State of California (Department of Developmental Services) (PERB 0551SA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE OF 	CALIFORNIA, 	DEPARTMENT OF
DEVELOPMENTAL 	SERVICES,
Respondent.
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) 	Case 	No. 	S-CE-238-S
Request 	for 	Reconsideration
PERB Decision No. 	551-S
PERB 	Decision 	No. 	551a-S
March 	3, 	1987
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Appearances: 	William L. Williams, 	Jr., 	Attorney, 	Police
Officers 	Research Association 	of 	California, 	for 	California
Union 	of 	Safety 	Employees.
Before Hesse, 	Chairperson; 	Burt and Porter, 	Members.
DECISION
HESSE, 	Chairperson: 	The 	Public 	Employment 	Relations 	Board
(PERB or Board) 	initially decided this 	case 	in 	1985, 	upholding
the 	regional 	attorney's 	partial 	dismissal 	of 	the 	unfair
practice 	charge 	filed by 	the 	California 	Union 	of 	Safety
Employees 	(CAUSE) 	against 	the 	State of California, 	Department
of Developmental Services 	(DDS).
CAUSE has 	asked 	that 	the 	Board 	reconsider 	the 	partial
dismissal, 	pursuant 	to Regulation 	32410, 	based on 	"newly
discovered 	evidence." 	CAUSE 	alleges 	that 	at 	the hearing 	on 	the
merits 	of 	the 	partial 	complaint 	(issued 	concurrently with 	the
partial 	dismissal), 	evidence was presented that DDS
administrators 	harbored 	anti-union 	animus 	toward 	one 	employee,
a 	supervisor, 	which was 	then 	"transferred" 	to 	the 	rank-and-file

employees 	who 	filed 	the 	instant 	charge. 	This 	animosity 	then
allegedly motivated 	DDS 	to become 	predisposed 	against 	these
rank-and-file 	employees 	in 	disciplinary matters 	and
investigations of possible wrongdoing.1
Regulation 	321402 states, 	in pertinent part:
The 	grounds 	for 	requesting 	reconsideration
are 	limited 	to 	claims 	that 	the 	decision 	of
the 	Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or 	newly discovered evidence 	or 	law
which 	was 	not 	previously 	available 	and 	could
not 	have 	been 	discovered 	with 	the 	exercise
of 	reasonable 	diligence.
PERB's 	standard 	for 	"newly discovered 	evidence" 	was 	created
for 	the 	situation 	where 	a hearing on 	the 	merits has been held.
(San 	Joaquin 	Delta 	Community 	College 	District 	(1983) 	PERB
Decision 	No. 	261b.) 	Several 	inherent problems 	inhibit 	any
attempt 	to adapt 	the 	"newly discovered 	evidence" 	standard 	of
Regulation 	32410 	to a prehearing 	setting. 	At 	the 	prehearing
stage 	of 	this 	Board's proceedings, 	the 	regional 	attorney's 	task
is 	to discern whether allegations 	in a 	charge 	constitute 	a
prima 	facie 	violation 	of 	the 	statutes 	we 	administer. 	(Regs.
32615, 	32620, 	32630.) 	In connection therewith, 	the regional
attorney 	performs 	an 	investigatory 	function 	entailing 	the
1 The
dissent 	indicates 	that 	the 	original 	decision 	was
deficient 	when 	it 	incorrectly 	analyzed 	the 	interference 	nature
of 	the 	charge. 	As 	the 	charging party did 	not 	request
reconsideration 	of 	the 	interference 	allegation, 	we 	see 	no 	need
to overturn 	what 	we perceive 	to be 	a 	correct 	disposition 	of 	the
case.
2PERB 	Regulations 	are 	codified 	at 	California
Administrative Code, 	title 	8, 	section 	31001 	et seq.
1
N	
2

