State of California (Department of the Youth Authority) (Calcote) (PERB 0535S)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
ANTHONY J. 	CALCOTE,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT 	OF
THE YOUTH AUTHORITY),
Respondent.
Case No. 	LA-CE-144-S
PERB Decision No. 	535-S
November 4, 	1985
Appearances; 	California 	Correctional 	Peace Officers 	Association
by Lawrence J. 	Friedman, 	Attorney, 	for Anthony J. 	Calcote;
Lester L. 	Jones, 	Graduate Legal Assistant, 	for State of
California 	(Department of 	the Youth Authority).
Before Hesse, 	Chairperson; 	Jaeger and Morgenstern, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This 	case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by Anthony J. 	Calcote 	to the proposed decision, 	attached
hereto, 	of 	a PERB administrative 	law 	judge dismissing his
charges 	that 	the 	State of 	California 	(Department 	of 	the Youth
Authority) 	violated 	the 	State 	Employer-Employee 	Relations
Act.1
The 	Board has 	considered 	the proposed 	decision 	in 	light 	of
the exceptions 	and 	the entire record 	in this 	matter, 	and
1SEERA 	is 	codified at 	Government 	Code 	section 	3512 	et 	seq.
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affirms the rulings, 	findings, 	and conclusions of the
administrative 	law 	judge 	and 	adopts 	his 	proposed 	Order.
Accordingly, 	the unfair practice charge 	in Case No. 	LA-CE-144-S
is 	DISMISSED in its 	entirety.
Members 	Jaeger 	and Morgenstern 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
A N T H O N Y J. 	CALCOTE,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT OF
YOUTH AUTHORITY),
Respondent.
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Unfair 	Practice
Case N o . 	LA-CE-144-S
PROPOSED DECISION
(6/7/85)
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A p p e a r a n c e s ; 	Lawrence J. 	Friedman, 	Attorney, 	California
Correctional 	Peace 	Officers 	Association, 	for 	Charging 	Party;
Lester L. 	J o n e s , 	Department 	of 	Personnel 	Administration, 	Legal
D i v i s i o n , 	for 	Respondent.
Before 	Gary M. 	Gallery, 	Administrative 	L a w Judge.
STATEMENT 	OF 	CASE
In 	this 	case, 	after 	election 	as 	officer 	of 	a 	union, 	an
employee's 	request 	for 	a 	shift 	change 	was 	denied, 	he 	was 	then
transferred 	from 	one 	unit 	to 	another, 	and his 	later 	request 	for
retransfer 	was 	denied.
PROCEDURAL 	H I S T O R Y
On J u n e 	1, 	1 9 8 4 , 	Anthony Calcote 	filed 	the 	instant 	unfair
p r a c t i c e 	charge 	against 	the 	State 	of 	California, 	Department 	of
Y o u t h A u t h o r i t y . 	In 	essence, 	M r . 	Calcote 	charged 	that he
requested 	a 	shift 	change 	on February 	2 6 , 	1 9 8 4 , 	he 	was 	informed
that 	it 	would be 	granted. 	On March 	13, 	1984, 	he 	was 	elected
vice 	president 	of 	the 	local 	CCPOA 	chapter, 	and 	was 	thereafter
denied 	the 	shift 	change. 	On March 	2 8 , 	1984, 	he 	was 	transferred
This Board agent decision has been appealed to
the Board itself and is not final. Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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to 	another more 	stressful 	unit within 	the 	facility. 	He 	alleged
that 	his 	activities with CCPOA are 	being 	held 	against 	him and
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alleged 	a 	violation 	of 	Government 	Code 	section 	3519(a).1 In
response 	to 	a 	PERB 	agent's 	investigation 	the 	charge 	was 	amended
on August 29, 	1984. 	The amendment, 	filed by the California
Correctional 	Peace Officers Association 	(CCPOA), 	on behalf of
Mr. 	Calcote, 	alleges that the employer wrongfully transferred
Calcote 	to 	the 	high 	stress Marshall Unit of 	the 	Southern
California 	Reception 	Center 	and 	Clinic 	just 	two 	days 	after
gaining 	knowledge 	that 	Calcote 	had 	been 	elected 	vice president
of 	the 	local CCPOA chapter, 	and 	that 	the employer 	has
wrongfully 	refused 	to 	transfer 	Calcote 	off 	the Marshall 	Unit
pursuant 	to 	his 	request. 	The 	amendment 	alleges 	that 	the
initial 	transfer 	and 	refusal 	to 	transfer 	him back 	are 	reprisals
for 	protected 	activities 	under 	Government 	Code 	section
3519(a). 	A complaint, 	incorporating 	the charge and amendment
was 	issued on September 20, 	1984. 	On October 	9,
1Section 	3519 provides 	that 	it 	is 	unlawful 	for 	the 	state
to:
(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.
The State Employer-Employee 	Relations Act 	(SEERA or Act) 	is
codified 	at 	Government 	Code 	section 	3515 	et 	seq. 	All
references 	are 	to 	the 	Government 	Code 	unless 	otherwise 	noted.
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1984, 	a motion for partial dismissal and 	an answer were 	filed
2
by 	respondent. 	The 	answer denied 	violation of 	the 	SEERA,
admitted 	and 	denied 	facts 	and 	raised 	affirmative 	defenses 	that
will be considered 	elsewhere 	in 	this proposed decision. 	An
informal 	settlement conference was held 	on November 	1, 	1984,
without success. 	The 	formal hearing was held on January 	24 	and
25, 	1985. 	Posthearing briefs were 	filed and 	the matter
submitted on April 29, 	1985.
FINDINGS 	OF FACT
The 	State 	of 	California, 	Department of 	Youth Authority 	is
the 	employer 	within 	the meaning 	of 	Government Code 	section
3513(i). 	Anthony Calcote 	is a youth counselor 	and an employee
within the meaning of 	section 	3573(c).
The 	Southern Reception Center 	and Clinic 	(SRCC) 	is 	a
facility 	within 	the 	Department 	of 	Youth Authority 	and 	is
located at Norwalk, 	California. 	As the name 	implies, 	it serves
as a 	reception 	facility 	for youths who have 	been made wards of
the 	Youth Authority. 	The 	facility provides 	diagnostic 	services
for 	youths 	committed 	by 	a 	superior 	or 	juvenile 	court 	and 	also
operates 	an 	intensive 	treatment program 	(ITP) 	called 	the
Marshall 	program.
2The 	partial 	dismissal 	addressed 	allegations 	in 	the
charge pertaining 	to Mr. 	Calcote's medical condition arising 	in
1983. 	At hearing, 	the motion was granted 	insofar 	as 	any
finding 	of 	unlawful 	conduct on 	the part 	of 	respondent 	regarding
such event.
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On 	the diagnostic 	side, 	wards 	are 	initially given an
orientation and pre-screening. 	After 	a week 	or 	two, 	they are
then assigned 	to one of 	six 	live-in units. 	These 	units,
designed 	to house 	50 wards, 	are often over crowded, 	reaching 	as
high as 	67 wards. 	After 	a complete diagnostic 	study, 	taking
three 	to 	six weeks, 	the wards are 	then presented 	to 	the
Youthful 	Offenders 	Board 	for 	referral 	to 	other 	institutions,
including, 	possibly, 	the Marshall program.
The Marshall program, 	in existence for about 8 years, 	is
designed 	for 	40 wards, 	and provides 	intensive treatment 	in a
long-term 	residential 	setting 	for 	psychotic 	and 	suicidal
youths.
Enrique Aguilar 	is 	the 	superintendent of 	the 	facility. 	The
assistant 	superintendent 	is 	Ken 	Pack. 	Aside 	from the clinical
staff, 	reporting 	to 	the assistant 	superintendent 	from the
diagnostic 	side 	are 	the managers, 	more 	specifically called
treatment 	team 	supervisors. 	Each 	treatment 	team 	supervisor 	is
responsible 	for 	two units, 	called 	sister units.
James Richardson was 	at all 	times pertinent hereto, 	the
treatment 	team 	supervisor 	for 	the 	Sutter 	and 	Drake 	Units. 	A
senior youth counselor 	is 	in charge of 	each 	unit. 	Reporting 	to
Richardson 	in February and March 	1984 	were 	two 	senior 	youth
counselors, 	Gwen Jackson 	(Sutter Unit) 	and Thomas Aycock 	(Drake
Unit). 	The 	senior youth counselors provide direction 	to youth
counselors 	who 	are 	the 	on-line 	staff working 	with 	the 	wards.
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There 	are 	two youth counselors on the morning 	shift, 	two on 	the
evening 	shift 	and 	one 	youth counselor 	on 	the 	night 	shift.
The Marshall program also 	employs youth counselors, 	whose
job description 	is 	the 	same 	as 	those 	for 	the diagnostic
side.3 Because 	of 	the 	intensive 	nature 	of 	the program, 	there
3The 	job description describes 	typical 	tasks 	as:
Trains, 	counsels and supervises wards 	in
their 	daily 	living 	and 	activity 	programs;
develops 	and 	implements 	constructive
programs 	for periods of 	time when wards 	are
not 	in a 	school or 	vocational work program;
provides a planned, 	scheduled, 	casework
program of 	individual counseling 	for 	a case
load of 	approximately ten 	(10) 	wards;
assists 	in 	the diagnostic 	classifying 	of
assigned 	wards 	and 	developing 	appropriate
treatment 	strategies; 	conducts 	small group
counseling 	and 	activity 	programs 	with
assigned 	intensive 	case 	load; 	participates
in 	large 	group counseling 	session conducted
during work 	shift; 	communicates 	and
coordinates 	with 	other 	institutional 	staff
about observations, 	impressions and work
with 	assigned 	wards: 	repares 	written
progress 	evaluations, 	treatment 	summaries
and 	other 	reports 	required 	by 	the
institution 	and 	the 	Youth 	Authority 	Board;
implements 	part of 	treatment 	plans 	developed
by 	the 	treatment 	team 	to 	which 	assigned;
presents 	diagnostic 	and 	treatment
information 	about 	assigned 	cases 	at
scheduled case 	staffings; 	may present
assigned cases 	to 	the 	Youth Authority Board;
assists 	in planning 	and 	carrying 	out
programs of 	recreation, 	intramural sports,
and other activities; 	trains wards 	in
cleanliness, 	personal hygiene grooming;
participates 	in 	in-service 	training
sessions; 	orders materials 	and 	supplies
necessary 	for 	the 	operation of 	the 	unit;
maintains 	custody 	and 	necessary 	discipline;
and prepares 	reports.
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are 	five 	staff 	members 	on each of 	the 	morning 	and 	evening
shifts 	and 	one 	at 	night. 	The higher 	ratio 	of 	staff 	to wards 	at
Marshall 	is because 	they provide more 	treatment, 	conduct 	large
and 	small group counseling, 	family counseling, 	bio-feedback 	and
other 	treatment 	for 	the wards.
Anthony Calcote 	is 	a youth counselor 	at 	the 	SRCC. 	He 	has
been with 	the 	Youth Authority 	for 	over 	seven years. 	Prior 	to
his 	transfer 	to SRCC, 	as a youth counselor 	in 1980, 	Calcote was
a group 	supervisor 	at 	the 	Nellis 	Center. 	Even after 	his
transfer 	to SRCC, 	Calcote volunteered coaching 	at Nellis 	during
his 	off-work 	time. 	Calcote 	was 	on 	industrial disability 	leave
in July, 	August and September 	1983.4
In 	February 	1984 	Calcote 	was 	working 	the 	relief 	shift
between 	the 	Sutter 	and 	Drake Units. 	This position covers 	the
days off 	of other 	counselors. 	Calcote worked 	three days 	a week
at 	the 	Sutter 	Unit and 	two days 	a week at 	the Drake 	Unit.
Calcote's 	scheduled 	days 	off 	were 	Thursday 	and 	Friday.
Calcote's 	relief 	position was 	one 	of 	six 	regular 	full-time
positions 	at 	the 	Sutter Unit. 	Another 	position was 	held 	by 	a
Mr. 	Radillo, 	who worked the 	5:45 a.m. 	to 1:45 p.m. 	shift.
Radillo's 	days 	off 	were Wednesday 	and 	Thursday.
A memorandum 	of 	understanding 	with 	the 	CCPOA 	requires 	the
4In May 	1984 	Calcote 	obtained 	a Worker's 	Compensation
Appeals 	Board 	Award 	for 	cardiovascular 	asttrointestinal 	and
"psyche" 	injuries 	leading 	to 	high blood pressure.
6

