Regents of the University of California (California State Employees Association, Chapter 41) (PERB 0319H)

STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION, CHAPTER 41,
Charging 	Party,
v.
REGENTS 	OF THE 	UNIVERSITY 	OF
CALIFORNIA,
Respondent.
C a s e 	No. 	SF-CE-13-H
PERB 	D e c i s i o n 	N o . 	319-H
June 10, 	1983
Appearances; 	Ernest Haberkern for California State Employees'
Association, Chapter 41.
Before Gluck, Chairperson; 	Morgenstern and Burt, Members.
DECISION
MORGENSTERN, Member: 	The California State Employees'
Association, Chapter 	41 	(CSEA or Charging Party) 	has 	submitted
exceptions 	to 	the 	proposed 	decision of 	a 	hearing 	officer 	of 	the
Public Employment Relations Board 	(PERB or Board). 	The 	hearing
officer 	concluded 	that 	the Regents 	of 	the University of
California 	(University or 	U.C.) 	did 	not 	violate 	subsections
3571(a) 	and 	(b) 	of 	the Higher Education Employer-Employee
Relations Act 	(HEERA).1
1HEERA 	is 	codified 	at Government 	Code 	section 	3560
et 	seq. 	All 	statutory references 	are 	to 	the Government Code
unless 	otherwise specified. 	Subsections 	3571(a) 	and 	(b)
provide:
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(a) 	Impose or 	threaten 	to 	impose reprisals
on employees, 	to discriminate or 	threaten to
)
)
)
)
)
)
)
)
)
)
)
______________ )

In 	its 	charge, 	CSEA alleged 	that 	the 	University violated
HEERA by 	failing 	to 	select 	University 	employee 	John 	Kasper 	to
fill 	four 	job vacancies 	because 	of his 	participation 	in
protected 	activities. 	CSEA argues 	in 	its 	exceptions 	that 	the
hearing 	officer 	failed 	to 	fully 	consider 	and 	appropriately
credit 	evidence which, 	according 	to CSEA, 	demonstrates 	that
Kasper 	was 	not 	selected 	for 	these 	positions 	because 	of 	the
anti-union 	animus 	of 	the 	selecting 	officials.
discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
FACTS
John Kasper 	has 	been 	employed 	by 	the 	University 	graduate
division 	since 	1975. 	At 	the 	time of 	the 	hearing, 	Kasper 	was 	a
senior 	clerk 	at 	the 	fifth 	and 	final 	step of 	the 	senior 	clerk
pay 	scale.
In 	an 	effort 	to 	support 	the 	allegation 	that 	Kasper 	was
unlawfully denied 	four 	positions,2 testimony 	was 	introduced
2Specifically, 	Kasper 	applied 	and 	was 	rejected 	for 	two
principal 	clerk 	positions 	and 	two 	truck 	driver 	positions.
N
	2

as 	to his 	activity 	in 	employee 	organizations 	and other
protected 	activity.
During his 	first year 	in the 	graduate 	division 	in 1975, 	he
initiated 	a 	complaint 	with 	the 	environmental 	health 	and 	safety
department 	concerning 	improper 	ventilation 	in 	the 	men's 	room.
There 	is 	no evidence 	as 	to the outcome of 	this 	investigation.
In the 	summer 	of 	1978, 	Kasper 	joined 	the American
Federation of State, County and Municipal Employees, 	Local 	1695
(AFSCME). 	Approximately a year 	later, 	he switched his
membership to CSEA. 	Kasper 	was 	an 	active 	union member,
performing 	such 	activities 	as 	recruiting 	new members 	and
passing out leaflets.
In April 	1979, 	Kasper 	initiated 	another 	safety complaint
through 	the 	health 	and 	safety 	committee 	of AFSCME. 	Based on 	an
on-site 	examination 	by 	the 	campus 	environmental 	health and
safety department, 	the 	alleged 	hazardous 	conditions 	in a
storage 	facility at 	the Edwards 	Stadium on 	campus 	were
confirmed. 	It was 	recommended 	that 	the 	area not 	be 	used 	until
the 	safety problems 	were 	corrected. 	This 	facility was 	used 	by
Rasper's 	department 	for 	file 	storage 	and Kasper 	told 	student
employees 	he 	supervised 	not 	to go 	to the 	facility because 	it
was 	unsafe.
Sometime thereafter, 	Carol Soc, 	administrative 	assistant 	to
Virginia Griffin, Rasper's supervisor, 	ordered Terry Meyer, 	one
of 	Rasper's student 	employees, 	to go to the 	storage 	facility.
W	
3

