California State University, San Francisco (PERB 0910H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STALINITA 	QUIJANO 	JAVIER,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
SAN 	FRANCISCO,
Respondent.
Case No. 	SF-CE-319-H
PERB Decision No. 	910-H
November 18, 	1991
Appearances: 	Stalinita Quijano Javier, 	on her own behalf; 	Bruce
M. 	Richardson and Sonny Lo, 	Attorneys, 	for California State
University, 	San Francisco.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Stalinita 	Quijano
Javier 	(Javier) 	to the proposed decision 	(attached hereto) 	of 	a
PERB 	administrative 	law 	judge 	(ALJ) 	which held that 	the
California State University, 	San Francisco 	(University), 	did not
violate 	section 	3571(a) 	of 	the 	Higher Education Employer-Employee
Relations Act 	(HEERA) 	when it released Javier 	from her
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to 	the
Government Code. 	Section 3571 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the higher 	education
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
)
)
)
)
)
)
)
)
)
)
__________ )
fj

employment. 	Specifically, 	the proposed decision 	found that
although 	Javier had 	engaged 	in protected 	activity 	of which 	the
University had knowledge, 	there was 	insufficient 	evidence of
unlawful motive on the part of the University. 	Therefore, 	Javier
failed 	to prove 	the 	nexus 	required 	for 	a 	finding 	of 	retaliation
for participation 	in protected 	activities 	in violation 	of 	section
3571(a) 	of HEERA. 	(Novato Unified School District 	(1982) 	PERB
Decision No. 	210; 	Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89.)2 The Board has 	reviewed the entire record 	in
this 	case, 	including the proposed decision, 	the exceptions 	and
responses 	thereto, 	and the transcript of the hearing, 	and finding
the proposed decision to be free of prejudicial 	error, 	adopts 	it
as 	the decision of 	the 	Board 	itself 	consistent with the 	following
discussion.
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
JAVIER'S 	EXCEPTIONS
Javier excepts 	to the testimony of Mary McHoney 	(McHoney),
Javier's 	supervisor, 	that only two employees were given a
one-year probationary period. 	Javier claims that, 	in fact, 	she
was 	the 	only 	employee 	ever 	given a 	two-year probationary period.
In support of 	this 	contention, 	Javier 	states 	that 	subsequent 	to
her hiring 	she was 	involved 	in hiring 	and 	interviewing 	new
2In California State University. 	Sacramento 	(1982) 	PERB
Decision No. 	211-H, 	the Board found the tests 	in Novato Unified
School District, 	supra. 	and Carlsbad Unified School 	District.
supra. 	applicable to cases 	arising under HEERA.
- -
22

nurses, 	and was 	not aware of anyone who was given a two-year
probationary 	period. 	. 4
Javier also 	claims 	the ALJ 	erred 	in the 	statement 	that
Javier did not 	call 	Mike McMolly 	(McMolly) 	to 	give testimony or
otherwise 	offer 	rebuttal 	evidence 	to 	the 	direct 	testimony 	of
McHoney or Myra Lappin 	(Lappin) 	on the 	issue of 	the 	length of her
probationary period. 	Javier contends 	that the revision of
"appointment"3 was 	generated by personnel, 	and given to her by
McHoney on September 	14, 	1990, 	a day after her first 	evaluation.
Javier 	states 	that 	the 	reference 	to McMolly 	should 	instead be 	to
O'Malley, 	and 	it was 	not O'Malley who 	gave her the 	"appointment."
Javier further claims that if the 	"appointment" 	was dated
June 	25, 	1990, 	the University should not have waited three months
before 	obtaining 	Javier's 	signature.
Javier 	takes 	exception to 	the ALJ's 	statement 	that 	if 	the
probationary period was 	truly one year, 	Javier would have
attacked 	the 	adverse 	evaluation given after 	that 	period 	of 	time
as 	being untimely. 	In support of this 	exception, 	Javier attaches
to her appeal a 	letter to McHoney dated October 	11, 	1990, 	in
which 	Javier 	stated:
Timely 	evaluations 	can prevent 	just 	the 	sort
of 	buildup 	of 	misunderstanding 	and
stockpiling of 	concerns 	you 	seem to have.
During the past year 	I 	asked 	several 	times
for a written evaluation to 	take 	the pulse 	of
my performance 	and to have 	the 	chance 	to
3It 	is 	assumed 	for these purposes 	that Javier's 	use 	of 	the
term 	"appointment" 	in her appeal 	refers 	to 	the 	letter notifying
her 	of 	the 	change 	in her probationary period.
33

correct 	any deficiencies 	at 	the 	earliest
point.
Javier 	contends 	that 	the 	testimony of 	McHoney 	that 	Javier
was 	assigned 	eight hours 	out of 	forty per week to perform
clinical duties was 	in error. 	Javier claims 	that 	she worked a
minimum 	of 	twenty-four 	clinical 	hours 	and 	also 	filled 	in 	for
absent nurses 	for an additional 	eight hours per week. 	Therefore,
she 	claims 	she did not 	have 	sufficient 	time 	to perform her
administrative duties.
Javier also 	excepts 	to 	the ALJ's 	statement 	that 	it was
unclear 	how many times 	Javier 	secured meeting 	rooms 	in
departmental 	facilities 	for 	nurses 	to 	discuss 	employment-related
issues. 	In support, 	she 	states 	that 	she did not make 	copies 	of
all 	memos 	regarding 	such meetings when 	she 	left her office at 	the
University.
Javier 	further 	claims 	that 	the ALJ 	incorrectly 	stated 	that
it was 	unknown whether a meeting actually took place 	regarding
Javier's 	evaluation. 	Javier 	states 	that David Morganstern has 	a
written report 	of 	all meetings which 	took place 	on this 	issue,
and 	attaches 	the 	report 	to her 	exceptions.
Finally, 	Javier generally protests 	the proposed decision and
states, 	"Although I 	did not have the 	chance to present more
evidence during the PERB hearing, 	I 	am now presenting the 	lacking
evidence."
THE 	UNIVERSITY'S 	OPPOSITION 	TO 	EXCEPTIONS
The 	University 	opposes 	Javier's 	contention 	that 	she 	did 	not
have 	a chance to present 	evidence 	at the hearing. 	The University
4

