	he may have 	acted
at certain times 	in 	the 	name 	of 	the CYCA after 	it had 	retired
from 	labor 	relations 	activities 	is 	immaterial. 	At 	the 	least,
Goggin was 	attempting 	to 	organize 	the 	CYCA members 	to 	support
the Teamsters' 	certification effort. 	Further, 	Goggin acted 	in
the 	employment-relations 	interests 	of 	all 	the employees 	of 	the
school 	at 	a 	time when 	there was 	no 	exclusive
representative.333
1Codified 	at Government 	Code 	section 	3512 et. 	seq.
2See 	also Novato Unified 	School 	District 	(4/30/82) 	PERB
Decision No. 	210, rev. den. 	(1/10/83) 	1 Civ. 	7, No. AO17764.
3Monsoor 	v. 	State of 	California, 	supra; 	also 	see
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As 	to the matter 	of 	employer 	knowledge, 	we 	are 	not
completely in 	accord 	with 	the 	administrative ALJ's 	evaluation of
the 	facts. 	The ALJ finds 	no evidence 	that 	Rios 	knew of
Goggin's 	activities 	"since 	1979." 	In light of 	the 	nature of
Goggin's activities both 	at Paso Robles, 	where Rios was a
supervisor 	and 	in close communication with Lopez, 	and 	at
Nelles, 	where he was Goggin's supervisor, 	and 	the circulation
of Teamster material, 	it 	is more 	than difficult 	to believe 	that
Rios was 	not 	aware 	of Goggin's 	activities during 	1978 	and 	1979.
Lopez 	concedes 	that he 	knew of Goggin's 	actions 	both 	at
Paso Robles 	and Nelles. 	Mary Calhoun, 	assistant 	superintendent
at Nelles School, 	testified 	that 	she was 	unaware of Goggin's
activities. 	Goggin 	files 	no 	exception 	to 	the ALJ's 	finding 	to
this effect.
The 	question 	raised 	by Goggin 	is 	whether 	the 	ALJ has
ignored 	the 	implication 	of 	animus present 	in 	these 	alleged
discrepancies 	in 	the 	testimony. 	Although 	the 	false 	denial 	of
knowledge 	of 	a 	union 	activist's 	conduct may certainly 	raise 	the
inference 	that 	the 	employer 	is 	attempting 	to conceal 	the 	true
reason 	for 	its conduct, 	we do not 	find 	the 	testimony here 	to be
of 	that character. 	It 	is 	not 	unreasonable 	to conclude 	that 	the
witnesses 	tended 	to play down 	their 	knowledge 	of 	Goggin's
Morris, 	The Developing Labor Law, 	2nd Edition, 	Ch. 	6,
pp. 142-143.
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activities. 	But, 	we do not find 	this 	in 	itself 	a sufficient
basis 	for 	drawing 	an 	inference 	of 	unlawful motivation.
Goggin points 	to 	other 	purported 	discrepancies 	in 	the
Department's case which, 	he argues, 	permit an 	inference of
unlawful motivation 	to be drawn. 	He 	asserts 	that CYA's claim
that 	it made diligent 	effort 	to 	locate him 	is 	false,
demonstrating 	a 	lack 	of 	good 	faith 	in 	justifying 	his
termination as a voluntary 	resignation. 	It 	is 	true 	that 	the
pertinent 	evidence 	is mixed. 	Jackson did 	try 	to 	reach 	Goggin
by phone 	to 	find 	out when he 	expected 	to 	return 	to work. 	Being
informed 	that 	the 	phone 	was 	disconnected, 	he 	visited 	Goggin's
residence. 	Finding 	no response to his 	knock, 	he 	inquired of
the 	landlady 	and 	was 	told Goggin had moved. 	But, 	he 	did 	not
ask 	if Goggin had 	left 	a 	forwarding 	address 	or phone 	number 	and
made 	no 	further 	effort 	to 	locate Goggin 	at 	that 	time 	or 	later.
Rios 	limited 	himself 	to 	asking 	another 	worker 	to 	talk 	to
Goggin and 	tell him to call 	the 	office. 	Lopez 	called Goggin's
doctor 	to determine 	when Goggin would 	return 	to work. 	Upon
being 	told 	that 	the 	doctor 	was 	also 	trying 	to 	find 	Goggin, 	he
made 	no 	further 	effort 	to 	locate him.
However, 	we conclude that 	the degree 	of diligence 	exercised
by CYA is 	irrelevant. 	The Board 	finds 	in the 	facts 	before 	it
no 	obligation 	on 	CYA's part 	to make 	any 	special 	effort 	to
locate Goggin. 	Nor 	do we 	read 	into 	CYA's 	testimony 	any 	belief
on 	its part 	that proof 	of 	"diligent 	effort" 	to 	locate Goggin
was a necessary part 	of 	its defense. 	To 	the contrary, 	CYA
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consistently maintained 	that 	Goggin 	had 	the 	burden 	of
contacting his 	employer. 	It 	is 	the 	administrative ALJ who
characterized 	the 	Department's 	effort 	in 	the manner 	Goggin
finds 	objectionable. 	Thus, 	sustaining Goggin's exception 	to
his 	finding 	would 	have 	no 	impact 	on 	the 	result 	we 	reach.
In 	support 	of 	his claim that he 	was 	treated 	differently
than others 	in 	similar circumstances, 	Goggin misreads Nye's
total 	testimony. 	Although 	she did 	say that 	she was 	aware 	of 	no
instance 	in her 	eighteen years 	with CYA of 	an 	ill 	employee
being 	terminated 	as 	absent without 	leave, 	she 	did 	not 	say 	that
any 	AWOL 	employee 	had 	been 	automatically 	placed 	on 	approved
leave, 	as Goggin would have 	us 	interpret her 	statement. 	She
did 	testify 	that 	the 	departmental 	policy was 	to 	require 	the
employee 	to 	submit 	a 	written 	request 	for 	leave 	together 	with
medical 	substantiation. 	There 	is 	nothing 	inconsistent 	in 	these
two 	aspects 	of 	her 	testimony. 	Her 	explanation of 	the 	symbol
"L" 	as merely denoting 	"out 	of 	time" 	stands 	uncontroverted 	as
does her 	explanation of 	the 	reason 	the 	form 	634 was 	filed 	in
October.
CO
•No persuasive 	evidence 	of 	inconsistencies 	in CYA's 	conduct,
or 	explanations 	for 	its actions, 	appear 	in the 	record.
Throughout 	the course of 	these events, 	it was Goggin's own
conduct 	- his 	failure 	to report, 	his continued 	unexplained
absence, 	his 	unreported move 	to 	northern California 	- 	that was
the 	subject 	of 	management 	discussion 	and 	the 	precipitating
cause 	of 	his 	termination. 	That he 	was 	terminated 	for 	absence
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without 	leave 	rather 	than 	as 	a disciplinary 	matter 	may 	have
been a matter 	of 	expediency. 	At any 	rate, 	it was 	an option
available 	to 	the 	Department 	and 	in 	no way 	inconsistent 	with
Lopez' dual 	interest 	in disciplinary 	action 	against 	Goggin 	and
his 	concern 	for 	filling 	the 	vacancy 	caused 	by 	Goggin's
absence. 4
The Goggin 	letter 	to Jackson, 	which 	was 	sent 	before 	the
Department's actions took place and, 	of course, 	before the
charge 	was 	filed, 	but 	which 	the 	ALJ characterized 	as
self-serving, 	does 	not 	support 	the 	conclusion 	that 	Jackson's
alleged 	animus 	caused 	Goggin's 	termination.
Accordingly, 	the Board concludes 	that 	charging 	party has
failed 	to prove 	that his 	termination was 	motivated 	by 	his
participation 	in 	activities protected 	by 	SEERA.
ORDER
Based 	on 	the 	entire 	record, 	the Board ORDERS 	that 	the
unfair 	practice 	charge 	filed 	by David 	H. 	Goggin 	against 	the
State of 	California, 	(Department of 	the Youth Authority) 	is
DISMISSED.
Chairperson 	Hesse 	and 	Member 	Morgenstern 	joined 	in 	this
Decision.
4Accepting, 	arguendo, 	that 	the ALJ's credibility 	findings
regarding Goggin's witnesses 	is 	unjustified, 	the Board 	finds 	in
their 	testimony 	no 	substantiation 	of 	unlawful motive 	by 	the
Department. 	Similarly, 	the 	fact 	that 	"automatic 	resignations"
subsequently met 	with 	court 	disapproval 	does 	not 	prove 	that
CYA's 	use 	of 	that procedure 	was motivated 	by 	reasons 	condemned
by 	the Act.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DAVID H. 	GOGGIN,
Charging 	Party,
v.
STATE 	OF CALIFORNIA
(DEPARTMENT OF THE YOUTH AUTHORITY),
Respondent.
)
) 	Unfair 	Practice 	Charge
Case No. 	S-CE-118-S
PROPOSED DECISION
(10/20/83)
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Appearances; 	Loren E. 	McMaster, Attorney 	(McMaster 	& Lobel) 	for
David H. 	Goggin; 	Jeffrey L. 	Gunther 	and Juan Perez 	(Department of
Personnel Administration) 	for 	State 	of 	California 	(Department of
the Youth Authority).
Before William P. 	Smith, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On March 	22, 	1982, 	David H. 	Goggin 	(hereafter Goggin or
Charging Party) 	filed 	unfair 	practice 	charge No. 	S-CE-118-S
against 	the 	State 	of California 	(Department 	of 	the 	Youth
Authority), 	(hereafter Youth Authority, DYA or Respondent).
The 	charge 	alleges 	that 	the 	Charging 	Party 	was wrongfully
terminated 	because 	of 	his 	union 	activity 	in violation of
section 	3519(a) 	of 	the State Employer-Employee Relations Act
(hereafter 	SEERA or 	Act)-1
1Government 	Code 	section 	3512 	et 	seq. 	All 	references
herein 	are 	to 	the Government 	Code 	unless 	otherwise 	noted.
Government Code 	section 3519(a) 	provides 	that 	it 	shall be
unlawful 	for 	the 	state 	to:
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PERB 	issued 	a complaint on May 	5, 	1982. 	The matter 	was 	set
for 	informal conference on June 	17, 	1982. 	The 	Respondent also
filed 	its 	answer 	on June 	17, 	1982. 	The Respondent 	admitted
Goggin was 	terminated 	but 	denied 	it was 	for 	union 	activity. 	It
alleged 	that 	the 	termination was 	for 	absence 	without 	leave 	for
in excess 	of 	five 	consecutive days. 	His 	termination was 	deemed
a voluntary resignation. 	On June 	28, 	1982, 	Charging Party
filed 	a Motion 	to Amend 	and 	an Amendment 	to 	the 	unfair 	labor
practice 	charge. 	By stipulation of 	the 	parties 	at 	the 	formal
hearing, 	the 	proposed 	amendment was 	accepted 	and was
incorporated 	in 	the 	complaint. 	The 	answer 	was 	deemed 	amended
to 	deny 	each 	and 	every 	allegation 	contained 	in 	the 	amended
charge. 	A request 	to 	set 	the 	hearing 	was 	received
July 15, 	1982. 	The matter 	was 	scheduled 	to be 	heard on
September 	1, 	1982. 	The 	case 	was 	taken off 	calendar 	at 	the
request 	of 	Respondent 	with 	concurrence 	of 	Charging 	Party
because 	of 	settlement 	possibilities. 	A pre-hearing 	conference
was 	held January 	19, 	1983. 	The 	formal 	hearing 	was 	conducted 	on
January 24-26, 1983.
At 	the 	commencement 	of 	the 	hearing 	Respondent 	made 	various
motions 	to dismiss 	the 	complaint. 	These were overruled 	and 	the
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.
N
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Charging 	Party was 	allowed 	to proceed 	with his 	case 	in chief.
At 	the 	conclusion 	thereof, 	the 	Respondent 	moved 	to dismiss 	for
failure 	of 	the 	evidence 	to present 	a prima 	facie 	case. 	The
administrative 	law 	judge 	allowed 	the 	parties 	to 	file 	briefs 	on
the 	motion after 	receipt of 	the 	transcript. 	Briefs 	were 	due
and 	filed on March 	16, 	1983. 	Oral argument on 	the 	motion was
heard on March 	21, 	1983. 	The motion was 	denied. 	The 	hearing
was 	resumed on March 	28, 	1983, 	to allow the parties 	to present
any 	additional 	related 	evidence 	to 	the 	substantive 	case.
Briefs 	and 	reply 	briefs 	were 	submitted 	between April 	22, 	1983,
and June 	6, 	1983. 	The case was submitted on June 	6, 	1983.
STATEMENT_OF_FACTS
The 	Respondent 	is 	a 	state 	employer 	as 	defined 	in Government
Code 	section 	3513(i). 	David 	Goggin was 	a 	state 	employee 	as
defined 	in section 	3513(c). 	The Teamsters Local 960 	is 	an
employee organization as defined 	by section 	3513(a). 	The
status 	of 	the 	California Youth 	Counselors 	Association 	as 	an
employee 	organization 	is 	described 	herein.
A. 	Termination of 	Goggin
Goggin was 	employed 	by 	the 	DYA as 	a youth 	counselor 	at 	the
Fred C. 	Nelles School in Whittier, 	California. 	Samuel Kason
was 	the 	superintendent 	at Nelles 	School. 	Mary Ruth Calhoun was
the 	assistant 	superintendent. 	Pete 	Rios 	and Andrew Jackson
were 	Goggin's 	direct 	supervisors.
33