Meyer 	refused, 	saying Kasper 	had 	told 	him 	not 	to 	and 	that 	he,
Rasper, would take responsibility. 	Later, 	in September 1979,
Griffin 	told Kasper 	that 	she 	did 	not 	want Meyer 	to 	continue
working 	in the 	department 	because others, 	including Soc, were
dissatisfied 	with 	him.
In 	the 	summer 	of 	1979, 	Kasper 	asked Griffin about 	getting
an 	employee 	organization 	bulletin 	board 	for 	the 	department.
Since 	Kasper 	ordered 	supplies, 	she 	told him to order 	one. 	When
it 	came 	in, Kasper 	posted organizational materials on it 	and
asked Griffin to have 	it 	affixed 	to the wall. 	He left the
bulletin 	board 	at 	his 	desk on 	a Friday 	afternoon 	and when 	he
returned 	to work 	the 	following Monday, 	he 	found 	that 	the 	board
had 	been locked 	in Soc's 	office. 	Griffin 	did 	not 	return the
posted materials 	to Kasper 	until 	a union 	representative
interceded.
Kasper 	then 	tried 	to 	use 	a portion of 	another 	large
bulletin 	board 	for 	employee 	organization 	notices. 	However,
Griffin 	removed 	the 	organizational 	materials 	placed 	on 	this
board.
Finally, 	after 	a meeting with Kasper 	and Griffin and 	the
acting 	dean of 	the 	graduate 	division, 	an official 	employee
organization 	bulletin board was 	put 	up. 	On one occasion,
Griffin 	posted 	an 	advertisement 	for 	student magazine 	rates 	over
a health 	and 	safety notice 	posted 	by 	the 	union. 	Kasper 	removed
the magazine 	notice 	and Griffin 	reported 	him 	to 	the 	dean 	for
4

doing 	so. 	Kasper 	was 	called 	in 	for 	a meeting 	with 	the dean
that 	same 	day 	and 	was 	assured 	that 	no memo 	would 	be put 	in his
file concerning 	the 	incident. 	However, 	a memo was 	placed 	in
Rasper's 	file 	indicating 	only 	that 	no memo 	had 	been 	exchanged
between 	the dean 	and 	Griffin on 	the 	subject. 	As 	a result of
this 	meeting, 	a much 	larger 	employee 	organization bulletin
board 	was 	ordered 	and 	no 	subsequent problems 	were 	experienced.
Two promotional opportunities, 	which 	are 	the focus of 	the
instant 	case, 	involve 	the position of 	principal clerk 	in 	the
graduate 	division.
In early September of 	1979, 	Kasper 	had a meeting, 	along
with 	two 	union 	representatives, 	with Griffin and a graduate
division personnel 	advisor 	to 	discuss 	Rasper's 	career
opportunities. 	All of 	the promotional opportunities 	into
principal clerk positions 	in 	the division were 	reviewed. 	At
that meeting, 	Rasper 	testified, 	Griffin stated 	that 	the only
qualification 	he was 	lacking 	for 	these 	positions was 	sufficient
typing 	skill.
About 	two weeks 	later, 	a principal clerk position became
available 	as 	a 	result of 	the death of 	an employee. 	Rasper
wrote 	a memo 	to Griffin on September 	13, 	1979, 	indicating he
was 	interested 	in 	the 	job. 	He mentioned 	that 	she 	told him over
a 	year 	earlier 	he would get 	this 	job 	if 	the 	incumbent 	left 	and
that, 	in 	the 	recent meeting, 	Griffin had 	again mentioned 	this
position 	as 	one 	of 	his 	likely promotional opportunities.
At 	the 	time of 	the opening, 	this principal clerk position
had 	responsibility for 	files 	in 	the admissions office, 	a
5

separate 	subdivision of 	the 	graduate division. 	However, 	the
decision was 	made 	to 	reorganize 	the 	graduate 	admissions 	office
and 	to 	list 	the 	open position as 	an 	"evaluator" 	of 	graduate
admission 	applications.
Karla Goodrich, 	head of the 	admissions office, 	and her
assistant, 	Donna Bretherick, 	discussed 	between 	themselves
changing 	the 	principal clerk 	position 	to 	an 	evaluator
position. 	Goodrich contacted Griffin 	to 	ask 	whether 	it 	was
permissible 	to change 	the 	job description. 	Griffin said 	it
was. 	In a meeting with all 	the 	evaluators, 	Goodrich discussed
the 	proposed 	change. 	The 	employees 	were 	asked 	to consider
whether 	they 	would 	favor 	adding 	another 	evaluator 	position
since 	it 	would 	require 	them to 	assume 	the 	clerical duties 	of
the 	former 	principal clerk 	position. 	All 	of 	the 	evaluators
voted 	for 	the 	additional 	evaluator.
Prior 	to 	this 	time, 	the 	office 	had 	separate 	staffs 	for
evaluation 	of 	domestic 	and 	foreign 	applications. 	Two of 	the
three 	foreign 	application evaluators 	had 	quit, 	and 	the 	office
was 	running 	behind 	in evaluating 	foreign applications. 	In
response 	to 	this problem, 	it was 	decided 	that all 	evaluators
would 	be cross-trained 	so 	all 	could 	review 	foreign 	as well 	as
domestic 	applications.
As 	a result of 	these 	discussions, 	although 	the 	title
"principal clerk" 	remained 	the 	same, 	the 	job description 	for
the 	vacant 	position was 	substantially 	changed 	to 	reflect 	the
6