argues 	that 	Javier has 	not 	cited 	any portion of 	the record
wherein a motion to admit 	evidence 	into 	the 	record was 	denied by
the ALJ. 	Rather, 	Javier is 	attempting to 	simply add to the
record 	once 	the hearing 	is 	closed. 	To 	allow such augmentation
would be 	in contravention of PERB Regulation 32300(b)4 which
states, 	"Reference 	shall be made 	in the 	statement of 	exceptions
only to matters 	contained in the record of the 	case." 	The
University argues 	that 	the 	"evidence" 	referred to 	in Javier's
exceptions 	is 	not 	a part 	of 	the 	record 	and therefore 	cannot 	be
taken 	into 	consideration.
DISCUSSION
Javier's 	first 	exception 	is 	to McHoney's 	testimony 	that 	two
employees 	were 	erroneously 	given one-year probationary 	status.
In the proposed decision, 	the ALJ 	credits 	McHoney's 	testimony
with regard to this 	issue. 	It 	is 	an established principle 	of
PERB 	case 	law that 	the 	Board 	generally 	grants 	deference 	to 	the
credibility determinations 	of ALJs. 	This 	rule recognizes 	the
fact that, 	by virtue of having witnessed the live testimony, 	an
ALJ 	is 	in a 	better position to 	accurately make 	such
determinations 	than the 	Board 	itself, 	which only reviews 	the 	cold
transcript of 	the hearing. 	(Temple 	City 	Unified 	School 	District
(1990) 	PERB Decision No. 	841, 	p. 	5.) 	Where, 	as in this case,
there 	is 	no 	evidence 	in the 	record which 	supports 	overturning
such 	credibility determinations, 	the 	Board will 	defer to 	the
4PERB 	Regulations 	are 	codified at California Code 	of
Regulations, 	title 8, 	section 31001 	et seq.
55

ALJ's 	findings. 	(Whisman Elementary School 	District 	(1991) 	PERB
Decision No. 	868, p 11, fn. 	4 . ) 	In addition, there is no
evidence 	on 	the 	record which 	contradicts 	the 	testimony 	of 	McHoney
in this 	regard. 	This 	exception is 	therefore rejected.
Javier 	contends 	that 	the ALJ 	erred 	in finding that 	Javier
did 	not 	call 	O'Malley to 	the 	stand 	nor did 	she 	offer 	other
rebuttal 	evidence 	to 	the direct 	testimony of 	McHoney 	or 	Lappin 	on
the 	issue of 	the 	change 	in the 	length of 	the probationary period.
In the proposed decision, 	the ALJ accurately 	states 	that there 	is
no 	rebuttal 	evidence 	on the 	record. 	Javier 	further 	contends 	that
neither 	the personnel 	department 	nor McHoney 	should have waited
three months 	to 	allow her to 	sign the 	"appointment,"5 and
especially 	should 	not have 	had her 	sign 	it 	a day 	after 	receiving
her 	initial 	evaluation. 	The 	Board has 	held where an adverse
action occurs within close proximity 	in time to 	a protected
activity, 	it 	constitutes 	circumstantial 	evidence of unlawful
motive. 	(Novato Unified School District, 	supra, 	PERB Decision
No. 	210; 	Carlsbad Unified School District, 	supra, 	PERB Decision
No. 	89.) 	However, 	the initial evaluation does 	not constitute
protected activity, 	and therefore the 	signing of 	the 	letter, 	even
if 	it 	could be 	considered an adverse action, 	is 	not proximate 	in
time to any protected activity. 	Accordingly, 	this 	argument 	is
rejected.
Javier takes 	exception to 	the ALJ's 	statement 	that 	if
Javier's probation was one year, 	Javier might have attacked the
55See footnote 2, 	above.
66

adverse 	evaluation given after that period of 	time 	on this 	basis.
Javier 	attaches 	a 	memorandum 	from herself 	to McHoney 	to 	her
statement of exceptions, 	in which Javier stated, 	in pertinent
part: 	"Timely evaluations 	can prevent 	just this 	sort 	of
buildup 	of 	misunderstanding 	and 	stockpiling 	of 	concerns 	you 	seem
to 	have." 	The ALJ 	accurately 	stated that 	there 	is 	no 	evidence 	on
the 	record 	that 	the 	negative 	evaluation given after 	Javier's
first year of 	employment was 	attacked on the basis 	of
Untimeliness. 	California 	State 	Employees Association wrote 	a
letter to McHoney on behalf 	of 	Javier, 	requesting a 	meeting 	to
review the 	evaluation. 	This 	letter did not 	raise 	the 	issue 	that
the evaluation was untimely. 	More importantly, 	however, 	any
inaccuracy with regard to 	the ALJ's 	statement 	in question 	is
nonprejudicial. 	This 	statement 	refers 	to 	corroborative 	evidence
regarding 	the 	factual 	issue 	of 	the 	standard probationary period
for nurses 	in the 	same 	class 	as 	Javier. 	The ALJ's 	conclusion
that 	the probationary period 	for 	such position was 	two 	years 	was
based 	upon 	record 	evidence 	and 	credibility 	determinations.
Javier's 	exception is 	rejected as without merit.
Javier 	takes 	exception to McHoney's 	testimony 	that 	she was
assigned 	eight 	hours 	out 	of 	a 	forty hour work week to perform
clinical duties. 	Javier claims 	she worked a minimum of 	twenty-
four hours 	on the 	floor and an additional 	eight hours 	filling 	in
for absent nurses. 	In the proposed decision, 	the ALJ 	correctly
restated 	the 	testimony of 	both 	Javier 	and 	McHoney 	on 	this 	issue.
Based upon the 	testimony of 	record, 	the ALJ 	found that 	the
7
7