solicitation 	of 	facts 	from 	the 	parties 	for 	the 	limited purpose
of 	determining 	if 	a prima 	facie 	case has 	been 	alleged. 	The
regional 	attorney, 	however, 	does 	not perform an 	adjudicatory
role 	of 	making 	evidentiary 	determinations 	with 	respect 	to
credibility, 	hearsay, 	or disputed 	issues of 	fact, 	nor does he
otherwise 	weigh 	the 	evidence. 	The 	"newly discovered 	evidence"
standard of 	Regulation 	32410 appears 	to contemplate, 	however,
the proffering of evidence, 	or more precisely, 	the 	failure 	to
proffer 	evidence 	despite 	the 	exercise 	of 	reasonable 	diligence,
within 	an 	adjudicatory 	setting. 	(San 	Joaquin 	Delta 	Community
College District, 	supra; 	see also CCP secs. 	657(4), 	1008.)
Thus, 	we 	do not 	consider 	the 	"newly discovered evidence"
standard 	to be 	an 	appropriate 	grounds 	for 	reconsideration 	of
this 	case.
Even 	assuming 	that we were 	to entertain 	a 	request 	for
reconsideration 	on 	the basis 	of 	newly 	discovered 	evidence
within 	a prehearing context, 	however, 	CAUSE'S 	request must 	fail
in 	the 	instant 	case. 	This 	is because 	CAUSE does 	not 	now
attempt 	to 	introduce 	material 	that 	is 	"newly discovered," 	the
absence 	of 	which 	was 	fatal 	to establishing a 	prima 	facie 	case.
CAUSE 	instead 	endeavors 	to 	introduce 	evidence 	in 	support 	of 	a
discrimination 	allegation 	that 	we 	found 	lacked, 	and 	still
lacks, 	the 	essential 	element 	of protected 	conduct 	on 	the part
of 	the 	rank-and-file 	employees.
In 	its 	request, 	CAUSE argues 	that a hospital
administrator's 	(Bamford 	Frankland) 	testimony 	evinced 	an
33

animosity 	toward 	a 	supervisor 	that 	was 	related 	to 	their
divergent 	views 	on 	labor 	related matters, 	and 	that 	the
administrator's testimony 	also 	showed 	anti-union 	animus
transferred 	to 	the 	rank 	and 	file. 	The 	original 	charge 	itself,
however, 	contained 	essentially 	the 	same 	allegation 	that
hospital 	administrators 	orchestrated 	to 	rid 	DDS 	not 	only of 	the
supervisor 	(George 	Cross), 	but also the 	rank-and-file
employees. 	The 	original 	charge 	further 	alleged 	that 	the
"ostensible 	reason" 	for 	the 	Department's 	desire 	to 	rid 	itself
of 	"these other employees" 	(emphasis 	added) 	was 	the
rank-and-file 	members' 	association 	and 	cooperation 	with 	the
supervisor 	in his 	union 	activities. 	In 	our 	original
deliberations 	we 	affirmed 	the 	regional 	attorney's 	dismissal 	of
this 	allegation 	on 	the 	grounds 	that 	CAUSE was 	unable 	to allege
protected 	conduct 	on 	the 	part 	of 	the 	rank-and-file 	employees
and, 	therefore, 	the 	allegation was 	deficient under precedent 	of
this 	Board. 	(Los Angeles 	Unified 	School 	District 	(1984) 	PERB
Decision No. 	412.) 	Thus, 	by its request, 	CAUSE does not
introduce 	"newly discovered evidence," but 	rather, 	in 	effect,
requests 	the Board 	to 	reconsider whether, 	as 	a matter 	of 	law,
protected 	conduct 	is 	an 	essential 	prerequisite 	to 	finding a
discrimination 	violation 	under 	SEERA. 	We 	do 	not 	choose 	to
change 	our well-founded precedent, 	nor do we believe 	our
regulations would permit, 	on 	reconsideration, 	such a change 	in
our case law.3
3The 	Board 	will 	not 	grant 	reconsideration 	when 	the 	sole
4