shift 	from 	file 	clerk 	to 	evaluation 	duties. 	By memo 	dated
September 19, 1979, 	Goodrich 	so 	advised 	the 	graduate division
staff. 	The 	job 	announcement 	listed 	a 	bachelor's 	degree 	and
knowledge 	of 	a foreign 	language 	as 	"very desirable"
qualifications. 	Having 	college 	experience was 	considered
helpful 	in evaluating the 	significance of 	courses, 	grades 	and
other 	transcript-related matters. 	Knowledge of 	a foreign
language 	was 	considered 	desirable 	because 	approximately 	4,500
of 	the 	16,000 	applications 	received 	each 	year 	were 	from
students 	from 	a 	foreign 	country.
Kasper 	and 	16 	others 	submitted 	applications 	for 	the 	vacant
position 	in the 	fall of 	1979. 	Goodrich 	and her 	assistant,
Bretherick, 	decided to interview 10 applicants, 	including
Kasper. 	According 	to Goodrich, Kasper 	was 	interviewed as 	a
matter 	of 	courtesy 	since 	he was 	from within the 	graduate
division. 	The 	reason 	for 	Goodrich's 	lack of 	enthusiasm 	about
Kasper 	was 	that 	he 	did 	not 	have a 	bachelor's 	degree 	and,
although 	he 	listed 	knowledge 	of Spanish on his 	application, 	at
the 	interview 	he 	said 	he was 	not 	very 	fluent.
Typing 	skill 	also was 	considered 	necessary 	because of 	the
many forms 	evaluators must 	type. 	Kasper 	listed 	no typing 	speed
on 	his 	application nor 	was 	there 	any discussion of 	it 	at 	his
interview. 	Goodrich 	testified 	that 	typing speed was 	not 	a
determinative 	factor 	in Rasper's 	non-selection. 	Accuracy,
rather 	than speed, 	was 	critical.
77

The 	first 	person 	selected 	by 	Goodrich 	and 	Bretherick 	for
the 	job had a 	bachelor's 	degree, 	was 	fluent 	in 	four 	languages,
and 	received 	an 	excellent 	recommendation 	from 	her 	former
employer. 	Just prior 	to beginning 	the 	job, 	however, 	the 	first
choice 	candidate 	declined 	the 	position. 	The 	second 	choice, 	who
accepted, 	had 	a 	bachelor's 	degree 	and 	a 	teaching 	credential
from Berkeley. 	She was 	personally 	familiar 	with 	the 	graduate
application procedure, 	had 	a 	reading 	knowledge 	of 	French 	and
German 	and 	typed 	70 words per 	minute. 	She 	also had 	a good
recommendation 	from 	her 	supervisor.
Goodrich 	was 	the 	selecting 	official who 	declined 	to 	promote
Kasper 	to 	this 	position.3 Other 	than 	the 	question 	to Griffin
concerning 	the 	permissibility 	of 	changing 	the 	job 	duties 	of 	the
vacant 	principal clerk 	position, 	Goodrich 	had 	no contact with
Griffin 	concerning 	either 	the 	decision 	to change 	the 	duties 	to
those 	of an evaluator, 	Rasper's application, 	or 	the 	interview
and 	selection process 	itself. 	There 	was 	no discussion 	during
the 	interview of Rasper's 	union activities. 	Goodrich, 	although
aware 	that Rasper 	was 	a 	union member, 	having 	read 	an 	article 	in
3pursuant 	to 	the 	University's 	internal 	appeal procedure,
Rasper 	contested 	denial 	of 	the 	first 	application on
November 	15, 	1979. 	This protest prompted 	a factfinder's
investigation and 	report dated March 	13, 	1980, 	which concluded
that 	there 	was 	no 	evidence 	to 	support 	the 	allegation 	that 	the
promotion 	to principal clerk 	was 	denied 	because 	of 	Rasper's
union 	activities.
CO
	8