University determined that 	Javier had not 	and 	could 	not 	rise 	to
an acceptable level of performance. 	Accordingly, 	the University
rejected Javier 	from probation. 	The 	Board 	finds 	no 	reason to
overturn the ALJ's 	findings, 	and therefore rejects 	this
exception.
Javier contends 	the ALJ's 	statement 	that 	it 	is 	unclear how
many 	times 	or 	the 	dates 	when Javier 	secured meeting 	rooms 	for
nurses 	to discuss 	employment-related 	issues 	is 	in error. 	Javier
claims 	she does 	not have 	copies 	of 	every memo which 	she
circulated while working at 	the 	University. 	This 	exception 	is
irrelevant to the ALJ's determination. 	Furthermore, 	any
inaccuracy is 	nonprejudicial 	to Javier. 	The 	factual 	issue of
organizing meetings 	for employees 	goes 	to the 	legal 	element 	of
protected activity, 	which the ALJ determined 	in Javier's 	favor by
concluding 	that 	she was 	engaged 	in protected 	activity.
Furthermore, 	there 	is 	no evidence on the record which contradicts
the ALJ's 	statement that 	it 	is 	unclear how many times 	and the
dates 	of 	such meetings. 	This 	exception lacks 	merit and 	is
therefore 	rejected.
Javier excepts 	to the ALJ's 	statement that 	it 	is 	unknown
whether a meeting took place 	regarding Javier's 	evaluation. 	In
her appeal, 	Javier refers 	to a report by David Morganstern which
is 	attached to her appeal. 	This 	report purportedly 	identifies
various 	meetings 	regarding Javier. 	There 	is 	no 	evidence 	on the
record 	to 	contradict 	the 	factually 	accurate 	statement 	made 	by 	the
.... .
8

ALJ 	that 	it 	is 	unclear whether a meeting took place 	regarding 	the
evaluation. 	This 	exception is, 	therefore, 	rejected.
Finally, 	Javier appeals 	the proposed decision on the 	ground
that, 	"Although 	[she] 	did not have the chance to present more
evidence during the PERB hearing, 	[she 	is] 	now presenting the
lacking 	evidence." 	All 	of 	the 	evidence 	included 	in her 	statement
of exceptions, which Javier seeks to have the Board consider, 	is
outside of the record in this 	case and, 	therefore, 	cannot be
considered. 	Only 	record 	evidence may be 	considered 	on 	exceptions
taken to a proposed decision. 	(PERB Regulation 	32300(b).) 	As
stated by the University 	in its 	response to this 	appeal, 	Javier
made no argument, 	nor is 	there any evidence 	in the transcript of
the hearing, 	that 	she was 	unable to present any evidence during
the hearing. 	Based upon all of the above, 	the Board 	finds
Javier's 	appeal 	to be without merit.
ORDER
For the reasons 	stated above, 	the unfair practice charge and
complaint 	in Case No. 	SF-CE-319-H are hereby DISMISSED.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
99

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STALINITA 	QUIJANO 	JAVIER,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
SAN 	FRANCISCO,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-319-H
PROPOSED 	DECISION
(9/4/91)
Appearances: 	Robert Mueller for Charging Party, 	Stalinita
Quijano Javier; 	Sonny Lo for Respondent, 	California State
University, 	San Francisco.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A probationary 	employee 	contends 	she was 	terminated 	after
she 	recruited employees 	to 	join a union and 	invoked her right 	to
union representation on unfavorable 	evaluations. 	The 	employer
contends 	that the 	action was 	unrelated to union activities.
On March 8, 	1991, 	Stalinita Quijano Javier 	(Javier or
Charging 	Party) 	filed an unfair practice 	charge 	against 	the
California State University, 	San Francisco 	(CSU, 	employer).
After 	investigation, 	the General Counsel of 	the Public 	Employment
Relations 	Board 	(PERB or Board) 	issued a complaint on April 	22,
1991, 	charging the 	employer with violation of Government Code
section 3571(a) 	by its alleged release of Javier, 	a probationary
employee, 	for exercise of rights 	guaranteed by the Higher
Education Employer-Employee Relations Act 	(HEERA), 	specifically,
holding 	a 	job 	steward position with 	the California 	State
Employee's Association 	(CSEA) 	and 	for 	seeking union assistance 	in
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
)
)
)
)
)
)
)
)
)
_____________ )