ground 	for 	the 	request 	is 	a 	restatement 	of 	a 	legal 	argument
already 	raised 	and 	rejected. 	(See 	Rio 	Hondo 	Community 	College
District 	(1983) 	PERB 	Decision No. 	279a; 	Morgan Hill 	Unified
School 	District 	(1985) 	PERB Decision No. 	554a; 	Riverside
Unified 	School 	District 	(1986) 	PERB Decision No. 	562a.
A 	final 	problem 	with 	CAUSE'S 	request 	is 	that 	the 	testimony
of 	DDS 	administrators 	referenced by 	CAUSE 	did 	not 	evince
animosity 	toward 	Cross 	caused by his 	union 	activities, 	or
otherwise 	show 	that 	anti-union 	animus 	was 	transferred 	to 	the
rank-and-file. 	Rather, 	the 	testimony 	shows 	that 	Frankland was
concerned 	about 	the 	supervisor's 	lack 	of 	leadership 	in 	failing
to 	attend 	to 	numerous 	departmental 	problems.
We 	reject 	Cause's 	argument 	that 	this 	concern 	evinced
anti-union 	animus, 	nor do we believe 	it 	appropriate 	(or
possible) 	to 	infer 	animus 	from 	these 	statements 	and 	then 	to
"transfer" 	that 	inference 	to 	the 	charging 	parties 	here.4
44The	The 	NLRB 	decisions 	relied 	upon 	by 	the 	dissent 	are
inapposite 	insofar 	as 	all 	entailed 	examples 	of 	egregious
conduct 	on 	the part 	of 	the 	employer 	that 	was 	strongly
suggestive of 	anti-union 	animus. 	Further, 	none 	involved
individualized 	decisions 	to 	terminate 	employment 	for 	just
cause. 	With 	respect 	to Hedison Manufacturing 	Co. 	(1980)
249 NLRB 	96; 	Howard Johnson Co. 	(1974) 	209 NLRB 173; 	and R.E.A.
Trucking Co. 	(1969) 	176 NLRB 520, 	enforced R.E.A. 	Trucking Co.,
Inc. 	v. 	NLRB 	(9th Cir. 	1971) 	439 F.2d 1065, 	these cases all
involved 	layoffs. 	Also, 	both Magnolia Manor Nursing Home, 	Inc.
(1982) 	260 NLRB 	377, 	and Karl 	Kallman dba 	Love's Barbeque
Restaurant, 	No. 	62; Love's Enterprises, 	Inc. 	(1979) 	245 NLRB
78, 	enf, 	sub, 	nom. 	Kallman v. 	NLRB 	(9th Cir. 	1981) 	640 F.2d
1094, 	involved 	actions 	taken by 	successor 	organizations 	against
former 	employees 	of 	union-organized 	predecessor 	companies.
Concerning 	the 	dissent's 	reliance 	on 	this 	Board's 	decision 	in
Cupertino 	Union 	Elementary 	School 	District 	(1986) 	PERB 	Decision
No. 	572, 	in 	that decision we noted 	that 	"The group of employees
selected 	for 	layoff 	had 	engaged 	in 	numerous 	protected
activities. 	. . . " 	Also, 	like 	the 	NLRB decisions 	cited by 	the
dissent, 	Cupertino 	did 	not 	involve 	individualized 	decisions 	to
terminate 	employment 	for 	just 	cause, 	but 	instead dealt 	with 	a
layoff 	targeted 	at 	an 	entire 	unit.
55

ORDER
For 	the 	above 	reasons, 	the 	Public 	Employment 	Relations
Board 	DENIES 	the 	Request 	for 	Reconsideration 	of 	PERB 	Decision
No. 551.
Member 	Porter 	joined 	in 	this 	Decision.
Member 	Burt's 	dissent begins 	on page 	7.
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BURT, 	Member, 	dissenting: 	Unlike the majority, 	I would
grant 	the motion 	for 	reconsideration 	and 	find 	that 	CAUSE 	has
stated 	a 	prima 	facie violation of 	the Act 	in 	its 	allegations
relating 	to 	the disciplinary action 	taken 	against 	the
non-supervisory employees 	of 	the 	Protective 	Services 	Department
at 	Stockton Developmental Center 	(Stockton).
CAUSE 	alleged 	that 	DDS 	had 	unlawfully 	retaliated 	against
the 	six employees 	in the 	Protective 	Services 	Department
(Protective Services) 	at 	Stockton. 	The employees were
George Cross, 	a Hospital 	Police Officer 	II 	and the 	supervisor
of 	Protective 	Services 	until 	December 	1983, 	and his 	five
subordinates 	in that department, 	Officers Steven Pimentel,1 l
Jerry Lee, 	Bruce Jernigan, 	James Dull 	and Maria Rocero, 	all
Hospital Police Officers 	I 	(HPO I ) . 	All were terminated 	in
part 	because 	of 	alleged dishonesty 	in 	filling 	out 	time 	sheets.
Cross 	and 	Pimentel 	had 	both been 	active 	in CAUSE 	and 	had
helped 	organize 	a CAUSE 	affiliate, 	the Hospital 	Police
Association of California 	(H-PAC) 	in 	1980. 	All 	the other
officers 	in 	the 	Protective 	Services 	Department 	at 	Stockton had
joined 	H-PAC 	in October 	1980. 	Cross 	and 	Pimentel were 	officers
1A 	complaint 	issued 	on 	the 	allegations 	concerning
Steven Pimentel, 	and his 	case went 	to 	a 	full 	evidentiary
hearing 	in which DDS 	and 	Stockton 	officials 	and 	employees
testified. 	Testimony 	in his 	case 	constitutes 	the 	"newly
discovered 	evidence" 	relied 	on by CAUSE 	in 	its 	request 	for
reconsideration, 	but Pimentel's case, 	as 	such, 	is not addressed
here.
7