the AFSCME 	newsletter 	about 	his 	involvement 	in 	the Edwards
Field 	safety 	inspection, 	did 	not 	know 	to which 	union 	he
belonged or 	the 	extent 	of 	his 	involvement. 	She 	had 	no
knowledge 	of 	his 	complaints 	about 	his 	job applications 	to 	the
Richmond 	Field 	Station 	or 	the 	Department 	of 	Facilities
Management, 	discussed 	infra.
Sometime 	earlier, 	there was 	a meeting 	in the graduate
division concerning 	the 	new 	collective 	bargaining 	law 	(HEERA).
Goodrich did 	not 	attend, 	in part 	because 	she 	did not 	want 	to
intimidate 	her 	employees. 	Bretherick, 	however, 	did attend.
After 	the 	meeting, 	Goodrich 	heard 	from 	some 	of 	her 	employees
that 	Kasper 	and 	other 	employees 	were 	at 	the 	meeting.
The 	second 	promotional 	opportunity 	to 	which 	Rasper's
allegations 	focus 	occurred 	in January 	1980 	as 	a 	result 	of 	the
fact 	that 	the 	new 	principal clerk 	hire, 	who 	had 	begun work 	in
October 	1979, 	soon quit. 	Therefore, 	the 	job was 	again listed.
This 	time 	about 	ten 	applications 	were 	received 	and 	five
persons, 	including Kasper, 	were 	interviewed.
Again, 	only Goodrich 	and 	Bretherick 	were 	involved 	in 	the
interview 	and 	hiring process. 	There 	was 	no contact with
Griffin. 	Goodrich 	felt 	Kasper 	showed 	disinterest 	in 	the
interview, 	recalling 	his 	stated 	reasons 	for 	wanting 	the 	job
were 	more 	money 	and 	something 	new 	to do. 	He 	did 	say 	his 	typing
speed was 	45 	words 	per 	minute.
The 	person 	hired 	had 	a 	bachelor's 	degree 	from Berkeley 	and
a 	good 	reading 	knowledge 	of 	Spanish 	and German. 	She 	had
9

previously worked 	as 	an 	evaluator 	in 	the 	admissions 	section
and, more 	recently, 	at U.C. 	Extension in an enrollment function,
The 	instant 	charge 	also 	identifies 	two truck 	driver
positions 	for 	which Kasper 	applied 	but 	was 	rejected. 	The 	first
involved 	a 	position 	at 	the Richmond Field Station 	in September
of 	1979.4 	Don Larson, 	superintendent 	of 	physical plant 	at
the Richmond Field Station 	conducted 	the 	interviews 	and
selected 	the 	candidate 	for 	the 	position.
4In 	April 	1979, 	Kasper 	first 	applied 	for 	a truck driver
position 	at 	the Richmond Field Station. 	However, 	the 	relevancy
of 	this 	incident 	is 	limited 	to 	background 	evidence 	of
anti-union 	animus 	on the 	part 	of 	the University 	because, 	as
noted 	in the September 	24, 	1980 Order 	of 	the 	administrative 	law
judge who processed 	this 	case, 	an 	unfair 	practice 	violation
cannot 	be 	found on the 	basis 	of 	this 	incident 	because 	it
occurred 	outside 	the 	six-month 	limitation 	period 	in 	subsection
3563.2(a).
Kasper 	was 	interviewed 	for 	the 	truck driver 	position 	at 	the
Richmond Field Station 	in April 	1979 	by John Jencks. 	Jencks
stated 	he 	was 	very 	impressed 	with 	Kasper 	and 	that 	there 	seemed
to 	be 	no 	affirmative 	action 	restraints 	involved 	in 	filling 	the
position. 	He 	also 	told Kasper 	he might 	need a 	class 	II
driver's 	license for 	the 	job, 	but 	that 	he 	could obtain it later.
Jencks 	also mentioned to Kasper 	that 	he, 	Jencks, 	was 	a CSEA
member. 	He went on to promote 	the 	advantages 	of 	joining CSEA,
telling 	Kasper 	there 	had 	been 	a Hispanic 	employee 	who 	had 	not
been 	issued 	his 	first 	paycheck 	until CSEA 	stepped 	in 	and 	got 	it
for 	him. 	Jencks 	did not 	ask Kasper 	about 	his 	union 	affiliation
or 	activities, 	nor 	is 	there 	any evidence Jencks 	had any other
knowledge 	of 	them.
About 	a week later, 	Kasper 	called Jencks 	to 	inquire 	about
the position. 	This 	time, 	Jencks 1 attitude toward him was
negative. 	He said there were, 	in fact, 	affirmative 	action
considerations 	and 	a 	black woman would 	probably 	get 	the 	job
before Kasper. 	Kasper 	was 	not 	hired, 	and the 	black woman,
10

Borrowing 	from his 	Navy 	service 	experience, 	Larson 	created
a 	list 	of 	ranking 	factors 	by 	which 	to 	judge 	the 	applicants 	for
the 	truck 	driver 	position. 	He 	assigned 	a weight 	to 	each 	factor
and 	then went 	through 	the 	applications 	and 	ranked 	each
applicant.
Georgina Bledsoe, 	was 	hired. 	Kasper 	filed 	an 	appeal of 	this
decision which, 	on August 	2, 	1979, 	the 	factfinder 	rejected.
However, 	because 	of her 	unsatisfactory performance 	and
inability 	to obtain a class 	II driver's 	license, 	Bledsoe was
terminated 	during 	her 	probationary 	period.
Testimony 	regarding 	Jencks 1 organizational 	sentiments 	was
also 	introduced 	by Eugene 	Darling, 	an AFSCME 	job steward.
Darling 	testified 	that, 	in December 	of 	1978 	in a grievance
meeting, 	Jencks 	became 	agitated 	and 	stated 	that 	he 	thought
AFSCME 	often 	brought 	up 	"frivolous" 	issues which were 	a waste
of 	time. 	Jencks 	said he 	based 	this 	belief 	both 	on 	that
grievance 	and what he 	read 	in 	the AFSCME newsletter. 	Jencks
also mentioned 	he 	was 	a CSEA member.
Out of 	26 	candidates, 	he 	rejected 	11 who did not 	have
class 	II driver's 	licenses. 	At 	this 	time, 	Kasper 	had 	acquired
this 	license 	and 	thus was 	not 	initially rejected. 	Out of 	the
remaining 	candidates, 	Larson 	selected 	6 	to 	interview. 	Kasper
was 	ranked 	11th 	out of 	the 	remaining 	15 	candidates 	and 	did 	not
receive 	an 	interview.
Before 	this 	application, 	Larson 	had 	not 	heard 	of Kasper 	or
about 	any 	union 	involvement. 	Jencks 	had 	no 	input 	into 	the 	job
description or 	the 	hiring 	process. 	No one 	at 	the 	Field
Station, 	including Jencks, 	said 	anything 	to Larson about Kasper
or 	the 	interview process 	in general. 	Larson 	talked 	to no one
11