Goggin worked 	at Nelles School 	until June 	20, 	1979. 	On
June 	23, 	1979, 	Goggin requested 	and was granted 	sick 	leave.
Goggin 	was 	entitled 	to 	full pay.
On 	approximately July 	17, 	Goggin 	furnished 	a 	note 	from his
physician 	stating 	that 	he 	was 	unable 	to 	continue 	working 	as 	a
youth 	counselor 	because 	of 	a psychiatric 	condition. 	On
August 	1 he presented 	a 	request 	from his 	doctor 	that 	he 	be
given 	extended 	sick 	leave 	until August 	4, 	1979. 	Pursuant 	to
the 	request, 	the 	authorized 	sick 	leave was extended 	to
August 	4. 	Goggin continued 	to 	remain absent 	after August 	4.
His 	absence 	was 	without 	authorization 	following 	that 	date.
Soon 	thereafter Goggin's supervisors, 	Jackson and Rios, 	made 	a
diligent 	but 	unsuccessful 	effort 	to contact him. 	Goggin 	had
failed 	to 	notify 	the 	employer's 	personnel 	office 	of 	his 	current
mailing 	address or, telephone 	number. 	Management 	attempted 	to
reach 	Goggin 	through 	his 	physician. 	Rios 	reached 	the 	physician
who 	indicated 	that 	the 	leave 	should 	be 	extended 	to August 	17.
No written 	request 	was 	made 	regarding 	this 	extension.
On August 	17, 	Goggin exhausted his 	last day of paid
vacation 	and/or 	authorized 	sick 	leave
On August 	27, 	1979, 	Rios mailed a notice of 	termination for
absence without 	leave 	to Goggin 	at 	his 	last 	known 	address. 	The
letter 	was 	returned 	unopened 	to 	the 	school. 	Subsequently,
school administrators learned 	that 	Goggin 	had 	moved 	to 	a 	new
address 	in Norwalk. 	Jane Nye, 	personnel officer, 	then sent the
4