facility 	to give 	employees 	14 	days 	notice 	of 	any 	assignment
change. 	To meet this 	requirement, 	and to publicize 	the 	shift
staffing 	for 	a month 	in advance 	at 	Sutter 	and Drake, 	the 	senior
youth counselors 	in 	the 	sister 	units work 	up a 	schedule 	and
with Richardson's 	concurrence, 	post 	the 	schedule 	by 	the
fifteenth 	of 	each month. 	Unforeseen circumstances 	will 	require
a 	revision 	to 	the 	schedule 	that 	is 	finalized 	by 	the 	end 	of 	the
month. 	For 	February 	1984 Radillo and Calcote were 	shown on 	the
shift 	assignments 	set 	forth 	above.5
Radillo was 	sick 	and off work on February 	18 	and 	19, 	he
returned 	to work on February 	20 	and 	21, 	and 	then was off on his
scheduled 	off days 	February 	22 	and 	23. 	Sometime 	during 	this
period 	Radillo 	notified 	Richardson 	that 	he 	would 	be 	off 	on
extended 	illness. 	He 	was 	scheduled 	to 	be off on vacation 	for
the balance of 	the month. 	It was not 	known when he would
return.
Calcote 	first 	approached 	Gwen 	Jackson 	about 	moving 	into
the 	position 	held 	by Radillo. 	He mentioned 	he wanted 	to 	spend
evenings 	with 	his 	son. 	She 	told 	him 	she 	had 	no problem with
the change. 	Jackson 	testified 	that Richardson also 	indicated
that 	there was 	no problem. 	As 	treatment 	team supervisor,
Richardson 	had 	the 	final 	say on 	shift 	assignments. 	Aguilar 	was
not 	involved 	in 	any 	shift 	assignments.
5A11 	date 	references 	are 	to 	calendar 	year 	1984 	unless
otherwise 	noted.
V7

On 	February 	26 	Calcote 	submitted 	a written 	request 	to
Richardson 	for 	placement 	into 	Radillo's 	vacant position 	at
Sutter. 	He wrote 	that he 	felt his presence would 	bring more
stability, 	harmony, 	and 	security to 	the Sutter 	team. 	He
indicated 	his 	ability 	to change 	immediately, 	and 	requested 	a
response 	in writing.
Richardson 	responded 	in writing 	on February 	27. 	He 	stated:
Due to the 	sudden departure of Mr. 	Radillo,
we 	have 	on a 	temporary basis moved youth
counselor Mendoza 	into 	his 	shift 	for 	the
month of March. 	Your 	interest 	in 	the 	shift
will 	be 	considered 	as 	we 	evaluate 	both 	unit
needs 	in preparation 	for 	filling
Mr. 	Radillo's position on a more permanent
basis.
Mendoza was put 	into 	the position, 	said Jackson, 	because he
had days 	off 	the 	same 	as 	the 	vacancy and 	there would 	be 	less
impact on other personnel. 	If 	Calcote were placed 	into 	the
position, 	it would 	have 	affected 	another person 	in either 	unit
as 	the Calcote position was 	the 	relief 	position 	between 	the
sister 	units. 	Also, 	if Calcote had been put 	into 	the position,
then a majority of 	the 	remaining 	positions 	at 	Sutter 	would 	have
been black.66 There 	would 	then be 	only one 	white male 	at 	the
Sutter 	Unit. 	Mendoza did 	not need a 	14-day notice 	as 	he was
already on the morning 	shift. 	Thus, 	his placement affected no
other 	employees 	and 	gave 	them an 	additional 	Hispanic.
6The 	ethnic population 	is 	about 	35 	percent 	black 	and
33 percent Hispanic.
8

Aycock 	testified 	that Mendoza's 	classification 	was 	that 	of
a 	limited 	term employee. 	He did 	not 	have 	permanent 	full-time
status 	and 	was more 	flexible. 	Because Mendoza's 	work 	schedule
coincided 	with Radillo's 	it was 	easier 	to place Mendoza 	into
that 	slot.7 Also, 	they were 	attempting 	to meet 	an ethnic
standard 	by adding 	a Chicano to 	the unit. 	The 	schedule was
made 	up 	the 	last week 	of 	February.
Richardson 	also 	testified 	that Mendoza was 	placed 	into 	the
Radillo position 	in March 	because 	his 	work 	schedule 	was 	the
same. 	While 	evidencing 	uncertainty 	about where Mendoza had
been 	in February, 	Richardson testified 	that Mendoza, 	who had
previously been an 	intermittent employee, 	was not 	at 	the
institution 	for 	several months prior 	to 	February, 	but 	returned
that month 	as 	a 	limited 	term 	employee.8 Richardson 	said
Mendoza 	had 	worked 	for 	him 	before 	and 	as 	a 	limited 	term
employee 	would 	provide more 	stability 	to 	the position 	and 	was
therefore 	a good choice 	to 	fill 	in 	for 	the 	Radillo 	vacancy.
Aycock 	testified 	that Mendoza 	had 	originally 	been 	scheduled
(prepared 	in mid-February) 	for 	the 	limited 	term slot on 	the
7Mendoza's 	classification 	is 	within 	the 	unit 	covered 	by
the 	memorandum of 	understanding 	and would 	be 	entitled 	to 	14
days 	notice of 	schedule change.
8Around 	this 	time 	the 	facility 	commenced 	a classification
of 	limited 	term employees. 	Whereas 	intermittent employees 	and
part-time 	employees 	are 	limited 	to 	under 	40 	hours without 	a
regular work 	schedule 	and on an as needed basis, 	the 	limited
term employee may 	be 	hired 	on a 	regular 	schedule 	for 	up 	to 	six
months.
99

March 	schedule. 	Documentation 	submitted 	by 	the 	department 	for
that month 	shows 	Potts 	in the 	S31 	(temporary) 	slot having 	the
same 	shift and days off as 	the Radillo 	slot.
The 	Election
Calcote 	testified 	that on March 	13 	he 	was 	elected 	vice
president of 	the 	local chapter of 	the CCPOA. 	There 	is no
evidence 	of 	any prior 	employee 	organizational 	activity 	by
Calcote.
Hector Rodriquez, 	a youth counselor 	at Marshall, 	had served
for 	some 	time 	as 	both president 	of 	the 	local 	chapter 	and 	as
chief 	job steward. 	In March 	1984, 	Rodriquez 	secured approval
of 	a 	transfer 	to 	the Washington Ridge 	facility 	in Northern
California. 	Rodriquez 	testified 	that 	the 	election 	for 	officers
was more 	a confirmation by 	the 	chapter 	board 	of 	directors 	on
nominations put 	forth by the president. 	As 	to the 	timing, 	and
thus 	notice 	to management at 	the 	facility of 	the 	new officers,
his 	testimony differs 	from that of 	Calcote, 	Robert Collier 	and
Ruben Gilbert. 	Rodriquez 	testified 	that 	the election was 	held
on March 	8, 	and 	that 	the 	next day he 	went 	to Aguilar's office
and 	told 	him the 	results 	of 	that 	election. 	He 	told Aguilar
that Calcote was going to be vice president, 	Gilbert was to be
president 	and 	that Collier was 	to 	be 	job steward. 	March 	9 was
his last day at 	the 	facility, 	he 	said, 	and on that day all his
duties passed on 	to others.
Calcote 	and 	Gilbert 	testified 	that 	the 	election was 	held 	on
March 13. 	Collier 	testified 	that 	it was on March 14.
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Aguilar 	said 	that 	Rodriquez 	did 	tell 	him 	that 	Collier 	would
be 	taking 	Rodriquez 1 place 	as 	job 	steward when he came 	in 	to
say goodbye 	around March 	9, 	but denied 	that 	Calcote's 	name was
mentioned 	in 	that conversation. 	The 	first 	time he 	knew of
Calcote's 	position with CCPOA was 	at 	the March 	26 	meeting 	which
is described 	later.
Further 	confusion on 	the 	issue 	is 	presented 	by 	CCPOA's
notice 	regarding 	the 	election. 	By memo on 	the chapter
letterhead, 	dated March 16, 	1984, 	Gilbert notified CCPOA
members 	that 	he 	had 	taken over 	as president, 	Calcote 	had been
confirmed 	as 	vice president 	and 	Collier 	would 	handle 	employee
grievances. 	Despite 	the date 	typed, 	Gilbert 	testified 	that 	the
memo 	had 	been 	typed 	on March 	14 	and 	that 	he 	delivered 	it 	to 	the
superintendent's 	office on March 	14. 	The March 	16 date was an
error, 	he 	said. 	The 	superintendent's 	secretary placed 	the
document 	in her 	in-coming mail when he delivered 	it 	to her, 	he
said.
Emma Moretz, 	secretary to the superintendent, 	testified
that 	the March 	16 	letter 	from Gilbert was 	date 	stamped 	on
April 4, 	1984, 	in the lower 	right hand corner, 	and that her
practice was 	to date 	stamp any document coming 	into 	the
superintendent's office on the day 	she 	received 	it. 	Thus, 	her
records 	indicate 	that 	the 	superintendent's 	office 	received 	the
document on April 	4, 	1984, 	(indeed 	the copy provided by
charging 	party's 	counsel 	had 	the date 	stamp 	in 	that place.)
11