from 	any other 	department, 	including 	the 	graduate 	division,
about Kasper. 	Neither 	was Larson aware of 	Rasper's previous
application 	for 	this 	truck 	driver 	position 	nor 	his
administrative 	appeal 	of 	his 	rejection.
The 	person 	hired 	by Larson 	for 	the 	truck 	driver 	position
had 	been 	a professional 	highway driver 	of 	large 	vehicles. 	He
had worked 	as 	a 	truck mechanic for 	several 	years 	and 	also 	had
been 	a 	crash crew 	crane operator 	in the Navy. 	He 	also had
experience 	operating 	virtually every 	piece 	of 	equipment 	used 	at
the 	field 	station.
Kasper 	also 	contested 	the 	failure 	to 	hire 	him 	for 	the 	truck
driver 	position 	at Facilities Management 	on November 	8, 	1979.
When 	the 	position 	became 	available 	in October 	of 	1979,
13 or 14 applicants, 	including Kasper, 	were interviewed 	by
Frederic Warnke, manager 	of 	ground 	services 	in the Department
of 	Facilities 	Management.5
5In 	May 1979, 	Kasper 	was 	interviewed 	for 	a 	truck driver
position 	by Warnke. 	It 	is 	beyond 	the 	six-month 	limitation
period 	and 	is 	included 	for 	background 	purposes 	only. 	At 	that
first 	interview, 	Kasper mentioned 	he 	had 	no experience 	with
larger 	trucks. 	Out of 	the eight or 	nine candidates, 	a black
man was chosen, not only because he had extensive truck driving
experience 	and 	a 	thorough 	knowledge 	of 	the 	campus, 	but 	also
because 	his 	hiring 	fulfilled 	an 	affirmative 	action 	goal.
Previously, 	there 	had 	been no 	black drivers 	in the Department
of Facilities Management. 	Kasper 	appealed 	this 	decision
pursuant 	to University procedures. 	No response 	appears 	in 	the
record.
Kasper 	called Warnke 	on May 14, 	1979, 	to 	inquire 	about 	how
he 	had 	fared 	in 	the 	interview 	the 	week 	before. 	Warnke 	told 	him
12

that, 	subject 	to passing 	a physical examination, 	he had hired
someone else. 	Rasper 	testified 	that, 	until 	this 	time, 	he was
not 	informed 	there 	was 	a 	requirement 	for 	a physical 	examination,
There 	is 	some 	difference 	between 	Rasper's 	and 	Warnke's
recollections 	of 	the 	interview. 	Kasper 	testified Warnke 	said
he 	had 	a preference 	for 	outside 	candidates 	rather 	than
University 	employees, 	and 	that Warnke 	also 	said 	he 	"even 	had 	to
interview 	a 	union member," 	referring 	to 	a Teamster 	truck 	driver
he 	had 	interviewed 	and 	not 	to 	a CSEA or 	AFSCME member.
During 	the 	interview, 	Rasper 	asked what 	his 	chances 	were 	of
getting 	the 	job. 	Warnke 	replied 	he 	did 	not 	know yet 	because 	he
had 	several more 	people 	to 	interview.
The 	person 	selected 	by Warnke 	had 	worked 	with 	the
University 	intercollegiate 	athletic 	department 	for 	22 	years 	as
a 	gardener. 	As 	such, 	he 	had 	driven a 	truck 	and 	had 	also driven
trucks on 	a 	farm during 	summers. 	Rasper 	appealed 	this 	decision
through University 	channels, 	and 	his 	appeal 	was 	rejected.
Warnke 	had 	no 	information 	about Rasper 	before 	the 	first
interview 	and 	knew 	nothing 	about 	his 	union 	affiliation or
activities. 	The 	subject was 	not 	discussed during 	the 	first
interview.
Shortly 	after 	the 	first 	interview, 	Warnke mentioned 	to one
of his 	fellow carpool 	riders, 	who was 	administrator 	of Cowell
Hospital on 	the 	campus, 	that 	he 	had 	just 	interviewed 	someone
(Rasper) 	who had 	been a driver 	for 	the 	physically 	handicapped
13