notice 	of 	termination 	to 	the Norwalk 	address 	on September 	6.
Due 	to 	a 	technical 	error, 	a 	revised 	notice was mailed on
September 	7. 	Both 	notices 	were 	issued 	under 	the 	signature 	of
Mary Ruth 	Calhoun. 	Both 	letters 	were 	forwarded 	to Goggin 	at 	a
Susanville 	address. 	He 	received 	the 	notices 	about
September 	13, 	1979. 	The notices 	indicated 	that Goggin's
employment 	was 	terminated 	pursuant 	to 	the 	authority of
Government 	Code 	section 	19503. 	That 	section creates 	a
presumption 	that 	an 	employee 	who 	is 	absent 	without 	leave 	for
five 	consecutive 	workdays 	has 	resigned. 	The 	presumption may 	be
overcome 	by 	the 	employee 	giving 	a 	satisfactory 	explanation of
his 	absence.
Goggin 	filed 	a written 	request 	for 	a 	further 	extension 	of
his 	leave 	on October 	1, 	1979. 	The DYA considered 	him 	to have
been 	terminated 	by 	that 	time.
B. 	Review of 	the Termination 	by 	the State Personnel Board
Goggin 	appealed 	his 	termination 	(deemed 	an 	"automatic
resignation" 	by 	section 	19503) 	to the State Personnel Board
(hereafter SPB). 	Pursuant to SPB 	rules of procedure, 	a hearing
was 	held on his 	appeal on April 28 	and 	29, 	1980. 	The 	hearing
officer's 	proposed 	decision was 	adopted 	by 	the 	SPB 	as 	its
decision 	(Case No. 	11311) 	on August 7, 	1980.
Goggin 	sought 	a 	review of 	this 	decision by a 	petition 	for
peremptory writ 	in 	the 	Superior 	Court 	of 	Los 	Angeles 	County
(Case No. 	C-359690). 	Judgment denying 	the writ was entered on
5

January 	29, 	1982. 	An appeal from this 	judgment has been taken
to 	the 	Second 	District Court of Appeal. 	The 	appeal 	is
currently 	pending.
The 	SPB 	found 	that 	the 	automatic 	resignation, 	effective
August 	19, 	1979, 	and Goggin's 	appeal therefore complied with
the 	procedural 	requirements 	of 	the 	State 	Civil Service Act.
Based 	on 	the 	record 	it 	concluded 	that 	the 	termination 	under
section 	19503 	was 	appropriate 	because 	the 	DYA was 	reasonable 	in
assuming 	that 	appellant 	had 	abandoned his position. 	It 	also
found 	that 	the 	DYA complied 	with 	the 	provisions 	of Personnel
Transactions Manual 	section 	530.2 	as 	to 	notice 	to 	the 	employee
of 	the 	consequences 	of 	failure 	to provide 	substantiation 	of
illness.
In 	the 	proceeding 	before 	the 	SPB, 	Goggin claimed 	that 	the
action was 	taken as 	a 	reprisal because of his prior 	union
activities- 	The 	SPB 	found 	that 	this 	contention was 	not
established 	by 	the 	evidence 	presented. 	It 	specifically 	found
that 	there 	was 	no 	evidence 	that 	Goggin would 	have 	been 	denied 	a
medical 	leave 	if 	he 	had 	requested 	one. 	It 	found 	that 	the DYA
"was 	lenient" 	in authorizing 	appellant's 	leave 	after 	the 	fact
and 	during 	periods 	when his 	supervisors 	did 	not 	know where 	he
was.
Goggin 	also 	argued 	that 	he 	should 	have 	received 	a warning
notice prior 	to his 	termination 	under 	section 	19503. 	The SPB
found 	that 	a prior 	notice 	is 	not 	required 	under 	section 	19503
6

because 	terminations 	are 	appropriate when 	an employee 	abandons
his position. 	It 	found 	that 	he did 	so 	in this 	case. 	Under
such circumstances, 	DYA was 	not 	required 	to 	remain 	in contact
with 	him. 	SPB 	further 	found 	that 	Goggin 	failed 	to present 	a
satisfactory 	explanation 	for 	his 	absence, 	failed 	to obtain
leave 	and 	failed 	to 	show he was 	ready 	and 	willing 	to 	resume 	his
duties. 	Based 	thereon, 	that board denied his 	appeal 	for
reinstatement 	after 	the 	automatic 	resignation.
The 	Charging 	Party 	presented much 	evidence 	at 	the 	hearing
in 	an 	attempt 	to 	show 	that 	the 	proper 	grounds 	to 	support 	an
AWOL 	termination were 	not 	present 	in his 	original 	termination
He 	also 	attempted 	to 	show 	that 	the 	law 	and 	SPB 	regulations 	were
not 	followed. 	This 	evidence 	is 	not examined 	herein 	since 	the
SPB 	had 	that 	matter 	fully before 	it 	in 	its 	review of 	the 	action
and made 	its 	findings 	in 	support of 	the 	action 	taken. 	The 	only
issue 	before 	the PERB 	is 	whether 	the 	DYA acted 	with 	an 	unlawful
retaliatory 	motivation.2
2The 	DYA has 	asked 	that 	collateral 	estoppel 	effect 	be
given 	to 	the 	decision of 	the SPB. 	That 	request was 	denied.
The 	issue 	before PERB, 	while similar, 	is nonetheless different
from that 	which was 	before 	the SPB. 	It was 	the SPB's 	duty 	to
determine 	whether 	the 	state 	had 	good 	cause 	to 	terminate 	Goggin
as AWOL. 	The 	issue 	before PERB 	is whether 	the DYA acted with
unlawful, 	retaliatory motivation. 	The 	two questions 	are 	not
synonymous. 	See Moreland 	Elementary School 	District 	(7/27/82)
PERB Decision No. 	227.
The 	Respondent 	also 	urged 	that 	the 	decision of 	the 	SPB
constituted 	a 	res 	judicata 	bar 	to 	the 	issues 	herein. 	Goggin's
appeal 	from the SPB 	decision 	is 	still pending 	in 	the 	courts. 	A
judgment 	is not 	res 	judicata until 	it 	is 	final. 	See Witkin,
sec. 164, Judgments, p. 3307.
7

C. 	Goggin's Protected Activities
Goggin was 	active 	as 	the 	president 	of 	the 	California Youth
Counselors Association 	until September 	1979. 	The Association,
among 	other 	activities, 	represented 	its members 	in grievances
and 	other 	employment 	concerns 	before 	the 	DYA 	and 	the 	California
Legislature. 	From the 	implementation of SEERA on July 	1, 	1978,
until 	January 	3, 	1979, 	the Association 	is 	found 	to have been an
employee organization 	as defined 	in 	section 3513(a). 	On
January 3, 	1979, 	the Association 	registered with 	the State 	as 	a
"bonafide 	association" 	and 	disclaimed 	any 	role 	as 	an 	"employee
organization" 	as 	defined 	by 	SEERA.3
In January 	1979 	Goggin 	also became 	a 	shop 	steward 	on 	behalf
of Teamsters 	Union Local 960. 	The 	union was one 	of 	several
employee 	organizations 	competing 	for 	the 	right 	to become 	the
exclusive 	representative 	of 	a 	statewide 	unit 	including 	youth
counselors 	employed 	by 	the 	DYA. 	Goggin 	represented 	the 	union
at Nelles School as well 	as 	in statewide matters. 	He was 	a
member 	of 	a 	steering 	committee 	participating 	in meetings 	on
behalf 	of 	the Teamsters 	with officials of 	the 	DYA.
3prior 	to January 	3, 	1979, 	the 	stated purposes 	and
activities 	of 	the 	Association 	involved 	representing 	youth
counselor 	employees 	in 	grievances 	with 	the 	employer- 	On 	that
date Goggin, 	as president of 	the organization, 	filed a
statement 	with 	the 	Governor's 	Office 	of Employee Relations
requesting 	to disclaim 	any 	role 	as 	an 	employee 	organization.
The 	organization 	registered 	as 	an 	association.
CO	
8