in 	H-PAC 	and 	openly 	lobbied 	heavily 	for 	CAUSE-sponsored
legislation 	that 	would 	have 	transferred 	authority 	over 	the
protective 	service 	officers 	at 	the 	hospitals 	from DDS 	and 	the
hospital 	administration chain of 	command 	to 	the 	State 	Police.
This 	legislation was 	strongly, 	if 	not 	always 	openly, 	opposed by
DDS. 	Cross 	and Pimentel 	had 	also 	been 	involved 	in efforts 	to
get 	better 	training 	for 	the 	officers 	and 	in various 	grievances
and 	disputes 	with 	the 	Stockton 	administration 	prior 	to 	and
during 	the 	early 	1980s.
The 	original 	charge 	first 	outlined 	the union 	activities 	of
Cross 	and 	Pimentel 	and 	then 	alleged 	animosity 	towards 	and
harassment 	of 	Cross 	for 	those 	activities 	by DDS 	and various 	DDS
officials, 	including Douglas Van Meter 	and Ray Diaz, 	Stockton
Executive 	Director 	and Assistant 	Hospital 	Administrator,
respectively, 	and, 	as their agent, 	Special 	Investigator
Debbie Neri. 	The 	charge 	contained hearsay 	allegations 	that 	DDS
intended 	to 	fire 	the 	non-supervisory employees 	for 	their
"association" 	and 	"cooperation" 	with Cross 	and 	Pimentel 	and
that 	DDS 	"did 	not 	have 	anything 	on these 	employees 	but 	just
wanted 	to 	clean 	house." 	The 	non-supervisory 	employees 	were
said 	to 	have 	"expressed 	their 	loyalty" 	and 	done 	"numerous
things 	to 	accommodate the organizational 	activities" 	of 	Cross
and 	Pimentel. 	Further, 	the charge 	alleged 	that 	DDS's
discipline 	of 	the 	six employees was 	in 	retaliation 	for 	their
"direct, 	indirect, 	and/or peripheral 	involvement 	in Union
8

activities". 	The 	regional 	attorney dismissed 	the
discrimination 	charge 	based 	on DDS' discipline 	of 	Cross 	because
the majority of 	the 	protected 	activities 	he 	had 	engaged 	in 	had
taken place while 	he was 	a 	supervisor 	and 	not 	a member 	of 	the
bargaining 	unit, 	which 	included 	only HPO 	I's.
The 	regional 	attorney 	then 	indicated 	that 	if 	facts 	were
presented 	from which 	it 	could 	reasonably 	be 	inferred 	that 	the
discipline 	of 	Cross 	adversely 	affected 	the 	exercise 	of 	rights
by the 	non-supervisory employees, 	a violation of 	section
3519(b) 	(interference) 	could be found. 	Since no 	such 	facts
were 	forthcoming, 	this 	allegation was 	also dismissed. 	I 	do 	not
disagree with 	the 	dismissal 	of 	these 	charges.
I disagree, 	however, 	with the dismissal of discrimination
and 	interference 	charges 	based 	on 	the 	discipline 	of 	Jernigan,
Dull, 	Lee 	& Rocero. 	The 	regional 	attorney dismissed 	these
charges 	on 	the 	grounds 	that 	CAUSE 	failed 	to 	allege 	sufficient
protected 	activity 	by 	those 	four 	non-supervisory 	employees 	to
state 	a 	prima 	facie case of 	discriminatory treatment. 	Further,
he 	stated 	that 	CAUSE 	had 	presented 	no 	evidence 	showing 	that 	the
discipline 	of 	these 	employees 	had 	interfered with 	the 	exercise
of 	rights 	by 	the 	employee 	organization 	and 	therefore 	dismissed
the 	interference 	charge.
Charging 	Party now 	requests 	reconsideration 	of 	the
dismissal 	of 	the 	above 	charges 	on 	the grounds 	of 	new evidence
discovered 	in 	the 	hearing 	on Pimentel's 	case. 	CAUSE 	states
9

