State of California (Department of Corrections) (PERB 1435S)

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STATE OF CALIFORNIA
. DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

INTERNATIONAL UNION OF OPERATING
ENGINEERS,

Charging Party, Case No. SA-CE-1184-S

v. PERB Decision No. 1435-S

STATE OF CALIFORNIA (DEPARTMENT OF May 11, 2001

CORRECTIONS),

Respondent.

Appearances: Van Bourg, Weinberg, Roger & Rosenfeld by Matthew J. Gauger, Attorney, for
International Union of Operating Engineers; State of California (Department of Personnel
Administration) by Gail T. Onodera, Labor Relations Counsel, for State of California
(Department of Corrections).
Before Amador, Baker and Whitehead, Members.

DECISION .

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by the State of California (Department of Corrections) (State)
from an administrative law judge’s (ALJ) proposed decision (attached). The ALJ found that
the State unlawfully retaliated against Steven Plesha, a job steward with the International

Union of Operating Engineers IUOE), because he engaged in protected conduct, in violation

of the Ralph C. Dills Act (Dills Act) section 3519(a) and (b).!

'The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all stautory references are to the Government Code. Section 3519 states, in pertinent
part:

It shall be unlawful for the state to do any of the following:

The Board has reviewed the entire record in this case~ including the unfair practice
charge, the briefs of the parties, the ALJ's proposed decision, the State's statement of
exceptions and IUOE's opposition. The State's request for oral argument on the exceptions is
hereby denied. The record and briefs clearly present both the issues and the positions of the
parties.2 The Board finds the proposed decision to be free from prejudicial error and adopts it
as the decision of the Board itself.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, and pursuant to the Ralph C. Dills Act (Dills Act), Government Code section 3514.S(c),
it is hereby ordered that the State of California (Department of Corrections) (State) and its
representatives shall:
A. 	CEASE AND DESIST FROM:
1. Retaliating against employees for engaging in protected conduct.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
l. Remove the letter of reprimand from the personnel file of Steven Plesha
(Plesha) and destroy all references thereto.
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
2The Board finds that the exceptions filed by counsel for the State are insulting,
demeaning and deprecating to the ALJ. Such ad hominem attacks go beyond the bounds of
2

2. Offer Plesha the next available chief engineer position in northern California.
3. Reimburse Plesha for losses, monetary and otherwise, incurred as a result of
the State's unlawful conduct, at the interest rate of 7 percent per annum.
4. Within ten (10) workdays following service of a final decision in this matter,
post at all work locations where notices to employees are customarily placed, copies of the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
the State indicating that it will comply with the terms of this Order. Such posting shall be
maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken
to insure that the Notice is not reduced in size, altered, defaced or covered by any other
material.
5. Notify the Sacramento Regional Director of the Public Employment
Relations Board, in writing, of the steps the State has taken to comply with the terms of this
Order. 	Continue to report in writing to the Regional Director periodically thereafter as
directed. All reports to the Regional Director shall be served concurrently on the International
Union of Operating Engineers.
Member Baker joined in this Decision.
Member Amador's concurrence begins on page 4.
advocacy and border on misconduct. (Business and Professions Code section 6068(b).) The
Board admonishes counsel against filing similar pleadings with PERB in the future.
3

AMADOR, Member, concurring: I concur in the result of the majority's decision, but I
. would omit footnote 2. Without commenting on the content of the exceptions filed by the
State of California (Department of Corrections) (State), I simply do not think it is appropriate
for the Board to exercise this degree of involvement in a matter that has nothing to do with the
substantive legal issues before it on appeal.
First, the Board should refrain from doing anything which may create the perception
that it is sheltering its administrative law judges (ALJs) from even the rudest and most
unprofessional pleadings filed by a party. When the party accused of inappropriate language
or tone happens to be the party that does not prevail, if the Board chastises that party for
conduct unrelated to the merits of the case, it could create the appearance that there is a linkage
between the outcome of the case and the unrelated conduct.
Second, our ALJ s do not need this type of "protection" from the Board. They are
professional jurists who are experienced at handling a highly charged courtroom atmosphere,
and they understand the difference between advocacy and insult. It is not the place of the
Board to make such a judgment.
It has been my observation that truly offensive, written personal attacks on ALJs rarely
occur. The vast majority of parties appearing before this Board understand that they are likely
to be more effective advocates if they refrain from making personal attacks on those who
decide their cases.
For these reasons, I would not publicly admonish the State's counsel in a footnote to a
published decision.
4

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SA-CE-1184-S, International Union of
Operating Engineers v. State of California (Department of Corrections), in which all parties
had the right to participate, it has been found that the State of California (Department of
Corrections) (State) violated the Ralph C. Dills Act (Dills Act), Government Code section
3519(a) and (b).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. Retaliating against employees for engaging in protected conduct.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1. Remove the letter of reprimand from the personnel file of Steven Plesha
(Plesha) and destroy all references thereto.
2. Offer Plesha the next available chief engineer position in northern California.
3. Reimburse Plesha for losses, monetary and otherwise, incurred as a result of
the State's unlawful conduct, at the interest rate of 7 percent per annum.
Dated: ---------- STATE OF CALIFORNIA
(DEPARTMENT OF CORRECTIONS)
By:
Authorized Agent
__________ _
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED, OR COVERED WITH ANY OTHER
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL 	UNION OF 	OPERATING
ENGINEERS,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
Unfair 	Practice
Case 	No. 	SA-CE-1184-S
PROPOSED 	DECISION
(10/8/99)
Appearances: 	Van 	Bourg, 	Weinberg, 	Roger 	and 	Rosenfeld 	by Matthew
Gauger, 	Attorney, 	for 	International 	Union 	of 	Operating 	Engineers;
Gail 	Onodera, 	Labor 	Relations' Counsel, 	for 	State 	of 	California
(Department 	of 	Corrections).
Before 	Fred D'Orazio, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
The 	International 	Union 	of 	Operating 	Engineers 	(IUOE 	or
Union) 	commenced 	this 	action 	on October 	20, 	1998, 	by 	filing 	an
unfair 	practice 	charge 	against 	the 	State 	of 	California
(Department 	of 	Corrections) 	(State 	or 	CDC). 	The 	general 	counsel
of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board) 	issued 	a
complaint 	on 	February 	9, 	1999.
The 	complaint 	alleges 	that 	the 	CDC 	retaliated 	against 	Steven
Plesha 	(Plesha), 	an 	IUOE 	job 	steward, 	because 	he 	engaged 	in
protected 	conduct. 	Specifically, 	the 	complaint 	alleges, 	Plesha
informed 	his 	supervisor 	that 	he 	would 	seek 	legal 	assistance
through 	the 	Union 	if 	what 	he 	viewed 	as 	an 	unwarranted
investigation 	of 	an 	alleged 	breach 	of 	tool 	control 	procedures
interfered with 	his 	promotion. 	At 	the 	time, 	Plesha 	had 	been
offered 	a 	promotion 	to 	a 	supervisory 	position 	at 	another 	facility

and 	he 	was 	concerned 	that 	an 	investigation would 	jeopardize 	it.
The 	CDC 	pursued 	an 	investigation 	and 	the 	offer 	of 	promotion was
withdrawn 	as 	a 	result. 	Eventually, 	Plesha 	received 	a 	letter 	of
reprimand 	for, 	among 	other 	things, 	not 	following 	tool 	control
procedures 	and 	for 	threatening 	his 	supervisor. 	The 	alleged
threat 	for 	which 	Plesha 	was 	disciplined varied 	from 	the 	statement
attributed 	to 	him 	in 	the 	complaint. 	In 	the 	letter 	of 	reprimand,
Plesha 	was 	accused 	of 	threatening 	to 	report 	health 	and 	safety
violations 	at 	the 	facility 	to 	the 	newspapers 	if 	his 	promotion was
blocked. 	As 	part 	of 	the 	latter 	allegation, 	Plesha 	was 	accused 	of
attempting 	to 	blackmail 	his 	supervisor. 	Later, 	the 	letter 	of
reprimand was 	overturned by 	the 	State 	Personnel 	Board 	(SPB). 	The
State's 	conduct, 	the 	complaint 	concludes, 	violated 	the 	Ralph 	C.
Dills 	Act 	(Dills 	Act) 	section 	3519(a) 	and 	(b) . 1
1The 	Dills 	Act 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references 	are
to 	the 	Government 	Code. 	In 	relevant 	part, 	section 	3519 	states:
It 	shall 	be 	unlawful 	for 	the 	state 	to 	do 	any
of 	the 	following:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter. 	For 	purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2

The 	State 	answered 	the 	complaint 	on March 	11, 	1999,
generally 	denying 	all 	allegations 	and 	asserting 	a 	number 	of
affirmative 	defenses. 	Denials 	and 	defenses 	will 	be 	addressed
below, 	as 	necessary.
A settlement 	conference 	was 	conducted by 	a 	PERB 	agent, 	but
the 	dispute 	was 	not 	resolved. 	The 	undersigned 	conducted 	a 	formal
hearing 	in 	Sacramento 	on May 	5-6, 	1999. 	With 	receipt 	of 	the
final 	brief 	on August 	23, 	1999, 	the 	case 	was 	submitted 	for
decision.
JURISDICTION
IUOE 	is 	the 	exclusive 	representative 	of 	an 	appropriate 	unit
of 	employees 	(Unit 	13) 	within 	the 	meaning 	of 	section 	3513(b).
The 	State 	and 	the 	CDC 	are 	employers 	within 	the 	meaning 	of 	section
3513(j). 	Included 	in Unit 	13 	are 	stationary 	engineers.
The 	most 	recent 	collective 	bargaining 	agreement 	between 	the
State 	and 	the 	IUOE 	expired 	on 	June 	30, 	1995. 	As 	of 	the 	date 	of
hearing, 	the 	parties 	had 	not 	reached 	agreement 	on 	a 	successor
contract.
FINDINGS 	OF 	FACT
In April 	1997, 	Plesha, 	Dale 	Cates 	(Cates), 	Richard 	Morte
(Morte), 	and 	Welgim Wise 	(Wise) 	were 	stationary 	engineers 	at
California 	State 	Prison, 	Solano 	(Solano). 	Their 	immediate
supervisor 	was 	Manuel 	Merino 	(Merino), 	the 	chief 	engineer.
The 	key 	events 	in 	this 	case 	begin 	with 	a 	security 	audit 	at
Solano 	on April 	24, 	1997. 2 	During 	such 	an 	audit, 	generally
2Unless 	otherwise 	noted, 	all 	dates 	refer 	to 	1997.
3

speaking, 	a 	team of 	inspectors 	searches 	the 	facility 	to 	determine
if 	any 	security 	risks 	exist. 	This 	particular 	audit 	was 	to 	take
place 	in 	the 	wake 	of 	an 	escape 	at 	a 	neighboring 	correctional
facility 	where 	the 	escapee 	used 	a 	CDC 	tool, 	so 	security was 	a
sensitive 	topic 	at 	the 	time.
At 	approximately 	12:30 	p.m. 	on April 	24, 	Merino 	entered 	the
shop, 	announced 	there 	would 	be 	a 	security 	audit 	the 	next 	day, 	and
ordered 	the 	engineers 	to 	prepare. 	He 	testified 	that 	he 	told 	the
engineers 	to 	clean 	up 	the 	shop 	and 	store 	any 11 hot 	trash 11 	in 	the
water 	treatment 	plant 	outside 	the 	fenced 	perimeter. 3 	Merino 	also
directed 	the 	engineers 	to 	remove 	specific 	items, 	such 	as 	garden
hoses 	and 	rubber 	belts. 	However, 	he 	did 	not 	mention 	tools
specifically.
Merino's 	order was 	described 	in 	more 	detail 	by 	the
engineers. 	They 	said Merino 	was 	not 	known 	for 	handling 	the
stress 	of 	the 	chief 	engineer's 	position well. 	When Merino 	gave
the 	order, 	Plesha 	testified, 	11 he 	was 	very 	excited 	and unsure 	of
what 	needed 	to 	be 	done, 	but 	he 	ordered 	us 	to 	clean 	the 	shop 	and
get 	everything 	out 	that 	pertained 	to 	any 	items 	that 	shouldn't 	be
in 	there, 	that 	wouldn't 	match 	our 	inventories, 	that 	would 	be
scrutinized by 	the 	security 	team 	as 	being 	things 	that, 	you 	know,
need 	to 	be 	taken 	out 	of 	the 	institution. 11 	According 	to 	Plesha,
\_
Merino 	said 	"get 	all 	this 	shit 	out 	of 	here, 	because 	you 	know 	how
3Hot 	trash 	includes 	items 	such 	as 	metal 	instruments, 	sharp
fiberglass, 	rods, 	and 	other 	objects 	that 	can be 	used 	as 	weapons.
4

these 	fuckers 	try 	to 	burn 	people 	here, 	they 	try 	to 	find 	things 	on
them."
Morte 	testified 	that 	Merino 	was 	"literally 	foaming 	at 	the
mouth" 	and 	"ready 	to 	go 	off 	the 	deep 	end." 	At 	some 	point 	in 	the
discussion, 	Morte 	testified 	he 	called 	in 	Greg 	Brock 	(Brock), 	the
plant 	manager 	and 	Merino's 	immediate 	supervisor, 	for 	guidance.
Brock 	deferred 	to 	Merino 	as 	the 	supervisor 	in 	charge 	and 	said 	the
engineers 	should 	follow 	his 	directive. 	At 	that 	point, 	according
to 	Morte, 	Merino 	said 	to. 	"get 	everything 	the 	fuck 	out 	of 	here 	and
we'll 	deal 	with 	it 	later."
Cates 	testified 	that 	Merino 	was 	agitated when 	he 	ordered 	the
engineers 	to 	clear 	"stuff 	for 	the 	electrified 	fence, 	escape
paraphernalia, 	rubber 	stuff, 	excess 	inventory." 	Wise 	did 	not
testify 	at 	the 	hearing.
After giving 	the 	order, 	Merino 	left 	the 	shop. 	Pursuant 	to
his 	directive, 	the 	engineers' 	shop 	was 	to 	be 	cleared 	by 	the 	end
of 	the 	work 	day, 	3:30 	p.m.
In 	the 	process 	of 	clearing 	the 	shop, 	the 	engineers
discovered 	approximately 	50 	uninventoried 	tools 	in 	a 	locker.
Because 	Merino 	was 	not 	present 	and 	the 	shop 	had 	to 	be 	cleared by
the 	end 	of 	the 	work 	day, 	the 	engineers 	decided 	to 	move 	the 	tools
to 	the 	water 	treatment 	plant, 	where 	Merino 	earlier 	had 	ordered
the 	hot 	trash 	to 	be 	taken. 	By 	the 	end 	of 	the 	day, 	the 	tools 	had
been 	transported 	to 	the 	plant 	and 	secured 	in 	a 	locker with
Cates's 	padlock. 	Morte 	testified 	that 	"we 	thought 	the 	best 	thing
to 	do 	is 	get 	[the 	tools] 	out 	of 	the 	security 	area" 	and 	"as 	soon
5