challenging 	a performance 	evaluation. 	The 	employer's 	timely
answer denied violation of 	the 	HEERA and 	asserted 	that 	its 	action
was 	justified.
A 	settlement 	conference was 	conducted 	by 	PERB without
success. 	Formal hearing was 	held 	in the 	San Francisco Regional
Office on August 31, 	1991. 	At hearing, 	the parties waived
receipt of 	transcripts 	of hearing and post-hearing briefs. 	The
case was 	submitted 	for proposed decision at 	the 	conclusion of 	the
hearing.
FINDINGS OF 	FACT
Charging Party was 	an 	employee within the 	meaning 	of
section 3562(f). 	CSU is an employer within the meaning of
section 3562(h).
Javier, 	a nurse 	since 	1964, 	was appointed Registered
Nurse 	III 	in the 	Student 	Health 	Services 	department 	on or about
June 	12, 	1989. 	Her position was assistant to the nursing
director. 	Mary McHoney 	(McHoney) 	has been, 	since October of
1988, 	the Director of Nurses, 	and Myra Lappin (Lappin), 	M.D., 	has
been, 	for all times relevant, 	the director of the department.
1The HEERA 	is 	codified at Government Code 	section 	3560 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	are to
the Government Code. 	Section 3571(a) 	states:
It 	shall 	be unlawful 	for the higher education
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their exercise of 	rights
guaranteed by this chapter. 	. 	. 	.
22

Javier's letter of appointment, 	dated June 	12, 	1989, 	called
for a probationary period ending date of June 6, 	1990. 	However,
a year later, 	by letter dated June 25, 	1990, 	similar in form to
the June 	1989 	letter, 	Javier was 	notified that 	she would be on
probationary 	status until June 	6, 	1991. 	This 	form was 	signed off
by Javier on September 	14, 	1990. 	Both letters were 	signed off by
the 	Director 	of 	Personnel 	Services 	and were 	issued 	from that
department.
Javier testified that 	a Mike McMolly 	(McMolly) 	told her
during her orientation that 	her position had 	a 	one-year
probationary 	period.
According to McHoney, 	the personnel department, 	who
"generates" 	these appointment 	letters, 	called and 	informed her
that two employees, 	including Javier, 	had been erroneously
processed with 	letters 	indicating 	one-year probationary 	status.
McHoney 	and 	Lappin were 	convincing 	in 	establishing 	that
nurses, 	including the class 	occupied by Javier, 	have a two-year
probationary period. 	Javier did not 	call 	McMolly to 	the 	formal
hearing, 	nor did 	she offer rebuttal 	evidence to 	the direct
testimony 	of 	either McHoney or Lappin on this point. 	Conversely,
McHoney was 	straight 	forward and 	convincing that 	she 	had 	no
involvement 	in the preparation or 	cause 	of 	the June 	1990 	letter
from the personnel 	office. 	Finally, 	in communications between
Javier's 	employee 	organization 	representative 	and 	McHoney 	about
subsequent 	evaluations, 	the 	issue of 	the term of probationary
- .
w
3

period was 	not 	raised. 	It would 	seem that 	if the probationary
period was 	only 	one-year as 	contended by Charging 	Party,
the 	adverse 	evaluation given after that period 	of 	time would have
been attacked 	in the 	letter because 	it was 	untimely. 	Such
argument was 	not raised however. 	It 	is 	concluded that the
probationary period 	for 	the 	position occupied by 	Javier was 	two
years.
During Javier's 	first 	six months of employment, 	she was
involved mostly 	in clinical 	activities. 	In December of 	1989,
after 	six months 	on the 	job, 	she asked McHoney 	for 	"feedback" 	on
her performance. 	McHoney told Javier her performance was
"exemplary."
In January of 	1990, 	McHoney began to 	assign administrative
responsibilities 	to Javier. 	Javier was 	responsible 	for the
immediate 	supervision of 	15 	employees and 	5 	student assistants.
Javier complained of 	the 	limited time 	she had to 	spend 	in
administrative duties 	compared to the 	time 	she was 	involved 	in
clinical 	or on-the-floor duties. 	Javier testified that 	she was
told 	that 	her work would be mostly 	supervisory 	and 	a 	little work
on the floor. 	According to her, 	it turned out the other way.
She 	spent more time on the floor. 	She was 	in her words, 	a 	"jack
of 	all 	trades," 	working 	in different departments. 	She 	filled 	in
behind 	absent 	nurses 	and 	then did her administrative 	duties.
According to McHoney, 	Javier was 	actually assigned only
about 	8 hours 	out of 	40 hours per week for clinical duties. 	She
did however, 	fill 	in behind nurses that were absent. 	The 	job
A
4

duties 	for Javier's position, 	which was new, 	called for its
occupant 	to 	spend 	70 percent of the. .. time 	on clinical 	duties
(hands-on-nursing) 	and 	30 percent on administrative or paperwork
type 	of 	activity. 	The 	latter 	included 	scheduling of 	nurses 	on a
day-to-day or week-to-week basis. 	Prior to Javier's 	arrival,
McHoney was 	the 	only 	supervisor.
McHoney was 	supportive of 	Javier. 	McHoney 	frequently
complimented Javier's work. 	A birthday card 	in the 	spring of
19 90 	reveals McHoney's warm regard 	for working with Javier.
Javier had, 	wrote McHoney, 	"a heart of gold." 	At 	staff
meetings, 	McHoney complimented Javier on her clinical 	skills.
She 	gave 	Javier a 	rose and told her 	she was 	a valuable partner,
and 	that 	she was pleased to have Javier.
McHoney 	said there were discussions 	about 	Javier's
administrative abilities, 	once 	she began to assume 	supervisory
responsibilities. 	Javier often 	couched 	intended orders 	as 	"Mary
wants," 	when it 	should have been Javier giving the direct order.
In the 	spring Javier 	attended 	a 	two-day management 	training
program, 	paid 	for by the 	employer. 	Javier testified that
comments 	before 	September of 	1990 were positive. 	Later 	she
testified that 	both before 	and 	after 	the 	evaluations 	(the 	first
in September), 	she felt 	"stifled" 	on her job. 	She was told she
should be more 	independent but, 	she complained, 	she was 	not given
the 	freedom to decide, 	and was 	always 	questioned on how she did
certain things.
un
	5