In sum, 	Goggin was 	active 	in employee organization
activities 	between July 	1978 	and 	the 	date 	of 	his 	termination.4
D. 	Supervisors' 	Role 	in Goggin's Termination
1. 	Samuel Kason
Kason was well 	aware 	of Goggin's 	employee 	organization
activities 	while 	serving 	as 	superintendent 	at Nelles 	School.
Yet 	he 	played 	no 	role 	in 	the 	decision 	to 	terminate 	Goggin
because 	he 	was 	absent 	from 	the 	site 	during 	the 	period 	when 	the
termination of 	events 	occurred. 	Kason 	displayed 	no 	animus
toward 	Goggin 	as 	a 	result of 	his 	knowledge 	about 	Goggin's 	union
activities. 	On 	the 	contrary, 	he 	viewed Goggin's performance 	of
a 	particular 	work 	assignment 	as 	"a 	good 	job." 	He 	seemed
genuinely 	concerned 	about 	staff 	efforts 	to 	locate 	Goggin 	during
Goggin's 	absence. 	Although 	Kason 	referred 	to Goggin 	as
"unreliable" 	in a post-termination report, 	the 	report must be
considered 	valid 	criticism of 	Goggin's 	failure 	to 	keep 	the
employer 	informed 	of his whereabouts 	or 	apply 	for 	leave. 	The
decision 	to 	terminate Goggin 	was made 	by 	the 	assistant
superintendent, 	Mary Ruth Calhoun. 	Kason had 	no conversations
with 	Calhoun prior 	to 	the 	issuance 	of 	the 	termination 	notices.
4The 	activities 	of 	Goggin on 	behalf 	of 	the 	California
Youth Counselors Association between July 1, 	1978, 	and
January 	3, 	1979, 	were 	received 	into evidence 	over 	the objection
of DYA. 	The 	evidence 	was 	received 	to allow the 	Charging Party
to 	establish 	that 	such 	activities 	were 	contributing 	factors 	in
the 	employer's 	termination. 	Goggin's 	activities 	on behalf 	of
the Teamsters 	subsequent 	to January 3, 	1979, 	do not 	lose
protection 	because 	that 	organization was 	not 	selected 	as 	the
exclusive 	representative.
9

2. 	Mary Beth 	Calhoun
Calhoun 	assumed 	the 	position of 	assistant 	superintendent 	at
Nelles 	School 	the 	second week 	of July 	1979. 	At 	that 	time
Goggin had 	been 	absent 	on 	sick 	leave 	since June 	23. 	Calhoun
had 	previously 	held 	the 	position 	of 	treatment 	team 	supervisor
at El Paso Del 	Robles 	in Paso Robles. 	The 	record 	is 	devoid of
any 	evidence 	indicating 	that 	she 	had 	any 	significant 	knowledge
or 	concern 	as 	to Goggin's protected 	activities 	prior 	to making
the 	termination 	decision. 	No other 	basis 	for 	animus 	by Calhoun
against 	Goggin was 	shown. 	Calhoun made 	the 	termination
decision 	in 	the 	absence 	of 	the 	superintendent 	based 	upon
information 	given 	to her 	by 	staff member 	Rios. 	Prior 	to making
the decision, 	she 	sought 	approval of 	the proposed 	action 	from
Ron Lopez, 	chief of 	Institution 	and 	Camps-South.
3. 	Pete Rios
Pete Rios was 	a 	team supervisor 	at Nelles School. 	He
served 	at 	the 	school between 	late June 	1979 	and November 	1982.
Goggin was 	absent 	on 	sick 	leave 	when Rios 	began 	employment 	at
the school.
Rios 	was 	responsible 	for 	the 	staffing 	of 	the 	"cottage" 	for
the 	housing 	unit 	to which 	Goggin 	was 	assigned 	for 	his 	duties 	as
youth 	counselor. 	He was 	Goggin's 	immediate 	supervisor. 	Rios
exercised 	final 	approval 	of 	the 	work 	schedules 	and 	staffing
needs 	for 	housing 	units 	under 	his 	responsibility.
Rios 	relied 	upon 	information 	and 	recommendations 	received
from 	the 	senior 	youth 	counselors 	for 	each 	cottage. 	Senior
10

youth 	counselors 	are 	routinely 	called 	"seniors." 	They 	are
essentially 	the 	working 	foremen 	for 	youth 	counselors. 	The
senior 	for 	Goggin's 	cottage 	was Andrew Jackson.
Rios 	had 	worked 	at 	the 	school 	as 	a youth 	counselor 	and 	an
assistant 	aid 	some 	years 	earlier. 	While 	he had 	been 	aware 	of
Goggin's 	activities 	on 	behalf 	of 	the 	Youth Counselors
Association, 	Rios 	had 	no knowledge of Goggin's 	employee
organization 	activities 	since 	1979. 	His 	prior 	knowledge 	had
been 	based 	upon hearsay 	comments 	from 	line 	staff. 	In
August 	1979 	Rios 	recommended 	to Calhoun 	that 	Goggin be 	logged
AWOL 	since management 	was 	unable 	to 	reach 	him. 	Rios made 	the
request 	in order 	to be 	able 	to hire 	a 	replacement 	for 	Goggin.
Rios contacted Goggin's physician, 	Dr. 	Heninger, 	during
Goggin's 	absence. 	He 	inquired 	about Goggin's 	health 	and 	the
likely 	date 	of 	his 	return. 	He 	also mentioned 	the 	employer's
attempt 	to 	locate 	him.
There 	is 	no evidence 	that Rios 	had 	any 	basis 	for 	animus
toward 	Goggin 	because 	of 	his 	employee 	organization 	activities.
Nor 	is 	there 	evidence 	that 	such 	activities played 	a 	role 	in
Rios' 	AWOL 	recommendation. 	He 	had 	no conversations with Kason
prior 	to making 	the 	recommendation. 	Rios 	had 	no conversations
or 	direction 	from higher 	management 	in 	the 	DYA other 	than
Calhoun, 	his 	immediate 	supervisor. 	He 	specifically had 	no
conversations 	with or 	direction 	from Ron Lopez, 	the division
chief over 	Nelles 	School.
11

4. 	Andrew Jackson
Jackson 	as 	the 	senior 	youth 	counselor 	was 	responsible 	for
preparing 	the 	proposed 	work 	schedules 	for 	counselors 	assigned
to his 	cottage. 	The 	department 	required 	that 	all 	shifts 	be
properly 	covered 	for 	reasons 	of 	security 	and 	safety.
Therefore, 	youth 	counselors 	were 	assigned 	and present 	24 	hours
a 	day. 	Scheduling 	assignments 	routinely 	involved 	rotating
shifts worked 	by youth counselors. 	Consideration 	in
assignments 	is given 	to 	the 	level of experience, 	individual
preference, 	and 	personal circumstances 	of 	each 	youth 	counselor
as 	well as 	the 	needs of 	the 	institution. 	When 	staff 	are 	unable
to 	fill 	the 	shift 	to 	which 	they 	are 	assigned 	they 	normally
contact 	the 	senior. 	The 	senior 	makes 	immediate 	arrangements 	to
see 	that 	the 	shift 	is properly covered. 	The 	change 	is made
either 	by 	assigning 	other 	staff 	to 	work 	overtime 	or 	seeking 	the
authority 	to 	hire 	limited 	term employees. 	The 	proposed
schedule 	is 	presented 	to 	the 	treatment 	team 	supervisor 	for 	his
approval. 	Rios 	and 	Jackson 	saw each 	other 	or 	communicated
concerning 	staffing 	and 	other 	personnel problems 	on 	a 	daily
basis.
Goggin 	had 	been 	assigned 	to 	the 	a.m./p.m. 	relief 	shift.
The 	shift 	was 	not 	a 	desirable 	one 	and 	was 	hard 	to 	fill with
experienced 	personnel. 	Goggin's 	request 	for 	sick 	leave 	was
initially 	referred 	to Jackson. 	Jackson made 	his 	recommendation
to 	Rios. 	Jackson 	and 	Rios 	had 	frequent 	conversations 	regarding
Goggin's 	unavailability 	to 	fill 	his 	regular 	shift 	assignment
12