as 	Manny 	[Merino] 	was 	at 	a 	point 	to 	where 	he 	was 	able 	to 	be
talked 	to, 	not 	as 	upset 	as 	he 	was 	that 	day, 	we 	were 	going 	to 	talk
to 	him and 	explain 	to 	him 	that 	we 	found 	these 	tools."
Although 	Merino 	testified 	that 	no 	one 	tried 	to 	contact 	him
about 	the 	tool 	discovery, 	all 	~hree 	engineers 	testified 	to 	the
contrary. 	Plesha 	testified 	that 	attempt_s 	were 	made 	to 	contact
Merino 	on April 	24, 	25 	and 	28. 	Merino 	could 	not 	be 	found 	on 	the
afternoon 	of 	Thursday, 	April 	24. 	He 	was 	in 	Sacramento 	for 	a
substantial 	part 	of 	the 	day on 	Friday, 	April 	25. 	And he 	was
generally 	unavailable 	on Monday, 	April 	28. 	Plesha 	further
testified 	that 	attempts 	were 	made 	to 	page 	Merino, 	but 	they were
unsuccessful. 	On 	direct 	examination, 	Cates 	testified 	that 	he 	did
not 	attempt 	to 	contact 	Merino 	after 	taking 	the 	tools 	to 	the 	water
treatment 	plant, 	but 	on 	cross 	examination 	he 	conceded 	that 	he
tried 	to 	contact 	Merino 	on April 	25 	without 	success. 	And 	Morte
testified 	that 	the 	engineers 	tried 	to 	contact 	Merino 	on April 	24
or 	25.
Based on 	the 	foregoing, 	I 	credit 	the 	testimony 	of 	the
engineers. 	All 	three 	testified 	in 	a 	more 	convincing 	manner 	than
did Merino, 	and 	Cates 	and 	Marte 	have 	no 	stake 	in 	this 	proceeding.
Thus, 	I 	find 	that 	the 	engineers 	tried 	to 	contact 	Merino 	but 	he
was 	unavailable.
Meanwhile, 	on April 	25 	Merino 	was 	in 	the 	water 	treatment
plant 	and 	discovered 	the 	tools 	and 	other materials. 4 	As 	a
4Pornographic 	materials 	were 	also 	discovered 	with 	the 	tools.
It 	was 	later 	determined 	that 	the 	materials 	belonged 	to 	Cates.
6

supervisor, 	Merino 	had 	a 	master 	key 	to 	all 	employee 	locks 	and 	he
was 	able 	to 	open 	Cates's 	lock 	with no 	difficulty. 	Merino
immediately 	contacted 	Joseph 	Ruiz 	(Ruiz), 	supervisor 	of 	building
trades, 	who 	had primary 	responsibility 	for 	tool 	control. 	Neither
Merino 	nor 	Ruiz 	contacted 	any 	of 	the 	stationary 	engineers, 	even
though 	they 	felt 	the 	engineers 	had 	stored 	the 	tools 	in 	the 	water
treatment 	plant. 	Instead, 	they 	concluded 	it 	was 	inappropriate
for 	the 	tools 	to 	be 	in 	that 	location 	and 	were 	obligated 	to 	follow
the 	chain 	of 	command 	in 	reporting 	the 	incident 	to 	Brock. 	At
Brock's 	direction, 	the 	tools 	were 	transported 	to 	the 	plant
manager's 	office 	and 	secured 	in 	a 	locker 	there.
According 	to 	Brock, 	Merino 	and 	Ruiz 	assumed 	the 	tools 	were
being 	"staged;" 	that 	is, 	employees 	had 	hidden 	them 	outside 	the
perimeter 	with 	the 	intent 	of 	stealing 	them 	later. 5 	Brock 	further
testified 	that 	he 	contacted 	his 	supervisor, 	Associate 	Warden
Kathleen 	Dickinson 	(Dickinson), 	who 	directed 	him 	to 	contact 	the
Investigative 	Services 	Unit 	(ISU). 	On April 	28, 	officers 	from
ISU 	became 	involved. 	They prepared 	a 	report 	and 	photographed 	the
items 	found 	at 	the 	water 	treatment 	plant.
Each 	department 	at 	Solano 	uses 	a 	color 	and 	an 	inscription 	to
identify 	its 	tools. 	Some 	of 	the 	tools 	found 	in 	the 	water
treatment 	plant 	were 	identified by 	the 	appropriate 	color 	and
5 IUOE 	business 	representative 	Bob 	Tofanelli 	(Tofanelli)
questioned 	this 	assumption. 	Based on 	his 	nine 	year 	experience 	as
an 	IUOE 	representative, 	he 	testified 	that 	if 	CDC 	representatives
truly 	believed 	the 	tools 	were 	being 	staged 	for 	theft, 	they would
have 	placed a 	surveillance 	team 	at 	the 	water 	treatment 	plant
until 	such 	time 	as 	the 	employees 	attempted 	to 	remove 	the 	tools.
7

inscription, 	but 	many 	had 	neither. 	Among 	the 	tools 	were 	two
portable, 	battery-run power 	saws: 	a 	circular 	saw 	and 	a
reciprocating 	saw. 	The 	inscription 	and 	color 	code 	had 	been
sanded 	off 	the 	circular 	saw. 	There 	is 	no 	evidence 	about 	who
sanded 	off 	the 	markings.
The 	saws 	had 	been 	ordered by 	Plesha 	in 	January 	and 	received
by Ruiz 	at 	the 	warehouse 	on March 	7. 	The 	saws 	were 	color-coded
and 	inscribed 	at 	that 	time 	and 	placed 	on 	an 	inventory 	in 	Ruiz's
office. 	Asked 	if 	he 	recalled 	handing 	out 	the 	saws, 	Ruiz
testified: 	"I 	believe 	I 	gave 	them 	to 	Mr. 	Plesha, 	and 	at 	the
time, 	as 	usual, 	asked 	him 	to 	put 	it 	on 	his 	-- 	to 	give 	me 	an
updated 	inventory by 	the 	end 	of 	the 	day."
It 	is 	not 	disputed 	that, 	as 	of 	April 	24, 	Plesha 	had 	not
inventoried 	the 	saws. 	However, 	he 	disputes 	Ruiz's 	testimony
about 	how 	the 	saws 	were 	delivered 	to 	the 	shop. 	Plesha 	testified
that 	the 	saws 	were 	placed 	in 	the 	shop 	and 	some 	time 	prior 	to
April 	24 	they 	were 	discovered 	under 	other 	boxes. 6 	Plesha
testified 	that 	he 	simply 	did 	not 	complete 	the 	inventory because
the 	atmosphere 	in 	the 	shop 	was 	"hectic" 	and 	"the 	boss 	would 	come
in 	each 	day and 	rant 	and 	rave 	on 	cleaning 	the 	shop" 	to 	pass 	the
security 	audit. 	Plesha 	said 	this 	caused 	"mass 	confusion" 	for 	"a
couple 	of 	weeks." 	Delay 	in 	inventorying 	the 	saws 	was 	not
unusual. 	In 	the 	past, 	Plesha 	testified, 	engineers 	had 	been given
a 	reasonable 	amount 	of 	"flex 	time" 	to 	inventory new 	tools 	if 	they
6As 	more 	fully 	discussed 	below, 	I 	find 	that 	the 	State 	has
not 	established 	that 	Ruiz 	delivered 	the 	saws 	directly 	to 	Plesha
in 	the 	engineers' 	shop.
8

were 	busy with 	other 	tasks, 	as 	was 	the 	situation 	in April 	1997.
Plesha 	testified 	that 	this 	was 	"condoned" 	and 	"allowed" 	by CDC
management.
As 	a 	general 	rule, 	moreover, 	tool 	inventory procedures 	at
Solano 	were 	"pretty 	lax," 	according 	to 	Plesha. 	Merino 	and 	Brock
testified 	along 	similar 	lines 	that 	the 	tool 	inventory program at
Solano 	"wasn't 	exactly 	100 	percent," 	although 	progress 	toward
improvement 	was 	being 	made.
In 	fact, 	Ruiz 	testified 	that 	he 	felt 	it 	was 	his 	(Ruiz) 	job
to 	follow-up 	and make 	sure 	the 	saws 	were 	inventoried, 	though 	no
formal 	procedure 	required 	him 	to 	do 	so. 	In 	an April 	30 	memo 	to
Brock, 	Ruiz 	wrote: 	"I 	did 	not 	follow 	through 	making 	sure 	that
these 	tools 	were 	in 	fact 	put 	on 	the 	inventory, 	it 	did 	not 	seem 	to
be 	a 	necessity 	in 	the 	past. 	I 	will 	rewrite 	the 	procedures 	to
incorporate 	a 	system 	to 	ensure 	compliance." 	Nonetheless, 	Ruiz
and Associate 	Warden Dennis 	Sisto 	(Sisto) 	testified 	that 	breach
of 	tool 	control 	procedures 	is 	a 	serious 	matter 	that 	is 	cause 	for
adverse 	action.
Turning 	the 	April 	24 	incident 	over 	to 	ISU was 	"out 	of 	the
ordinary," 	Plesha 	testified. 	Merino 	corroborated 	Plesha's
testimony 	on 	this 	point. 	Asked what 	would 	have 	happened 	if 	the
engineers 	had 	succeeded 	in 	contacting 	him, 	Merino 	said 	he 	would
have 	reported 	the 	incident 	to 	Brock, 	but 	"we'd probably 	take 	the
tools 	and 	put 	them 	in 	as 	excess 	tools 	and 	had 	them 	sent 	out 	to
9

RASP 	[recycling 	and 	salvage 	plant] 	and 	try 	to 	work 	the 	situation
out. 117
As 	noted, 	the 	engineers 	were 	unsuccessful 	in 	their 	attempts
to 	contact 	Merino, 	and Merino 	never 	contacted 	them 	about 	either
the 	outcome 	of 	the 	security 	audit 	or 	the 	discovery 	of 	tools 	at
the 	water 	treatment 	plant. 	The 	engineers 	became 	concerned
because 	Cates 	learned 	late 	on April 	25 	that 	Merino 	had 	discovered
the 	tools, 	but 	he 	had 	not 	contacted 	them.
On April 	29, 	Plesha 	asked 	Brock 	to 	meet 	with 	the 	engineers
to 	discuss 	the 	tool 	incident 	and 	other matters. 	The 	discussion
that 	occurred 	during 	the 	meeting 	plays 	a 	pivotal 	role 	in 	the
instant 	case. 	The 	State 	contends 	that 	disciplinary 	action was
justified because 	Plesha's 	comments 	at 	the 	meeting 	were 	unlawful
threats 	or 	blackmail 	and 	that 	he 	was 	dishonest 	when 	questioned
about 	the 	comments 	during 	the 	subsequent 	investigation. 8
7Tofanelli 	generally 	corroborated 	the 	testimony 	given 	by
Plesha 	and Merino 	on 	this 	point. 	He 	said 	a 	"float" 	of
uninventoried 	tools 	at 	Solano 	was 	a 	matter of 	concern 	for
engineers. 	Although 	the 	general 	practice 	was 	to 	address 	tool
inventory 	or 	missing 	tool 	issues 	with 	a 	letter 	of 	instruction 	or
a 	counselling memo, 	individual 	supervisors 	at 	Solano 	had varying
approaches 	to 	such 	issues 	based 	on 	their 	personal 	relationship
with 	the 	engineer 	involved. 	As 	a 	result, 	Tofanelli 	said, 	some
employees 	received 	a 	mere 	warning 	for 	minor 	tool 	policy
infractions, 	while 	others 	received 	punitive 	action.
8The 	precise 	allegation 	of 	dishonesty 	in 	the 	disciplinary
letter 	issued 	to 	Plesha 	is 	as 	follows: 	"you 	demonstrated
discourteous 	behavior 	when 	you 	attempted 	to 	threaten 	Greg 	Brock
with 	blackmail 	when 	you made 	a 	statement 	to 	the 	effect 	of
'Management 	had 	better 	not 	jeopardize 	my 	chances 	to 	promote 	to
Chief 	Engineer 	at 	Corcoran 	II 	or 	I'll 	go 	to 	the 	newspapers 	with
information 	regarding 	wasteful 	dumping 	by 	custodial 	staff 	at 	the
[RASP], 	along 	with 	numerous 	other 	environmental 	violations."
·
10

According 	to 	Plesha, 	he 	explained 	to 	Brock 	that 	Merino, 	on
April 	24, 	asked 	the 	engineers 	to 	clear 	the 	shop 	in 	preparation
for 	the 	security 	audit. 	Tools 	and 	other materials were
discovered 	in 	the 	process, 	and 	they were 	moved 	to 	the 	water
treatment 	plant. 	Brock 	responded, 	"oh, 	that's 	what's 	going 	on,"
Plesha 	testified. 	Plesha 	and 	Morte 	testified 	that 	Brock 	also
said 	the 	matter 	had 	been 	turned 	over 	to 	ISU 	and 	it 	was 	out 	of 	his
hands, 	but 	"all 	we 	should 	receive 	is 	a 	letter 	of 	instruction 	over
it, 	that 	it 	was 	no 	big 	deal." 	Plesha 	further 	complained 	that
Brock 	turned 	the 	matter 	over 	to 	ISU without 	first 	contacting 	the
engineers 	and 	said he 	didn't 	have 	much 	faith 	in 	the 	institution
conducting 	an 	unbiased 	investigation. 	According 	to 	Plesha 	and
Morte, 	Plesha 	then 	said 	"if 	my promotion 	is 	lost 	over 	this
clouded 	and 	obscure 	issue, 	that 	I 	will 	have 	no 	alternative 	but 	to
seek 	legal 	counsel 	with 	the 	union." 9 	Plesha 	recalled 	that 	Brock
got 	"sharp" 	and 	said 	"do 	what 	you 	have 	to 	do."
Plesha 	raised 	other 	topics 	during 	the 	meeting. 	He 	cited
concerns 	the 	engineers 	had with Merino's 	handling 	of 	the 	security
audit 	and 	other 	similar 	matters. 	He 	mentioned 	an 	incident 	where
tools 	were 	found 	in 	the 	hazardous 	materials 	locker. 	He 	brought
up 	a 	recent 	incident 	where 	freon, 	a 	refrigerant, 	was 	discharged
into 	the 	atmosphere 	at 	Solano 	while 	refrigerators 	were 	being
moved 	in 	an 	improper manner. 	This 	was 	a 	violation 	of 	U.S.
90n April 	12, 	Plesha 	had 	accepted 	an 	offer 	to 	become 	the
chief 	engineer 	at 	the 	California 	Substance 	Abuse 	Treatment
Facility 	and 	State 	Prison 	at 	Corcoran 	(Corcoran). 	He 	was 	to
begin 	the 	new 	job 	on 	July 	1.
11