Finally, 	by memo dated March 15, 	1984, 	Arthur Nettles, 	the
Department 	of 	Youth 	Authority's 	Equal 	Employment Opportunities
Division Manager, 	wrote 	to Collier 	regarding 	Collier's 	status
as EEO Counselor. 	Nettles' 	office 	is 	in Sacramento. 	Because
Nettles had learned on March 14, 	1984, 	that Collier 	had become
job 	steward 	for 	CCPOA, 	Nettles 	advised 	Collier 	that he could
not hold 	both positions. 	The document 	indicated 	a copy was 	to
go to Aguilar.
The 	inconsistency of 	charging 	party's 	evidence 	on 	the
precise 	date 	of 	the 	election undermines 	the 	credibility 	of 	both
Rodriquez 	and Calcote. 	Rodriquez 	on 	the 	one 	hand 	testified
that 	that 	election 	took place on March 	8. 	On March 	9, 	he 	said
he told Aguilar of Calcote's election. 	Calcote, 	however, 	said
that he was elected on March 	13. 	On March 	14 	Calcote 	said he
told Jackson of 	his 	election because 	he 	thought 	she 	would 	be
proud 	of 	him. 	He 	thought 	she would 	be 	surprised 	as 	he 	"wasn't
running 	for 	anything." 	Had Calcote 	been 	in 	the 	running 	on 	the
8th, 	and elected then, 	why would he wait until March 14, 	five
days later, 	to relate his election to Jackson?
Rodriquez, 	who was brought 	in from his 	assignment 	in
Northern California, 	appeared 	later 	at 	the 	hearing 	and 	thus did
not hear 	the 	testimony of 	his 	fellow employees. 	He 	knew the
issue 	in this case, 	however, 	and related on the stand, 	that
first he 	told Aguilar 	of 	Calcote's election. 	This 	is
questionable 	since Calcote 	was 	only 	to 	serve 	as 	vice 	president
12
,

while others, 	Gilbert and Collier, 	were to 	serve 	in more direct
functioning 	roles as president and job steward. 	Thus, 	I do
not credit Rodriquez 	over Aguilar 	regarding 	what 	was 	said 	on
March 	9. 	Therefore 	it 	is 	found 	that Rodriquez did 	tell Aguilar
that Collier 	was going 	to 	be 	job steward, 	but made 	no mention
of 	Calcote's position.
As 	to the March 16 letter, 	I credit Moretz over Gilbert.
In 	the 	face 	of 	a 	typed 	letter 	dated March 	16 	and date 	stamped
as 	received April 	4 	in a manner 	consistent with business
practice 	and 	contemporaneous 	with 	the 	event 	as 	to 	when
received, 	charging 	party would 	have 	a 	finding drawn 	that 	the
letter was delivered on March 	14. 	This contention 	is more 	in
keeping with 	a contrived design 	to 	place 	knowledge 	on 	the 	part
of management 	of 	an event 	that coincides 	with 	the March 	14
scheduling 	regarding 	the April 	schedule. 	Because 	of 	this
inherent 	inconsistency 	in 	the 	testimonial 	and 	documentary
evidence, 	I 	find that charging party has 	failed 	to establish
knowledge 	by a preponderance of 	the 	evidence 	as 	it was
obligated 	to do. 	PERB Regulation section 	32178.
Insofar as the Nettles' 	letter 	is concerned, 	the
acknowledgement on March 	15 	by 	a 	Sacramento 	based 	employee 	of
the department 	that 	Collier was elected 	to 	serve 	as 	job steward
is 	consistent with Aguilar's 	acknowledgement 	of 	receiving 	that
information on March 9 	from Rodriquez. 	It serves 	no basis 	for
13

finding 	that 	Calcote's 	election was 	likewise 	known 	to 	Aguilar,
Richardson or 	Aycock.
Calcote 	testified 	that 	on 	the morning 	of March 	14 	Jackson
told him he 	had gotten 	the position. 	Later 	he 	testified 	that
those were 	not 	her 	exact words 	but 	he did 	have 	that
impression. 	He 	told 	her 	about 	being 	elected 	to 	the 	vice
presidency of 	the CCPOA. 	Calcote 	thought 	that 	she 	would 	be
surprised 	as 	"he 	really wasn't 	running 	for 	anything". 	They are
friends, 	he 	said, 	and he thought 	she would 	be 	"proud of him".
At 	11:00, 	he 	said, 	Jackson said she was meeting with Richardson
and Aycock. 	That 	afternoon Aycock 	told him that he 	did 	not get
the position he 	had 	requested, 	but gave 	no 	reason 	for 	the
denial.
Calcote further 	testified that Mr. 	Martinez, 	another youth
counselor, 	told 	him that 	same day 	that 	Richardson 	stopped 	him
on the way 	in and told him that he, 	in fact, 	was going 	to get
the 	shift. 	Martinez 	had 	told Calcote previously 	that 	he 	was
going 	to get 	the position. 	(Martinez was working 	the 	2 p.m. 	-
10 p.m. 	shift at Drake 	in March.)
Jackson 	testified 	that 	she 	thought 	she 	learned 	of 	Calcote's
election as vice president 	sometime 	in February. 	First,
Collier 	told 	her 	he 	was going 	to 	take 	over 	as 	job 	steward 	and
later 	Calcote 	told 	her 	that he was going 	to be vice president.
However, 	she 	said, 	the fact of his election was 	not 	known while
she was 	involved 	in 	scheduling. 	Nor was 	the 	fact 	that 	the
14
•

CCPOA elections 	had 	taken place discussed 	at 	the 	meetings 	with
Aycock 	and Richardson when 	scheduling 	was 	being done. 	She 	was
not 	cross-examined 	on 	the 	scheduling 	meetings.
While 	Jackson was wrong 	about 	learning 	of 	Calcote's
election as early as 	February, 	I 	found her 	to be credible 	in
her 	testimony generally. 	Obviously a 	friend of 	Calcote's, 	and
supportive of his 	role as a youth counselor, 	her 	denial of 	any
discussions 	of 	Calcote's 	election 	at 	the 	scheduling meeting
appeared 	truthful. 	It 	is 	found 	that Jackson did 	not carry 	the
fact 	of 	Calcote's 	election 	into 	the meeting 	on March 	14
regarding 	scheduling. 	Both 	Richardson 	and 	Aycock 	testified
that 	the meeting 	did not 	involve 	a discussion of CCPOA
elections.
Calcote 	was 	left on 	the 	same 	relief 	schedule 	for 	April 	that
he had occupied 	for 	February and March. 	This 	time, 	however,
Mendoza was 	returned 	to the S31 	(temporary) 	slot 	and Martinez,
who 	had 	been at 	the 	Drake 	Unit, 	was moved 	into 	the 	Radillo
slot. 	Thus 	the Sutter 	Unit had 	two Hispanic employees, 	working
the 	same 	shift and with the 	same days off.
The next day, 	(after 	the election) 	Calcote testified,
Jackson 	told 	him 	she 	did 	not 	know why he 	did 	not 	get 	the
9
position. 	He 	spoke 	to Richardson 	and was 	told 	that
Richardson wanted 	a Chicano 	in 	the position.
9The March 	schedule 	shows 	that 	Calcote 	was 	off 	on 	that
day.
15

On March 	21 	Calcote wrote 	to 	Richardson 	asking 	for 	an
answer 	in writing 	as 	to why he did not get 	the position. 	This
followed 	a meeting 	with Assistant 	Superintendent 	Pack 	at
Calcote's 	request. 	Calcote 	thought 	the 	reasons were other 	than
having 	Chicanos 	on 	the unit. 	Pack called Richardson 	in 	and
asked 	why 	the 	request was 	not granted. 	Richardson 	told 	them
both 	that 	he wanted 	a Chicano 	in 	the 	position and 	Pack 	said
that was 	the way 	it was going 	to be.
By way of 	showing disparate 	treatment, 	Calcote 	testified
that 	John 	Grijalva was 	given 	a 	shift change 	because 	his 	wife
was 	having 	a 	baby. 	Calcote 	told Jackson 	that he wanted 	the
shift change 	to 	spend 	evenings with his 	son as 	he was 	a 	single
parent, 	but he did not convey 	that 	fact 	to 	Richardson 	in his
written February 26 	request 	for 	shift change. 	Calcote did not
know any other 	employees who 	were 	single parents.
Aycock 	testified 	that 	at 	a March 	14 	meeting 	it was decided
to place Martinez 	in the Radillo 	slot because he was a
full-time 	budgeted 	employee. 	Mendoza was placed 	back 	into 	the
S31 slot. 	The reason, 	said Aycock, 	was Mendoza was a limited
term 	employee 	and 	as 	such 	did 	not 	lend 	the 	desired 	permanency.
As 	a 	limited 	term employee, 	he could be 	terminated 	if 	the 	head
count of wards dropped. 	By placing Mendoza 	in 	the 	S31 	slot
they maintained 	the 	flexibility 	of 	his 	classification 	and
Martinez 	then 	gave 	them 	the 	desired 	permanency.
16

Aycock was 	not 	aware 	of 	the 	election outcome 	and 	there 	was
no discussion of 	CCPOA. 	The 	final decision was made 	to cause
the least amount of 	impact on employees. 	In fact, 	Martinez did
have 	a 	shift change 	as he had worked 	the 	2:00 	- 	10:00 	p.m.
shift at Drake 	the month of March 	(and February).
As a 	result of 	the new schedule, 	the permanent 	staff at
Sutter consisted of 	three black males, 	a black 	female, 	a
Chicano, 	and a white male. 	They also had Mendoza at 	the Sutter
Unit 	in the 	limited 	term position. 	At 	the Drake 	unit 	they had
four blacks, 	a white male and a white female. 	Also at Drake 	a
Spanish case worker, 	who 	served 	as 	translator, 	worked from an
office 	at 	the 	unit. 	She was visibly present and met with 	the
wards, 	said Aycock, 	and did contribute 	to 	the ethnic needs.
In May Mendoza was assigned 	to 	the 	Drake 	Unit.
The 	schedule 	for 	May was 	prepared within 	the 	first 	two
weeks of 	April 	and was posted by 	the middle of 	that month.
Martinez was 	scheduled for 	the S2 	(Radillo) 	slot. 	Aycock 	said
they 	found 	out 	in 	the 	last week 	of March 	that Martinez 	was 	to
be promoted 	and was 	to go 	to 	the 	YTS 	effective May 	1. 	Jackson
was 	promoted 	to 	treatment 	team supervisor 	and 	Grijalva had
requested 	a change 	in classification 	from 	regular 	to
intermittent 	employee. 	Richardson 	said 	he 	approached 	the
administration 	because 	of 	the 	large 	number 	of personnel changes
that occurred. 	King, 	a black limited term employee, 	was placed
17