during 	the 	period 	between 	his 	original 	sick 	leave 	request 	and
his 	termination. 	The 	record 	confirms 	that Jackson's 	sole
purpose 	in 	calling 	the 	problem to Rios' attention was 	his 	need
to 	staff 	the 	vacant position.
Goggin 	reported 	to Jackson 	by 	telephone 	when 	he 	first
called 	in 	sick. 	Jackson made 	repeated 	attempts 	to 	communicate
with 	Goggin 	by 	telephone 	for 	scheduling 	purposes 	to 	ascertain
when Goggin might be expected 	to 	return. 	Jackson, 	at Rios'
suggestion, 	went 	in person 	to what 	had 	been Goggin's residence
in an 	unsuccessful 	attempt 	to contact him as 	to his 	return 	to
work.
Jackson had 	known Goggin well 	since 	1972. 	As 	his 	immediate
supervisor 	he 	had 	daily work 	contact with Goggin. 	Jackson
routinely 	had 	between 	six 	to 	ten 	occasions 	a year 	to contact
Goggin by 	telephone 	at home. 	While 	it 	is clear 	that Jackson
was 	aware 	of 	some 	of Goggin's employee 	organization 	activities,
no 	evidence 	was 	presented 	to 	show 	that 	he 	was 	biased 	toward
Goggin 	or 	harbored 	any 	anti-union 	animus.
Goggin 	testified 	that 	on 	or 	about 	the 	early part 	of
April 	1979 	he 	received 	a 	letter 	from Jackson 	indicating 	he
would 	be 	docked 	pay 	for 	absence 	from his 	assigned 	work 	without
following 	proper 	procedures 	for 	approval. 	Goggin 	testified 	it
was 	on 	union 	business 	and 	identified 	a 	lengthy 	letter 	he 	had
written 	to Jackson 	in 	response. 	The 	letter 	itself 	is
essentially 	self-serving 	in 	nature 	and 	tone.
13

Goggin 	also 	received 	a memo of 	reprimand 	from Jackson 	on
April 25, 	1979, 	as 	to alleged 	tolerance of misuse of state
property 	(a 	towel) 	made 	into a 	kite 	tail by wards 	under his
supervision. 	Goggin sent Jackson 	a memo of denial 	in answer
shortly 	thereafter. 	There 	are 	no 	union activity concerns
apparent 	from 	the 	content 	of 	either 	document. 	Goggin wrote 	a
long 	rambling 	letter 	to Jackson on May 11, 	1979. 	It 	is 	largely
self-serving 	in nature, 	setting 	forth 	his many 	efforts 	to
reform 	the programs of 	the DYA. 	He 	refers 	in one of 	the
paragraphs 	to his 	role 	in holding offices 	in employee
organizations. 	The 	letter 	is mostly a 	complaint 	about 	the
personal 	relations 	between 	Jackson 	and 	Goggin 	from Goggin's
point of 	view. 	Apparently Jackson did 	not 	bother 	to 	respond 	to
it. 	Jackson's 	receipt of 	this 	letter 	and 	his 	failure 	to
respond 	does 	not 	support 	an 	inference 	that 	Jackson 	harbored
anti-union 	animus which 	led 	to 	actions 	by him 	in 	furtherance 	of
Goggin's 	termination
On 	the 	contrary, 	it 	is clear 	that 	both Rios 	and Jackson
made 	significant 	efforts 	to 	contact Goggin 	and 	ascertain 	his
plans 	to 	return. 	There 	is 	no evidence 	to 	indicate 	that had
Goggin 	returned 	a 	timely 	verified 	request 	for 	additional 	sick
leave, 	it would have 	been 	authorized.
5. 	Jane Nye
The 	only 	persons 	other 	than Jackson 	and 	Calhoun who Rios
communicated 	with 	concerning 	Goggin's 	absence 	was Jane Nye.
14

Nye, 	a personnel assistant 	II, 	was 	in charge of the Nelles
School personnel office. 	Nye's only 	involvement 	as 	the
efficient personnel officer 	she clearly 	appears 	to be, 	was 	to
- help all the parties, whether Calhoun, 	Rios or Goggin to follow
the proper 	procedures 	to effectuate 	the 	personnel 	transactions
desired. 	She 	saw that 	the 	"paperwork" 	was 	in order. 	In both
the 	sick 	leave 	and 	the 	termination cases, 	she was 	equally
concerned 	that 	Goggin 	be 	timely paid 	all monies 	he 	was 	entitled
to. 	She 	gave Goggin 	the 	information 	and 	the 	forms 	necessary 	to
achieve 	this 	as well as 	to 	request 	authorized 	leave.
6. 	Ron Lopez
Ron Lopez was 	Chief 	of 	Institutions 	and 	Camps-South 	for 	the
DYA 	at 	the 	time 	of 	Goggin's 	termination. 	He 	had 	held 	that
position 	since August 	1978. 	He 	had 	known Goggin 	for 	four 	or
five years. 	Lopez was 	aware 	that 	in 1977 	Goggin had made
complaints 	on 	behalf 	of 	the 	CYCA some 	of which 	went 	to alleged
misconduct 	and 	mismanagement 	in 	the 	operation of Paso 	Robles
School. 	Since Lopez was 	the 	superintendent of 	the 	school, 	he
obviously 	would 	have 	been 	interested 	and 	concerned. 	The
auditor 	general 	issued 	a 	report 	in 	1978 	that 	essentially 	found
only minor 	discrepancies 	in 	the 	financial 	records of 	the
institution. 	It 	found 	that 	the 	profits 	from the Paso Robles
Canteen operation 	were 	unaccounted 	for 	in 	the 	ward 	benefit
fund. 	Beyond 	that, 	Lopez concedes 	he was 	aware of various
charges 	filed 	by Goggin 	to 	the management 	of 	the DYA 	including
15
'

a 	so-called 	"blacklisting" 	charge 	in 	1978. 	He 	was 	not directly
charged 	therein 	but 	did 	understand 	it 	to be critical of 	the
management 	of 	the 	DYA 	and 	he 	considered 	himself 	concerned
thereby 	as 	a member 	of management.
At 	the 	time of Goggin's 	termination, 	Lopez was 	a division
chief 	of 	the 	DYA. 	Actions 	of AWOL 	termination 	instituted 	by 	a
school 	superintendent would 	have 	to 	pass 	over 	Lopez' 	desk 	for
approval. 	A disciplinary 	action 	was 	distinguished 	from 	an AWOL
termination 	in 	that 	a 	disciplinary 	action 	also 	required 	the
approval of 	the 	Director 	of 	the 	DYA.
Goggin's 	termination 	papers 	from Calhoun did 	reach Lopez'
desk 	for 	his 	approval or 	disapproval. 	He was 	immediately
concerned 	that 	the proper 	steps 	had 	been completed. 	He 	was 	the
more 	concerned 	because 	he 	was 	aware 	of 	Goggin's 	role 	in 	union
activities. 	He 	stated 	that 	it was 	the 	sensitivity 	to 	this 	fact
that,
I 	wanted 	to make 	sure 	all 	bases 	were 	covered
in 	respect 	to 	the 	communications 	to
Mr. 	Goggin, 	the effort, 	the good faith
effort 	of 	trying 	to 	communicate 	with
Goggin 	. . . 	(in 	respect 	to coming 	to work).
He, 	like Rios, 	called Goggin's physician. 	He was concerned
Goggin's 	disability 	income 	protection 	claim 	form 	somewhat
ambiguously 	listed 	two 	sets 	of 	dates 	(6/20/79 	through 	8/17/79
and 	8/17/79 	through 	9/12/79) 	as 	periods 	of 	disability. 	The
document 	carried 	a 	date 	time 	stamp on 	the 	front of August 	30,
a.m. 	11:20. 	It was 	acted 	upon by Jane Nye on
16