Javier recruited unit members 	to 	join CSEA. 	Five new
members refiled applications with the 	union during the month of
March 	1990. 	Javier was 	the designated recruiter.
Javier was 	also 	active 	in 	securing meeting rooms 	in
departmental 	facilities 	for the 	nurses 	to discuss 	employment
related 	issues. 	It 	is unclear how many times 	(Javier 	said
several), 	or when this occurred. 	She secured from a physician
the 	means 	by which the nurses 	could meet 	at the 	facility. 	Javier
testified 	that 	she would report 	to 	McHoney 	the 	number 	of 	members
she had 	signed up. 	The only 	evidence on recruitment 	shows 	the
sign-ups 	that occurred 	in March. 	Javier 	secured McHoney's
permission to 	have 	the planned meetings 	and 	then 	sent 	confirming
memos with copies 	to Lappin and McHoney regarding time, 	date and
place 	of 	union meetings. 	Javier also 	testified about 	an event
she 	attended 	in Sacramento 	regarding nurses 	salary. 	She reported
this 	meeting 	to McHoney.
It 	is 	found 	that McHoney knew of 	Javier's 	recruitment
efforts 	and arrangements 	to have meetings 	in the 	Student 	Health
Center.
McHoney herself 	supported 	nurses 	joining the union. 	From
the fall of 	1989, 	at staff meetings, 	and informally, 	she
expressed 	support 	for 	the 	nurses 	to 	join and 	get 	involved with
the union. 	McHoney was 	sensitive to nurses 	concern for
classification progression 	(e.g., 	moving 	from Registered Nurse 	I
to 	Registered Nurse 	II) 	and nurse pay disparity 	in the 	facility
compared to 	employees 	in other departments 	and 	in the 	greater Bay
6

Area. 	In January of 	1990, 	after nurse-practitioners 	got a raise
and nurses did not, 	McHoney encouraged the nurses 	to get active
in the union. 	McHoney gave permission to use the nurses 	lounge
for a meeting or meetings 	of nurses 	on employment 	issues.
McHoney 	gave Javier her 	first 	evaluation on September 	13,
1990. 	According to Javier, 	two days before 	she received this
performance evaluation, 	or on about September 	11, 	she went to
McHoney who was 	"tearful" 	and 	"upset." 	Javier asked why and
McHoney stated that 	she had a 	fight with Cindy Lee 	(Lee), 	a 	lab
technician. 	Comments by Lee had made McHoney upset. 	Javier's
testimony 	is 	vague 	and 	limiting on the 	extent of 	her own
involvement. 	She was 	not 	involved 	in any 	labor dispute 	involving
Cindy Lee, 	she 	testified. 	Javier asked McHoney 	if 	she would 	like
to meet with Lee about the 	situation. 	That was 	all Javier did,
she 	said.
The September 	13 	evaluation, 	Javier's 	first formal
evaluation prepared by McHoney, 	was 	generally 	supportive of
Javier's 	nursing skills. 	In clinical 	skills, 	clinical knowledge
and attitude, 	McHoney rated Javier 	"above average." 	However, 	in
regard 	to 	supervisory responsibilities, 	Javier was 	rated 	as 	not
satisfactory. 	McHoney wrote that as Assistant to 	the Director,
Javier had many tasks, 	and although 	she performed well 	in
specific 	or concrete work, 	other tasks 	seemed to 	"overwhelm" 	her.
Of 	particular 	concern to 	McHoney was 	Javier's 	inability 	to 	take
care of 	short and 	long range 	scheduling of 	staff, 	failure to
communicate 	necessary 	information to 	staff 	and her 	inadequate
7

planning 	and handling 	of 	projects 	such as 	group 	student
physicals.2 Too many 	responsibilities 	seemed 	to 	cause 	Javier 	to
become 	"overwhelmed." 	The written 	evaluation admonished 	Javier
to 	show 	improvement 	"to maintain her position" 	in administrative
work habits, 	professional relationship with staff, 	planning,
directing, 	and 	coordinating and organizing work 	for others.
A conflict 	in 	the 	testimony of 	Javier 	and McHoney 	emerges
regarding the 	former's behavior upon receipt 	of 	the 	evaluation.
McHoney 	and a 	corroborate witness, 	both testified that Javier
used profanity. 	Sometime 	later a 	memo was 	given to 	Javier which
included reference 	to her use of profanity, 	and then later a
different memo was 	given to her, 	changed to delete reference 	to
profanity. 	In the 	final analysis, 	Javier became very 	loud and
defensive about the 	evaluation. 	Javier concedes 	that 	she was 	"in
a 	state of 	shock," 	and 	"appalled" 	at 	the evaluation.
Also, 	according to Javier, 	sometime after the first
evaluation, 	Lappin and McHoney 	stated that the 	reason Javier
could not 	see the 	"big picture" 	was because 	she 	came 	from a 	small
country 	and university. 	Javier 	is 	from Guam and graduated 	from
the 	University of 	Guam.
About a week before November 28, 	1990, 	McHoney conferred
with 	Lappin about 	Javier's 	performance. 	McHoney 	recommended 	that
Javier be rejected as 	a probationary 	employee, 	because 	she was
not performing or 	functioning as 	a 	Registered Nurse 	III. 	Lappin
concurred.
2Javier conceded that they were 	always 	short of 	staff.
Co
	8