in 	the Radillo 	slot. 	Calcote was 	not considered 	because
effective April 	16 	he was 	transferred 	to 	the Marshall Unit.
King 	filled 	the 	S2 	slot 	for 	one month.
In June 	Fernando 	Juarez came 	to 	the 	Sutter 	Unit 	and 	filled
the 	slot held by King. 	Stiggers, 	a black 	female, 	came from the
Pico Unit 	and helped 	fill 	the 	ethnic 	needs. 	Juarez 	had been
selected 	in early April or 	May but 	it 	took 	some 	time 	before
they could get him to 	the 	Sutter 	Unit. 	Juarez was desired
because 	of 	his good 	history 	in working with 	gang 	problems 	as 	he
had 	experience 	as 	the 	institutional 	game 	coordinator 	and 	had
extensive 	knowledge 	of 	the ward population.
The 	Cole 	Transfer
Tim Cole 	is 	a youth counselor 	who 	for 	the 	last 	five years
worked 	at 	the Marshall program. 	For 	two years prior 	to 	that he
was 	at 	the Ventura facility, 	where 	for 	six months he worked 	in
the 	receiving 	side 	and 	the 	remainder 	in 	the 	intensive 	treatment
program. 	Cole, 	who 	is white, 	was transferred to the Sutter
Unit 	in April 	1984. 	Cole 	said 	that 	about a month before 	he was
transferred, 	his caseload was 	reduced 	and 	he 	suspected
something 	was 	happening. 	Aguilar 	told 	him that he was 	to 	be
transferred 	to 	the diagnostic 	side. 	Cole 	filed 	a grievance on
the 	transfer 	as 	he 	disagreed with 	the explanation. 	The 	reasons
given were 	that 	it 	would 	enhance 	his 	education at 	the 	facility,
and 	that 	it was consistent with Aguilar's goal to move 	staff
members 	from the Marshall 	side 	to 	the diagnostic 	side. 	Cole
18

believed 	that 	his 	six months 	experience 	in 	the 	receiving 	unit
at Ventura was 	sufficient education. 	There were 	other
counselors 	at 	the Marshall 	site with more 	seniority, 	said Cole,
including 	Delbert Jackson, 	Larry Floris and Bill Lewis. 	Cole
also 	testified 	that 	two other 	people 	were 	transferred 	from 	the
Marshall 	Unit to 	the diagnostic 	side, 	and he was 	under 	the
impression 	that 	the 	same 	number 	of people 	transferred 	to 	the
Marshall 	Unit 	from the diagnostic unit. 	Cole 	said he was 	the
only white counselor 	at Marshall when he 	was 	transferred 	and
there were other white counselors at Sutter, 	the unit 	to which
he 	transferred.
Aguilar 	said 	the decision 	to 	transfer 	Cole 	to 	the
diagnostic 	side 	was made 	in 	the 	first week 	of March 	before 	he
had 	any 	knowledge of 	Calcote's 	election. 	Cole 	had 	been at 	the
Marshall 	program for 	over 	three years 	and 	it was 	in 	keeping
with Aguilar's goal 	that 	the 	transfer 	was made. 	Jackson and
Floris 	"will 	be 	transferred," 	said Aguilar, 	and 	"seniority has
no 	input on 	the policy." 	All 	of 	the counselors will 	be 	rotated
out of 	the Marshall program. 	Cole coming 	to Sutter, 	said
Aguilar, 	would 	lend ethnic 	balance 	to 	that program, 	although he
did 	not 	know 	the 	ethnic 	balance 	at 	Sutter 	at 	the 	time 	of 	the
transfer. 	Richardson did 	not 	know that 	Cole 	was 	coming 	to 	the
Sutter 	Unit until 	the middle of March. 	Ed 	Fox, 	senior youth
counselor 	at Marshall, 	said 	that 	the 	three 	individuals who were
at 	the 	top
19

of 	the program, 	recommended Cole's 	transfer. 	Those 	three were
Owens, 	Atesalp and Fox.
Calcote 	Transfer
Calcote 	said 	he 	learned 	from Tim Cole 	that 	he 	was going 	to
be 	transferred 	to Marshall. 	The 	next day Jackson called him up
to 	Richardson's 	office 	and 	they gave 	him a memo 	indicating 	his
transfer 	to Marshall. 	The memo, 	dated March 28, 	stated his
transfer 	to Marshall effective April 	16. 	Richardson noted 	in
the memo 	that 	the 	assignment would provide 	Calcote 	with 	an
opportunity 	to 	use 	his 	treatment 	and 	recreational 	skills 	in a
long-term 	setting.
Calcote was 	unhappy with 	the 	reassignment. 	He 	was
concerned 	that 	it would be more 	stressful 	as 	he was unsure of
his 	ability 	to work 	in an unfamiliar 	setting. 	He 	felt 	that he
was 	being 	set up by 	the administration 	to 	fail 	because 	of 	the
type of wards 	and 	the duties 	the 	job entails.
Aguilar 	testified 	that 	the decision 	to 	assign Calcote 	to
Marshall was made 	in 	the week 	before March 	26. 	(His basis of
recall was 	that he was able 	to 	tell Collier 	that Collier would
not 	be 	transferred 	to Marshall.) 	Aguilar 	testified 	that 	the
decision to 	transfer 	Calcote 	to Marshall was 	that, 	of 	the names
presented 	to him, 	the only one 	that he could 	recall,
Rudy Hernandes 	had 	already 	been 	at Marshall 	and 	did 	not 	fill
the 	needs 	of 	the program. 	The Marshall program had 	been
looking 	for 	someone who could program and organize wards; 	so
when Calcote's 	name
20

appeared, 	Aguilar 	knew he was 	a person who was 	involved 	in
programming 	and 	handling 	athletic 	activities. 	Calcote was 	an
athlete 	and 	knew about officiating 	at games. 	These were 	some
of 	the main 	factors 	in the decision. 	The date 	set 	for 	his
transfer 	was 	April 	16 	because management 	had 	to give 	two weeks
notice 	of 	the 	transfer 	and could 	not do 	that by 	the 	end 	of
March.
Calcote's 	blood pressure 	was 	not 	taken 	into 	account 	in 	the
decision to 	transfer Calcote, 	said Aguilar, 	because he did not
know of 	the 	fact.
Calcote's 	transfer 	was 	consistent 	with 	the 	administration's
policy of 	transfer, 	said Aguilar. 	That policy 	is 	set forth 	in
a 	superintendent's memo dated October 	12, 	1982. 	Criteria for
assignment 	or 	reassignment 	considerations 	involve 	program 	needs
for 	staff 	experiments 	and 	skill; 	comparable employee 	skills 	and
experimental 	levels; 	ethnic and gender balance; 	staff
development/exposure 	and 	training; 	rotation 	to maximize 	staff
growth; 	to prevent 	"burn-out"; 	budgetary fluctuations; 	and
staff wishes 	for 	assignments. 	Factors 	relative 	to Calcote's
transfer, 	said Aguilar, 	were program needs, 	comparable
employees 	skills, 	ethnic gender 	balance 	(because Calcote came
from a 	unit where 	there was 	a high 	number 	of 	black 	employees)
and 	staff development. 	Calcote was 	qualified 	to 	take 	the
assignment 	and 	fill 	in behind 	Cole.
Aguilar 	testified 	that 	since 	Cole 	was 	transferred 	to
21

Sutter, 	the 	treatment 	team supervisor 	there was 	involved 	in
discussions 	and 	that 	is how Calcote's 	name came 	up.
Richardson, 	however, 	testified 	that he did not know that
Cole was coming 	to 	the diagnostic 	side, 	let alone 	the 	Sutter
Unit. 	He 	was not 	involved 	in 	the discussion 	to 	transfer 	Cole
to 	the diagnostic 	side. 	He 	had been 	requested by Aguilar 	to
provide 	names 	of youth counselors 	on 	the 	diagnostic 	side 	who
had 	expressed 	interest 	or 	had 	skills 	that might 	be 	useful 	to
the Marshall 	side.
Richardson 	said 	he 	gave 	the 	superintendent 	the 	names 	of
Calcote, 	Green and Sikes. 	He had been told 	that Marshall was
contemplating 	some 	kind 	of 	expansion 	of 	recreation 	and 	Calcote
would be good 	for 	that. 	At 	the 	time 	he did not have 	knowledge
of 	Calcote's 	involvement 	in CCPOA. 	Richardson said he was
later 	informed 	that he 	was 	to write 	to Calcote 	regarding 	the
transfer.
Robert 	Collier
The memorandum of 	understanding 	provides 	that 	where
possible, 	the 	chief 	job steward may 	have 	the 	6:00 	to 	2:00
shift, 	with Saturdays and Sundays off. 	This 	is 	to allow
him/her 	to 	be 	available 	to constituents 	and 	the
administration. 	Rodriquez was given this 	shift at Marshall.
At 	the 	time 	of 	his 	election, 	Collier was working 	the 	6:00 	to
2:00 	shift with Mondays and 	Tuesdays 	off.
Collier 	testified 	that 	the 	day 	after 	his 	election 	as 	job
22

steward, 	Ed 	Fox, 	the senior youth counselor at Marshall,
stated 	"I 	hear 	you're coming 	to Marshall?"
Fox 	admitted 	making 	the 	inquiry 	to 	Collier 	but 	said 	he 	had
no 	knowledge of an actual 	transfer. 	Rather, 	he understood
Collier 	was 	going 	to 	carry 	on 	Rodriguez' 	responsibilities 	and
it was 	just 	idle 	talk.
Apparently, 	Collier 	had 	requested 	the 	6:00 	to 	2:00 	shift
with Saturdays and 	Sundays off. 	But he made 	it clear 	that 	if
having 	that 	shift meant going 	to Marshall 	he 	would 	then decline
the shift.
At 	a meeting 	of March 	26 	regarding 	intermittent 	employees,
the matter 	of 	Collier's 	transfer came up. 	Aguilar 	assured
Collier 	that 	he 	would 	not 	be 	transferred 	to Marshall 	as 	the
decision 	had 	already been made 	to 	transfer 	Calcote 	to 	the
Marshall 	program. 	The meeting 	was 	to discuss 	intermittent
employees and, 	among others, 	Calcote was present. 	Collier
testified 	that 	he 	introduced Calcote 	as 	the 	vice-president.
Collier 	wrote 	to Aguilar 	the 	next day 	(March 	27) 	confirming
that he would not 	be 	transferred 	to 	the Marshall program. 	He
also 	stated 	that 	Aguilar 	had 	stipulated 	that 	Collier's 	request
for 	the 	6:00 	to 	2:00 	shift with weekends 	off 	would 	be 	accepted
and 	not 	be 	used 	as 	a 	reason 	for 	reassignment.
Aguilar 	responded on March 	30 	confirming 	that 	he 	had 	told
Collier 	that he would not be 	transferred 	to Marshall. 	Aguilar
stated 	that 	they 	had 	already made 	the 	decision 	to 	transfer
23