at Cowell Hospital. 	Although 	the Cowell Hospital 	administrator
did 	not 	know 	Kasper 	personally, 	he 	praised 	Kasper 	by 	saying 	the
job he 	performed 	at Cowell Hospital 	was 	a difficult 	one.
Other 	than 	this carpool 	incident, 	Warnke's 	testimony was
unclear 	and 	contradictory 	as 	to whether 	he was 	aware 	of 	Kasper,
his 	grievances 	or 	union 	activities 	until 	after 	he 	had 	rejected
Kasper 	on 	the 	second 	interview 	in October 	1979. 	Warnke was
unaware 	of 	the 	administrative 	appeal Kasper 	had 	filed 	against
him 	in 	connection with 	the 	first 	interview.
DISCUSSION
In Novato Unified School District 	(4/30/82) 	PERB Decision
No. 	210, 	the Board determined 	that, 	in cases alleging
discriminatory conduct, 	it must 	be proven 	that 	the 	employee was
engaged 	in 	protected 	activity 	and 	that 	the 	employer's 	conduct
was 	motivated 	by 	that 	participation. 	Unlawful motive 	is
accordingly 	the 	specific 	nexus 	required 	in 	the 	establishment 	of
a prima 	facie 	case. 	Although 	the 	standard 	set 	forth 	in Novato
concerned 	alleged 	violations 	of 	the 	Educational Employment
Relations Act, 	it has 	been 	applied by 	this Board 	to charges
arising 	under 	HEERA. 	(California State 	University, 	Sacramento
(4/30/82) 	PERB Decision No. 	211-H; 	The Regents of 	the
University of California 	(U.C. 	San Diego) 	(3/30/83) 	PERB
Decision No. 	299-H.) 	Applying 	this 	standard 	to 	the 	instant
case, 	we 	find 	that 	the 	Charging 	Party 	has 	failed 	to 	satisfy 	its
burden.
14

Citing PERB's decision in Santa Clara Unified School
District (9/26/79) PERB Decision No. 104, CSEA argues that
Kasper was 	unlawfully rejected for 	the two principal clerk
positions 	because Griffin harbored anti-union animus 	against
Kasper for 	the safety report and 	bulletin board incidents.
The 	threshold 	issue 	is 	whether 	Kasper 	engaged 	in any
protected 	activity which 	could 	have 	been 	the motivation 	for
Griffin's conduct. 	Rasper's 	conduct 	in the 	summer 	of 	1979
regarding 	the 	bulletin 	board falls 	within 	the 	parameters 	of
protected 	activity. 	Section 	3568 of 	HEERA provides:
Subject 	to reasonable 	regulations, 	employee
organizations 	shall 	have 	the 	right 	of 	access
at 	reasonable 	times 	to 	areas 	in which
employees 	work, 	the 	right 	to use
institutional 	bulletin boards, mailboxes 	and
other means of 	communication, 	and the 	right
to 	use 	institutional 	facilities 	at
reasonable 	times 	for 	the 	purpose of 	meetings
concerned 	with 	the 	exercise 	of 	the 	rights
guaranteed 	by 	this 	act.
Rasper's 	efforts 	to 	have 	the 	bulletin 	board mounted 	and 	to
post organizational materials 	were 	in furtherance 	of 	the
union's 	goals 	of 	communicating 	with 	and 	representing
employees. 	His 	conduct 	was 	clearly protected 	activity.
In addition, Rasper's 	safety-related 	complaint, 	pursued
with 	the 	assistance 	of AFSCME, 	concerning 	the Edwards Field
Station 	also 	constitutes 	protected 	activity.6
6Based 	on AFSCME's 	involvement 	in 	the Edwards Field
Station 	complaint, 	it 	is 	unnecessary to 	consider 	whether 	all
15

safety-related complaints 	initiated by an individual employee
are protected activity under HEERA. 	See, 	for example, Alleluia
Cushion Co. (1975) 221 NLRB 999 [91 LRRM 1131].
Given the existence of this protected activity, CSEA argues
that because of 	that conduct Kasper was not selected for 	the
two principal clerk positions. 	However, 	while the record
reveals 	that Griffin had direct knowledge of Rasper's protected
activities, 	there 	is no support for 	the conclusion that she was
involved in the actual selection decisions. 	Goodrich and
Bretherick 	interviewed 	and 	selected 	the successful candidates
and the 	record reveals 	that neither harbored any anti-union
sentiments against Kasper. 	Thus, 	citing 	to Santa Clara, 	supra,
CSEA's sole argument 	is 	that Griffin's 	sentiments be 	imputed to
Goodrich and Bretherick.
In Santa Clara, supra, 	the charge alleged that the employer
unlawfully 	refused to hire Laura Garton as a part-time
permanent teacher. 	There, 	the Board's review of the totality
of 	evidence compelled the conclusion that, 	after Garton sought
union assistance, 	the District improperly denied her 	the
teaching position in response to her protected activity. 	The
Board observed the specific chain of events involving two
District officials and, 	from those circumstances, 	inferred an
illegal motive. 	The Board 	rejected 	the hearing officer's
analysis which distinguished and 	separately considered the
16