that 	during 	that 	hearing 	Bamford 	Frankland, 	a 	deputy director
for 	DDS, 	expressed 	an 	animosity toward Cross 	that was 	related
to 	their 	differing 	views 	on 	a 	number 	of 	labor 	relations 	matters
and 	that, 	moreover, 	his 	testimony 	indicated that 	he 	transferred
this 	animosity 	from Cross 	to 	the 	rank-and-file 	employees 	under
Cross' 	supervision. 	Charging 	Party 	says 	that 	this 	transference
of 	anti-union 	animus 	is 	supported 	by the 	testimony of Wayne
Heine, 	a 	former 	labor 	relations 	officer 	for DDS.
The 	transcript 	of 	that 	hearing 	supports 	Charging 	Party's
statements 	that DDS, 	and particularly the 	Stockton
administration, 	disliked 	and distrusted Cross 	and 	that 	these
feelings were 	carried 	over 	to 	his 	subordinates 	in 	the
Protective 	Services 	Department. 	That 	Frankland 	and Van Meter
were 	out 	to 	get 	Cross 	and his 	department 	is 	not unlikely. 	It
is 	certainly arguable that 	the 	attitude 	toward Cross was, 	at
least 	in part, 	connected 	to 	certain union 	activity he engaged
in, 	especially 	lobbying 	for 	the CAUSE 	legislation. 	Frankland
was 	candid 	about 	his 	negative 	feelings 	for 	Cross 	and 	admitted
that 	this 	carried 	over 	to 	the 	non-supervisory employees. 	He
admitted 	that 	he 	had discussed 	his 	opinions 	of 	Cross 	and 	his
department with Van Meter 	prior 	to Van Meter's 	being 	hired 	and
had 	told 	him to 	keep 	a 	close 	eye 	on Cross 	and 	his 	department.
Wayne Heine was 	a 	labor 	relations 	specialist with DDS who
became 	involved 	in 	this 	matter 	rather 	late. 	He 	testified 	that
he 	saw the 	evidence 	of 	timekeeping 	abuses 	that 	formed 	the 	basis
10

of 	the 	administration's 	case 	against 	all 	the 	Protective
Services 	officers.
2
Heine 	apparently 	advised Van Meter 	and
Frankland 	and 	they 	should 	go 	after Cross, 	because 	he was 	the
supervisor who 	authorized 	or 	condoned 	the 	timekeeping
procedures, 	but not 	land 	so 	heavily on the 	rank-and-filers. 	He
apparently did 	not 	think 	there was 	a 	strong 	case 	against 	the
latter, 	and 	also 	thought 	that 	Stockton 	should not 	indulge 	in 	a
mass 	firing. 	He 	testified 	that 	Frankland 	and Van Meter 	decided
that 	they had 	a 	good enough 	case 	against 	all 	of 	the 	officers
and that, 	even though the officers were subordinates, 	they had
knowingly engaged 	in the wrongful 	acts 	and were 	thus 	culpable.
Thus, 	DDS went 	ahead with 	all 	the terminations.
Applicability 	of 	"Newly Discovered" 	Evidence 	Standard
While 	it 	is 	true that 	PERB 	has 	not 	previously 	addressed 	the
specific 	issue of whether 	a 	request 	for 	reconsideration of 	a
Board decision which 	affirmed 	a 	refusal 	to 	issue 	a 	complaint
and dismissal 	of 	charges 	prior 	to 	a 	hearing may properly be
based on newly discovered evidence, 	I 	have no 	difficulty
accepting 	and 	considering 	such 	evidence 	in 	this 	case.
Restricting 	the 	use 	of 	the 	newly discovered 	evidence 	standard
2 The 	audit 	of 	the protective 	service 	records was 	not 	a
model 	of 	efficiency or 	accuracy. 	They had 	to 	do 	the 	analysis
of 	the 	time 	records 	twice because 	of 	flaws 	in 	the methodology
and 	the 	results. 	About 	35% 	of 	the charges were withdrawn the
second 	time 	around. 	The 	investigation 	certainly 	appeared
pretextual.
11