Calcote 	and 	thus 	he was 	in a position 	to 	tell Collier 	that he
would not be 	transferred. 	Aguilar 	took exception, 	however, 	to
any 	suggestion 	that 	he 	had 	said 	Collier 	could 	have 	the 	6:00 	to
2:00 	shift with weekends 	off. 	He 	suggested 	that 	Collier 	submit
a written 	request 	to 	Richardson.
In April 	1984 	Collier 	was 	given 	the 	6:00 	to 	2:00 	shift with
Saturday 	and 	Sunday off. 	While 	Collier 	denied 	that 	the
accommodation 	affected 	other 	regular 	employees, 	he did 	admit
that 	it 	affected 	intermittent 	staff. 	Richardson 	testified 	that
he was 	able 	to create 	the 	exception to 	the 	schedule 	that
otherwise 	favored 	evening 	shift 	employees 	having 	either
Saturday or 	Sunday nights off. 	There 	had been no 	schedule
previously where 	the 	a.m. 	shift 	had 	both 	Saturday 	and 	Sunday
off.
Calcote's 	Request 	for 	Return 	to 	Sutter
On April 	26, 	on CCPOA letterhead, 	Calcote 	requested
assignment 	to 	a 	then vacant position at 	the Sutter 	Unit because
of Martinez 1 promotion 	to 	senior 	youth 	counselor 	effective
May 	2. 	Two 	reasons prompted his 	request; 	it had been
established 	that 	his 	high 	blood 	pressure 	was 	job 	related 	and
that he had 	been 	advised by doctors 	to avoid 	excess 	stress. 	It
was a known fact, 	he 	stated, 	that the 	ITP was more stressful
than the diagnostic 	side. 	Secondly, 	Calcote noted 	that the
Sutter 	position would 	alleviate 	problems 	he 	had 	as 	a 	single
parent.
24

On May 	3 Aguilar 	denied 	the 	request 	for 	retransfer. 	There
was no vacancy at Sutter, 	stated Aguilar, 	because Martinez'
position was 	filed 	by 	Fernando 	Juarez. 	He 	discounted Calcote's
contention 	that Marshall was more 	stressful on 	the ground 	that
Calcote 	had not 	been 	there 	long 	enough 	to make 	the
generalization. 	He 	hoped 	Calcote would give 	the Marshall 	job 	a
chance 	and 	that he 	approach 	the 	duties 	there 	with 	a positive
attitude. 	Aguilar 	further wrote, 	"You may be 	surprised that
your 	attitude 	has more 	to do with your 	personal 	problems 	than
the 	unit 	in which you 	are presently working."
The denial, 	said Aguilar, 	was based upon the 	ethnic balance
they were 	seeking to maintain at the Sutter Unit. 	Martinez, 	he
said, 	was 	the only Chicano 	at 	the Drake Unit. 	Martinez'
position 	was 	filled 	by 	Juarez 	and 	his 	former 	position 	had 	been
filled 	by Magill, 	who 	had 	just 	returned 	from maternity 	leave.
Calcote's 	reference 	to high blood pressure was not part 	of 	the
decision, 	said Aguilar, 	and 	the fact that he was a single
parent was 	not unusual, 	although personal preferences 	are
considered 	for 	shift changes. 	Aguilar was 	unaware 	that, 	at 	the
time of 	Calcote's 	request 	for 	return to Sutter, 	he had already
requested 	to get 	the 	6:00 	to 	2:00 	shift 	at Marshall.10	10
10Around 	March 	28 	Calcote 	had written 	to 	Owens 	and 	Fox
requesting 	the 	6:00 	to 	2:00 	shift 	at Marshall. 	After 	a
conversation on April 	13, 	where he 	explained 	the 	rotational
system at Marshall, 	Fox advised Calcote on April 	16 	that
effective May 	2, 	Calcote would 	be 	assigned 	to 	the 	relief youth
counselor 	position at Marshall. 	This 	resulted 	in Calcote's
hours 	being 	6:00 	to 	2:00 	p.m.
25

Charging 	party 	stipulated 	that 	with 	the 	exception 	of 	the
refusal 	to 	return Calcote 	to 	Sutter 	after 	his 	request 	there
were no complaints 	about 	his 	treatment 	at Marshall.
In 	November 	Fox 	surveyed 	the 	entire Marshall 	team for
possible 	transfer 	to 	the diagnostic 	side. 	Calcote 	responded
that he did 	not want 	to 	transfer 	to 	the diagnostic 	side.
Paperwork 	at Marshall Versus 	Sutter
There 	are 	a variety of 	opinions 	on 	the 	amount 	of 	paperwork
required 	of youth counselors 	at 	the 	two 	sides. 	Calcote
testified 	that Marshall 	requires more 	in 	the 	form of 	board
reports, 	recommendations 	to 	the board 	for 	referral to parole,
contracts 	on 	the wards 	for 	their 	treatment 	needs 	and
documentation on 	their 	daily 	activities 	for 	evaluation.
The number 	of wards 	assigned 	to counselors 	is 	less on 	the
Marshall 	side, 	and 	there are fewer wards on the Marshall 	side.
Aguilar 	conceded 	that youth 	counselors 	write 	more 	reports 	at
the Marshall 	program 	than on 	the 	diagnostic 	side 	and 	the
reports 	are more detailed. 	Aguilar 	said 	that 	staff 	on 	both
sides 	find 	it 	stressful to write 	reports.
Stress 	at Marshall
It 	is 	also apparent that 	the Marshall program is
stressful. 	In 	addition to 	the 	inner 	staff conflict 	that has
occurred 	between 	the clinical 	and 	custodial 	staff 	at Marshall,
there 	is 	the 	unpredictable 	and 	in 	some cases 	suicidal 	nature 	of
some of 	the wards. 	Both Calcote 	and Cole 	said 	it was 	stressful
26

and Collier 	did 	not want 	to 	transfer 	to Marshall 	because 	of 	the
stressful situation, 	he said, 	"the wards being more violent
prone". 	Yet 	some of 	these 	same 	wards come 	to 	the Marshall Unit
from the 	diagnostic 	side.
The 	facility as 	a whole 	seeks 	to obtain 	funding 	for
training, 	including counselors 1 training 	to deal with 	stress.
In the past, 	the Marshall Unit has 	had 	additional 	funding 	for
training 	because 	of 	its 	status 	as 	a 	treatment program. 	Stress
reduction 	is 	one 	component 	of 	the comprehensive 	training
program. 	The element of danger 	is present on either 	side, 	said
Aguilar. 	Aguilar did take 	issue, 	however, 	with Calcote's memo
in April, 	stating 	that 	it was a known fact that the Marshall
program was more 	stressful 	than 	the 	diagnostic 	side. 	Fox
acknowledged 	conflict 	because 	there 	were 	more 	people 	(meaning
the clinical 	as well as custodial 	staff) 	making more decisions
(because of 	the 	treatment provided) 	on fewer wards.
In August 	1984 	the Marshall 	program administrator 	issued 	an
assignment 	document 	to 	the Marshall 	program 	staff 	that 	outlined
strategies 	for 	the 	1984-85 	fiscal year. 	Stress 	reduction
permeates 	the 	sundry assignments given 	to 	staff. 	Working 	in
teams with 	timelines, 	staff were 	to make 	recommendations 	and
proposals 	for 	training programs on topics 	such as; 	staff
understanding 	and 	skill 	in 	dealing 	with 	wards 	with 	psychotic,
suicidal, 	criminal, 	and compulsive 	sex offender 	inclinations;
crisis 	intervention for staff, 	control of overtime, 	preventing
27
.

"greed 	and burn-out", 	and 	stress 	reduction program 	to 	reduce
stress 	related 	IDL's 	(industrial disability leave) 	by
50 percent.
Union 	Representation
In October 	of 	1982, 	after 	discussions with his managers on
the 	issue, 	Aguilar, 	as superintendent, 	issued a memo on the
treatment of 	union 	representatives. 	The memo admonished
managers 	that 	there would 	be 	no discrimination 	against 	SRCC
employees 	who participated 	in union 	activities. 	Participation
in union 	activities was to have 	no 	bearing on 	shift
assignments, 	overtime, 	lead person designation, 	assigned days
off, 	etc. 	The memo provided 	that there 	should 	also be 	no
preferential 	treatment 	for 	union 	representatives.
ISSUES
The 	issues 	in 	this case 	are whether 	the employer
discriminated 	against 	Anthony 	Calcote 	for 	being 	elected 	vice
president of 	the 	local CCPOA chapter 	by: 	(1) 	denying 	his
request for 	the Radillo position, 	(2) 	transferring Calcote to
the Marshall 	Unit, 	and/or 	(3) 	denying him his 	request for
return 	to 	the 	Sutter 	Unit.
CONCLUSIONS 	OF 	LAW
Section 	3519(a) 	prohibits discriminatory 	action 	against 	an
employee 	for 	engaging 	in conduct protected by 	the 	SEERA,
including,
. 	. 	. 	the right to form, 	join, and
participate 	in 	the 	activities 	of 	employee
28

organizations of 	their 	own choosing 	for 	the
purpose 	of 	representation on 	all matters 	of
employer-employee 	relations. 	(Section 	3515.)
The 	standard 	for 	determining 	if discrimination 	has 	occurred 	is
that 	set 	forth 	in Novato Unified School District 	(1982) 	PERB
Decision No. 	210. 	See State of California 	(1982) 	PERB Decision
No. 	228-S. 	In the absence of direct evidence of proscribed
motivation, 	a 	charging party who 	alleges 	a violation of 	section
3519(a) 	has 	the 	burden of making a 	showing 	sufficient 	to
support 	the 	inference 	that protected conduct was 	a motivating
factor 	in 	the 	employer's 	decision 	to 	take 	adverse personal
action. 	Such 	a 	nexus 	between protected 	activity 	and 	the
personal 	action 	taken may 	be 	demonstrated 	by
circumstantially-raised implication. 	Novato, 	supra, 	State of
California, 	supra. 	Once this nexus 	is demonstrated, 	the
employer 	then 	has 	the 	burden of demonstrating 	that 	it would
have 	taken 	the 	same 	action 	regardless 	of 	the 	employee's
participation 	in 	protected 	activity.
This 	test 	is 	consistent with precedent 	in California and
under 	the 	National 	Labor 	Relation Act 	(NLRA) 	requiring 	the
trier 	of 	fact 	to 	weigh both direct 	and 	circumstantial 	evidence
in order 	to determine whether 	an 	action would not 	have 	been
taken 	against 	an 	employee 	but 	for 	the 	exercise 	of 	protected
rights. 	See, 	e.g., Martori Brothers Distributors v.
Agricultural Labor Relations Bd. 	(1981) 	20 Cal.3d 721, 	729-730;
Wright Line, 	Inc. 	(1980) 	251 NLRB 150 	(105 LRRM 1169) 	enf., 	in
29