September 	6, 	1979. 	Lopez was 	concerned 	as 	to whether 	the
physician was 	authorizing Goggin 	to 	be 	absent 	from his 	job on
leave 	through 	September 	12, 	1979. 	Lopez 	was 	unable 	to reach
the 	doctor. 	He 	did 	reach 	the 	nurse. 	Lopez 	learned 	from her
that 	the 	doctor 	was 	trying 	to 	locate 	Goggin as well. 	At 	this
time, 	Calhoun 	had 	already 	sent 	out 	the 	first 	notice of
termination dated August 	27, 	1979. 	Lopez testified 	that
Calhoun 	would 	have 	talked 	to 	him 	seeking 	his 	approval 	before
issuing 	the 	first of 	the 	termination 	letters. 	Rios 	did 	not
discuss 	the 	matter 	with him.
Lopez' testimony 	is 	that 	he 	too 	was 	concerned 	that 	if
Goggin wasn't 	going 	to 	return, 	or 	otherwise 	be 	on 	authorized
absence 	on 	sick 	leave, 	that 	the 	position 	be open 	to 	fill. 	Sick
leave 	absences 	can 	be 	filled 	with 	limited 	term employees 	from
the 	budget 	item earmarked 	for 	that 	purpose. 	A position 	held 	by
an 	employee 	who 	is 	not 	verified 	to 	be 	on 	approved 	leave 	cannot
be 	filled 	until 	the 	issue 	is 	resolved. 	Lopez' 	testimony 	is
credited 	for 	the 	purpose 	of 	establishing 	that 	his 	actions 	in
review 	of 	the 	termination 	were 	taken 	for 	legitimate 	business
reasons.
7. 	Other 	Administrators 	at DYA
Several 	witnesses 	testified 	on 	behalf 	of 	Goggin 	attempting
to 	show 	that 	certain higher 	levels 	of management 	in 	the 	DYA,
including Pearl West, 	the Director, 	were 	aware of Goggin's
union 	activities 	and 	had 	reason 	to 	harbor 	resentment 	toward 	him
17
'

because 	his 	activities 	were 	in 	some 	degree 	critical of 	the
management of 	the 	agency. 	The 	testimony of 	these 	witnesses,
particularly Roy Henderson 	and 	Ted Whitehouse, 	is 	found 	to
exhibit 	such 	anti-employer 	bias 	and 	support of 	Goggin 	that
their 	statements 	are 	found 	to 	lack 	credibility. 	More
importantly, 	of 	the members 	of management 	who 	played 	any 	role
in 	reviewing 	the 	termination, 	only Ron Lopez was 	involved
directly 	enough 	to 	be 	considered. 	Lopez 	has 	been discussed
above.
E. 	Goggin's Activities 	While Absent
Both 	parties 	introduced 	a 	great 	deal of 	evidence 	as 	to
Goggin's 	activities 	while 	on 	approved 	leave 	or 	otherwise 	absent
from his position at Nelles School. 	Goggin, 	Roy Henderson, 	Ted
Holmes, 	Jack Whitehouse 	and 	Jerry Wilkerson 	all 	testified 	to
one or 	more 	aspects 	thereof. 	Goggin's 	contention 	is 	that he
was more or 	less occupied, depending on the dates, 	as a paid
consultant 	to Wright Way Homes 	in 	Susanville 	and 	Janesville.
He 	received 	$2,000 	a month 	for 	consulting 	services. 	Also
during 	his 	absence 	he 	had 	an 	arrangement 	with W.W., 	a
corporation 	comprised 	of 	the 	same 	principals 	as 	Wright Way
Homes. 	W.W. 	acquired property which 	it 	then 	leased 	to Wright
Way Homes 	for 	its 	school 	and 	home 	care 	facilities. 	Wright Way
Homes 	was 	a 	non-profit 	corporation operating 	homes 	for 	youthful
delinquents. 	They were 	under 	contract with 	the 	state 	to
provide 	alternative 	supervision 	and 	care 	facilities 	such 	as 	the
DYA operates 	at 	the 	Nelles 	School 	and 	elsewhere.
18

Goggin also 	invested 	$25,000 	in W.W. 	For 	his promise 	to
pay $25,000, 	Goggin 	supposedly 	acquired 	a 25 	percent 	interest
in W.W. 	This 	interest, 	together with that of 	the other
principals 	is 	in litigation elsewhere, 	the 	several parties 	in
interest 	having 	had 	a 	falling 	out-
The 	records 	of 	the 	school 	indicate 	he was 	paid 	as 	an
employee 	and 	not 	as 	a consultant. 	Appropriate 	employee 	taxes
and 	other 	deductions were made. 	Ted Wright, 	one of 	the
partners 	in Wright Way Homes 	and W.W. 	testified 	that Goggin was
employed 	on 	a 	full-time 	basis 	as 	an employee 	and 	not 	as 	a
consultant. 	Further, 	there 	is conflicting 	testimony as 	to
Goggin's 	intent 	to establish 	his 	residence 	in Susanville.
Goggin 	testified 	that 	it 	was 	not his 	intention 	to do 	that. 	His
actions 	in moving 	all of 	his 	furniture 	from his 	apartment 	in
Norwalk 	to Susanville 	and 	terminating 	the 	rental 	of 	his
apartment 	in Norwalk would 	indicate 	otherwise.
The 	evidence 	offered 	about 	Goggin's 	employment 	status 	with
another 	employer 	and 	his 	change 	in 	residences 	do 	not 	justify
his 	absence 	from the DYA. 	His 	intent 	to 	return 	to his 	duties,
if 	not manifest or 	known 	to his 	employer, 	is of 	little or 	no
relevance 	to 	these proceedings.
LEGAL 	ISSUES
1. 	Was 	the charge 	timely 	filed?
2. 	Did 	the 	DYA 	terminate 	David Goggin 	in 	retaliation 	for
participation 	in 	protected 	activities 	and 	thereby 	violate
section 	3519(a)?
19

CONCLUSIONS 	OF 	LAW
A. 	Statute of 	Limitations
Since 	the 	Respondent 	raises 	the 	defense 	that 	this 	unfair
practice 	charge was 	not 	timely 	filed, 	that will be 	examined
first. 	If 	the Respondent 	is correct, 	further 	examination of
the 	facts would 	be 	unnecessary. 	Section 	3514.5(a) 	of SEERA
essentially 	imposes 	a 	six-month 	statute 	of 	limitations 	on 	the
filing 	of 	a 	charge.5
Goggin's 	termination occurred on August 	19, 	1979. 	This
charge was 	filed March 22, 	1982. 	Thus, 	more 	than 	two years 	and
seven months 	had 	elapsed. 	However, 	after 	his 	termination,
5In relevant part, section 3514.5 says:(a) Any employee, employee organi
employer 	shall have 	the 	right 	to 	file an
unfair 	practice charge, 	except 	that 	the
Board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	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; 	(2) 	issue a complaint
against 	conduct 	also prohibited 	by 	the
provisions 	of 	the 	agreement 	between 	the
parties 	until 	the grievance machinery of 	the
agreement, 	if 	it exists 	and covers the
matter 	at 	issue, 	has been exhausted, 	either
by 	settlement 	or 	binding 	arbitration.
However, 	when 	the charging party
demonstrates 	that 	resort 	to 	contract
grievance 	procedure would 	be 	futile,
exhaustion 	shall 	not 	be 	necessary. 	The
board 	shall 	have 	discretionary 	jurisdiction
to 	review 	such 	settlement 	or 	arbitration
award 	reached 	pursuant 	to 	the 	grievance
machinery 	solely 	for 	the 	purpose 	of
determining whether 	it 	is 	repugnant 	to the
20

purposes of 	this 	chapter. 	If 	the 	board
finds 	that 	such 	settlement 	or 	arbitration
award 	is 	repugnant 	to 	the 	purposes of 	this
chapter, 	it 	shall 	issue 	a complaint on 	the
basis of 	a 	timely 	filed 	charge, 	and 	hear 	and
decide 	the case on the merits; 	otherwise 	it
shall dismiss 	the charge. 	The board 	shall,
in 	determining 	whether 	the 	charge 	was 	timely
filed, 	consider 	the 	six-month 	limitation 	set
forth 	in 	this 	subdivision 	to have 	been
tolled 	during 	the 	time 	it 	took 	the 	charging
party 	to 	exhaust 	the 	grievance 	machinery.
Goggin 	timely pursued 	an 	appeal of 	the 	action 	to 	the 	SPB. 	The
SPB 	issued 	its 	decision 	on August 7, 	1980. 	Goggin timely
sought 	a 	review of 	this 	decision 	to 	the Superior 	Court of
Los 	Angeles 	County. 	His 	petition 	for 	a 	peremptory 	writ 	was
denied. 	From 	that decision, 	he 	timely 	filed 	an 	appeal 	to 	the
District Court of Appeal which 	is 	still pending.
Government Code 	section 	3514.5(a)(2) 	provides 	in part 	as
follows:
. 	. 	. 	(the PERB) 	shall consider the
six-month limitation 	. 	. 	. 	to have been
tolled 	during 	the 	time 	it 	took 	the 	charging
party 	to 	exhaust 	the 	grievance machinery.
The PERB 	has 	ruled 	that 	it 	is 	permissible 	and 	appropriate
for 	it 	to apply 	the 	doctrine of equitable 	tolling 	in 	cases
where 	the 	issues 	raised 	by 	the 	charge 	have 	been pursued 	by
appeal 	to 	the 	SPB.6
The PERB 	has 	pointed 	out 	that 	the 	key 	issue 	is whether 	the
application of 	the 	equitable 	tolling 	doctrine 	would 	create 	a
6SETC 	v. 	State 	of California 	(Department 	of Water
Resources) 	(12/29/81) 	PERB Order No. Ad-122-S.
21