to 	post-hearing 	decisions 	contravenes 	the 	language 	of
Regulation 	32410 	and 	the 	underlying 	purpose 	of 	the 	standard.
Regulation 	32410 	authorizes 	any party to 	"a 	decision of 	the
Board 	itself" 	to 	request 	reconsideration of 	that 	decision 	on
the 	grounds 	of 	newly discovered evidence. 	There 	can be 	no
question either 	that PERB Decision No. 	551-S 	is 	a 	"decision of
the 	Board" 	or 	that 	the Regulation contains 	no 	language 	limiting
reconsideration to post-hearing decisions. 	Thus, 	by the plain
language of Regulation 32410, 	newly discovered evidence 	is 	a
proper 	ground 	for 	reconsideration of 	PERB Decision No. 	551-S.
Logic 	as well 	as 	language 	supports 	this 	reading 	of
Regulation 	32410. 	Whether 	a 	case 	is 	dismissed before or 	after
a 	hearing 	on 	the merits 	is 	irrelevant 	to 	the 	effect 	of 	the
dismissal; 	whenever 	it 	is ordered, 	it prevents 	a party from
proceeding with his 	case. 	Since the effect 	is 	the 	same, 	the
Board 	should 	not 	base 	a 	refusal 	to 	allow the 	introduction 	of
newly discovered 	evidence 	on 	such 	a 	superficial 	distinction 	as
the 	point 	during 	the course 	of 	litigation 	in which 	a 	dismissal
occurs.
The 	validity of 	this 	conclusion 	is 	reinforced when 	one
considers 	the 	underlying 	purpose 	of 	the 	newly discovered
evidence 	standard. 	Permitting 	newly discovered 	evidence 	to 	be
introduced 	prevents 	a meritorious 	case 	from being 	dismissed 	for
lack of 	evidence 	that 	exists 	but was 	not 	previously discovered
or 	presented. 	On the other 	hand, 	restricting 	the use of 	newly
12

discovered 	evidence 	prevents 	the 	disruption of 	the 	orderly
course 	of 	litigation that 	results 	from allowing 	a 	previously-
resolved case 	to be 	reopened, 	and 	also 	precludes 	a 	party from
unfairly obtaining multiple bites 	of 	the 	apple. 	If 	anything,
the 	newly discovered 	evidence 	standard 	should 	be 	applied 	more
liberally to 	a 	pre-hearing 	dismissal 	than 	to 	a 	post-hearing
dismissal, 	both because 	the disruption of 	the process will 	be
less 	if 	the case 	is 	reopened prior 	to 	a 	hearing 	and 	also
because 	the party has 	not 	even had one 	complete bite 	of 	the
apple when charges 	are dismissed 	prior 	to 	a 	hearing.
While 	there 	is 	no PERB precedent 	on this matter, 	federal
law 	is 	in 	accord with my view. 	Under 	the National 	Labor
Relations 	Board 	(NLRB) 	Rules 	and Regulations, 	newly discovered
evidence 	is 	properly 	introduced 	in a 	motion to 	reconsider 	a
decision of 	the 	general 	counsel 	to 	affirm on 	appeal 	a 	regional
director's 	refusal 	to 	issue 	a 	complaint 	— 	a 	situation 	similar
to 	the one before us. 	See NLRB Rules 	and Regulations 	102.19.
I 	see no 	reason to 	follow a different 	course 	in 	the public
sector.
As 	explained below, 	I 	also disagree with the majority that
the 	evidence 	on which CAUSE 	bases 	its 	request 	for
reconsideration 	fails 	to meet 	the 	standards 	set 	forth 	in
Regulation 	32410. 	Motivation 	is 	frequently difficult 	to
ascertain, 	which 	is why 	inferences may be drawn 	from
circumstantial 	evidence. 	The 	original 	charges 	certainly
13