Lappin testified that 	she 	had been aware of 	the 	first
evaluation and observed, 	on her own, that 	there had not been
improvement between the 	two 	evaluations.
On November 28, 	1990, 	McHoney presented the second
evaluation to 	Javier. 	Although 	somewhat 	similar 	in positive
support 	for Javier's 	nursing 	(clinical 	skills 	and knowledge) 	and
attitude, 	the narrative was 	again negative 	in assessing Javier's
administrative performance. 	Javier was 	still overwhelmed and
unable to 	focus 	on the big picture. 	She was 	still unable to
maintain the 	scheduling, 	did not 	communicate with 	staff 	and was
unable 	to prioritize chores.
McHoney wrote 	that 	counseling Javier had been difficult, 	and
Javier's 	performance 	had 	remained 	unsatisfactory 	in
administrative 	responsibilities. 	McHoney 	felt 	Javier was
unacceptable 	to 	continue 	as Assistant 	to 	the 	Director.
'
Although unclear as 	to when the 	conversation took place,
Javier 	testified 	that 	after 	her 	argument with McHoney 	over 	the
evaluation, 	she went to union representatives. 	McHoney 	said
something 	to 	the 	effect that 	it would be difficult 	for her to 	be
Javier's 	supervisor, 	for 	fear that one day the representatives
would 	knock on her door.
On November 29, 	Brian Young 	(Young), 	CSEA Division Director,
requested a meeting with McHoney to discuss 	the November 	28,
1990, 	performance evaluation pursuant to the collective
bargaining agreement. 	It 	is unknown whether a meeting took
place.
9

On December 	18 	the personnel department notified Javier 	that
she was 	rejected 	from her assistant director position, 	effective
December 	21. 	The rejection was 	based upon Lappin's 	recommenda-
tions, 	written December 	18. 	On that date Lappin wrote to the
personnel office and 	separately, 	to Javier, 	that Javier's
planning abilities 	for multiple tasks were 	inadequate, 	her
ability to make 	independent 	judgment was 	clouded, 	and that 	she
had 	not developed 	supervisory 	skills 	since the previous
evaluation. 	All 	of 	these 	factors 	had been 	indicated 	in the
September evaluation, 	wrote Lappin, 	and Javier had not
significantly 	improved 	in those 	areas 	since 	that 	time 	to 	merit
continued 	employment.
Lappin credibly 	testified 	that 	she 	did not 	know of 	Javier's
union recruitment 	activities 	nor of 	her 	efforts 	to use 	rooms 	for
meetings.3
Lappin 	and 	McHoney 	credibly 	testified 	that prior 	to 	the
letter 	from CSEA, 	they did 	not 	know Javier had 	secured CSEA to
represent her on the 	evaluation. 	McHoney did not 	learn of 	it
until the afternoon of November 	29, 	when 	she got a 	copy of the
memo 	from Young 	requesting the 	meeting 	about 	the 	evaluation.
Lappin did not 	learn of 	Javier's 	union representation until 	after
the 	unfair practice 	charge 	had been 	filed with PERB.
3Use of the rooms were 	subject to availability, 	and
coordinated by Lappin's 	secretary. 	Javier testified 	that 	she
checked with Lappin's 	secretary to 	schedule use 	of 	the rooms.
10

ISSUE
Did 	CSU 	reject 	Javier during 	her probationary 	employment 	in
retaliation 	for participation 	in protected 	activities 	and 	thereby
violate 	subsection 	3571(a)?
CONCLUSIONS 	OF 	LAW
Employees 	of CSU are guaranteed the right to 	form, 	join and
participate 	in the 	activities 	of 	employee 	organizations 	of 	their
own 	choosing 	for the purposes 	of 	representation on all 	matters 	of
employer-employee relations. 	Under section 3571(a) 	it 	is 	an
unfair practice 	for the 	employer to 	impose or threaten to 	impose
reprisals 	or 	to discriminate 	against 	employees 	or otherwise
interfere with 	or restrain or 	coerce 	employees 	for their 	exercise
of those rights.
In order to prevail 	in a 	case of 	employer unlawful
retaliation or discrimination, 	Charging 	Party must 	establish 	that
she was 	engaged 	in protected activity, 	the activity was 	known to
the 	employer, 	and that 	the 	employer took adverse 	action because
of 	such activity. 	Novato 	Unified School 	District 	(1982) 	PERB
Decision No. 	210.4 Unlawful motivation is 	crucial 	to 	charging
party's 	case. 	In the absence of direct evidence, 	an inference of
unlawful 	motivation may be drawn from the record as 	a whole, 	as
supported 	by 	circumstantial 	evidence. 	Carlsbad 	Unified 	School
District 	(1979) 	PERB Decision No. 	89. 	From Novato and a number
of 	cases 	following it, 	any of 	a host of 	circumstances 	may 	justify
4PERB utilizes 	the Novato test 	for HEERA cases. 	California
State University, 	Sacramento 	(1982) 	PERB Decision No. 	211-H.
11

an 	inference 	of 	unlawful 	motivation on the part 	of 	the 	employer.
Among such circumstances, 	arguably, present here, 	are: 	the timing
of 	the 	adverse 	action in relation to 	the 	exercise 	of 	the
protected activity; 	North Sacramento School 	District 	(1982)
PERB Decision No. 	264; 	the employer's disparate treatment of the
employee, 	State of California 	(Department of Transportation)
(1984) 	PERB Decision No. 	459-S; 	departure from established
procedures 	or 	standards, 	Santa Clara Unified School District
(1979) 	PERB Decision No. 	104; 	or inconsistent or contradictory
justification 	for 	its 	actions 	State 	of California 	(Department 	of
Parks and Recreation) 	(1983) 	PERB Decision No. 	328-S.
Once 	an 	inference is 	found, 	the burden of proof 	shifts 	to
the 	employer to 	establish that 	it would have taken the 	action
complained of, 	regardless of the employees' 	protected activities.
Novato. 	supra. 	PERB Decision No. 	210; 	Martori Brothers
Distributors 	v. 	Agricultural 	Labor Relations 	Board 	(1981)
29 Cal.3d 721 	[175 Cal.Rptr. 	626]. 	Once employer 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.)
The 	complaint alleges 	that 	Javier was 	a 	job 	steward 	for
CSEA. 	The record 	evidence does 	not demonstrate or even 	suggest
Javier held 	that position. 	Charging 	Party 	neither 	testified 	to
that 	role 	nor offered 	any 	evidence 	that 	she 	occupied 	such 	a
position. 	The record does 	establish that 	in March of 	1990,
12