situation 	of 	prejudice 	or 	surprise 	to 	the 	Respondent.7
Here 	there 	is 	no surprise 	or 	prejudice 	since 	the
evidentiary 	issues 	are 	quite 	similar- 	Since 	the 	Respondent 	was
placed 	on 	notice 	by 	the 	SPB 	appeal 	and 	court proceedings 	and
had 	sufficient 	time 	to 	review 	its 	obligations 	and 	had 	access 	to
relevant 	information concerning 	the 	charge, 	there 	could 	be 	no
prejudice. 	In 	this case, 	the one-year 	period 	in which 	to 	file
appropriate 	proceedings 	in 	the 	superior 	court must 	be 	taken
into 	account 	because 	the SPB 	decision 	is 	not 	final 	upon
entry.8
In Meyers v. 	County of Orange 	(1970) 	6 Cal.App.3d 971, 	the
court 	specifically 	held 	that 	the 	applicable 	limitation 	period
was 	tolled 	by 	the 	pendancy 	of 	both 	the 	administrative
proceedings 	and 	the 	subsequent 	judicial 	(mandate) 	proceedings.
The 	court 	indicated 	the 	statute 	of 	limitations 	on one 	of 	the
plaintiff's 	two 	remedies 	was 	tolled while 	he 	was 	pursuing 	the
other, 	and 	that 	"the period 	during 	which 	the 	statute 	is 	tolled
includes 	the 	time 	consumed 	on 	appeal." 	(Emphasis 	added.)9
7See Victor Valley Joint 	Union High 	School 	District
(12/29/82) 	PERB Decision No. 	273.
8See 	the Proposed 	Decision 	by 	the 	hearing 	officer 	in SETC
v. 	State of 	California 	(Department 	of Transportation)
(11/16/82) 	PERB Decision No. 	257-S 	for 	rationale 	supporting
this 	theory 	— 	although 	that 	decision 	is 	not 	precedent.
9Meyers 	v. 	County of Orange 	(1970) 	6 Cal.App.3d 	at
635-635. 	See also Elkins v. 	Darby 	(1974) 	12 Cal.3d 410.
22

Since 	the 	judicial 	appeal 	from 	the 	SPB 	decision of
August 7, 	1980, 	is 	still pending 	to this date, 	the six-month
statute 	of 	limitations 	has 	not 	yet begun 	to run 	according 	to
PERB precedent. 	Thus, 	the 	foregoing 	legal precedents 	lead me,
however 	reluctantly, 	to 	find 	that 	the 	charge was 	timely 	filed
as of March 22, 	1982.
B. 	Alleged Violation 	of 	Section 	3519(a)
1. 	Legal Principles
Employees 	of 	the DYA have 	the 	protected 	"right 	to 	form,
join 	and 	participate 	in 	the 	activities 	of 	employee
organizations 	on 	all matters 	of 	employer-employee
relations."10 	Under 	section 3519(a), 	it 	is unlawful 	for 	the
state 	employer 	to.
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.
10Section 	3515 	provides 	in pertinent part 	as 	follows!
Except 	as 	otherwise provided 	by 	the
Legislature, 	state 	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. 	State
employees 	also 	shall 	have 	the 	right 	to
refuse 	to 	join or 	participate 	in 	the
activities 	of 	employee 	organizations 	. . . .
23

Goggin 	contends 	here 	that 	he 	was 	terminated 	because 	of 	his
employee 	organization 	activity. 	He 	asserts 	that 	the 	filing 	of
the 	grievances, 	charges 	and 	complaints 	with 	the DYA were
protected 	concerted 	conduct, 	that 	management 	knew of 	his
activities 	and 	that 	the DYA's explanations 	for 	the 	termination
are 	pretextual.
The 	DYA argues 	that 	Goggin has 	failed 	utterly 	to
demonstrate 	any 	relationship between 	the 	termination 	and
Goggin's 	employee 	organization 	activity.
As 	noted 	by both parties, 	the 	analytical method 	for
resolving 	charges 	of 	discrimination 	and 	retaliation 	was 	set 	out
by 	the Board 	in Novato Unified School District 	(4/30/82) 	PERB
Decision No. 	210, 	adopted 	for 	SEERA 	in William Thomas Monsoor
v. 	State of California 	(7/28/82) 	PERB Decision No. 	228-S and
for HEERA 	in California State University, 	Sacramento 	(4/30/82)
PERB Decision No. 	211-H. 	Under Novato 	and California State
University, 	a party 	alleging 	discrimination within 	the 	meaning
of 	section 	3571 must make 	a prima 	facie 	showing 	that 	the
employer's 	action 	against 	the 	employee 	was motivated 	by 	the
employee's 	participation 	in protected 	conduct. 	Because direct
proof of motivation 	is 	rarely possible, 	the Board 	concluded
that 	unlawful motive 	could 	be 	established 	by circumstantial
evidence 	and 	inferred 	from the 	record 	as 	a whole, 	citing
Republic Aviation Corp. v. NLRB 	(1945) 	324 U.S. 	793
[16 LRRM 620].
24

Proof 	that 	the 	employer 	had 	actual 	or 	imputed 	knowledge 	of
an 	employee's participation 	in protected 	activity 	is 	a 	key
element 	in 	establishing 	unlawful 	motivation 	by 	circumstantial
evidence. 	Novato
- , 	supra, PERB Decision No. 	210; Moreland
Elementary School District 	(7/27/82) 	PERB Decision No. 	227. 	An
employer 	cannot 	retaliate 	against 	an 	employee 	for 	engaging 	in
protected 	conduct 	if 	the 	employer 	does 	not 	even 	know of 	the
existence 	of 	that 	conduct.
Once 	it 	is 	shown 	that 	the 	employer 	knew of 	the protected
conduct, 	the 	charging 	party 	then must produce 	evidence 	linking
that 	knowledge 	to 	the 	harm which 	befell 	the 	employee. 	Among
the 	factors 	which 	have provided 	that 	link 	are, 	"the 	timing 	of
the 	employer's 	conduct 	in 	relation 	to 	the 	employee's
performance 	of 	protected 	activity, 	the 	employer's 	disparate
treatment of employees 	engaged 	in 	such 	activity, 	its departure
from established procedures and standards, 	. 	. 	. 	the employer's
inconsistent 	or 	contradictory 	justification 	for 	its 	actions,"
Novato, 	supra, 	or 	the 	cursory 	nature of 	the 	investigation which
preceded 	the 	discipline 	of 	the 	employee. 	Baldwin Park Unified
School District 	(6/30/82) 	PERB Decision No. 	221. 	Respondent's
knowledge 	of 	protected 	conduct 	together 	with 	some 	indicia 	of
unlawful 	intent 	will 	establish 	a prima 	facie 	case.
After 	the 	charging 	party 	has 	made 	a prima 	facie 	showing
sufficient 	to 	support 	an 	inference of 	unlawful motive, 	the
burden 	shifts 	to 	the 	employer 	to prove 	that 	its 	action would
25