Environmental 	Protection Agency 	(EPA) 	regulations 	governing
refrigerant 	handling 	practices. 	Plesha 	had 	contacted EPA 	and
wrote 	a 	letter 	to 	that 	agency. 	Also, 	he 	told 	Brock 	at 	the
April 	29 	meeting 	that 	there 	"appears 	to 	be 	a 	cover-up" 	concerning
the 	refrigerant 	incident 	and 	he 	was 	"taking 	it 	to 	the 	union."
Later, 	Plesha 	pursued 	the 	issue 	with 	EPA 	and 	an 	investigation
followed.
Plesha 	testified 	that 	he 	could 	not 	recall 	making 	a 	statement
about 	contacting 	the 	newspapers 	or 	the 	media 	with 	complaints
about 	CDC 	management. 	However, 	the 	transcript 	of 	an
investigative 	interview 	on 	September 	22 	states 	Plesha 	told
investigators 	that 	he 	said 	to 	Brock, 	"maybe 	the 	public 	should
know 	how 	business 	is 	conducted 	in 	CDC." 	The 	transcript 	of 	the
interview 	further 	states 	that 	Plesha 	then 	told 	Brock 	"if 	my
promotion 	is 	lost 	over 	this 	clouded 	and 	obscure 	issue, 	I 	will
have 	no 	alternative 	but 	to 	pursue 	this 	mater 	and 	seek 	legal
counsel 	as 	necessary. 1110
In 	his 	testimony, 	Brock 	agreed 	that 	Plesha 	asked why 	the
employees 	were 	not 	given 	the 	opportunity 	to 	present 	an
explanation before 	the 	matter 	was 	turned 	over 	to 	ISU. 	According
to 	Brock, 	he 	explained 	that 	no 	one 	had 	taken 	responsibility 	for
10At 	another 	point 	in 	the 	investigative 	interview, 	the
transcript 	shows 	that 	Plesha 	denied 	making 	a 	reference 	to 	the
media 	during 	the 	April 	29 	meeting. 	The 	State 	has 	argued 	that
this 	comment 	is 	evidence 	that 	Plesha 	was 	dishonest. 	However, 	the
question 	asked 	of 	Plesha 	was 	in 	connection with 	his 	threat 	to
take 	legal 	action. 	Asked 	in 	that 	context 	if 	he 	made 	"any
reference" 	to 	the 	media, 	Plesha 	responded 	"No. 	I 	did 	not 	mention
anything 	then. 11
12

the 	tools, 	so 	he 	notified 	his 	supervisor 	and 	an 	investigation was
being 	planned. 	Having 	talked 	to 	Merino, 	Brock 	testified, 	he 	was
of 	the 	opinion 	that 	Merino 	had 	directed 	the 	engineers 	to 	remove
only hot 	trash 	from 	the 	shop.
Brock 	also 	agreed 	that 	Plesha 	was 	concerned 	an 	investigation
would 	jeopardize his 	promotion 	to 	chief 	engineer. 	Brock
testified: 	"[Plesha] 	expressed 	that 	if 	this 	did, 	I 	guess,
prevent 	him 	from 	his 	promotion, 	he 	would 	go 	to 	the 	newspapers 	or
something 	to 	that 	effect." 	"[T]he 	insinuation was 	that 	we 	were
dirty 	and 	that 	he 	would go 	to 	the 	newspapers," 	Brock 	further
testified. 	Brock 	said 	the 	threat 	was 	made 	in 	reference 	to 	the
improper 	relocation 	of 	refrigerators.
In 	response 	to 	a 	question 	by CDC 	counsel, 	Morte 	testified:
"I 	remember we 	were 	talking 	about 	the 	whole 	incident, 	what 	was
going 	on 	with 	vocation, 	about 	everything 	that 	was 	thrown 	out, 	the
way 	things 	were 	dealt 	with 	the 	EPA, 	and 	I 	remember 	Steve 	saying
something 	to 	the 	effect 	that 	I'm 	surprised 	nobody 	has 	gone 	to 	the
media 	with 	this. 	I 	don't 	recall 	-- 	it 	was, 	like 	I 	told 	you 	last
week, 	I 	don't 	recall 	if 	it 	was 	the 	exact 	words 	was 	media 	or
newspaper, 	but 	everybody keeps 	saying 	media 	and 	that's 	kind 	of
what 	stuck 	in my 	mind." 	Later 	in 	his 	testimony, 	Morte 	was 	asked
if 	Plesha 	made 	a 	statement 	that 	related 	to 	his 	promotion. 	Morte
responded: 	"[Plesha] 	asked 	[Brock] 	is 	this 	going 	to 	affect
anything, 	and 	basically one 	of 	the 	things 	Greg 	Brock 	told 	us, 	the
worst 	you're 	going 	to 	get 	is 	a 	letter 	of 	instruction, 	you 	know,
it's 	not 	that 	big 	a 	deal. 	And 	it 	was, 	I 	remember 	Steve
13

mentioning, 	you 	know, 	if 	this 	really.interferes 	with 	it, 	I'll 	get
legal 	counsel 	or 	get 	a 	lawyer."
Cates 	was 	not 	present 	for 	the 	entire 	meeting 	on April 	29.
However, 	while 	present 	he 	heard 	Plesha 	say 	"something 	about 	maybe
the 	media 	needs 	to 	come 	in 	here 	and 	expose 	what 	was 	going 	on, 	and
I 	didn't 	know 	what 	was 	being 	referenced". 	He 	then 	left 	the
meeting. 	Cates 	later 	testified 	that 	Plesha 	also 	made 	a 	comment
about 	a 	"lost 	opportunity". 	Asked 	if 	this 	comment 	came 	before 	or
after 	his 	comment 	about 	"the 	papers," 	Cates 	said 	he 	could 	not
remember.
It 	is 	difficult 	to 	determine 	precisely what 	was 	said 	at 	the
April 	29 	meeting. 	However, 	based 	on 	the 	totality 	of 	the
testimony 	outlined 	above, 	I 	find 	that 	Plesha 	informed 	Brock 	that
he 	would 	seek 	legal 	counsel 	or Union 	counsel 	if 	the 	tool 	incident
interfered with 	his 	promotion. 	Plesha 	and 	Morte 	testified
persuasively 	that 	Plesha 	made 	these 	or 	similar 	statements, 	and
neither 	Brock 	or 	Cates 	rebutted 	their 	testimony 	on 	this 	point.
Further, 	Plesha 	may 	have 	said 	words 	to 	the 	effect 	that 	the 	public
should 	know 	how 	business 	is 	conducted 	at 	Solano 	or 	that 	he 	might
go 	to 	the 	newspapers 	to 	report 	various 	complaints 	of 	unlawful
practices,
~
such 	as 	that 	which 	led 	to 	the 	discharge 	of 	a
refrigerant 	in 	violation 	of 	EPA 	regulations. 	But 	this 	is 	not 	the
same 	as 	the 	threat 	attributed 	to 	Plesha 	in 	the 	letter 	of
reprimand. 	The 	assertion 	that 	Plesha 	threatened 	public 	exposure
of 	health 	and 	safety violations 	at 	Solano 	if 	his 	promotion was
blocked 	simply 	is 	not 	supported 	in 	the 	record. 	No 	engineer who
· 	14

attended 	the 	April 	29 	meeting 	testified 	that 	Plesha 	uttered 	the
alleged 	threat 	attributed 	to 	him 	in 	the 	letter 	of 	reprimand.
Even 	Brock's 	testimony 	on 	this 	point 	is 	equivocal. 	He 	testified
that 	Plesha 	said 	if 	the 	April 	24 	incident 	prevented 	his 	promotion
he 	would 	go 	to 	the 	newspapers 	"or 	something 	to 	that 	effect. 1111
Based on 	the 	foregoing, 	it 	is 	concluded 	that 	the 	answers
given 	by 	Plesha 	during 	the 	September 	22 	investigative 	interview
were 	consistent 	with 	the 	discussion 	at 	the 	April 	29 	meeting.
As 	of April 	29, 	Brock was 	aware 	that 	Plesha 	was 	a 	job
steward, 	had 	complained 	about 	the 	refrigerator 	incident, 	and 	had
been 	"hard on 	his 	supervisors 	for 	lots 	of 	incidents." 	He 	said
he 	based 	this 	perception 	of 	Plesha 	on 	"supervisory 	referrals,"
but 	not 	on his 	"union 	representation." 	According 	to 	Ruiz, 	Plesha
had 	the 	reputation 	of 	being 	a 	"difficult 	employee" 	who 	was 	"a
little 	difficult 	to 	supervise" 	because 	"he 	would 	argue 	about 	how
[a 	job] 	should 	be 	done."
With 	respect 	to 	job 	performance, 	Plesha 	had 	the 	reputation
as 	a 	good 	employee. 	Ruiz 	testified 	that 	Plesha's 	reputation was
11 Testimony given 	at 	the 	SPB 	hearing 	tends 	to 	corroborate
this 	finding. 	At 	that 	hearing, 	Plesha 	denied 	threatening 	Brock
with going 	to 	the 	newspapers 	to 	retaliate 	or 	even mentioning 	the
media. 	He 	admitted 	saying 	only 	that 	he 	would 	seek 	legal 	counsel
through 	the 	Union 	if 	his 	promotion was 	denied. 	Morte 	testified
that 	"the 	one 	thing 	I 	remember 	was 	[Plesha] 	said 	if 	they 	mess 	up
my 	transfer, 	I'm getting 	an 	attorney. 	And 	the 	reason 	I 	remember
that 	is 	because 	that's 	what 	was 	in my mind, 	because 	at 	the 	time 	I
was 	going 	for 	a 	transfer, 	too, 	to 	Folsom." 	On 	direct 	examination
at 	the 	SPB 	hearing, 	Brock 	testified 	that 	Plesha 	said 	he 	would go
to 	the 	newspaper 	if 	the 	tool 	incident 	was 	"elevated." 	However,
asked 	on 	cross-examination 	if 	Plesha 	may 	have 	said 	he 	would 	seek
outside 	legal 	counsel 	if 	his 	promotion 	was 	denied, 	Brock
responded 	"well, 	he 	may 	have." 	Cates 	was 	subpoenaed 	to 	testify
at 	the 	SPB 	hearing, 	but 	he 	did 	not 	appear.
15

one 	of 	"honesty" 	and 	he 	was 	a 	"very 	capable" 	engineer. 	Brock
even 	appointed 	him 	acting 	chief 	engineer 	at 	Solano 	in May 	and
again 	in 	June, 	while 	Plesha 	was 	under 	investigation 	for 	attempted
theft 	and 	blackmail.
On May 	7, 	Brock 	sent 	Dickinson 	his 	version 	of 	the 	events
surrounding 	the 	tool 	incident 	and 	the 	April 	29 	meeting. 	Among
other 	things, 	Brock 	informed Dickinson 	that 	the 	engineers'
explained 	they 	transported 	the 	tools 	to 	the 	water 	treatment 	plant
because 	Merino 	was 	under 	stress 	and 	could 	not 	deal 	with 	the 	tool
overage, 	but 	nonetheless 	it 	was 	inappropriate 	to 	place 	the 	tools
at 	the 	water 	treatment 	plant 	without 	prior 	approval. 	Brock 	did
not 	mention 	the 	scope 	of 	the 	directive 	given 	by Merino 	to 	the
engineers 	on April 	24, 	nor 	did 	he 	mention 	the 	atmosphere 	in which
Merino 	gave 	the 	directive. 	Brock 	also 	informed Dickinson 	that
Plesha, 	at 	the 	April 	29 	meeting, 	said 	CDC 	management 	"had better
not 	jeopardize 	his 	chances 	to 	promote" 	to 	the 	chief 	engineer
position 	at 	Corcoran, 	and 	that 	Plesha 	had 	"threatened 	to 	'go 	to
the 	newspapers' 	with 	information 	regarding 	wasteful 	dumping 	by
custodial 	staff 	at 	the 	[RASP] 	along 	with 	the 	'numerous 	other'
environmental 	violations." 	In 	reference 	to 	these 	comments, 	Brock
wrote 	in 	the 	memo, 	"I 	[will] 	not 	be 	threatened." 	In 	connection
with 	the 	EPA 	incident, 	Brock's 	memo 	noted 	that 	Plesha 	had
presented 	him with 	a 	document 	defining 	the 	fines 	and 	penalties
associated with 	the 	release 	of 	freon 	to 	the 	environment.
On May 22, 	Dickinson 	formally 	requested 	that 	Warden A.C.
Newland 	(Newland) 	initiate 	an 	"administrative 	inquiry" 	into 	the
16

alleged 	"theft 	of 	State 	property." 	The 	request 	was 	accompanied
by 	reports 	from 	Brock, 	Merino, 	and 	Ruiz.
Also 	in May, 	Mark Marton 	(Marton), 	an 	ISU 	captain 	at 	Solano,
submitted 	a 	request 	for 	investigation 	of 	the 	engineers 	to
Newland. 	Among 	the 	stated 	reasons 	for 	the 	request 	to 	investigate
Plesha 	was 	the 	assertion 	that 	he 	"informed 	the 	Correctional 	Plant
Supervisor he 	would go 	to 	the 	'newspapers' 	with 	information 	about
wasteful 	dumping 	and 	numerous 	other 	environmental 	violations 	if
this 	incident 	jeopardized his 	chance 	to 	promote 	to 	Corcoran 	State
Prison." 	Like 	the 	information provided 	to 	Dickinson, 	Marton's
request 	stated 	that 	the 	tools 	were 	taken 	to 	the 	water 	treatment
plant 	because 	the 	engineers 	felt 	Merino 	was 	under 	stress 	and
could 	not 	deal 	with 	the 	tool 	overage 	rationally. 	There 	was 	no
mention 	of 	the 	directive 	given 	by Merino 	to 	the 	engineers 	on
April 	24. 	The 	request 	concluded with 	the 	allegation that 	Plesha
"attempted 	to 	steal 	'a 	locker 	full 	of 	unidentified 	tools' 	and
tried 	to 	blackmail 	his 	supervisor 	into 	not 	reporting 	the
incident, 	once 	the 	supervisor 	became 	aware 	of 	the 	attempted 	theft
of 	tools." 	Marton's 	request 	was 	based 	solely on 	information
provided 	by 	the 	supervisors 	involved; 	he 	contacted 	none 	of 	the
engineers 	before 	requesting 	an 	investigation. 	On 	June 	23, 	Sisto,
acting 	for 	Newland, 	approved 	requests 	to 	investigate 	the
incident.
Meanwhile, 	Plesha's 	promotion 	to 	chief 	engineer 	at 	Corcoran
remained 	in 	effect. 	In 	June, 	he 	spent 	his 	vacation visiting
Corcoran 	and 	looking 	for 	housing 	there. 	He 	had 	been 	invited by
17

Corcoran 	staff 	to 	tour 	the 	facility 	and 	meet 	his 	new 	coworkers.
On 	June 	26, 	while 	at 	Corcoran, 	Plesha 	received 	a 	telephone 	call
from 	Marton. 	Marton 	informed 	Plesha 	that 	he 	was 	under
investigation 	for 	stealing 	tools 	and 	threatening 	his 	supervisor,
and 	that 	officials 	at 	Corcoran would 	be 	notified 	of 	the
investigation. 12 	According 	to 	Plesha, 	Marton 	informed him 	that
the 	investigation would 	be 	on 	the 	"fast 	track" 	and 	it 	would 	take
between 	two 	to 	six months. 	Plesha 	said 	he 	was 	"quite 	disturbed."
He 	told 	Marton 	that 	an 	investigation would 	destroy 	his 	promotion
even 	if 	he 	was 	vindicated 	of 	the 	charges. 	Marton 	agreed.
The 	next 	day, 	June 	27, 	Corcoran Warden 	J.W. 	Fairman
(Fairman) 	withdrew 	the 	offer 	of 	promotion. 	As 	the 	basis 	for
withdrawal, 	Fairman 	said he 	had 	"recently become 	aware 	of
substantial 	new 	information" 	about 	Plesha.
Earlier, 	on May 	23, 	Plesha 	was 	removed 	from 	the 	promotional
list 	for 	the 	chief 	engineer 	classification. 	The 	reason 	for
removal 	was 	his 	appointment 	to 	the 	chief 	engineer 	position 	at
Corcoran. 	The 	list 	expired 	in 	early June. 	Plesha 	had 	been
scheduled 	to 	interview 	for 	placement 	on 	the 	new 	list 	on 	June 	10.
However, 	he 	did 	not 	attend 	that 	interview because 	he 	had 	accepted
the 	position 	at 	Corcoran. 	Thus, 	by 	the 	end 	of 	June, 	Plesha 	had
no 	position 	at 	Corcoran 	and 	he 	was 	not 	on 	the 	new promotional
list 	for 	the 	chief 	engineer 	classification.
12The 	Department 	Operations 	Manual 	(DOM), 	section 	33010,
provides: 	"incidents 	affecting 	the 	employee's 	performance
occurring 	between 	the 	time 	of 	transfer 	approval 	and 	the 	transfer
date 	shall 	immediately be 	brought 	to 	the 	attention 	of 	the
receiving 	hiring 	authority."
18