alleged 	anti-union motivation by DDS, 	including 	a 	reference 	to
Frankland. 	CAUSE was 	unable 	to 	present 	facts 	to 	support 	that
allegation with direct 	evidence. 	However, 	because 	the usual
discovery procedures used 	in 	judicial 	litigation, 	such 	as 	sworn
depositions, 	are not available in PERB cases, 	this 	is not
surprising. 	Nor do 	I 	find 	it 	fatal 	to 	its 	request 	for
reconsideration.
Application 	to 	CAUSE Charges
I 	am concerned 	about 	how 	the 	charges 	were 	analyzed 	in 	the
first 	instance, 	and 	the 	new evidence 	reinforces 	my concern.
The 	original 	charge 	alleged 	an 	attempt 	by DDS 	to 	"clean house"
by firing 	the entire Protective Services 	Department, 	all 	of
whom were 	H-PAC 	members 	and 	who 	apparently 	constituted 	the
complete 	H-PAC unit 	at 	Stockton. 	We 	originally dismissed 	the
discrimination 	charges 	that were 	based 	on 	the 	discipline 	of 	the
non-supervisory 	employees 	because 	CAUSE 	had 	not 	alleged
sufficient 	protected 	activities 	on 	the 	part 	of 	those 	employees;
i.e., 	union membership, 	cooperation with 	and 	accommodation of
union 	activists 	in 	their 	activities were 	not 	deemed 	enough. 	In
the 	context 	of 	an 	alleged mass 	firing 	of 	union members,
however, 	I 	think that more than such membership, 	cooperation
and accommodation is 	not 	necessary.
The 	focus 	of 	a discrimination complaint 	is 	the motivation
of 	the 	employer. 	If 	there 	is 	evidence clearly showing 	that
anti-union 	animus 	in 	fact 	motivated 	the 	employer 	to discipline a
14

group of 	employees, 	the degree of 	activism of 	the members 	of
that 	group 	is, 	in my opinion, 	comparatively unimportant 	in
itself.3 Under 	the National 	Labor Relations Act, 	such
allegations 	of 	"cleaning 	house" 	are 	found 	to 	be violations 	of
the 	prohibition 	of 	discrimination, 	even 	absent identifiable
protected 	activities, 	sometimes 	even 	absent 	union membership 	by
the discriminatees. 	See Hedison Mfg. 	Co. 	(1980) 	249 NLRB 96
[104 LRRM 1506]; 	Howard Johnson Co. 	(1974) 	209 NLRB 173 	[86
LRRM 1148]; 	R.E.A. 	Trucking Co. 	Inc. 	(1969) 	176 NLRB 520 	[72
LRRM 1444], 	e n f d R.E.A. 	Trucking Co.. 	Inc. 	v. 	NLRB 	(9th
Cir.1971) 	439 	F.2d 	1065 	[76 LRRM 3018]; 	Magnolia Manor Nursing
Home, 	Inc. 	(1982) 	260 NLRB 377 	[109 LRRM 1198]; 	Karl Kallmann
d/b/a Love's Barbegue Restaurant, 	No. 	62; 	Love's Enterprises,
Inc. 	(1979) 	245 NLRB 78 	[102 LRRM 1546], 	enf. 	sub. 	nom. 	Kallman
v. 	NLRB 	(9th Cir. 	1981) 	640 F.2d 	1094 	[107 LRRM 2011];
National Labor Relations 	Board v. 	J.G. 	Boswell Co. 	(9th Cir.
1943) 	136 	F.2d 	585.4
In the case before us, 	although the original 	charges
contained 	a 	general, 	conclusory 	statement 	that 	anti-union
animus 	motivated 	the 	disciplinary 	action 	taken 	against 	the
3In 	such 	a 	case, 	the protected 	activities 	and 	the
employer's 	knowledge 	of 	them would 	be 	relevant 	primarily 	as
additional 	circumstantial 	evidence 	supporting 	a 	finding 	of
anti-union 	motivation.
4These 	cases 	involved 	situations 	with more 	clearcut 	union
animus, 	but were 	also decided 	after hearings. 	The question
before us 	is 	only whether 	a 	prima 	facie 	case 	has 	been 	stated
sufficient 	to 	support 	issuance of 	a 	complaint.
15