have 	been 	the 	same 	despite 	the protected 	activity. 	If 	the
employer 	then 	fails 	to 	show 	that 	it was motivated 	by 	"a
legitimate 	operational purpose" 	and 	the 	charging 	party 	has met
its 	overall 	burden of proof, 	a violation of 	subsection 	3571
will be found. 	Baldwin Park, 	supra, PERB Decision No. 	221.
2. 	Effect 	of 	Ruling 	on Summary Judgment
Charging 	Party 	urges 	that 	the 	administrative 	law 	judge
determined 	that 	it 	established 	a prima 	facie 	case 	when 	the
Respondent's 	Motion 	for 	Summary Judgment 	was 	overruled 	at 	the
conclusion 	of 	Charging Party's 	case 	in 	chief 	during 	the
hearing. 	Charging Party 	neglects 	to 	recognize 	that 	the 	basis
for 	the 	ruling 	was 	carefully 	explained. 	At 	the 	time 	the motion
was 	ruled 	upon, 	the majority of 	Charging 	Party's 	evidence
consisted 	of 	testimony 	from witnesses, 	who 	as management or
agents of 	the 	employer, 	participated 	in 	the 	steps 	resulting 	in
Goggin's 	termination. 	As 	such, 	they were understood 	to be, 	and
essentially were 	examined 	as 	adverse 	witnesses.
The 	ruling 	was 	the 	result 	of 	applying 	a different 	standard
to weigh 	the 	evidence 	at 	that point 	than would 	apply 	after 	the
Respondent had 	rested 	its case. 	For 	example, 	the 	testimony
adverse 	to Goggin 	that was 	adduced 	the 	result of his 	having
called 	and 	examined 	adverse 	witnesses 	from 	the 	DYA would 	not 	be
considered 	at 	that 	time.11 Nor 	would 	the 	credibility 	of 	the
11California 	Judges' 	Benchbook, Civil Trials, p. 	313
states:
26

-- -
witnesses 	favorable 	to 	Goggin 	be 	judged 	at 	that 	time.12 11
evidence 	would 	be 	liberally 	construed 	and 	all 	inferences
possible drawn 	in 	favor 	of Goggin's 	case.
The 	fact 	that 	a 	different 	test 	would 	be 	applied 	at 	the
conclusion 	of 	the 	case 	with 	the 	possibility of 	a different
result was 	understood 	by 	counsel.13 (See Tr. 	p. 	22, 	lines
1-1 	)
3. 	Failure 	of Proof
Goggin 	has 	failed 	to 	show 	a nexus 	between 	his 	termination
and 	his 	union activity. 	The 	facts 	giving 	rise 	to his
In 	ruling on a motion 	for 	nonsuit, 	the 	trial
court may 	no
---·---·t 	consider 	evidence 	unfavorable
to 	the 	plaintiff 	that 	th----------e 	defendant
introduced 	as 	a 	result of 	the plaintiff
having 	called 	and 	examined 	the 	defendant 	as
an adverse party under 	Evid. 	C. 	section
776. 	See Miller v. 	Dussault 	(1972) 	26 CA3d
311, 	316, 	103 CR 147. 	150. 	(Emphasis added.)
12California 	Judges' 	Benchbook, Civil Trials, sec. 	978,
p. 	314 states:
Nor 	may 	the 	court 	weigh 	the 	evidence 	or
judge 	the 	credibility of 	witnesses 	as 	it may
do on 	a motion 	for 	new 	trial. 	It must give
the 	evidence, 	whether 	erroneously admitted
or 	not, 	the benefit of 	its 	full probative
strength, 	as 	long 	as 	that evidence 	is
relevant 	to the 	issues. 	Estate of Callahan
(1967) 	67 C2d 609, 613, 617, 63 CR 277, 279,
282.
13See 	also California Judges' 	Benchbook, 	Civil Trials,
supra p. 	315:
The 	fact 	that 	a motion 	for 	nonsuit was
previously 	denied 	does 	not 	prevent 	the 	court
from directing 	a verdict 	for 	the 	defendant.
Fuchs v. 	Southern Pac. Co. 	(1935) 	5 CA2d
409, 412, 42 P2d 704, 706).
27

termination was 	his 	own 	neglect 	to 	follow 	instructions 	from
Rios 	on completing 	the 	forms 	for 	an authorized 	leave, 	or
otherwise 	communicate 	with Nelles School while 	he 	was 	engaged
in paid 	employment 	elsewhere.
Goggin has 	failed 	to 	establish 	another 	vital 	element 	in his
case, 	i.e., 	that his employee 	activity was a motivating 	factor
in 	the 	decision 	to 	terminate 	him.
Goggin 	has 	not 	even made 	a prima 	facie 	showing 	that 	the
DYA's 	termination 	of 	him was 	motivated 	by 	retaliatory 	intent.
The 	best 	he 	has 	done 	is 	to 	show 	that 	the 	termination occurred
after 	he had 	in fact engaged 	in such 	activities. 	However, 	the
timing 	of 	the 	termination 	is 	not 	suggestive of 	retaliation.
Goggin was 	not 	dismissed 	until August 	1979. 	The 	union 	activity
Goggin 	relied 	upon 	to 	infer 	discriminatory motive 	by Lopez
occurred 	in 1977. 	In any event, 	Lopez only acted on a
termination 	action 	originated 	by 	Calhoun.
Indeed, 	Goggin has 	shown 	none 	of 	the 	ordinary 	indicia of
unlawful motivation. 	There 	is 	no 	significant 	indication of
disparate 	treatment, 	no 	significant 	evidence 	that 	the DYA
departed 	from 	its 	established procedures, 	no 	indication of
inconsistent 	explanations 	for 	the 	dismissal, 	no significant
evidence 	that 	the 	pre-disciplinary 	investigation 	was 	cursory.
The 	record 	establishes 	instead 	that 	the 	DYA gave 	him ample
opportunity 	to 	request 	an 	authorized 	leave 	and 	then 	terminated
him only after 	he 	failed 	to do 	so. 	The 	effort 	the DYA made 	to
28

contact 	him and 	ascertain his 	intent 	was 	thorough 	and
even-handed.
Procedurally, 	the 	burden 	of 	establishing 	an 	unlawful
motivation 	by 	a preponderance 	of 	the 	evidence 	was 	that 	of
Goggin. 	The 	evidence 	introduced 	by Goggin 	falls 	far 	short 	of
meeting 	that 	burden. 	It 	is 	concluded 	that Goggin has 	failed 	to
establish 	a prima 	facie 	case 	that 	his 	termination was
unlawfully motivatedl4 	and 	the 	charge 	therefore 	should 	be
dismissed.
For 	these 	reasons, 	the 	allegation 	that 	the 	DYA violated
section 	3519(a) 	by 	the 	termination of Goggin 	is hereby
dismissed.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact, 	conclusions of
law and 	the 	entire 	record 	in 	this matter, 	unfair 	practice
charge 	SF-CE-118-S 	filed by David H. 	Goggin 	against 	the 	State
of 	California, 	Department 	of 	Youth Authority 	and 	the 	companion
PERB 	complaint 	are 	hereby 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 8,
part 	III, 	section 	32305, 	this Proposed Decision and Order 	shall
become 	final on November 9, 	1983, 	unless 	a party files 	a 	timely
statement of exceptions. 	In accordance with 	the 	rules, 	the
14see 	Novato Unified School District, 	supra, PERB
Decision No. 	210; 	Monsoor v. 	State of California, 	supra, PERB
Decision No. 	228-S; 	California State University, Sacramento,
supra, PERB Decision No. 	211-H.
29

statement 	of 	exceptions 	should 	identify 	by page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part 	III, 	section 	32300. 	Such 	statement of exceptions 	and
supporting 	brief must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento before 	the close of. business 	(5:00 p.m.) 	on
November 	9, 	1983, 	or 	sent 	by 	telegraph or 	certified United
States mail, 	postmarked 	not 	later 	than 	the 	last 	day 	for 	filing
in 	order 	to 	be 	timely 	filed. 	See 	California Administrative
Code, 	title 8, 	part III, 	section 32135. 	Any statement of
exceptions 	and 	supporting 	brief must 	be 	served 	concurrently
with 	its 	filing 	upon 	each 	party 	to 	this 	proceeding. 	See
California Administrative Code, 	title 8, 	part III, 	section
32300 	and 	32305.
Dated: 	October 	20, 	1983
WILLIAM P. 	SMITH
Administrative 	Law Judge'
30