Sheri 	Lozano 	(Lozano), 	employee 	relations 	officer 	at 	Solano,
testified 	that 	Plesha 	could 	have 	requested 	reinstatement 	to 	the
list 	by 	contacting 	the 	certification 	office 	at 	CDC 	headquarters.
However, 	by 	the 	time 	Plesha 	learned 	officially 	that 	he 	was 	under
investigation, 	the 	list 	he 	had 	been 	on was 	no 	longer 	in
existence.
Plesha 	remained 	at 	Solano 	and 	the 	investigation proceeded.
On 	September 	22, 	he 	was 	interviewed by Marton 	and 	ISU lieutenant
M.L. 	Pappa 	(Pappa). 	Eventually, 	Plesha 	was 	disciplined, 	in 	part,
for 	the 	answers 	he 	gave 	to 	the 	investigators 	about 	how 	the 	saws
entered 	the 	engineers' 	shop.
As 	noted 	earlier, 	Ruiz 	testified 	in 	this 	proceeding 	and 	at
the 	SPB 	hearing 	that 	he 	gave 	Plesha 	the 	saws 	shortly after 	they
arrived 	and 	asked 	him 	to 	inventory 	them. 	On 	the 	other 	hand,
Plesha 	testified 	in 	this 	proceeding 	and 	at 	the 	SPB 	hearing 	that
Ruiz 	did 	not 	deliver 	the 	saws 	to 	him personally. 	Plesha 	has
maintained 	from 	the 	beginning 	that 	he 	discovered 	them 	in 	the 	shop
under 	other materials 	sometime 	prior 	to 	April 	24. 	At 	about 	that
time, 	according 	to 	Plesha, 	he 	concluded 	that 	the 	circular 	saw
would 	not 	be 	of 	much 	use 	in 	the 	engineers' 	shop, 	so 	he 	offered 	it
to 	Mike 	Brewer 	(Brewer), 	a 	carpenter, 	for 	use 	in 	the 	carpenter
shop.
Plesha 	was 	charged with 	dishonesty 	for 	telling 	investigators
on 	September 	22 	that 	the 	saws 	were 	merely 	left 	in 	the 	shop 	by
Ruiz. 	He 	was 	also 	charged with 	dishonesty 	for 	attempting 	to
19

shift 	responsibility 	for 	a 	saw 	to 	another 	employee 	by 	claiming 	he
offered 	it 	to 	Brewer 	for 	use 	in 	the 	carpenter 	shop. 13
To 	establish 	its 	allegation 	that 	Plesha 	was 	dishonest 	at 	the
September 	22 	interview 	regarding 	how 	he 	received 	the 	saws, 	the
State 	has 	the 	initial 	burden 	of 	showing 	that 	Ruiz, 	in 	fact,
personally delivered 	the 	saws 	to 	Plesha. 	The 	State 	has 	not 	met
its 	burden. 	Both Ruiz 	and 	Plesha 	were 	credible 	witnesses 	who
testified 	forthrightly. 	I 	have 	carefully 	considered 	their
testimony 	and 	there 	is 	no 	reason 	in 	this 	record 	to 	discredit
either 	witness 	on 	this 	point. 	It 	is 	possible 	that 	Plesha 	gave 	a
dishonest 	answer 	in 	an 	effort 	to 	cover 	up 	his 	failure 	to
inventory 	the 	saws. 	However, 	it 	is 	equally possible 	that 	Ruiz,
who 	was 	responsible 	for 	tool 	control, 	was 	less 	than 	truthful 	in
an 	attempt 	to 	cover up 	the 	fact 	that 	he 	left 	two 	hot 	tools 	in 	the
shop. 	The 	State 	simply 	has 	failed 	to 	carry 	its 	burden 	of 	showing
that 	Ruiz, 	in 	fact, 	personally 	delivered 	the 	saws 	to 	Plesha 	in
the 	engineer's 	shop. 	Therefore, 	it 	cannot 	be 	concluded 	on 	this
13During 	the 	interview, 	Marton 	asked 	Plesha 	how 	he 	received
the 	saws. 	Plesha 	responded: 	"A 	. 	. 	these 	tools 	. 	I 	believe
when 	they 	came 	in 	the 	shop 	there 	were 	just 	. 	. 	a 	. 	left 	in
a 	cardboard box 	and 	left 	in 	the 	Engineers' 	Shop 	and 	they 	were
unaccounted 	for. 	I'm 	not 	sure 	how 	long 	. 	. 	you 	know.
they 	were 	even 	left 	there, 	but 	this 	is 	typical 	. 	. 	'cause 	at
times 	. 	. 	you 	know. 	. 	when 	tools 	have 	come 	in 	[Ruiz] 	would
leave 	'em 	in 	his 	office 	in 	a 	cardboard box 	for 	long 	periods 	of
time." 	At 	another 	point 	in 	the 	same 	sequence 	of 	questions,
Marton 	asked 	if 	he 	noticed 	the 	saws 	prior 	to 	April 	24. 	Plesha
responded: 	"I 	don't 	recall. 	I 	think 	there 	were 	. 	. 	a 	.
like 	I 	say. 	. 	you 	know. 	. 	left 	in. 	. 	you 	know.
with 	the 	other 	boxes 	and 	stuff, 	'cause 	we 	have 	a 	lot 	of 	stuff
that's 	. 	. 	you 	know 	. 	. 	well, 	moved 	around 	and 	. 	. 	you 	know
. 	pieces 	of 	equipment 	that 	are 	layin' 	out." 	Prompted by
another 	question, 	Plesha 	recalled 	that 	he 	had 	seen 	the 	saws 	prior
to 	April 	24 	and 	talked 	to 	Brewer 	about 	them 	at 	that 	time.
20

record 	that 	Plesha 	was 	dishonest 	about 	how 	he 	received 	the 	saws.
Similarly, 	to 	establish 	its 	allegation 	that 	Plesha 	was
dishonest 	at 	the 	September 	22 	interview 	regarding 	his 	discussion
with 	Brewer, 	the 	State 	first 	must 	show 	that 	Plesha 	had 	no
discussion with 	him. 	Brewer was 	called 	as 	a 	witness 	by 	the 	State
in 	the 	instant 	proceeding. 	Counsel 	for 	the 	State 	asked 	Brewer 	if
Plesha 	discussed 	with 	him 	in 	early 	1997 	whether 	he 	could 	use 	a
circular 	saw 	in 	the 	carpenter 	shop. 	Brewer 	responded: 	"I 	think
I 	stated 	in my 	last 	testimony 	[before 	the 	SPB] 	that 	might 	have
been 	a 	possibility, 	but 	I 	didn't 	really 	recall 	whether 	he 	had 	or
not, 	but 	it's 	possible." 	Based on Brewer's 	equivocal 	testimony,
I 	find 	that 	the 	State 	simply has 	not 	met 	its 	burden 	of 	showing
that 	Plesha 	was 	dishonest 	about 	the 	discussion 	with 	Brewer.
On April 	20, 	1998, 	Plesha 	received 	a 	letter 	of 	reprimand
accusing 	him of 	violating 	the 	Government 	Code, 	section 	19572, 	in
several 	respects. 14 	In 	brief, 	the 	factual 	allegations 	were 	that
Plesha 	failed 	to 	inform 	his 	supervisor 	of 	the 	discovery 	of
unmarked 	tools 	in 	the 	engineers' 	shop 	and 	assisted 	other
engineers 	in 	transporting 	the 	tools 	to 	the 	water 	treatment 	plant
in 	an 	attempt 	to 	conceal 	their 	discovery 	from 	supervisory 	staff.
It 	was 	alleged 	that 	the 	"cover-up" 	could have 	led 	to 	the 	theft 	of
state 	tools. 	It 	was 	also 	alleged 	that 	Plesha 	failed 	to 	inventory
the 	saws 	delivered 	to 	him, 	and 	was 	dishonest 	when 	he 	stated 	in
the 	September 	22 	interview 	that 	the 	saws 	were 	left 	in 	the 	shop
14The 	letter 	is 	considered 	a 	disciplinary 	action 	that 	is
appealable 	to 	the 	SPB.
21

and 	that 	he 	offered 	one 	of 	the 	saws 	to 	Brewer. 	Finally, 	it 	was
alleged 	that 	Plesha, 	on April 	29, 	"attempted 	to 	threaten 	Greg
Brock with blackmail" 	and 	was 	dishonest 	when 	he 	denied 	making 	the
threat 	during 	the 	September 	22 	interview.
On December 	20, 	Cates 	transferred 	to 	the 	Department 	of
Forestry 	and 	Fire 	Protection 	(DFFP). 	As 	of 	the 	time 	of 	his
transfer, 	he 	was 	under 	investigation 	for 	his 	role 	in 	the 	tool
incident. 	Solano 	did 	not 	contact 	DFFP 	about 	the 	investigation
and 	did 	nothing 	to 	interfere 	with 	his 	transfer. 	A February 	20,
1998, 	a 	letter 	of 	instruction 	(LOI) 	addressed 	to 	Cates 	for 	his
role 	in 	the 	April 	24 	tool 	incident 	was 	introduced 	into 	evidence;
however, 	Cates 	testified 	that 	he 	never 	received 	a 	LOI
personally . 15 	The 	LOI 	stated 	that 	Cates 	failed 	to 	notify 	his
supervisor of 	the 	discovery 	of 	unmarked 	tools 	on April 	24 	and
failed 	to 	inventory 	the 	tools 	before 	transporting 	them 	to 	the
water 	treatment 	plant. 16
The 	investigation 	of 	Morte 	was 	completed 	on 	February 	20,
1998. 	On 	April 	6, 	1998, 	a 	LOI 	was 	issued 	to 	him 	for 	his
participation 	in 	the 	April 	24 	tool 	incident. 	The 	LOI 	accused
Morte 	of 	assisting 	in 	transporting tools 	to 	the 	water 	treatment
plant 	without 	authorization. 	On November 	5, 	1998, 	Morte
15Unlike 	a 	letter 	of 	reprimand, 	a 	LOI 	is 	not 	considered
discipline 	and may 	not 	be 	appealed 	to 	the 	SPB. 	Lozano 	testified
that 	a 	LOI 	is 	not 	considered 	adverse 	action 	and 	would 	not 	hold up
a 	transfer.
MThe 	LOI 	also 	accused 	Cates 	of 	failing 	to 	report 	the
discovery 	of 	pornographic 	material 	on April 	24.
22

transferred 	to 	Folsom 	State 	Prison 	(Folsom). 	CDC 	did 	nothing 	to
impede 	his 	transfer.
In 	or 	about 	March 	1998, 	Wise 	retired 	from 	state 	service.
Prior 	to 	his 	retirement, 	on 	February 	20, 	1998, 	a 	LOI 	was 	issued
to 	Wise, 	but 	apparently he 	never 	received 	it. 	The 	basis 	of 	the
LOI 	was 	the 	same 	as 	the 	LOI 	given 	to 	Cates, 	exqept 	there 	was 	no
mention 	of 	pornographic 	material.
According 	to 	Brock, 	Dickinson 	told 	him 	that 	Plesha 	received
a 	more 	severe 	penalty 	than 	the 	other 	engineers 	because 	of 	his
threat. to 	go 	to 	the 	newspapers.
Lozano 	testified 	that 	it 	is 	not 	CDC 	policy 	to 	report 	pending
investigations 	or 	adverse 	actions 	to 	other 	agencies 	when
employees 	are 	in 	the 	process 	of 	transferring, 	unless 	the
receiving 	agency 	asks 	for 	such 	information. 	Pursuant 	to 	DOM
section 	33010, 	Lozano 	and 	Sisto 	testified, 	it 	is 	the 	policy 	to
report 	pending 	investigations 	or 	adverse 	actions 	to 	other
facilities 	within 	CDC 	when 	affected 	employees 	are 	in 	the 	process
of 	transferring 	to 	those 	locations. 	In 	addition, 	Lozano
testified 	that 	neither 	a 	LOI 	nor 	an 	adverse 	action 	would
automatically block 	a 	transfer 	to 	another 	institution within 	CDC
because 	the 	decision 	to 	accept 	a 	transfer 	is 	within 	the
discretion 	of 	the 	receiving 	institution.
Plesha 	appealed 	his 	letter 	of 	reprimand 	to 	the 	SPB. 	The 	SPB
administrative 	law 	judge 	(ALJ) 	found 	that 	the 	engineers 	were
exonerated of 	any 	charges 	that 	they 	conspired 	to 	steal 	state
tools. 	However, 	the 	CDC 	decided 	that 	Morte, 	Cates, 	and 	Wise
23

should 	receive 	LOis 	for 	their 	failure 	to 	comply with 	tool 	control
policies, 	while 	Plesha 	was 	given 	a 	letter 	of 	reprimand. 	The 	SPB
ALJ 	found 	that 	the 	more 	severe 	penalty was 	based 	on 	Plesha's
alleged 	threat 	to 	go 	to 	the 	newspapers 	with 	safety violations 	and
his 	dishonest 	response 	during 	the 	September 	22 	investigatory
interview 	about 	the 	alleged 	threat. 	The 	ALJ 	found 	that 	these
charges 	were 	not 	supported by a 	preponderance 	of 	the 	evidence. 17
The ALJ 	concluded 	that 	Plesha 	should 	have 	received 	a 	LOI 	and
ordered his 	letter 	of 	reprimand 	revoked. 	On March 	9, 	1999, 	the
SPB 	itself 	denied 	CDC's 	petition 	for 	rehearing 	and 	the 	ALJ's
decision 	became 	final. 	As 	of 	the 	date 	of 	the 	hearing 	in 	this
matter, 	the 	CDC 	had 	not 	appealed 	the 	SPB's 	decision.
ISSUE
Was 	Plesha 	investigated and 	issued 	a 	letter 	of 	reprimand 	in
retaliation 	for 	his 	protected 	conduct?
CONCLUSIONS 	OF 	LAW
In 	order 	to 	prevail 	on 	a 	charge 	of 	retaliation, 	the 	charging
party must 	establish 	that 	the 	employee 	was 	engaged 	in protected
activity, 	the 	activities 	were 	known 	to 	the 	employer, 	and 	that 	the
17 In 	reaching 	this 	conclusion, 	the 	ALJ 	discredited 	the
testimony 	of 	Brock 	regarding 	the 	alleged 	threat 	"because 	of 	the
intense 	animosity 	he 	displayed 	toward 	[Plesha] 	during 	the
hearing, 	which 	culminated 	in 	an 	emotional 	outburst 	during 	his
testimony 	which 	necessitated 	a 	recess 	to 	restore 	order;" 	the
other witness 	who 	purportedly 	heard 	the 	threat 	did 	not 	testify 	at
the 	hearing; 	and 	statements 	at 	the 	investigatory 	interview were
"equivocal 	at 	best." 	The 	ALJ 	found 	the 	charge 	that 	Plesha 	was
dishonest 	during 	the 	investigatory 	interview was 	not 	established
by a 	preponderance 	of 	the 	evidence 	because 	the 	State 	failed 	to
submit 	a 	transcript 	of 	the 	interview 	or 	any 	other 	evidence 	of
what 	transpired 	at 	the 	interview.
24