part, 	(1st Cir. 	1981) 	662 F.2d 	899 	(108 LRRM 2 5 1 3 ) . 1 1
As 	a 	threshold 	to 	any 	inference 	of 	discriminatory
motivation, 	the charging party must prove 	that 	the 	employer 	had
actual 	or 	imputed 	knowledge 	of 	the employees' protected
activity. 	Novato Unified School District, 	supra; 	Moreland
Elementary School District 	(1982) 	PERB Decision No. 	227.
Knowledge by 	the 	employer 	of protected 	activities, 	plus
other 	factors, 	may support 	the 	inference of 	unlawful motive.
Said PERB, 	in Novato.
The 	timing 	of 	the 	employer's conduct 	in
relation 	to 	the 	employee's 	performance 	of
protected 	activity, 	the 	employer's 	disparate
treatment 	of 	employees 	engaged 	in 	such
activity, 	its departure 	from established
procedures 	and 	standards 	when dealing 	with
such employees, 	and 	the employer's
inconsistent 	or 	contradictory 	justifications
for 	its 	actions 	are 	facts 	which may 	support
the 	inference of 	unlawful motive.
In 	this case, 	charging party was 	elected vice president of
the 	local 	representative 	of employees. 	Holding office 	in an
employee 	organization 	that 	represents 	the 	employees 	within 	the
meaning of 	the 	Act clearly 	is 	a protected 	activity.
11The 	construction 	of 	similar 	or 	identical 	provisions 	of
the NLRB, 	as amended, 	29 USC 151 et seq., may be used to guide
interpretation of 	the SEERA. 	See, 	e.g., 	San Diego Teachers
Assn. 	v. 	Superior Court 	(1979) 	12 Cal.3d 1, pp. 	12-13; 	Fire
Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 608, 	616.
Compare section 3519(a) 	with section 8(a)(3) 	of the NLRA, 	also
prohibiting 	discrimination 	for 	the 	exercise 	of 	protected 	rights.
30

The 	Shift 	Denial
On 	February 	28 	and around March 	14, 	the 	treatment 	team
supervisor, 	after 	consultation with 	both Jackson 	and 	Aycock,
determined 	to place others on 	the 	shift 	Calcote 	first 	sought on
February 	24. 	By his own testimony, 	Calcote was not 	involved 	in
any protected 	activities prior 	to 	his 	election 	as 	vice
president. 	He 	testified 	that he 	told 	Jackson on March 	14 	that
he 	had 	been elected, 	and 	that he 	thought 	she would 	be
surprised, 	as he had not been 	running 	for 	anything. 	Clearly,
the decision 	to place Mendoza 	into 	the 	position held 	by Radillo
was 	done 	at 	a 	time 	antidating 	Calcote's 	election 	as 	an officer
of CCPOA. 	As of 	February 28, 	again at 	least 	two weeks before
the 	election, 	Richardson had determined, 	for ease of
facilitating a 	reassignment, 	and 	for ethnic 	balance, 	to place
Mendoza 	into 	the 	Radillo position. 	Under 	these circumstances,
the placement 	of Mendoza 	into 	Radillo's 	position 	could 	not 	have
been 	related 	to 	Calcote's 	later 	election as 	officer.
Accordingly, 	the charge, 	to the extent 	it suggests 	the denial
of 	this 	shift assignment to Calcote, 	must be dismissed.
As 	to 	the March 	14 	decision 	to deny Calcote 	the 	slot held
by Radillo, 	it 	is 	likewise concluded 	that Calcote has 	failed 	to
establish 	that Richardson, 	the decision maker, 	had 	knowledge of
Calcote's 	election as 	an officer 	of 	CCPOA. 	Richardson and
Aycock 	both denied 	that CCPOA was 	discussed 	at 	the meeting
during 	which 	the 	April 	schedule was 	ascertained. 	Jackson's
31

testimony was most 	favorable 	to 	Calcote 	and yet 	she 	was
uncertain 	as 	to when 	she 	learned 	of 	Calcote's election 	as 	an
officer. 	Jackson too, 	however, 	denied 	that CCPOA was discussed
at 	the 	scheduling meetings.
Charging 	party's 	post-hearing 	brief 	attempts 	to 	establish
knowledge 	on 	the 	part 	of management 	by 	incidents 	involving
Aguilar, 	only one 	of which 	antidated 	the March 	14 	scheduling
meeting of Richardson, 	Jackson and Aycock. 	As 	the evidence
clearly establishes, 	Aguilar 	was not 	involved 	in 	shift change
assignments, 	rather 	Richardson had 	the 	final 	say on 	such
matters. 	Even 	if one was 	to 	assume 	that Aguilar 	learned of
Calcote's 	election on March 	9 	(contrary 	to 	the discussions
below) 	there 	is 	nothing 	in the 	record 	to 	suggest 	that 	such
knowledge 	was 	imparted 	from Aguilar 	to 	Richardson 	between
March 9 and 14.
The 	only 	evidence 	linking 	knowledge 	of 	Calcote's 	election
to 	the vice president position 	is Calcote's 	own 	testimony 	that
he 	told Jackson on March 	14 	of 	that 	fact. 	Given 	the 	inherent
inconsistency 	of 	Calcote's 	testimony 	with 	that 	of 	his
co-officers, 	Collier and with Rodriquez, 	and 	the 	inherent
improbability 	of 	Jackson's 	confirmation 	that 	he 	had 	the 	Radillo
slot 	at a 	time 	before 	she went 	to 	the monthly 	scheduling
meeting 	(she 	was 	not cross 	examined 	on 	the 	scheduling
meetings), 	I conclude that Calcote has failed to meet his
burden 	of 	proving 	knowledge 	by a preponderance of 	the
32

evidence. 	CCPOA asserts 	that 	knowledge 	can 	be 	gleaned 	from the
same 	facts 	upon which unlawful motivation 	is 	established. 	Yet,
the 	record 	is 	barren of 	any acts 	by 	the 	employer 	that 	suggest
unlawful motive 	other 	than 	those complained 	of 	by 	Calcote.
Mendoza was 	not placed 	into 	Radillo's 	slot 	because 	of
anti-union animus, Cole 	was 	not 	transferred 	to 	Sutter 	based
upon union animus. 	Rodriquez, 	and 	subsequently Collier, 	were
both given unique work 	schedules 	to 	accommodate 	their 	union
status. 	At a time long before 	this charge arose, 	the
superintendent 	issued 	a 	memo 	squarely 	placing 	union 	activities
beyond the pale of consideration 	in employee 	relations. 	The
record 	is 	simply 	barren of 	any union animus 	by 	the 	employer.
It 	is 	concluded 	that 	the March 	14 	denial 	and placement of
Martinez 	into 	the 	Radillo 	slot 	had 	no 	bearing 	on Calcote's
election to 	the vice presidency of CCPOA. 	At this point, 	the
conclusion 	is 	based 	upon 	the 	failure 	to 	establish 	knowledge 	on
the part of Richardson of Calcote's election. 	The charge,
insofar 	as 	it complains 	of 	the denial of 	Calcote's 	request 	for
a 	transfer 	to 	the Radillo slot, 	must be dismissed.
Even 	if 	one was 	to assume 	that Jackson had 	knowledge of
Calcote's election as vice president, 	and 	thus, 	by 	inference
Richardson 	knew of 	the 	fact, 	application of 	the 	balance of 	the
Novato 	test 	fails 	to 	raise 	an 	inference 	of 	unlawful
motivation. 	As to timing, 	it 	is clear 	that the decision to
give 	the 	Radillo 	slot 	to Martinez 	and 	not 	to Calcote was 	done
33

the 	same day as 	the 	announcement 	of 	the purported election
results. 	Yet the 	timing 	in this case was not beyond
coincidence. 	The 	fact of 	the matter 	is 	that 	the 	next month's
scheduling 	was 	always done 	near 	the middle of 	the month.
Moreover, 	timing 	only 	is not 	sufficient 	to 	infer 	unlawful
motive.
Charging party cites 	that 	the 	department 	allowed
John Grijalva a 	shift change 	to 	accommodate 	his desire 	to be
with 	his 	wife 	and 	newborn child. 	Aside 	from the difference 	of
being 	a 	single parent versus one's spouse having 	a baby, 	it 	is
certain 	from 	this 	record 	that while 	Calcote 	told 	Jackson 	about
wanting 	to be with his 	son 	in the evenings, 	he did not convey
that 	fact 	(or 	that he was a 	single parent) 	to Richardson.
Calcote's 	official 	request 	for 	the 	shift change, 	written on
February 26, 	made no mention of his personal needs, 	but 	rather
stressed 	benefit 	to 	the unit by his presence. 	In addition,
Calcote knew of no other 	single parents, 	and could 	site no
instance where 	another 	single 	parent was 	given a 	shift change
on 	the basis of 	such personal circumstances. 	There 	is 	no
showing 	of 	disparate 	treatment by 	this 	scant 	testimony.
Departure 	from established 	procedures 	and 	standards.
Charging party 	argues 	that 	Richardson 	looked 	at 	the 	first
criteria 	of 	the 	department's 	policy 	on 	transfers 	and 	yet 	failed
to 	establish 	that Martinez 	possessed 	skills 	and 	experience 	more
attune 	to 	the program needs 	than 	those possessed 	by 	Calcote.
34

Yet 	Richardson, 	corroborated by Aycock 	and Jackson, 	testified
that 	the 	selection of Martinez 	was primarily on 	the 	basis 	of
ethnic 	balance. 	There was 	no contention 	that Martinez 	had
inferior 	or 	superior 	experience. 	In addition to 	failing 	to
grasp the obvious, 	that 	is 	that ethnic balance was 	the primary
factor, 	the charging party would 	shift 	the burden, 	at this
initial point, 	and 	require 	the 	employer 	to demonstrate 	superior
experience 	over 	Calcote. 	That 	requirement 	is premature 	at 	this
juncture. 	If anything, 	Calcote 	should have 	shown that he had
superior 	qualifications 	than Martinez. 	Neither 	Calcote 	nor
CCPOA made 	any 	showing of 	the 	relative 	abilities 	of Martinez
and 	Calcote.
Finally, 	CCPOA finds 	inconsistent 	justification 	for
Calcote's 	shift denial 	by 	relating 	Aycock's 	failure 	to 	respond
to 	Calcote 	about why he did 	not get 	the 	shift 	request 	and
Richardson's 	position of desired 	ethnic 	balance. 	CCPOA did 	not
cross examine Aycock on this point. 	In any event, 	silence on
the one 	hand 	(by Aycock) 	and expressed desire 	for 	ethnic
balance 	(by Richardson) 	does not constitute 	inconsistency. 	For
whatever 	reason 	Aycock 	declined 	to 	give 	an 	explanation 	of 	why
Calcote did not get 	the position, 	that 	lack 	of 	response 	is 	not
inconsistent with 	Richardson's position, 	asserted by 	Calcote's
own 	testimony 	both 	to 	him directly 	and 	then 	again 	later 	in 	the
presence 	of Assistant 	Superintendent 	Pack. 	Richardson was
consistent on 	the only 	response 	that was 	given
35