actions of 	the principal, John Cowden, 	and the 	assistant
superintendent, 	Nick Gervase. 	The Board 	said:
Both 	administrators 	are 	agents 	of 	the
District, 	and 	therefore 	their 	conduct
necessarily inheres 	to 	the District.
Contrary to 	the 	hearing officer's 	analysis,
the Board 	does 	not 	view Cowden's 	and
Gervase's 	refusal 	to hire Garton 	as
severable 	actions 	when 	considered 	for
purposes 	of 	determining 	the 	unlawful 	nature
of 	the District's 	activity. 	Rather, 	the
Board 	will 	consider 	facts 	and 	incidents
compositely 	and 	draw 	inferences 	reasonably
justified 	therefrom. 	(Citation omitted.)
Therefore, 	after 	review of 	the 	totality of
evidence presented, 	the Board 	finds 	that 	the
District's 	conduct, 	subsequent 	to the
Federation 	involvement 	on Garton's behalf,
compels 	the 	conclusion 	that 	the District's
consideration 	of 	such 	protected 	activity
improperly 	infected 	its 	decision 	concerning
the 	filling of 	the 	vacancy. 	In so finding,
the Board 	credits 	the 	testimony of Garton
which 	establishes 	that 	she 	was 	told 	by
Cowden 	that 	she 	had 	an 	inside 	track 	on 	the
position, 	that 	on her 	behalf 	[union
president] 	contacted Gervase, 	and that she
in fact accepted Cowden's offer. 	. 	. 	. 	Her
testimony 	further 	establishes 	that Gervase
informed Cowden 	of 	his 	displeasure with 	the
Federation's 	inquiries 	and 	that Cowden 	asked
Garton 	to verify Gervase's 	report 	that 	she
had 	gone 	to see 	[union president] 	and 	told
her 	to seek his 	assistance 	first. 	Then, 	for
the first 	time, Cowden 	announced that,
contrary to the District's 	usual 	practice,
competitive 	procedures 	would 	be 	used 	to 	fill
the 	vacancy. 	The Board 	is 	persuaded 	that
the 	inferences 	which 	emerge 	from 	this 	chain
of 	events 	compels 	the 	conclusion that 	the
District 	acted 	because 	of 	Garton's 	contact
with 	the Federation. 	(Footnote omitted.)
The Santa Clara 	decision 	does 	not 	compel 	the 	conclusion
that the University's agents, 	taken together, 	acted to
17

unlawfully 	deny Kasper 	the 	two 	principal 	clerk 	positions.
Goodrich was 	unaware of 	Rasper's 	prior 	protected activity, 	and
there 	is 	no 	evidence 	that 	the 	selection 	procedure 	utilized 	by
Goodrich was 	unusual or 	improper. 	The 	individuals 	selected
possessed 	qualifications 	superior 	to Rasper's. 	In spite 	of
these 	facts, CSEA's 	argument 	focuses 	on Griffin's 	input 	in
Goodrich's 	decision 	to 	change 	the 	principal 	clerk duties 	to
that 	of 	evaluator.
Ample evidence 	supports 	the 	finding 	that 	the 	graduate
office 	workload 	and 	staffing 	situation 	necessitated 	the 	change,
and 	that Griffin's 	concurrence 	in that 	decision was 	not 	shown
to 	be 	improperly motivated. 	CSEA makes much of 	the 	fact 	that
Griffin had 	allegedly 	"promised" 	Rasper 	the 	job 	before 	the
duties 	were 	altered. 	It 	refers 	to 	a 	similar 	promise made 	to
Laura Garton by 	the 	principal 	in Santa Clara. 	This 	argument 	is
without merit. 	Whatever 	assurances 	given 	by Griffin 	to Rasper,
the 	subsequent 	legitimate 	change 	in duties 	justified Goodrich's
decision 	to 	deny Rasper 	the 	position.
CSEA 	also 	argues 	that 	Goodrich 	herself 	altered 	the
principal 	clerk 	job duties 	and 	added 	the 	foreign language
requirement 	in 	an 	effort 	to 	thwart Rasper's selection. 	In
addition 	to 	the 	fact 	that 	the 	decision 	to 	change 	job duties
emerges 	from 	the 	record as 	a reasonable decision, 	CSEA points
to 	no 	conduct 	by Rasper 	of 	which Goodrich was 	aware 	that 	could
arguably be Goodrich's motivation 	to 	change 	the 	duties 	and
18