non-supervisory 	employees, 	the 	only 	facts 	used 	to 	allege 	such
support 	were 	hearsay 	— 	triple 	hearsay 	in 	one 	case 	— 	and 	as
such were 	not 	reliable direct 	evidence. 	The 	newly-discovered
evidence, 	however, 	fills out 	that picture. 	There was direct
evidence 	that DDS 	and Cross, 	especially, 	had 	long-standing
differences 	of 	opinion on 	labor 	related matters. 	There was
direct 	evidence 	that 	Bamford 	Frankland 	disliked 	and 	distrusted
Cross 	for 	reasons 	arguably related to 	those differences, 	and
that 	this 	attitude was 	transferred 	to 	the 	non-supervisory
employees working under 	Cross. 	There 	is 	also 	evidence
indicating 	that 	the 	kind 	of 	discipline meted 	out 	to 	the
non-supervisory employees 	was 	unjustified 	by 	their 	sins 	and
also 	that 	the 	investigation was 	suspect 	both 	in 	results 	and 	in
the way 	it was 	conducted. 	If 	Cross 	had not 	been 	a 	supervisor,
a 	prima 	facie 	case 	of 	discrimination would 	have 	been 	stated 	for
him, 	as 	it was 	for Pimentel.
Since 	an 	attempt 	to 	go 	after 	the whole 	department was
alleged 	and 	there 	is 	evidence 	now 	that 	the 	administration's
negative 	attitude 	toward Cross was 	extended 	to 	the 	rest 	of 	the
department, 	I 	think a prima 	facie case of discrimination has
been 	stated 	for 	the 	rank-and-file 	employees 	despite 	the 	lack 	of
union 	activism on 	their 	part. 	This would 	be 	consistent with
our 	recent 	decision 	in Cupertino 	Union Elementary 	School
District 	(1986) 	PERB Decision No. 	572. 	There, 	PERB 	indicated
that 	the 	gravamen of 	the charge was 	that 	a 	layoff
16

discriminatorily targeted 	a 	group 	of 	employees 	that 	included
union activists. 	We 	said 	at 	p.6:
Where 	an employer's 	decision to 	lay off 	a
group 	of 	employees 	is 	unlawfully motivated
by the union 	activism of 	some members 	of 	the
group, 	the layoff 	is 	unlawful 	to 	the entire
group.
The 	analysis 	of 	the 	interference 	charges 	is 	even more
troublesome. 	A prima 	facie case of 	interference 	is 	established
where 	a 	party shows 	the 	employer's 	conduct 	tends 	to 	or does
result 	in some harm to employee 	rights. 	Thus, 	potential 	harm
(not 	actual 	harm) 	is 	sufficient. 	The 	regional 	attorney first
refers 	to 	CAUSE'S 	failure to 	allege 	sufficient 	protected
activity by the 	rank 	and 	file 	employees 	and 	thus 	finds 	no 	nexus
between 	the discipline 	and 	their 	unionism. 	He 	then 	states:
"In 	the 	same way, 	Charging 	Party has 	failed 	to 	present 	evidence
which would 	show 	that 	the 	disciplining 	of 	these 	employees 	has
interfered with 	the 	rights 	of 	the 	employee 	organization."
(Emphasis 	added.) 	This 	analysis 	seems 	to 	require 	evidence 	of
actual 	harm to 	state a prima 	facie case. 	In my view, 	this 	is
incorrect 	as 	a matter of 	law.5 	CAUSE'S 	allegations 	that DDS
fired 	the 	entire 	Protective 	Services 	Department 	— 	who 	were
loyal 	to 	and 	"accommodated" 	the 	principal 	union
organizers 	— 	because 	of 	anti-union 	animus 	describes 	the 	kind
5The 	Board may 	raise 	an 	issue 	sua 	sponte 	to 	avoid 	a
serious 	error 	of 	law. 	See, 	e.g., 	Fresno Unified School
District 	(1982) 	PERB Decision No. 	208.
17

of 	conduct which, 	if proven, 	tends 	to harm the employee
organization. 	The 	chilling 	effect 	on union membership 	that
results 	from a mass 	firing 	of 	union 	adherents would 	fit 	that
criteria 	without 	more.
Since 	all 	that 	is 	at 	issue 	is whether 	a prima 	facie 	case
has 	been 	alleged, 	I 	find 	the 	above 	sufficient 	reason 	to 	grant
reconsideration 	and 	reverse 	the 	dismissal 	of 	both 	the
allegations 	related 	to 	the 	discipline 	of 	the 	non-supervisory
employees.
18