by the department.
Thus, 	an 	inference of 	unlawful motive 	is not 	substantiated
by the facts 	in this case. 	Assuming, 	for purposes of argument,
that 	the 	timing 	of 	the decision 	and 	any other 	factor 	would
suggest an 	inference of unlawful motive, 	the burden shifts 	to
the 	employer 	to 	show that 	it would have 	acted 	the way 	it did 	in
an event.
The 	employer's case 	is 	that Mendoza 	aided 	the 	ethnic
balance of the 	unit. 	While a limited 	term employee, 	he did
bring 	to 	the 	unit 	a 	Chicano 	presence 	that 	was conspicuously
absent. 	Placing 	Calcote 	in 	the position held by Radillo would
not 	only 	have perpetuated 	a predominance of 	blacks 	but 	as
credibly 	testified 	by Richardson, 	Aycock 	and Jackson, 	would
have 	involved 	shifting 	others 	in 	either 	or 	both 	units 	because
of 	the 	relief position 	filled 	by 	Calcote. 	Mendoza 	had 	been
slated 	for 	a 	slot 	in 	the 	temporary category 	that 	exactly
coincided 	with 	Radillo's. 	Mendoza, 	a 	limited 	term employee,
unlike either Martinez or Calcote, 	was 	subject to employment on
population 	in 	the 	unit 	and 	subject 	to 	reduction 	if 	the
population fell. 	Martinez, 	another Chicano with 	regular
status, 	whose 	employment was 	not 	subject 	to 	the population head
count gave more permanency to 	the 	unit 	in 	the 	slot held by
Radillo. 	While 	Richardson was 	left with 	two Chicanos on 	the
same 	shift and with the 	same days off, 	it 	is clear 	that at
least 	the 	unit 	had 	a better 	ethnic 	balance 	than without either
being placed 	into 	the unit. 	As 	the 	record 	reflects, 	Martinez
36
.

was 	slated 	to 	stay 	in 	the 	slot 	and Mendoza was 	assigned 	to 	the
Drake 	Unit 	for May 	in 	the 	S31 	slot.
Accordingly, 	I 	find that even 	if 	an 	inference 	of 	an
unlawful motive was 	established, 	Calcote's denial of 	the 	shift
change 	for 	the month of April would 	have 	been made, 	despite his
election as vice president of CCPOA. 	Thus, 	the 	facts of 	this
case 	require dismissal of 	this 	allegation.
CCPOA attacks 	the 	department's 	policies 	on 	transfer
considerations 	and 	applies 	these 	considerations 	to 	both 	the
request 	for 	shift 	change 	denial 	and 	the 	transfer 	to Marshall.
There 	is no evidence, 	however, 	to justify analysis of the
policy of 	shift changes. 	Thus, 	as to Calcote's shift change
request and the denial, 	CCPOA's 	arguments are not 	relevant.
Thus, 	the 	relative 	skills of Calcote and Martinez 	are not 	in
issue 	and 	need 	not 	be 	resolved.
As 	to 	the 	application of 	the 	policy as 	to Calcote's
transfer 	to Marshall, 	CCPOA's 	arguments go 	beyond 	the 	scope of
the evidence. 	Aside 	from the 	fact 	that elsewhere 	in 	its 	brief
CCPOA eliminates 	the 	transfer 	to Marshall 	as 	an 	issue 	in 	this
case, 	the 	testimony of Aguilar was 	limited to 	the 	needs of 	the
Marshall program, 	and 	that he was 	aware of 	the desire to
enhance 	the 	recreational 	aspects 	at Marshall. 	Calcote's prior
outside 	activities 	suited 	him 	ideally 	for 	the 	assignment.
Other 	candidates 	were 	not 	selected 	because 	at 	least one 	had
been at Marshall 	before. 	The duties of 	the youth counselor
37

clearly embraced 	recreational 	activities. 	Calcote 	admitted
that his 	recreational duties were 	a part 	of his
responsibilities 	and consistent with 	the 	job duties 	at 	Sutter.
For 	some 	reason, 	not explained on the 	record, 	he did not agree
that 	the 	same 	job description applied 	to 	the Marshall 	side.
The 	Transfer 	to Marshall
The decision 	to 	transfer 	Cole 	to 	the 	diagnostic 	side 	was
made 	in early March. 	There 	is 	nothing 	in 	the 	record 	to 	suggest
that his 	transfer was 	related 	in 	any way 	to activities 	of
CCPOA. 	Cole was 	not a union participant, 	and 	the 	transfer was
in 	keeping with 	the department's 	rotational plan 	involving
employees 	having 	been 	at Marshall 	for more 	than 	three years.
That 	others 	on 	the Marshall 	program may 	have 	had more 	time 	in
service on 	that program than Cole 	raises 	no 	inferences 	as 	there
is 	no connection 	between Cole 	and CCPOA.
The decision to 	transfer Calcote to Marshall was, 	according
to Aguilar, 	made 	a week before March 	28. 	That 	the decision was
made 	before March 	28 	is corroborated 	by 	testimony and
documentary 	evidence. 	Calcote 	himself 	testified 	that 	Cole 	told
him 	the 	day 	before 	Richardson called 	him 	into 	the 	office 	that
he, 	Calcote, 	would be transferred to Marshall. 	According to
the documentary evidence, 	notice 	to Calcote was given on
March 	28. 	Aguilar 	testified, 	with corroboration by a letter 	he
wrote on March 	30 	to Collier, 	that 	they had made 	the
determination 	to 	transfer 	Calcote 	to Marshall 	prior 	to 	the
38

meeting 	on March 	26, 	and 	for 	that 	reason Aguilar was 	able 	to
inform Collier 	that 	he would 	not 	be 	transferred 	to Marshall.
Aguilar 	testified 	that 	he 	drew 	an 	assumption 	from 	the
meeting 	of March 	26 	that 	Calcote was 	an officer 	with CCPOA. 	He
denied 	that before 	that date 	he 	had 	knowledge 	of 	Calcote's
election.
The CCPOA argues 	the 	employer's 	knowledge 	is 	predicated
upon 	Rodriguez 	telling 	Aguilar 	of 	Calcote's 	election on
March 	9, 	that 	Gilbert delivered 	the 	letter 	announcing 	the
election of officers on March 	14, 	and of 	the 	inference 	that
must be drawn 	from the Nettles 	letter 	of March 	16.
CCPOA urges 	credibility 	in 	favor 	of 	Rodriguez 	over Aguilar
because of his 	"superior" 	recollection over Aguilar. 	Because
Rodriguez 	stated 	that 	he 	told 	Aguilar 	on March 	9 	that 	Calcote
was 	elected 	vice 	president, 	and 	that Aguilar 	expressed 	surprise
that 	Calcote 	was 	elected, 	against Aguilar's 	lack 	of 	recall of
any discussion, 	it 	urges 	that Rodriguez' testimony 	should 	be
credited.
As 	the findings conclude, 	however, 	Rodriguez did not tell
Aguilar 	of 	Calcote's 	election on March 	9. 	As Calcote 	himself
testified, 	the 	election took place on March 	13 	and he 	told
Jackson the next day, 	March 14, 	thinking 	that she would be
surprised, 	as he was not running 	for 	anything.
Gilbert's 	testimony 	should 	be 	favored 	over 	Moretz'
testimony, 	urges CCPOA, 	because of Gilbert's 	recollection 	is
39

that 	he 	delivered 	the 	letter 	personally 	and 	she 	evidenced
inconsistency as a long-time secretary 	(and, 	of course, 	her
loyalty) 	in her 	testimony 	regarding 	the 	amount of mail that
comes 	in.1	12 It 	is 	not unusual 	for 	mail 	to get mislaid 	on 	the
desk 	of a 	busy 	secretary, 	urges CCPOA, 	and 	Gilbert had nothing
to gain by waiting until April 	4 	to deliver 	the letter. 	It was
in his 	best 	interest 	to have 	the department 	recognize his
ascendancy 	in 	and 	expeditious manner.
I 	find 	that 	the 	letter 	was 	not delivered 	to 	the
superintendent's 	office 	until April 	4, 	as 	indicated 	by 	the
testimony 	of Moretz, 	and 	as corroborated by her practice of
date 	stamping material 	as 	it comes 	into 	the office. 	Despite
CCPOA's argument 	to 	the contrary, 	I 	find no 	reason to doubt
Moretz 	as 	a 	result of her 	testimony on 	the 	amount of mail 	that
comes 	to 	her 	office daily.
The Nettle's 	Letters
Because Collier 	didn't 	tell 	Sacramento-based 	Nettles, 	CCPOA
says 	only one 	inference can be 	drawn 	from Respondents 	silence
in the matter. 	That 	inference 	is 	that 	SRCC 	knew of 	at least
Collier's 	election 	and 	passed 	this 	information on 	to
Sacramento. 	Calcote was elected 	at 	the 	same 	time 	and 	it 	is
reasonable 	to 	infer 	that 	the 	department 	knew of 	Calcote's
election, as well.
12Moretz 	testified 	that 	approximately 	15-20 	documents
come 	across 	her desk 	in a day and 	that on 	some days 	the mail 	is
heavy from Sacramento but 	the 	total 	is 	still close 	to 	15-20.
When 	in-house documents are added, 	the 	total 	still remains 	15.
40
2