employer 	took 	adverse 	action 	against 	an 	employee 	because 	of 	such
activity. 	(Novato 	Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	210 	(Novato).) 	Unlawful 	motivation 	is 	essential 	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, 	a 	variety 	of 	circumstances 	may 	justify an
inference 	of 	unlawful 	motivation 	on 	the 	part 	of 	the 	employer.
(See 	e.g., 	Oakdale 	Union 	Elementary 	School 	District 	(1998) 	PERB
Decision No. 	1246, 	p. 	15.)
Once 	an 	unlawful 	motive 	is 	established, 	the 	burden 	of 	proof
shifts 	to 	the 	employer 	to 	establish 	that 	it 	would 	have 	taken 	the
action 	complained 	of 	even 	in 	the 	absence 	of 	the 	employee's
protected 	activities. 	(Novato; 	Martori 	Brothers 	Distributors 	v.
Agricultural 	Labor 	Relations 	Board 	(1981) 	29 	Cal.3d 	721 	[175
Cal. Rptr. 	62 6] 	(Martori) . ) 	In 	this 	case,, 	the 	State's 	action
should 	not 	be 	deemed 	an 	unfair 	practice 	unless 	the 	Board
determines 	that 	"but 	for" 	his 	protected 	conduct 	Plesha 	would 	not
have 	been 	placed 	under 	investigation 	and 	issued 	a 	letter 	of
reprimand. 	(Ibid.)
As 	IUOE 	argues, 	all 	elements 	needed 	under 	Novato 	to
establish 	a 	prima 	facie 	case 	have 	been 	shown. 	Plesha 	was 	an
active 	job 	steward 	during 	the 	period 	leading 	up 	to 	and 	including
the 	tool 	incident. 	On April 	29, 	he 	called 	a 	meeting 	with 	Brock
on 	behalf 	of 	himself 	and 	other 	employees 	to 	discuss 	the 	incident,
25

problems 	the 	engineers 	were 	having 	with Merino, 	discovery 	of
tools 	in 	the 	hazardous 	materials 	locker, 	and 	the 	discharge 	of
freon 	in 	violation 	of 	EPA 	regulations. 	During 	the 	meeting 	he
said he 	would 	contact 	the 	Union 	for 	legal 	assistance 	if 	the 	tool
incident 	investigation blocked his 	promotion 	to 	the 	chief
engineer 	job 	at 	Corcoran. 	He 	also 	made 	comments 	to 	the 	effect
that 	the 	public 	should 	know 	how 	business 	is 	conducted 	at 	Solano
and 	that 	he 	might 	go 	to 	the 	newspapers 	with 	information 	about
health 	and 	safety 	concerns, 	such 	as 	the 	discharge 	of 	a
refrigerant 	in violation 	of 	EPA 	regulations. 	Acting 	in 	a
representative 	capacity as 	a 	job 	steward 	in 	employment 	related
matters 	such 	as 	those 	discussed 	on April 	29 	is 	protected 	conduct.
(See 	Los 	Angeles 	Unified 	School 	District 	(1992) 	PERB 	Decision No.
957.)
In 	addition, 	Plesha 	suffered 	an 	adverse 	action. 	(See 	Palo
Verde 	Unified 	School 	District 	(1988) 	PERB 	Decision No. 	689.) 	He
was 	investigated 	and 	received 	a 	letter 	of 	reprimand. 	As 	a 	direct
result 	of 	the 	investigation 	that 	led 	to 	discipline, 	Plesha 	lost 	a
promotion 	to 	chief 	engineer 	at 	Corcoran.
There 	is 	direct 	evidence 	that 	unlawful 	animus 	played 	a 	role
in 	the 	decision 	to 	investigate 	Plesha 	and 	the 	adverse 	action 	that
followed. 	The 	letter 	expressly 	states 	that 	the 	discipline 	was
based 	on 	comments 	made 	at 	the 	April 	29 	meeting 	regarding 	the 	so-
called 	threat 	to 	go 	to 	the 	newspapers. 	Even 	Brock 	testified 	that
he 	was 	told by Dickinson 	that 	Plesha 	received 	a 	more 	severe
penalty because 	of 	the 	alleged 	threat 	about 	going 	to 	the
26

newspapers 	with 	complaints 	about 	health 	and 	safety and 	other
environmental 	matters. 	As 	more 	fully 	addressed 	below, 	I 	find
Plesha's 	comment 	in 	this 	regard 	protected. 	An 	investigation 	and
adverse 	action 	based 	on 	a 	protected 	act 	has 	a 	chilling 	effect 	on
employee 	rights 	and 	is 	direct 	evidence 	of 	unlawful 	motive.
There 	also 	is 	circumstantial 	evidence 	of 	unlawful 	motive.
The 	way 	Solano 	handled 	the 	tool 	incident 	was 	a 	departure 	from
past 	practice. 	Without 	minimizing 	the 	importance 	of 	tool 	control
at 	a 	correctional 	institution, 	it 	cannot 	be 	overlooked 	that 	the
tool 	control 	procedure 	at 	Solano 	was 	not 	strictly enforced.
Plesha 	testified 	that 	the 	procedure 	was 	"pretty 	lax" 	and 	Brock
conceded 	that 	it 	"wasn't 	exactly 	100 	percent." 	The 	fact 	that, 	as
of 	April 	24, 	almost 	50 	unaccounted 	for 	tools 	were 	found 	in 	the
engineers' 	shop 	validates 	the 	testimony 	of 	Brock 	and 	Plesha 	in
this 	regard.
In 	this 	context, 	Plesha 	credibly 	testified 	that 	turning 	over
this 	particular 	incident 	to 	ISU without 	even minimal 	input 	from
the 	engineers 	was 	"out 	of 	the 	ordinary." 	Even Merino 	testified
that 	if 	the 	engineers 	had 	contacted 	him on April 	24, 	25, 	or 	28,
he 	would 	have 	reported 	the 	matter 	to 	Brock, 	but 	the 	tools
probably would 	have 	been 	sent 	to 	the 	recycling 	and 	salvage 	plant
(RASP) 	and 	he 	would 	have 	tried 	to 	"work 	the 	situation 	out."
Departure 	from 	established practice 	is 	evidence 	from 	which 	an
unlawful 	motive 	may 	be 	inferred. 	(See 	Novato 	at 	p. 	7; 	Woodland
Joint 	Unified 	School 	District 	(1987) 	PERB 	Decision No. 	628.)
27

Even 	assuming 	that 	contacting 	ISU 	and/or 	Dickinson 	upon
discovering 	the 	tools 	on April 	25 	was 	justified, 	by April 	29 	the
basis 	for 	their 	continued 	involvement 	was 	all 	but 	eliminated. 	On
April 	29, 	the 	engineers 	voluntarily 	explained 	the 	entire 	incident
to 	Brock 	after 	efforts 	to 	contact 	Merino 	were 	unsuccessful. 	They
admitted 	transporting 	the 	tools 	to 	the 	water 	treatment 	plant
under 	somewhat 	unusual 	circumstances 	that 	were 	known 	to 	Brock by
that 	time. 	As 	Morte 	testified, 	Brock was 	consulted 	for 	advice 	on
April 	24 	about 	Merino's 	directive 	and 	he 	deferred 	to 	Merino. 	By
the 	end 	of 	the 	meeting 	on April 	29, 	it 	was 	known 	that 	the
engineers 	acted 	in 	accord 	with Merino's 	sweeping 	directive 	and
that 	Plesha 	had 	ordered 	the 	saws 	and 	failed 	to 	put 	them 	on 	the
inventory. 	In 	fact, 	Brock 	informed 	the 	engineers 	on April 	29
that 	the 	incident 	was 	not 	a 	serious 	matter 	and 	would 	likely be
addressed 	with 	LOis. 	It 	seems 	there 	was 	little 	left 	to
investigate, 	except 	for 	an 	alleged 	threat 	that 	turned 	out 	to 	be
protected 	conduct. 	Thus, 	the 	evidence 	points 	to 	the 	conclusion
that 	Brock's 	decision 	to 	pursue 	the 	matter 	after April 	29
indicates 	he 	was 	more 	interested 	in 	an 	investigation 	of 	Plesha's
alleged 	attempt 	to 	intimidate 	him 	than 	he 	was 	in 	addressing 	the
reasons 	the 	tools 	were 	moved 	to 	the 	water 	treatment 	plant 	in 	the
first 	place. 	This 	too 	suggests 	an 	unlawful 	motive. 	(See 	Baldwin
Park Unified 	School 	District 	(1982) 	PERB 	Decision No. 	221, 	pp.
16-17.)
In 	assessing 	Brock's 	motivation, 	it 	is 	noteworthy 	that 	he
was 	aware 	that 	a 	formal 	investigation would 	jeopardize 	Plesha's
28

promotion, 	yet 	he 	took 	no 	steps 	to 	avoid 	that 	eventuality and
resolve 	the 	matter 	informally or 	at 	least 	without 	formal
discipline. 	Such 	an 	approach 	would 	have 	been 	consistent 	with
past 	practice. 	Instead, 	Brock presented 	Dickinson 	with 	an
incomplete 	picture 	of 	events. 	In 	a 	May 	7 	memo, 	Brock 	informed
her 	the 	tools 	had 	been wrongly moved 	to 	the 	water 	treatment
plant, 	but 	he 	provided 	no 	indication 	that 	the 	engineers 	had 	acted
pursuant 	to 	a 	broad, 	or 	at 	least 	ambiguous, 	order 	from Merino.
The 	memo 	also 	included 	distorted 	accusations 	that 	Plesha
attempted 	to 	blackmail 	him and 	an 	assertion 	that 	he 	would 	not
permit 	Plesha 	to 	threaten 	him. 	Relying 	on 	information 	from 	the
supervisors, 	Marton 	also 	requested 	authority 	to 	investigate
Plesha 	on 	similar 	information. 	His 	request 	also 	included 	an
unsubstantiated 	accusation 	that 	Plesha 	was 	suspected 	of
attempting 	to 	steal 	a 	locker 	full 	of 	tools.
And 	it 	appears 	that 	neither 	ISU, 	Brock, 	or 	Dickinson 	took
steps 	to 	expedite 	the 	matter, 	even 	though 	they 	knew 	Plesha's
promotion 	was 	at 	stake. 	Despite 	assertions 	during 	testimony 	that
he 	was 	concerned 	Plesha's 	promotion might 	be 	jeopardized, 	Brock
did 	not 	submit 	his 	version 	of 	events 	to 	Dickinson 	until 	May 	7.
Dickinson 	waited 	until 	May 	22 	to 	request 	an 	administrative
inquiry 	from 	the 	warden, 	Marton 	recommended 	an 	investigation
sometime 	in May, 	and 	the 	warden 	did 	not 	authorize 	the
investigation 	until 	June 	23, 	about 	one 	week 	before 	Plesha 	was 	to
begin 	employment 	at 	Corcoran. 	This 	strikes 	me 	as 	a 	remarkably
slow pace 	to 	investigate 	an 	employee 	who 	allegedly 	is 	suspected
29

of 	stealing 	tools, 	especially when 	the 	facts 	surrounding 	the
incident 	are 	largely undisputed.
By 	late 	June, 	however, 	the 	die 	was 	cast. 	Although 	as 	a
general 	rule 	a 	receiving 	facility 	may 	have 	the 	discretion 	to
accept 	an 	employee 	under 	investigation, 	it 	was 	virtually 	certain
that 	Corcoran, 	upon 	learning 	that 	Plesha 	was 	under 	investigation,
would 	summarily 	reject 	him. 	That 	is 	precisely what 	happened.
Further 	evidence 	of 	unlawful 	motive 	is 	found 	in 	the
pretextual 	nature 	of 	the 	charges 	against 	Plesha. 	The 	SPB
overturned 	the 	letter 	of 	reprimand 	issued 	to 	Plesha. 	As 	more
fully 	discussed 	below, 	I 	too 	find 	the 	reasons 	for 	issuing 	Plesha
a 	letter 	of 	reprimand 	do 	not 	withstand 	scrutiny. 	They 	are
pretextual 	and 	thus 	suggest 	an 	unlawful 	motive. 	(See 	San 	Leandro
Unified 	School 	District 	(1983) 	PERB 	Decision No. 	288.)
Finally, 	I 	recognize 	that 	the 	investigation 	involved 	three
engineers 	in•addition 	to 	Plesha 	and 	it 	is 	not 	alleged 	that 	they
engaged 	in protected 	activity. 	However, 	this 	factor, 	standing
alone, 	does 	not 	outweigh 	other 	evidence 	of 	unlawful 	motivation
directed 	at 	Plesha. 	As 	the 	Board 	has 	recognized, 	it 	is 	unlawful
to 	discriminate 	against 	an 	entire 	group 	of 	employees 	based 	on
unlawful 	intent 	toward 	a 	union 	activist 	in 	the 	group. 	(See
Cupertino 	Union 	Elementary 	School 	District 	(1986) 	PERB 	Decision
No. 	572; 	see 	also 	San 	Diego 	Community 	College 	District 	(1983)
PERB 	Decision No. 	368.)
30

Based on 	the 	foregoing, 	it 	is 	concluded 	that 	IUOE 	has 	stated
a 	prima 	facie 	case 	of 	retaliation. 	The 	State, 	however, 	contests
this 	conclusion.
The 	State 	contends 	that 	Plesha's 	supervisors, 	Merino 	and
Brock, 	had 	no 	input 	into 	the 	adverse 	action. 	The 	State 	points
out 	that 	it 	was 	Dickinson, 	not 	Brock, 	who 	referred 	the 	matter 	to
ISU 	for 	investigation 	and 	the 	final 	decision 	to 	discipline 	Plesha
was 	made 	by 	the 	warden. 	Accordingly, 	the 	State 	concludes,
although Merino 	and 	Brock had 	knowledge 	of 	Plesha's 	union
activities, 	there 	is 	no 	evidence 	to 	impute 	their 	knowledge 	to 	the
warden.
The 	evidence, 	however, 	does 	not 	support 	the 	State's
argument. 	As 	more 	fully 	addressed 	below, 	even 	assuming 	as 	true
the 	State's 	version 	of 	the 	April 	29 	meeting, 	the 	letter 	of
reprimand 	itself 	cites 	a 	protected 	act 	as 	a 	key 	reason 	for 	the
discipline. 	In 	fact, 	as 	Brock 	testified, 	Plesha's 	threat 	was 	the
sole 	reason 	that 	he 	received 	a 	more 	severe 	penalty 	than 	the 	other
three 	engineers. 	Clearly, 	the 	so-called 	threat, 	characterized
during 	the 	investigation 	as 	bl~ckmail, 	was 	known 	to 	every
management 	official 	up 	the 	chain 	of 	command 	to 	the 	warden.
I 	find, 	moreover, 	that 	the 	alleged 	threat 	and 	other 	evidence
of 	unlawful 	motive 	outlined 	above 	tainted 	the 	investigation 	from
the 	outset 	and 	ultimately 	influenced 	the 	decision 	to 	issue 	the
letter 	of 	reprimand. 	Even 	if 	contacting 	ISU was 	justified upon
discovering 	the'tools 	in 	the 	water 	treatment 	plant 	on April 	25,
by 	the 	end 	of 	the 	meeting 	on April 	29 	it 	was 	clear 	that 	concerns
31