Javier recruited employees 	to 	join CSEA. 	She arranged 	for
employees 	to meet 	in the 	employer's 	facility. 	These actions 	by
Javier are not disputed to be 	the 	kinds 	of 	employee 	actions 	that
are protected under the HEERA. 	McHoney was 	aware of 	Javier's
activities.
To prevail, 	Charging Party must 	connect the 	employer's
alleged 	series 	of 	retaliatory acts, 	the 	extension of the
probationary period, 	the 	adverse performance 	evaluations 	and
subsequent 	termination to her activities 	of 	recruiting members,
securing a room or rooms 	for meetings 	of 	employees, 	her
solicitation of McHoney's 	interest 	in a meeting about 	the 	Lee
incident, 	and her having union representation on the 	evaluation
of November 28.
Such 	connection pales 	upon 	examination and 	is 	found 	not 	to
exist. 	Moreover, 	even if an inference were found to exist, 	the
employer's 	action 	clearly would 	have 	occurred despite 	the
employee's 	union activity.
The 	March activity of 	signing up members 	for CSEA, 	clearly
protected activity, 	predates, 	by a 	substantial amount of time any
adverse action by the 	employer. 	Javier was unspecific 	as 	to when
she arranged meetings of nurses, 	but 	if 	it was the means 	to
recruit nurses, 	then it too, 	was during or before March. 	No
connection between the 	Personnel Office, 	which caused the 	error
in the probationary period to emerge, 	and that office's 	steps 	in
June 	of 	1990 	to 	correct the 	error was 	established by Charging
13

Party. 	It was 	not 	shown that the Personnel Office had any
knowledge 	of 	her recruitment activities.
It 	is 	apparent that Charging Party's 	theory of 	retaliation
is 	that Javier's 	invitation on or about September 	11 	to meet with
another employee, 	in response to McHoney's distress, 	precipitated
the 	adverse responses 	from the employer: 	the extension of 	the
probationary period 	and 	the 	unfavorable 	evaluations 	and
termination.
Although the probationary 	change 	took place, 	according 	to
Javier, 	some three days after the alleged Cindy Lee event, 	the
letter 	setting 	forth 	the 	revised 	end-of-probationary period was,
in fact, 	dated June 25, 	1990, 	well before the Lee event. 	The
only 	event 	placing 	the probationary period 	issue 	in proximity 	to
the Lee event was 	Javier's 	date of 	signature. 	She offered no
explanation or testimony that 	the June 	25 	letter was 	given to 	her
after the 	Lee 	event.
The 	letter was 	issued by the personnel 	office, 	not by McHoney.
No 	evidence was 	offered by Charging 	Party 	that 	the personnel
office had any knowledge 	of her protected activities. 	McHoney
knew nothing 	of 	the probationary period 	error until 	she was
notified by 	the personnel 	office 	that 	two 	employees 	had 	been
erroneously 	given 	letters 	indicating 	one-year probationary
periods. 	Significantly, 	it was 	established that the action was
not 	an 	extension of 	Javier's 	probationary period but 	rather 	the
correction of 	an 	erroneously 	issued 	letter 	indicating 	a 	one 	year
probationary period. 	An employer 	can rebut 	evidence 	suggesting
14

an 	inference 	by 	explaining away 	evidence, 	before 	the burden of
proof 	shifts 	to it. 	California State University 	(Sacramento).
supra. 	PERB Decision No. 	211-H.
Nor does 	a 	theory of 	disparate 	treatment 	find 	application
here. 	The 	error of 	the probationary period did not 	affect 	Javier
alone, 	but rather also affected another employee. 	No evidence
was 	offered by Charging 	Party 	to 	suggest 	that 	the 	other person
was 	engaged 	in activities protected by the HEERA. 	There was 	no
treatment 	of 	Javier different 	from other 	employees 	in 	like
circumstances.
This 	same 	explanation negates 	a 	contention of departure 	from
standard procedures 	by the 	employer. 	It was 	established that 	the
probationary period 	for all 	nurses, 	including the Registered
Nurse 	III, 	was 	a two-year period. 	The employer took steps 	to
rectify the 	error with respect 	to Javier and another nurse, 	to
conform 	their probationary periods 	to 	that 	required 	by 	employer
policy. 	Neither the 	application of 	the two-year rule to 	Javier,
nor 	the 	step 	to rectify the 	initial 	but 	infirm 	letter 	indicating
a 	one-year period were departures 	from the 	employer's 	procedures.
It made the 	same 	application and 	step to 	rectify the 	error with
respect 	to another employee.
Further, 	it 	is 	apparent that Charging Party contends 	that
McHoney's 	disposition towards 	employees who 	engage 	in
representation work was 	somehow different 	than those who 	simply
joined the union. 	Obviously, 	if McHoney encouraged employees 	to
join the union, 	as the record demonstrates, 	she would not respond
15