freeze Kasper 	out of 	the 	position. 	The 	only 	knowledge 	to which
CSEA refers 	is 	that Goodrich 	knew 	that Kasper 	applied 	for 	the
principal 	clerk 	position 	before 	the 	duties 	were 	altered.7
This 	information, 	without more, 	fails 	to support an 	inference
that 	the 	job duties 	were 	pretextual or 	that 	Kasper 	was
competitive 	with 	the other 	applicants.
In conjunction with 	the 	truck 	driver 	position 	at 	the
Richmond 	Field 	Station, 	CSEA argues 	that 	the 	hearing 	officer
failed 	to 	find 	that 	Larson's 	"otherwise 	legitimate 	action" 	was
infected 	by 	improper 	motivation 	originating 	with 	Jencks 	and
Station Manager 	John Shively. 	This 	argument 	is 	without merit.
Larson's 	selection 	technique 	was 	carefully 	drawn 	and 	devoid 	of
improper 	influence. 	Even 	assuming 	that 	the 	record 	supports 	a
finding 	that Jencks did 	harbor 	anti-union 	animus, 	Larson's
conduct was 	in no way 	affected. 	Larson's discussions 	with
Jencks 	and 	Shively 	concerned 	the 	decision 	to require 	a class 	II
driver's 	license. 	Since 	Kasper 	had 	acquired 	such 	a credential,
it 	is 	difficult 	to determine 	in what manner 	the 	decision to
require 	the 	license 	could 	have 	adversely 	affected 	Kasper.
With 	reference 	to 	the 	truck 	driver 	position 	in 	Facilities
Management, 	CSEA claims 	that 	the 	hearing 	officer 	erred 	in
failing 	to specifically 	find 	and 	consider 	that Warnke 	had
7At 	Rasper's 	direction, 	Goodrich 	received 	a carbon
copy 	of 	the 	memo 	from Kasper 	to Griffin dated
September 	13, 	1979, 	in which Kasper 	indicated that he was
"definitely 	interested" 	in 	the 	vacant position.
19

knowledge 	of 	Rasper's 	grievance 	against 	the 	Richmond 	Field
Station personnel. 	While grievance 	filing 	is 	clearly protected
conduct 	(California State University, Sacramento, supra), 	a
reading 	of 	the 	record 	fails 	to 	support 	CSEA's 	assertion 	that
Warnke 	was 	in 	fact 	aware 	of 	Rasper's 	grievance 	regarding 	the
Richmond 	truck 	driver 	position. 	As 	its 	exceptions 	state,
Warnke was 	not a credible witness. 	Since no clear 	picture
emerges 	as 	to what Warnke was 	aware 	of or 	when 	he 	learned 	of
Rasper's 	grievance, 	the 	hearing 	officer's 	conclusion was
proper. 	Moreover, 	even assuming 	that Warnke was 	aware of
Rasper's protected 	activity, 	there 	is 	nothing 	in 	the 	record
from which 	it 	can 	be 	inferred 	that Warnke's rejection 	of 	Rasper
was 	unlawfully 	motivated.
CONCLUSION
As 	discussed 	in Novato, 	supra, 	the Charging 	Party must make
a 	showing 	sufficient 	to 	support 	the 	inference 	that 	protected
conduct was 	a motivating 	factor 	in 	the 	employer's 	decision. 	If
this nexus 	is demonstrated, 	it 	is 	then 	incumbent on the
employer 	to 	show 	that 	it would 	have 	taken 	the 	same 	action
regardless 	of 	the 	employee's 	participation 	in protected
activity. 	Our 	findings 	of 	fact 	reveal no evidence 	of
anti-organizational sentiment 	on 	the 	part 	of 	the 	selecting
officials, 	either 	directly or 	inferentially. 	There 	is 	no
demonstration of 	suspicious 	timing, 	disparate 	treatment,
departure 	from established procedures or 	standards, 	or
20

inconsistent 	or 	contradictory 	justifications 	for 	the 	employer's
action. 	Thus, 	while we conclude 	that Kasper 	engaged 	in
protected 	activity 	and 	that 	the 	employer's 	agents 	had 	knowledge
of 	that 	conduct, 	we 	cannot 	infer 	from 	the 	record 	that 	the
required 	nexus 	existed 	between 	the 	exercise 	of 	that 	activity
and 	the University's 	rejection of 	Kasper 	for 	any of 	the 	four
positions 	for 	which 	he 	applied.
Thus, 	based on 	the 	foregoing, we conclude 	that 	the Charging
Party has 	failed 	to 	demonstrate 	that Kasper 	was 	unlawfully
discriminated 	against 	because 	of 	his 	protected 	activity. 	No
such discrimination 	having 	been found, 	we 	conclude 	that CSEA's
rights 	as 	an 	employee 	organization were 	not 	interfered with as
a 	result 	of 	the University's 	conduct.
ORDER
Upon the foregoing facts, 	conclusions 	of 	law 	and 	the 	entire
record 	in this 	case, 	the Public Employment Relations Board
hereby ORDERS 	that 	the 	charge 	in Case No. 	SF-CE-13-H 	is
DISMISSED.
Chairperson Gluck 	and Member 	Burt 	joined 	in 	this 	Decision.
21