about 	theft 	and 	security were 	greatly 	exaggerated 	and 	a 	formal
investigation would 	jeopardize 	Plesha's 	promotion. 	Yet 	nothing
was 	done 	to 	halt 	the 	looming 	investigation. 	In 	fact, 	Brock
presented 	a 	limited version 	of 	events 	to 	Dickinson 	and 	Marton,
and 	he 	alone 	advanced 	the 	accusation 	that 	Plesha 	threatened 	or
attempted 	to 	blackmail 	him. 	He was 	joined by Ruiz 	and 	Merino 	in
the 	accusation 	that 	tools 	had 	been 	inappropriately 	transported 	to
the 	water 	treatment 	plant, 	despite 	the 	fact 	that 	every 	engineer
explained 	that 	they 	acted 	in 	accord 	with 	Merino's 	instruction.
At 	the 	same 	time, 	it 	is 	worth 	mentioning 	all 	supervisors 	were
aware 	of 	Plesha's 	activities 	as 	a 	IUOE 	steward 	and 	his 	complaint
about 	the 	health 	and 	safety violations 	stemming 	from 	the 	freon
discharge 	incident. 	And 	at 	least 	Brock 	and 	Ruiz 	had 	formed 	the
perception that 	Plesha 	was 	somewhat 	of 	a 	difficult 	employee.
Taken 	together, 	these 	factors 	point 	to 	the 	conclusion 	that
the 	investigation 	and 	the 	discipline 	itself 	were 	tainted 	by
unlawful 	motive. 	Unlawful 	animus 	may 	be 	imputed 	to 	high
management 	officials 	where, 	even 	innocently, 	they 	rely 	on
inaccurate 	and 	biased 	information 	of 	lower 	level 	management
officials. 	(See 	e.g., 	State 	of 	California 	(Department 	of 	Parks
and 	Recreation) 	(1983) 	PERB 	Decision No. 	328-S, 	p. 	16.)
The 	State 	next 	argues 	an 	employee's 	comment 	to 	the 	effect
that 	he 	will 	go 	to 	the 	newspapers 	if 	his 	promotion 	is 	withdrawn
is 	unprotected 	individual 	activity. 	The 	State 	contends 	"an
employee's 	activity 	is 	concerted when 	the 	activity 	is 	engaged 	in
with, 	or 	on behalf 	of, 	or 	on 	the 	authority 	of 	other 	employees,
32

and 	not 	solely 	by 	and 	on 	behalf 	of 	the 	employee 	himself" 	(citing
NLRB 	v. 	Mini-Togs 	(5th 	Cir. 	1993) 	980 	F.2d 	1027 	[142 	LRRM 	2265,
2270] 	and 	Reef 	Industries, 	Inc. 	v. 	NLRB 	(5th 	Cir. 	1991) 	952 	F.2d
830 	[139 	LRRM 	2435]), 	or where 	the 	employee 	asserts 	a 	right 	under
a 	collective 	bargaining 	agreement 	(citing 	Prill 	v. 	NLRB 	(D.C.
Cir. 	1987) 	835 	F.2d 	1481 	[127 	LRRM 	2415, 	2418]). 	In 	the 	State's
view, 	Plesha's 	statement 	that 	he 	would go 	to 	the 	newspapers 	with
health 	and 	safety 	complaints 	if 	his 	promotion was 	held 	up 	is
unprotected 	because 	he 	has 	no 	contractual 	right 	to 	a 	promotion,
his 	promotion 	is 	of 	interest 	only 	to 	himself, 	and 	there 	is 	no
evidence 	that 	he 	obtained prior 	authorization 	from 	other
engineers 	to 	discuss 	the 	promotion with Brock. 	Therefore, 	the
State 	concludes, 	the 	statement 	attributed 	to 	Plesha 	in 	the 	letter
of 	reprimand 	is 	unprotected. 	This 	argument 	is 	without 	merit.
Section 	3515 	provides 	that 	"state 	employees 	shall 	have 	the
right 	to 	represent 	themselves 	individually 	in 	their 	employment
relations 	with 	the 	state." 	Interpreting 	similar 	language 	in 	the
Educational 	Employment 	Relations 	Act 	(EERA) , 18 section 	3543, 	PERB
has 	held 	that 	individual 	complaints 	about 	employment 	matters 	are
protected 	as 	part 	of 	an 	employee's 	right 	to 	self 	representation.
(See 	e.g., 	Pleasant 	Valley 	School 	District 	(1988) 	PERB 	Decision
No. 	708, 	pp. 	13-15 	(Pleasant 	Valley) 	[individual 	complaint 	that
mower 	unsafe 	to 	drive 	found 	protected].) 	Thus, 	even 	if 	Plesha
was 	acting 	as 	an 	individual 	at 	the 	meeting 	on April 	29, 	his
conduct 	would 	not 	be 	unprotected 	for 	that 	reason 	alone.
18EERA 	is 	codified 	at 	section 	3540 	et 	seq.
33

In 	further 	arguing 	that 	Plesha's 	conduct 	was 	not 	protected,
the 	State 	concedes 	he 	sought 	to 	pursue 	lawful 	objectives,
including 	protecting 	his 	promotion 	and 	going 	to 	the 	newspapers
with 	information 	regarding 	environmental 	violations. 	However,
the 	State 	argues 	in 	its 	brief, 	Plesha 	"sought 	to 	do 	it 	in 	an
unlawful 	manner 	by making 	one 	dependent 	on 	the 	other, 	i.e., 	if
his 	promotion 	did 	not 	go 	through, 	he 	would go 	to 	the 	newspapers
with 	information 	that 	allegedly would 	reflect 	badly 	on 	his
employer." 	This 	type 	of 	"threat 	or 	proposition 	is 	blackmail 	or
extortion," 	the 	State 	concludes, 	and 	is 	"obviously 	criminal 	and
unlawful." 	I 	find 	this 	argument 	lacks 	merit 	legally 	and
factually.
As 	a 	factual 	matter, 	evidence 	that 	Plesha 	linked 	protection
of 	his 	promotion with 	a 	threat 	to 	go 	to 	the 	newspapers 	is
lacking. 	As 	indicated 	in 	the 	findings 	of 	fact, 	Plesha 	may 	have
insinuated 	that 	Solano 	is 	"dirty" 	and 	said words 	to 	the 	effect
that 	maybe 	the 	public 	should 	know 	about 	it. 	But 	the 	evidence
does 	not 	support 	the 	conclusion 	that 	Plesha 	threatened 	Solano
with 	public 	exposure 	for 	assorted 	environmental 	infractions 	if
his 	promotion was 	lost. 	As 	concluded 	in 	the 	findings 	of 	facts,
what 	Plesha 	did 	say 	on April 	29 	is 	that 	he 	would 	seek Union
counsel 	or 	legal 	counsel 	if 	his 	promotion was 	lost 	as 	a 	result 	of
the 	tool 	incident. 	Both 	Plesha 	and Morte 	persuasively 	testified
on 	this 	point, 	and 	their 	testimony was 	not 	rebutted 	by 	either
Brock 	or 	Cates. 	Surely, 	such 	a 	comment 	is 	protected.
34

Even 	assuming 	Plesha 	made 	the 	comment 	attributed 	to 	him 	in
the 	letter of 	reprimand, 	it 	would 	be 	protected. 	In 	Community
Hospital 	of 	Roanoke 	Valley 	(1975) 	220 	NLRB 	217 	[90 	LRRM 	1440]
(Community Hospital), 	a 	nurse's 	statement 	on 	a 	television
broadcast 	protesting 	wages 	and 	staffing 	at 	the 	hospital 	at 	which
she 	was 	employed was 	found 	to 	be 	protected. 	As 	with 	Plesha, 	the
nurse's 	statements 	related 	to 	employment 	conditions, 	and 	there
was 	no 	merit 	to 	the 	claim that 	she 	was 	disloyal 	or 	her 	comments
were 	untrue. 	The 	National 	Labor 	Relations 	Board 	(NLRB) 	found
that 	employees 	have 	the 	right 	to 	appeal 	for 	public 	support 	in
their 	efforts 	to 	improve 	employment 	conditions. 19 	(Community
Hospital 	at 	p. 	223, 	enforced 	Community Hospital 	of 	Roanoke 	v.
NLRB 	(1976) 	538 	F.2d 	607 	[92 	LRRM 	3158] .) 	It 	follows 	that 	a
threat 	to 	go 	to 	the 	newspapers 	with 	information 	about 	health 	and
safety violations 	at 	Solano 	similarly 	is 	protected, 	and 	such 	a
comment 	would 	not 	lose 	its 	protection merely 	because 	it 	is 	made
in 	an 	attempt 	to 	preserve 	a 	promotion 	that 	Plesha 	had 	competed
for 	and 	won. 	(See 	also 	Interstate 	Security 	Services, 	Inc. 	(1982)
263 	NLRB 	6 	[110 	LRRM 	1535] 	[protected 	conduct 	found 	even where
expression of 	labor 	dispute 	to 	newspaper 	coincidentally 	reveals
19Although 	the 	language 	of 	the 	Dills 	Act 	is 	not 	identical 	to
that 	of 	the 	National 	Labor 	Relations 	Act 	(NLRA), 	the 	Board 	looks
to 	the 	NLRB's 	construction 	of 	the 	NLRA 	for 	guidance 	in
interpreting 	the 	various 	statutes 	it 	administers. 	(See 	e.g.,
Oakdale 	Union 	Elementary 	School 	District 	(1998) 	PERB 	Decision
No. 	1246, 	pp. 	18-19, 	fn. 	8; 	citing 	McPherson 	v. 	PERB 	(1987) 	189
Cal.App.3d 	293, 	311 	[234 	Cal.Rptr. 	428]; 	Modesto 	City 	Schools
(1983) 	PERB 	Decision No. 	291, 	pp. 	61-62.)
35

information 	employer 	would 	understandably prefer 	to 	keep 	out 	of
the 	public 	eye].)
Nor 	was 	any 	comment 	uttered 	by 	Plesha 	out 	of 	line 	under 	PERB
case 	law governing 	speech 	in 	the 	workplace. 	In 	determining
whether 	speech 	is 	protected under 	PERE-administered 	statutes, 	the
Board 	follows 	a 	well 	established 	line 	of 	cases. 	In 	Rio 	Hondo
Community 	College 	District 	(1980) 	PERB 	Decision No. 	128, 	at 	pp.
18-20, 	the 	Board 	found 	that 	an 	employer 	is 	entitled 	to 	express
its 	views 	on 	employment-related matters 	over which 	it 	has
legitimate 	concerns 	in 	order 	to 	facilitate 	full 	and 	knowledgeable
debate. 	To 	decide 	whether 	employer 	speech 	is 	lawful, 	a 	principal
consideration 	is 	whether 	the 	speech 	contains 	a 	"threat 	of
reprisal 	or 	force" 	(Id. 	at 	p. 	20.), 	under 	an 	objective 	rather
that 	a 	subjective 	standard. 	(California 	State 	University
(California 	State 	Employees 	Association, 	SEID Local 	1000) 	(1989)
PERB 	Decision No. 	777-H, 	adopting 	proposed 	decision 	of
administrative 	law 	judge 	at 	12 	PERC 	Para. 	19063, 	pp. 	292-294.)
Thus, 	it 	must 	be 	shown 	that 	the 	challenged 	"communications 	would
tend 	to 	coerce 	or 	interfere 	with 	a 	reasonable 	employee 	in 	the
exercise 	of 	protected 	rights." 	The 	fact 	that 	employees 	may
interpret 	statements, 	which 	are 	otherwise 	protected, 	as 	coercive
does 	not 	necessarily 	render 	those 	statements 	unlawful. 	(Regents
of 	the 	University 	of 	California 	(1983) 	PERB 	Decision No. 	366-H,
pp. 	15-16, 	fn. 	9.) 	In 	addition, 	statements 	are 	viewed 	in 	their
overall 	context 	to 	determine 	if 	they 	have 	a 	coercive 	meaning.
(Los 	Angeles 	Unified 	School 	District 	(1988) 	PERB 	Decision No.
36

659.) 	Protected 	speech may 	lose 	its 	statutory protection 	only
where 	it 	is 	found 	to 	be 	so 	"opprobrious, 	flagrant, 	insulting,
defamatory, 	insubordinate, 	or 	fraught 	with 	malice" 	as 	to 	cause
"substantial 	disruption 	or 	material 	interference" 	with
operations. 	(Rancho 	Santiago 	Community 	College 	District 	(1986)
PERB 	Decision No. 	602, 	p. 	13.)
While 	most 	PERB 	case 	law 	in 	this 	area 	has 	involved 	employer
speech, 	the 	same 	standards 	apply 	to 	speech 	of 	employee
organization 	representatives 	as 	well. 	(See 	South 	Bay Union
School 	District 	(1990) 	PERB 	Decision No. 	815, 	p. 	12.) 	And 	an
employee's 	right 	to 	engage 	in protected 	conduct 	permits 	some
leeway 	for 	impulsive 	behavior, 	which 	must 	be 	balanced 	against 	the
employer's 	right 	to 	maintain 	order 	and 	respect. 	(Rio Hondo
Community 	College 	District 	(1982) 	PERB 	Decision No. 	260.) 	The
foregoing 	standards 	have 	been 	applied 	to 	free 	speech 	cases 	under
the 	Dills 	Act. 	(See 	State 	of 	California 	(Department 	of
Transportation) 	(1996) 	PERB 	Decision No. 	1176-S, 	adopting
dismissal 	of 	regional 	attorney 	at 	21 	PERC 	Para. 	28016, 	p. 	39.)
The 	context 	in which 	the 	April 	29 	meeting 	took 	place 	is
significant. 	This 	was 	not 	an 	isolated 	one-on-one 	meeting 	between
a 	union 	steward 	and 	a 	supervisor 	over 	an 	issue 	unrelated 	to
employment 	conditions. 	Plesha 	called 	the 	meeting 	with 	Brock 	on
behalf 	of 	himself 	and 	other 	engineers 	to 	discuss 	the 	tool 	issue
and 	related problems 	with Merino. 	Plesha 	participated 	in 	the
meeting 	as 	a 	job 	steward 	and 	he 	acted 	as 	the 	chief 	spokesperson.
Although 	Plesha's 	promotion was 	one 	topic 	of 	discussion, 	also
37

discussed 	were 	the 	discovery 	of 	tools 	in 	the 	hazardous 	materials
locker 	and 	the 	violation 	of 	EPA 	regulations. 	Plesha 	noted that
he 	might 	take 	the 	latter 	issue 	to 	the 	Union. 	Almost 	the 	entire
discussion was 	conducted by 	Plesha 	on 	behalf 	of 	himself 	and 	other
employees 	about 	employment 	related 	matters. 	In 	sum, 	the 	meeting
was 	the 	kind 	of 	situation where 	a 	job 	steward 	should be 	free 	to
engage 	in 	open 	discussions 	about 	employment 	matters. 	This 	is
precisely what 	Plesha 	did.
Moreover, 	the 	record 	does 	not 	support 	a 	finding 	that 	Plesha
acted 	in 	an 	insulting 	or 	insubordinate 	manner. 	While 	the
discussion may 	have 	been a 	contentious 	one, 	Plesha 	never 	crossed
the 	line 	into 	conduct 	that 	would 	render 	his 	speech 	unprotected.
Nor 	does 	the 	evidence 	suggest 	that 	Brock was 	overly upset 	as 	a
result 	of 	the 	meeting. 	Although 	Plesha 	testified 	that 	Brock got
"sharp" 	at 	one 	point, 	the 	meeting 	ended 	with 	Brock 	simply 	telling
Plesha 	to 	"do 	what 	you 	have 	to 	do." 	Under 	an 	objective 	standard,
it 	cannot 	be 	concluded 	that 	a 	reasonable 	person would 	feel
threatened 	by 	the 	discussion 	that 	took place 	on April 	29.
Finally, 	there 	is 	no 	evidence 	that 	Plesha's 	comments 	led 	to
disruption 	or 	interfered with 	operations 	in 	any way. 	In 	fact,
not 	long 	after 	the 	meeting 	Brock 	appointed 	Plesha 	acting 	chief
engineer 	at 	Solano.
Based on 	the 	foregoing, 	it 	is 	concluded 	that 	Plesha's
comments 	at 	the 	April 	29 	meeting 	were 	protected by 	the 	Dills 	Act.
38