negatively when 	such 	employees 	did 	join. 	The record 	evidence 	is
barren, 	absolutely, 	of any 	such distinguishing employer reaction
to 	union 	representation as 	opposed 	to 	recruitment 	activity.
Moreover, 	no representation issues 	emerged prior to the adverse
performance 	evaluations were 	given.
The 	Lee 	incident did not present 	Javier as 	a 	representative
of 	Lee. 	Javier was 	not 	involved 	in the Lee dispute and did not
suggest to McHoney that 	she was 	representing Lee. 	Her only
suggestion was 	whether McHoney wanted 	to 	meet with 	Lee 	about 	the
"situation." 	As 	has 	been found, 	Javier did not 	seek
representation 	for herself 	until 	after 	the 	second 	adverse
performance 	evaluation had been 	issued. 	Representation by 	CSEA,
having occurred after the adverse 	evaluation was 	issued, 	could
not be the cause of 	that adverse evaluation.
The 	employer's 	explanation of 	its 	actions was 	not
inconsistent 	or contradictory. 	Javier was 	appointed to 	the
position to 	assume 	and 	fulfill 	administrative 	responsibilities.
She was 	a 	good clinician, 	and had a 	good attitude about her
nursing responsibilities. 	The 	employer rated her as 	such. 	These
qualities 	do 	not 	translate 	to 	acceptable 	administrative
performances, 	however. 	At all times the employer has
consistently 	taken 	the position 	that 	Javier 	simply 	did 	not
develop 	the 	administrative 	skills 	necessary 	for the position 	she
held. 	There 	is 	no 	inconsistency between commending a 	nurse 	for
good 	clinical 	skills 	and 	taking a 	different position with 	respect
to 	administrative 	capabilities.
2 .. .
16

Finally, 	even if Javier's 	casual 	inquiry of 	September 	11 was
deemed to 	constitute 	representation-activity, 	timing 	alone 	does
not 	justify an inference 	of unlawful 	motivation. 	Moreland
Elementary School District 	(1982) 	PERB Decision No. 	227. 	As 	just
discussed, 	no other factors 	give rise to an inference that the
employer took the 	action because of 	Javier's 	activities.
The termination notice was 	issued on December 	18. 	This 	did
follow the notice 	to 	McHoney 	that 	CSEA was 	representing 	Javier,
and 	that 	it desired a meeting with 	the 	employer about 	the
evaluations. 	Javier was 	terminated on December 21, 	just 	some 	20
days 	after her union representative 	attempted to 	arrange 	a
meeting with 	the 	supervisor 	about 	an 	evaluation. 	The 	evidence
is clear, 	however, 	that the decision to reject Javier had been
reached before 	the 	employer was 	put 	on notice about 	Javier's
status 	as 	a represented employee. 	McHoney and Lappin agreed 	in
November to terminate Javier, 	and 	their determination that 	she
was 	unacceptable 	in the assistant 	to 	the director position was
iterated in the November 28, 	1990, 	evaluation. 	Hence, 	her
representation 	status 	had 	no 	bearing 	on the 	decision 	to 	terminate
her.
Even 	if 	the 	forgoing 	circumstances 	should 	suggest 	a
inference 	of 	unlawful 	motivation because of 	Javier's 	activities
and the employer's actions, 	the employer has demonstrated it
would have 	taken the 	same 	action notwithstanding 	such 	activity.
The 	evidence presented during the 	course 	of 	this 	hearing 	shows
that 	the 	employer was 	concerned 	about 	Javier's 	supervisory 	or
17

administrative capabilities. 	By her own admission, 	Javier was
subject 	to 	comments 	by the 	employer 	about 	her actions 	before 	the
first adverse 	evaluation. 	She 	felt 	stifled and unfairly
questioned about her conduct. 	The 	September evaluation given to
Javier by McHoney 	indicated 	the 	need 	to 	improve 	in 	certain areas
of 	administrative 	responsibility. 	Javier did not 	improve 	in
those areas, 	and, 	indeed, 	took great umbrage at the criticism.
Ten weeks 	after the 	first evaluation, 	the 	employer determined
that Javier had not and could not rise to 	the 	level 	of
performance 	it 	expected. 	The 	employer determined to reject her
from her probationary 	status. 	This 	determination had no
relationship 	to 	Javier's 	activities 	in connection with 	the
employee 	organization. 	The 	employer would have 	rejected Javier
regardless 	of 	those activities.
It 	is 	concluded therefore, 	that Charging Party has 	failed to
raise an inference 	of unlawful 	motivation on the part 	of 	the
employer in its 	decision to reject her during probation. 	Even if
an inference 	of unlawful 	motivation 	is 	according to Charging
Party, 	it 	is 	further 	found that the employer would have acted as
it did regardless 	of 	such activity. 	Accordingly, 	the underlying
unfair practice 	charge 	and 	the 	complaint 	should be dismissed.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact and 	conclusions 	of
law and the 	entire 	record 	in this 	matter, 	unfair practice 	charge
SF-CE-319-H, 	Stalinita Javier v. 	California State University,
18

San Francisco, 	and companion Public 	Employment Relations 	Board
(PERB) 	complaint 	are 	hereby 	DISMISSED.
Pursuant to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within
20 days 	of 	service of this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should identify by page
citation or exhibit number the portions 	of the record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered "filed" when
actually 	received before the 	close of business 	(5:00 	p.m.) 	on the
last day set for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States 	mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	." 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall accompany each copy 	served on a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	September 4, 	1991
GARY 	M. 	GALLERY
Chief 	Administrative 	Law 	Judge
19