In 	a 	lengthy 	argument 	the 	State 	next 	points 	to 	a 	long 	line
of 	First 	Amendment 	cases 	in 	defense 	of 	its 	action. 	That
argument, 	as 	I 	understand 	it, 	is 	summarized 	as 	follows.
Recognizing 	that 	public 	employees 	do 	not 	relinquish 	their
First 	Amendment 	right 	to 	comment 	on 	matters 	of 	public 	interest 	by
virtue 	of 	government 	employment, 	the 	State 	argues 	that 	the
government 	has 	a 	greater 	interest 	in 	regulating 	the 	speech 	of 	its
employees 	by virtue 	of 	its 	role 	as 	employer. 	(Citing 	Connick v.
Myers 	(1983) 	461 	U.S. 	138, 	140 	[103 	S.Ct 	1684] .) 	In 	resolving
First 	Amendment 	issues, 	the 	State 	continues, 	courts 	are 	required
to 	balance 	the 	interest 	of 	the 	employee, 	as 	a 	citizen, 	in
commenting upon 	matters 	of 	public 	concern 	and 	the 	interest 	of 	the
state, 	as 	an 	employer, 	in promoting 	the 	efficiency of 	the 	public
service. 	(Citing 	Pickering 	v. 	Board 	of 	Education 	(1968) 	391 	U.S.
563, 	568 	[88 	S.Ct. 	1731] 	(Pickering).) 	In 	applying 	the 	balancing
test, 	the 	State 	also 	points 	out, 	an 	employer 	may 	not 	discipline
an 	employee 	for 	his 	or 	her 	speech unless 	the 	employer 	believes
the 	speech 	is 	disruptive 	or 	does 	not 	involve 	a 	matter of 	public
concern; 	and 	the 	public 	employer 	need 	not 	conduct 	a 	full-scale
investigation 	into 	the 	speech, 	but 	must 	have 	some 	reasonable
basis 	for 	its 	action. 	(Citing 	Waters 	v. 	Churchill 	(1994) 	511
U.S. 	661 	[114 	S.Ct. 	1878] 	(Waters).)
According 	to 	the 	State, 	even 	if 	it 	is 	found 	that 	Plesha 	did
not 	make 	the 	precise 	statement 	charged 	in 	the 	notice 	of 	adverse
action, 	at 	a 	minimum, 	his 	comment 	was 	reasonably 	susceptible 	to
the 	interpretation given 	it 	by Brock. 	To 	support 	this 	argument,
39

the 	State 	contends 	IUOE 	counsel 	admitted 	at 	hearing 	that 	Plesha,
on April 	29, 	told 	Brock, 	"if 	you 	take 	my 	job 	away, 	I'm going 	to
turn 	you 	in 	for 	the 	EPA violations." 	Plesha's 	comment 	not 	only
was 	"individual 	and 	illegal," 	the 	State 	asserts, 	the 	admission 	is
evidence 	under 	Waters 	that 	the 	State 	had 	a 	reasonable 	basis 	for
taking 	action. 	Considered 	in 	the 	totality 	of 	this 	record, 	this
argument 	is 	not 	convincing.
First, 	the 	comment 	made 	by Union 	counsel, 	as 	presented by
the 	State, 	is 	incomplete 	and 	out 	of 	context. 	When 	counsel's 	full
comment 	is 	read 	in 	context, 	it 	cannot 	be 	viewed 	as 	an 	admission.
The 	comment 	was 	made 	during 	cross-examination of 	Marton 	in 	the
context 	of 	Union 	counsel 	asking 	Marton what 	he 	knew 	about
Plesha's 	conduct 	as 	of 	the 	time 	he 	investigated 	Plesha. 	The
complete 	comment 	is 	"Oh, 	okay. 	But, 	you 	did 	have 	knowledge 	that
Mr. 	Plesha 	said, 	look, 	if 	you 	take 	my 	job 	away, 	I'm going 	to 	turn
you 	in 	for 	the 	EPA violations, 	you 	had 	knowledge 	of 	that?"
I 	do 	not 	read 	the 	question 	as 	an 	admission. 	Rather, 	it 	is
an 	attempt 	to 	determine 	what 	Marton's 	understanding 	of 	Plesha's
conduct 	was 	at 	the 	time 	of 	the 	investigation. 	And 	this 	was
relevant 	because 	what 	Marton 	knew was 	told 	to 	him by 	Brock.
The 	evidence 	shows 	that 	Plesha, 	on April 	29, 	said 	he 	would
seek Union 	counsel 	if 	his 	promotion 	is 	denied 	and 	in 	a 	separate
statement 	he 	said, 	in 	essence, 	that 	he 	was 	surprised 	nobody 	had
gone 	to 	the 	media 	or 	that 	maybe 	he 	would 	go 	to 	the 	media 	with
information 	about 	practices 	at 	Solano. 	Under 	the 	First 	Amendment
40

cases 	cited by 	the 	State, 	that 	comment 	is 	not 	a 	reasonable 	basis
for 	discipline.
As 	IUOE 	points 	out, 	speech 	about 	public 	disclosure 	of 	the
release 	of 	chemicals 	into 	the 	atmosphere 	in 	a 	correctional
facility 	is 	a 	matter 	of 	public 	concern. 	The 	various 	federal 	and
state 	environmental 	protection 	acts 	reflect 	legislative 	and
public 	concern 	over 	the 	condition 	of 	the 	environment, 	including
public 	entities. 	Indeed, 	EPA 	followed 	up 	with 	an 	investigation.
Plesha 	definitely 	had 	an 	interest, 	as 	a 	citizen 	as 	well 	as 	an
employee 	and 	job 	steward 	appointed 	to 	monitor 	employment
conditions 	at 	Solano, 	in 	speaking 	out 	on 	employment 	matters 	and
violations 	of 	EPA 	regulations. 	(See 	Chico 	Police 	Off ice rs'
Association v. 	City 	of 	Chico 	(1991) 	232 	Cal.App.3d 	635, 	646-647
[283 	Cal.Rptr. 	610].)
There 	is 	no 	question 	that 	CDC 	has 	an 	interest 	in promoting
the 	efficiency 	of 	the 	public 	service 	it 	performs. 	However, 	that
interest 	must 	be 	balanced 	against 	that 	of 	the 	employee 	in
speaking 	out 	on 	matters 	of 	public 	concern. 	To 	determine 	if 	the
State's 	interest 	has 	been 	impaired under 	the 	Pickering 	balancing
test, 	the 	State 	lists 	several 	factors 	it 	deems 	relevant. 	These
are 	whether 	an 	employee's 	speech was 	made 	at 	an 	appropriate 	time
and place 	and 	in 	an 	appropriate 	manner; 	whether 	proper 	employer-
employee 	relations 	can 	be 	maintained 	as 	a 	result 	of 	the 	speech;
whether 	the 	employee 	is 	involved 	in 	a 	direct 	working 	relationship
with 	a 	person 	affected 	by 	the 	speech; 	the 	effect 	of 	the 	speech 	on
efficiency and 	harmony; 	the 	need 	for 	loyalty 	and 	confidentiality;
41

and 	the 	effect 	of 	the 	speech 	on 	discipline. 	(Citing 	California
Department 	of 	Corrections 	v. 	State 	Personnel 	Board 	(1997) 	59
Cal.App.4th 	131, 	148 	[69 	Cal.Rptr.2d 	34] .) 	Even 	using 	the
criteria 	proffered 	by 	the 	State, 	it 	is 	concluded 	that 	the 	State's
interest 	was 	not 	impaired here.
The 	comments 	at 	issue 	here 	were 	made 	in 	a 	meeting 	with 	a
supervisor 	and 	other 	employees 	called by 	Plesha 	in 	his 	capacity
as 	a 	job 	steward, 	conduct 	protected by 	the 	Dills 	Act. 	Although
the 	comments 	were 	made 	in 	the 	context 	of 	a 	sometimes 	contentious
discussion, 	they 	reflect 	the 	kind 	of 	discussion 	that 	routinely
takes 	place 	in 	the 	labor-management 	relations 	setting. 	There 	is
absolutely no 	evidence 	that 	they 	had 	a 	lingering 	negative 	effect
on 	the 	individual 	participants, 	or 	on 	overall 	employer-employee
relations. 	As 	the 	evidence 	indicates, 	the 	ensuing 	investigation
took 	place 	with 	Plesha's 	and 	IUOE's 	involvement 	in 	an 	atmosphere
of 	mutual 	cooperation. 	Nor 	is 	there 	evidence 	that 	Plesha's
comments 	had 	an 	effect 	on 	efficiency, 	harmony, 	loyalty, 	or
confidentiality. 	In 	fact, 	shortly 	after 	the 	April 	29 	meeting
Brock 	appointed 	Plesha 	as 	acting 	chief 	engineer 	at 	Solano. 	And
there 	is 	no 	evidence 	that 	Plesha's 	actions 	affected 	discipline.
The 	disciplinary 	and 	corrective 	actions 	taken 	as 	a 	result 	of 	the
April 	24 	tool 	incident, 	although misguided, 	were 	carried 	out
without 	incident 	and 	there 	has 	been 	no 	inappropriate 	conduct 	as 	a
result 	of 	the 	discussion 	at 	the 	April 	29 	meeting.
In 	sum, 	when 	the 	Pickering 	balancing 	test 	is 	applied 	to 	the
totality 	of 	this 	record, 	the 	balance 	weighs 	in 	favor 	of 	Plesha
42

and 	his 	right 	to 	make 	comments 	such 	as 	those 	made 	at 	the 	April 	29
meeting.
The 	alleged 	threat 	aside, 	the 	State 	cites 	several 	reasons 	to
support 	its 	claim of 	just 	cause 	to 	discipline 	Plesha. 20 	The
State 	argues 	that 	Plesha 	failed 	to 	place 	the 	saws 	on 	the
inventory 	list 	and moved 	them 	outside 	the 	security perimeter 	in
an 	attempt 	to 	conceal 	the 	tools 	from 	supervisory 	staff; 	Plesha
was 	dishonest 	during 	the 	investigation 	when 	he 	told 	investigators
he 	discovered 	the 	saws 	in 	the 	shop 	a 	few 	days 	before 	April 	24;
and 	Plesha was 	dishonest 	during 	the 	investigation when 	he 	told
investigators 	that 	he 	spoke 	to 	Brewer 	about 	giving 	one 	saw 	to 	the
carpenters' 	shop 	because 	it 	was 	not 	suitable 	for 	use 	in 	the
engineers' 	shop.
It 	is 	beyond 	question, 	as 	Ruiz 	and 	Sisto 	testified, 	that
tool 	control 	procedures 	are 	important 	to 	security 	in 	a
correctional 	facility. 	And 	breach 	of 	such 	procedures 	may 	be
cause 	for 	discipline. 	However, 	beyond 	these 	general 	assertions,
20 In 	connection with 	this 	position, 	the 	State 	argues 	that 	it
would 	be 	inappropriate 	to 	give 	collateral 	estoppel 	effect 	to 	the
SPB 	decision 	and 	that 	decision 	should be 	given 	little 	or 	no
weight 	in 	this 	proceeding. 	According 	to 	the 	State, 	the 	SPB 	did
not 	address 	the 	issue 	of 	retaliation 	and 	in 	any 	event 	the 	hearing
was 	a 	"circus." 	IUOE 	does 	not 	argue 	for 	collateral 	estoppel
effect. 	Instead, 	IUOE 	argues 	that 	PERB 	should 	give 	"comity" 	to
the 	SPB 	decision. 	(Citing 	Pacific 	Legal 	Foundation v. 	Brown
(1981) 	29 	Cal.3d 	168, 	200 	[172 	Cal.Rptr. 	487] .) 	IUOE 	contends
that 	the 	question 	whether 	the 	State 	had 	cause 	to 	discipline
Plesha 	was 	litigated before 	the 	SPB 	and 	the 	undersigned 	~hould 	at
least 	give 	comity 	to 	the 	SPB 	decision 	on 	that 	issue. 	Although 	I
have 	considered 	the 	SPB 	record, 	I 	have 	not 	given 	the 	SPB 	decision
collateral 	estoppel 	or 	comity. 	I 	have 	made 	independent 	findings
on 	the 	issues 	under 	PERB 	jurisdiction which 	are 	before 	me.
Therefore, 	it 	is 	unnecessary 	to 	address 	the 	arguments 	raised 	by
the 	parties 	on 	these 	points.
43

it 	is 	useful 	to 	examine 	the 	actual 	practice 	at 	Solano 	in
determining 	whether 	just 	cause 	existed 	to 	discipline 	Plesha.
It 	is 	true 	that 	Plesha 	had 	responsibility 	for 	inventorying
the 	saws 	and 	he 	did 	not 	do 	so 	by April 	24. 	However, 	his 	failure
in 	this 	regard 	was 	not 	inconsistent 	with 	the 	practice 	at 	Solano.
Plesha 	credibly 	testified 	that 	the 	tool 	inventory practice 	was 	a
flexible 	one 	which was 	openly 	condoned by management 	at 	the
facility. 	Engineers 	were 	given 	a 	reasonable 	amount 	of 	time 	to 	do
so, 	especially when 	they were 	in 	a 	busy 	period. 	Brock 	and 	Merino
also 	testified 	that 	the 	tool 	control 	policy 	"wasn't 	exactly 	100
percent." 	In 	fact, 	there 	are 	concrete 	examples 	to 	support 	the
conclusion 	that 	the 	requirement 	to 	inventory 	tools 	was 	loosely
enforced. 	Of 	the 	50 	tools 	found 	at 	the 	water 	treatment 	plant,
almost 	all 	of 	them 	had 	not 	been 	inventoried. 	There 	was 	another
incident 	where 	tools 	were 	found 	in 	the 	hazardous 	materials 	box.
And 	the 	record 	in 	the 	SPB 	hearing 	corroborates 	evidence 	in 	this
proceeding 	that 	the 	tool 	inventory policy 	at 	Solano 	was 	not
strictly 	enforced.
Further, 	Plesha 	testified 	that 	turning 	the 	April 	24 	incident
over 	to 	ISU was 	"out 	of 	the 	ordinary." 	Merino 	corroborated
Plesha 	in 	this 	regard. 	He 	testified 	that 	the 	April 	24 	tool
incident 	was 	not 	the 	kind 	of 	incident 	that 	would 	result 	in 	an
investigation 	and 	discipline. 	He 	testified 	that 	it 	was 	the 	kind
of 	incident 	that 	would 	have 	been 	reported 	to 	Brock, 	but 	the 	tools
44

would 	have 	been 	taken 	to 	RASP 	and 	they 	would 	have 	tried 	to 	"work
the 	situation 	out. 1121
Nor 	does 	the 	removal 	of 	the 	tools 	from 	the 	engineers' 	shop
to 	the 	water 	treatment 	plant 	justify 	adverse 	action 	under 	the
circumstances 	presented 	here. 	It 	is 	true 	that 	Merino 	directed
the 	engineers 	to 	remove 	hot 	trash 	from 	the 	shop 	in 	preparation
for 	a 	security 	audit, 	and 	he 	may 	not 	have 	mentioned 	the 	removal
of 	tools 	specifically. 	However, 	according 	to 	every 	engineer 	who
testified, 	the 	directive 	was 	issued 	in 	an 	agitated 	state 	and 	in
broad, 	ambiguous 	terms. 	Clearly, 	it 	was 	reasonable 	for 	the
engineers 	to 	include 	uninventoried 	tools 	within 	the 	meaning 	of
the 	term 	"hot 	trash" 	and 	remove 	them 	to 	the 	water 	treatment
plant. 	The 	alternative 	was 	to 	leave 	the 	tools 	in 	the 	shop 	for
discovery 	by 	the 	security 	audit 	personnel. 	This 	would 	have 	run
counter 	to Merino's 	order 	and 	stated 	objective 	to 	"get 	everything
the 	fuck 	out 	of 	here 	and we'll 	deal 	with 	it 	later," 	as 	Morte 	put
it. 	Given Merino's 	agitated 	state, 	his 	stated 	fear 	that 	the
security 	audit 	personnel 	like 	to 	"burn people," 	his 	ambiguous
order, 	and 	the 	time 	constraints 	on 	the 	engineers 	to 	dispose 	of
hot 	trash 	in Merino's 	absence, 	transporting 	the 	tools 	to 	the
water 	treatment 	plant 	for 	temporary 	storage 	fell 	within 	Merino's
directive 	and 	does 	not 	establish 	just 	cause 	for 	adverse 	action.
Even Brock, 	upon 	learning 	that 	the 	tools 	had 	been 	moved 	to 	the
21 Testimony given 	by 	Tofanelli 	tends 	to 	corroborate 	that
given 	by 	Plesha 	and 	Merino. 	Although 	improvements 	were 	being
made, 	he 	said 	tool 	control 	was 	a 	matter 	of 	ongoing 	concern 	to
IUOE 	members 	and 	existing 	procedures 	were 	not 	evenly 	enforced.
45

water 	treatment 	plant, 	said 	the 	matter would 	be 	treated 	with
LOIS.
It 	is 	noteworthy 	that 	removal 	of 	the 	tools 	in 	no 	way
jeopardized 	security 	of 	the 	tools 	or 	the 	facility. 	The 	tools
were 	taken 	to 	the 	water 	treatment 	plant 	outside 	the 	fenced
perimeter 	and 	secured 	in 	a 	locker 	with 	Cates's 	lock.
The 	allegation 	that 	Plesha 	attempted 	to 	conceal 	the 	tools
from 	supervisory 	staff 	is 	weak. 22 	The 	tools 	were 	moved 	to 	the
water 	treatment 	plant 	at 	Merino's 	direction, 	they 	were 	placed 	in
a 	locker 	where 	Merino 	regularly worked, 	and 	they 	were 	secured
with 	a 	lock 	to 	which Merino 	and 	others 	had 	a 	master 	key. 	Thus,
the 	likelihood 	that 	Merino 	would 	run 	across 	the 	tools 	was 	not
remote. 	In 	fact, 	the 	engineers 	convincingly 	testified 	that
attempts 	were 	made 	to 	contact 	Merino 	on April 	24, 	25 	and 	28.
When 	these 	attempts 	failed·, 	they 	brought 	the 	matter 	to 	Brock's
attention 	within 	three 	work 	days 	and 	indicated 	their 	displeasure
that 	the 	supervisors 	had 	not 	contacted 	them 	at 	the 	outset. 	This
is 	not 	the 	kind 	of 	evidence 	that 	suggests 	an 	attempt 	to 	conceal
tools.
In 	addition, 	the 	allegation 	that 	Plesha 	was 	dishonest 	when
he 	told 	investigators 	on 	September 	22 	that 	he 	discovered 	the 	saws
22Al though 	Plesha 	was 	not 	charged with 	theft 	in 	the 	letter 	of
reprimand, 	that 	allegation was 	a 	key 	reason 	for 	the 	investigation
in 	the 	first 	place. 	However, 	the 	early 	suggestion 	of 	possible
theft 	based on 	the 	assumption 	that 	the 	tools 	were 	being 	"staged"
to 	be 	stolen 	later 	is 	suspect. 	As 	Tofanelli 	testified, 	if 	Brock
and 	others 	truly 	thought 	the 	engineers 	were 	trying 	to 	steal
tools, 	it 	seems 	likely 	that 	they would 	have 	placed 	the 	water
treatment 	plant 	under 	surveillance 	rather 	than 	remove 	the 	tools
to 	another 	location.
46

in 	the 	engineers' 	shop 	a 	few 	days 	prior 	to 	April 	24 	is 	not
established 	in 	the 	record. 	As 	I 	have 	found 	in 	the 	findings 	of
fact, 	it 	has 	not 	been 	shown 	that 	Ruiz 	personally 	delivered 	the
saws 	to 	Plesha 	in 	the 	engineer 	shop. 	Thus, 	the 	State 	has 	not 	met
its 	burden 	of 	showing 	that 	Plesha's 	answers 	during 	the
investigative 	interview were 	dishonest.
Nor 	has 	the 	State 	established 	that 	Plesha 	was 	dishonest 	in
claiming 	the 	circular 	saw was 	not 	suitable 	for 	use 	in 	the
engineer 	shop 	so 	he 	offered 	it 	to 	Brewer 	for 	use 	in 	the 	carpenter
shop. 	The 	transcript 	of 	the 	September 	22 	investigatory 	interview
indicates 	that 	Plesha 	made 	the 	statements 	attributed 	to 	him
regarding 	his 	discussion 	with 	Brewer. 	Brewer 	testified 	in 	this
proceeding 	and 	the 	SPB 	proceeding. 	On 	both 	occasions 	he 	did 	not
deny 	that 	Plesha 	had 	discussed 	the 	saw with 	him. 	In 	both
hearings, 	Brewer 	testified 	that 	he 	did 	not 	recall 	talking 	to
Plesha 	about 	the 	saws, 	but 	it's 	possible 	that 	he 	did. 	Once
again, 	this 	is 	hardly 	the 	kind 	of 	evidence 	that 	supports
disciplinary 	action 	for 	dishonesty.
The 	allegation that 	Plesha 	was 	dishonest 	during 	the
investigatory 	interview 	about 	the 	threat 	to 	Brock 	has 	been
addressed 	above. 	Suffice 	it 	to 	say 	at 	this 	point 	that 	the 	State
has 	not 	established 	Plesha 	was 	dishonest 	in 	his 	answers 	on 	this
issue.
Based on 	the 	foregoing, 	it 	is 	concluded 	that 	the 	State 	has
not 	established 	that 	it 	had 	just 	cause 	to 	discipline 	Plesha. 	The
47

allegations 	advanced 	to 	support 	the 	letter 	of 	reprimand 	are 	found
to 	be 	pretextual.
REMEDY
The 	Board, 	in 	section 	3514.S(c), 	is 	given
the 	power 	to 	issue 	a 	decision 	and 	order
directing 	an 	offending 	party 	to 	cease 	and
desist 	from 	the 	unfair 	practice 	and 	to 	take
such 	affirmative 	action, 	including 	but 	not
limited 	to 	the 	reinstatement 	of 	employees
with 	or 	without 	back pay, 	as 	will 	effectuate
the 	policies 	of 	this 	chapter.
It 	has 	been 	found 	that 	CDC 	retaliated 	against 	Plesha 	for
engaging 	in protected 	activities 	as 	a 	Union 	steward by
investigating 	him 	for 	the 	April 	24 	tool 	incident 	and 	subsequently
issuing 	him a 	letter 	of 	reprimand. 	By 	this 	conduct, 	CDC 	has
interfered with 	his 	right 	to 	engage 	in 	protected 	conduct, 	in
violation 	of 	section 	3519(a). 	By 	the 	same 	conduct, 	CDC 	has
interfered with 	IUOE's 	right 	to 	represent 	bargaining 	unit
employees, 	in 	violation 	of 	section 	3519(b). 	It 	is 	appropriate
to 	order 	CDC 	to 	cease 	and 	desist 	from 	such 	conduct 	and 	to
withdraw 	the 	letter 	of 	reprimand 	and 	destroy 	all 	references
thereto. 	(See 	Marin 	Community 	College 	District 	(1980) 	PERB
Decision No. 	145, 	p. 	20.)
With 	regard 	to 	the 	lost 	promotion, 	IUOE 	argues 	that 	Plesha
should be 	placed 	either 	in 	the 	chief 	engineer 	position 	at
Corcoran which 	he 	was 	denied 	or 	in 	the 	first 	available 	chief
engineer 	position 	in 	northern 	California. 	It 	would 	not
effectuate 	the 	purpose 	of 	the 	Act 	to 	invalidate 	the 	promotion 	of
the 	person who 	currently 	fills 	the 	chief 	engineer 	job 	at 	Corcoran
48

and 	place 	Plesha 	in 	that 	position. 	(See 	State 	of 	California
(Department 	of 	Parks 	and 	Recreation) 	(1983) 	PERB 	Decision No.
328-8, 	pp. 	18-19.) 	It 	would 	effectuate 	the 	purpose 	of 	the 	Act 	to
adopt 	a 	remedy 	that 	restores 	Plesha 	to 	the 	situation 	he 	would 	be
in 	but 	for 	the 	unlawful 	conduct. 	In 	this 	case, 	such 	a 	remedy
requires 	placing 	Plesha 	in 	a 	position 	that 	is 	acceptable 	to 	him,
as 	was 	the 	position 	at 	Corcoran. 	It 	is 	appropriate, 	therefore,
to 	order 	that 	Plesha 	be 	offered 	the 	next 	available 	chief 	engineer
position 	in 	northern 	California. 	To 	the 	extent 	possible, 	such 	a
remedy 	restores 	Plesha 	to 	the 	position 	he 	would 	be 	in but 	for 	the
unlawful 	conduct. 	(See 	Santa 	Clara 	Unified 	School 	District
(1979) 	PERB 	Decision No. 	104, 	p. 	26.)
It 	is 	also 	appropriate 	that 	CDC 	make 	Plesha 	whole 	for
losses, 	monetary 	and 	otherwise, 	incurred 	as 	a 	result 	of 	its
unlawful 	conduct. 	(See 	Regents 	of 	the 	University 	of 	California
(1997) 	PERB 	Decision No. 	1188-H, 	pp. 	33-35.) 	Reimbursement 	for
monetary 	losses 	shall 	be 	at 	the 	interest 	rate 	of 	7 	percent 	per
annum. 	(Ibid.)
Finally, 	it 	is 	appropriate 	that 	CDC 	be 	required 	to 	post 	a
notice 	incorporating 	the 	terms 	of 	the 	Order. 	The 	Notice 	should
be 	subscribed 	by an 	authorized 	agent 	of 	CDC, 	indicating 	that 	it
will 	comply with 	the 	terms 	thereof. 	The 	Notice 	shall 	not 	be
reduced 	in 	size 	and 	reasonable 	effort 	will 	be 	taken 	to 	insure
that 	it 	is 	not 	altered, 	covered by 	any 	material 	or 	defaced 	and
will 	be 	replaced 	if 	necessary. 	Posting 	such 	a 	notice 	will 	inform
employees 	that 	CDC 	has 	acted 	in 	an 	unlawful 	manner 	and 	is 	being
49

'
required 	to 	cease 	and 	desist 	from 	this 	activity 	and 	will 	comply
with 	the 	order. 	It 	effectuates 	the 	purposes 	of 	the 	Dills 	Act
that 	employees 	be 	informed 	of 	the 	resolution 	of 	the 	controversy
and 	will 	announce 	CDC's 	readiness 	to 	comply with 	the 	ordered
remedy. 	(Davis 	Unified 	School 	District, 	et 	al. 	(1980) 	PERB
Decision No. 	116; 	see 	Placerville 	Union 	School 	District 	(1978)
PERB 	Decision No. 	69.)
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	the 	Ralph 	C.
Dills 	Act 	(Act), 	Government 	Code 	section 	3514.S(c), 	it 	is 	hereby
ordered 	that 	the 	State 	of 	California 	(Department 	of 	Corrections)
(CDC) 	and 	its 	representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Retaliating 	against 	employees 	for 	engaging 	in
protected 	conduct.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
1. 	Remove 	the 	letter 	of 	reprimand 	from 	the 	personnel
file 	of 	Steven 	Plesha 	and 	destroy 	all 	references 	thereto.
2. 	Offer 	Steven 	Plesha 	the 	next 	available 	chief
engineer 	position 	in 	northern 	California.
3. 	Reimburse 	Steven 	Plesha 	for 	losses, 	monetary 	and
otherwise, 	incurred 	as 	a 	result 	of 	CDC's 	unlawful 	conduct, 	at 	the
ihterest 	rate 	of 	7 	percent 	per 	annum.
4. 	Within 	ten 	(10) 	workdays 	of 	service 	of 	a 	final
decision 	in 	this 	matter, 	post 	at 	all 	work 	locations 	where 	notices
50

to 	employees 	are 	customarily placed, 	copies 	of 	the 	Notice
attached 	hereto 	as 	an Appendix. 	The 	Notice 	must 	be 	signed by 	an
authorized 	agent 	of 	CDC 	indicating 	that 	CDC 	will 	comply with 	the
terms 	of 	this 	Order. 	Such posting 	shall 	be 	maintained 	for 	a
period 	of 	thirty 	(30) 	consecutive 	workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	insure 	that 	the 	Notice 	is 	not 	reduced 	in 	size,
altered, 	defaced 	or 	covered by 	any 	other material.
5. 	Upon 	issuance 	of 	a 	final 	decision 	in 	this 	matter,
notify 	the 	Sacramento 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board, 	in 	writing, 	of 	the 	steps 	the 	employer 	has 	taken
to 	comply 	with 	the 	terms 	of 	this 	Order. 	Continue 	to 	report 	in
writing 	to 	the 	Regional 	Director 	periodically 	thereafter 	as
directed. 	All 	reports 	to 	the 	Regional 	Director 	shall 	be 	served
concurrently on 	the 	Charging 	Party.
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 	within 	20 	days 	of 	service 	of 	this 	Decision. 	The
Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals 	Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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.
(Cal. 	Code 	Regs., 	tit. 	8, 	sec. 	32300.)
51

A document 	is 	considered 	"filed" 	when 	actually 	received
before 	the 	close 	of 	business 	(5 	p.m.) 	on 	the 	last 	day 	set 	for
filing 	or 	when 	mailed 	by 	certified 	or 	Express 	United 	States 	mail,
as 	shown 	on 	the 	postal 	receipt 	or postmark, 	or 	delivered 	to 	a
common 	carrier 	promising 	overnight 	delivery, 	as 	shown 	on 	the
carrier's 	receipt, 	not 	later 	than 	the 	last 	day 	set 	for 	filing.
(Cal. 	Code 	Regs., 	tit. 	8, 	sec. 	32135(a); 	see 	also 	Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received 	by
facsimile 	transmission 	before 	the 	close 	of 	business 	on 	the 	last
day 	for 	filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet
which 	meets 	the 	requirements 	of 	Cal. 	Code 	Regs., 	tit.8, 	sec.
32135(d), 	provided 	the 	filing 	party 	also 	places 	the 	original,
together 	with 	the 	required 	number 	of 	copies 	and 	proof 	of 	service,
in 	the 	U.S. 	mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c)
and 	(d); 	see 	also 	Cal. 	Code 	Regs., 	tit. 	8, 	secs. 	32090 	and
32130.)
Any 	statement 	of 	exceptions 	and 	supporting 	brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on
a 	party or 	filed 	with.the 	Board 	itself. 	(See 	Cal. 	Code 	Regs.,
tit . 	8 , 	secs . 	3 2 3 oo , 	3 2 3 o5 , 	3 2 14 0 , 	and 	3 213 5 ( c) . )
52
FRED D' ORAZIO
Administrative 	Law Judge
V