Once 	again, 	charging party draws 	too much 	from too 	little.
Nettles' 	letter 	related to Collier, 	not Calcote. 	It has been
found 	that 	Rodriquez 	did 	tell Aguilar 	that 	Collier 	was 	going 	to
serve 	as 	job steward on March 	9. 	Aguilar 	admitted 	this 	and, 	in
all probability, 	that 	is how Nettles 	learned 	of 	Collier's
election 	that 	resulted 	in 	the March 	14 	letter 	from Nettles 	in
Sacramento. 	In any event, 	the March 14 	letter 	from Nettles
says 	nothing 	about 	Calcote's 	election. 	To go beyond 	that
finding, 	however, 	in the face of 	the various versions of when
the 	election was 	held, 	and with Calcote's 	own 	testimony 	that
the 	election was 	on March 	13 	and 	that 	he 	thought Jackson would
be 	surprised 	on March 	14 	when he 	said 	he 	told her 	of 	the 	event,
is simply too much. 	The Nettles' 	letter carries with 	it no
more 	than what 	it 	facially proclaims. 	No 	inference 	is drawn
that 	Calcote's 	election was 	also 	known 	by management on 	the
date 	it was written.
CCPOA takes 	issue 	with Aguilar's 	testimony 	that 	he 	did 	not
know of 	Calcote's 	high 	blood 	pressure 	condition 	before 	the
decision was made 	to 	transfer Calcote 	to Marshall. 	It 	failed
to 	show, 	however, 	that Aguilar would have 	known of Calcote's
condition. 	By 	its own evidence, 	the medical 	findings of 	the
Workers' 	Compensation Appeals 	Board were 	not 	issued 	until
May 4, 	1984. 	The decision to 	transfer Calcote 	to Marshall was
made 	in March. 	There 	is 	no 	evidence 	from which 	it can be
discerned 	that 	Aguilar 	knew of 	Calcote's 	high 	blood 	pressure
41

before 	the 	transfer. 	Calcote 	told Atesalp of 	his 	condition
after 	his 	transfer. 	He did not 	tell Aguilar 	or 	Richardson when
notified 	of 	the 	transfer 	on March 	28.13	13
In 	sum, 	the conclusion 	is 	that the 	first 	that Aguilar was
aware 	of 	Calcote's 	election 	to CCPOA was 	in conjunction with
the March 	26 	meeting which Calcote 	attended 	as 	a CCPOA
representative. 	Once 	again, 	the decision to 	transfer Calcote
to 	the Marshall 	Unit antidated 	knowledge 	by 	the 	employer 	of
Calcote's 	protected 	activity. 	This point appears 	to 	be
conceded 	by charging party. 	Its 	post 	hearing 	brief 	expressly
states 	that 	the 	fact of Calcote's 	transfer 	to Marshall 	is not
in 	issue. 	(Pages 	6 	and 	7.)14
The 	Denial 	of 	Request 	to 	Transfer 	Back 	to 	Sutter 	Unit
On April 	26 	Calcote 	requested 	to 	be 	reassigned 	back 	to 	the
13	1 	By 	way of 	further 	attempting 	to 	impeach Aguilar 	on 	his
knowledge 	of 	Calcote's 	condition, 	CCPOA refers 	to 	the personnel
clerk's 	testimony 	regarding 	revision of 	Calcote's 	1983
attendance 	records 	because 	compensation 	had 	been 	accepted.
CCPOA failed, 	however, 	to establish when the revision took
place. 	Gigi Eletreby, 	the personnel clerk, 	did not testify
that 	the 	revisions 	took place 	before 	the Worker's Compensation
Appeals 	Board 	award was 	issued on May 	4, 	1984.
3sy
14	14CCPOA 	also 	contends 	that 	Richardson 	failed 	to 	consider
Calcote's 	prior 	performance 	evaluation 	in 	the 	transfer 	to
Marshall. 	Richardson, 	however, 	did not make the decision to
transfer 	Calcote 	to Marshall. 	Aguilar made 	the 	transfer
decision. 	Richardson was 	asked 	for 	three 	names of youth
counselors who 	might 	be considered 	for 	transfer. 	Calcote was
but 	one 	of 	three 	names 	advanced 	by Richardson. 	The 	record does
not 	support 	CCPOA's 	argument 	that 	Richardson 	failed 	to 	apply
the 	transfer 	guidelines, 	as 	Richardson did 	not make 	the
transfer 	decision.
ccroA
42

Sutter Unit. 	Basing his 	request on a purported vacancy, 	he
asked 	for 	the 	transfer 	to 	accommodate 	his 	health condition 	and
the fact that he was a single parent. 	Aguilar, 	by his own
admission, 	knew at 	the 	time of 	the 	request 	that 	Calcote was
vice-president of 	CCPOA. 	He 	learned 	of 	the 	request of
Calcote's 	position both by 	the meeting 	of March 	26 	and 	by 	the
letter 	that came to his office on April 	4. 	Thus, 	in this
instance, 	charging 	party has met 	the 	threshold of 	the Novato
test. 	Mere knowledge, 	however, 	is 	insufficient to 	raise an
inference of unlawful motive. 	Novato, 	supra.
CCPOA asserts 	that 	the 	denial 	of 	Calcote's 	request 	to
return 	to 	the 	Sutter 	Unit was wrong 	because 	he was medically
unsuited 	for 	the Marshall position. 	It urges 	that 	the
department 	accommodated 	John 	Grijalva 	who 	had 	family 	problems
but denied 	the 	same consideration 	to Calcote. 	It 	labels 	the
department's contention of 	ethnic 	balance as 	"chimerical" 	in
that the 	slots 	at Sutter were 	interchangeable, 	Calcote could
have 	filled another 	slot for a black, 	and Cole, 	who was 	the
only white 	at Marshall, 	was 	transferred 	from the 	unit despite
the 	fact 	that 	there were 	others 	at 	the Marshall 	Unit with more
seniority. 	CCPOA questions 	how Aguilar 	could 	know 	that 	Juarez
was going 	to 	fill 	the 	vacancy 	in early April, 	since Aguilar did
not 	inform Richardson 	of 	Calcote's 	request 	to 	return 	to
Sutter. 	These 	arguments 	are not persuasive.
Having 	determined 	that 	Calcote 	was 	placed 	into 	the Marshall
program without 	regard 	to 	his 	election 	to 	the 	CCPOA vice
43

presidency, 	the Novato analysis does 	not 	justify an 	inference
of 	unlawful motivation 	in 	the 	department's denial 	of 	his
request 	to 	return 	to 	the 	Sutter 	Unit. 	While 	Calcote 	contended
that he was medically unfit 	for 	the Marshall program, 	he did
not 	secure 	the 	advice 	of 	his 	doctors 	for 	such extreme 	diagnosis
but 	rather 	rested 	on 	his 	own viewpoint 	that he was 	not 	suited
for 	the position. 	Unlike 	the previous July and August 	(1983),
when he did 	take disability leave, 	no 	such absence occurred 	in
1984. 	Interestingly, 	in November 	1984 	he 	expressed preference
for 	the Marshall 	program 	rather 	than 	being 	afforded 	the
opportunity 	to 	return 	to 	the diagnostic 	side.
That 	the 	department 	accommodated 	Grijalva 	on 	a 	shift 	change
does 	not 	demonstrate 	disparate 	treatment 	regarding 	transfers
from the Marshall 	Unit 	to 	the 	diagnostic 	side. 	Changing 	one's
shift within 	the 	same 	unit 	is 	not 	the 	same 	as 	transferring 	an
employee 	from one 	unit 	to 	another. 	Charging 	party has 	failed
to 	establish disparate 	treatment 	in 	the 	denial 	of 	Calcote's
request 	for 	transfer 	to 	the 	Sutter 	Unit.
CCPOA'S 	argument 	about 	the department's 	position 	on ethnic
balance 	is 	likewise without merit. 	While 	the 	slots 	at 	Sutter
were 	interchangeable, 	there 	is no showing 	that, 	upon Calcote's
request 	to 	return to 	Sutter, 	there were any blacks 	at 	Sutter
willing 	to go 	to Marshall 	in Calcote's place. 	There 	is nothing
in 	the 	record 	to 	suggest 	that, 	based 	upon an employee's 	request
for 	a 	transfer, 	other 	employees were 	required 	to 	leave 	their
position 	in one 	unit 	for 	transfer 	to 	the Marshall program.
44

Secondly, 	the department's 	ambition 	for 	ethnic balance 	focused
upon the Sutter Unit, 	not on Marshall. 	These settings were and
are distinct. 	The Sutter Unit houses 	wards 	in an 	evaluation
setting. 	It was 	there that 	the department 	sought 	to have an
ethnic balance. 	The Marshall program was 	a 	long 	term
residential 	setting. 	The department never 	contended 	that
Calcote's presence 	at Marshal 	was 	in 	line 	with 	an ethnic
balance at Marshall. 	In any event, 	the record is 	totally void
of 	any suggestion 	that Cole 	was 	transferred 	from Marshall
because of his union activity or 	ethnic balance. 	Thus, 	Cole's
treatment 	in the transfer 	is 	irrelevant 	to this 	issue.
Finally, 	Aguilar's knowledge of Juarez' assignment 	to
Sutter 	for June 	was 	facilitated by 	Richardson's 	request 	to 	the
administration 	in 	early April 	when he 	was 	faced 	with 	the
Martinez promotion. 	He 	testified 	that 	the 	changes 	occurring 	in
March, 	April 	and May led him to go to the 	administration 	for
help 	in 	resolving 	the 	ethnic 	balance problem.
The 	employer's 	response 	to Calcote's 	request 	for 	the
transfer 	to Sutter 	was based upon 	the 	absence of 	a position.
The 	department had 	a 	legitimate 	interest 	in preserving 	the
ethnic profile 	it was 	attempting 	to recreate with Radillo's
departure. 	The 	record does 	not 	suggest 	that 	the department 	was
taking 	adverse 	action against 	Calcote because 	of his 	election
as 	vice-president 	of 	CCPOA, 	but 	rather 	that 	it denied his
request 	for 	retransfer 	to Sutter 	on 	the basis 	that 	it had no
45

vacancy at Sutter 	for Calcote to occupy. 	In addition, 	it
differed with Calcote on his 	assessment of 	the 	stress 	level at
Marshall. 	While 	the record suggests 	that Marshall 	is 	more
stressful 	than the diagnostic unit, 	that does not 	justify a
conclusion that 	the denial 	of 	Calcote's 	request 	to re-transfer,
based upon another 	valid contention, 	that 	is 	the absence of 	a
vacancy, 	was 	otherwise based upon unlawful motivation.
Accordingly, 	it 	is 	concluded that 	the denial of Calcote's
request 	for 	retransfer 	to Sutter 	was 	not 	a violation of 	the
SEERA. 	The charge must, 	therefore, 	be dismissed.
PROPOSED ORDER
Upon 	the 	foregoing 	finds 	of 	fact 	and conclusions 	of 	law,
and the entire 	record 	in the case, 	it 	is hereby ordered that
the unfair practice 	charge 	and 	complaint 	against 	the 	State 	of
California, 	Department of Youth Authority are DISMISSED.
Pursuant 	to California Administrative Code, 	title 8,
part III, 	section 32305, 	this 	Proposed Decision and Order shall
become final on June 27, 	1985, 	unless a party files a timely
statement of exceptions. 	In accordance with the rules, 	the
statement 	of 	exceptions 	should 	identify by page 	citation or
exhibit 	number 	the portions 	of 	the 	record relied upon 	for 	such
exceptions. 	See California Administrative Code, 	title 8,
part III, 	section 32300. 	Such statement of 	exceptions and
supporting brief 	must 	be 	actually 	received by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the headquarters 	office 	in
46

Sacramento before the close of business 	(5:00 p.m.) 	on June 	27,
1985, 	or 	sent by telegraph or 	certified United States mail,
postmarked not 	later 	than 	the 	last 	day 	for 	filing 	in order 	to
be 	timely 	filed. 	See California Administrative Code, 	title 	8,
part III, 	section 32135. 	Any statement of 	exceptions and
supporting brief 	must be 	served 	concurrently with 	its 	filing
upon each party 	to 	this proceeding. 	Proof 	of 	service 	shall 	be
filed with 	the 	Board 	itself. 	See California Administrative
Code, 	title 8, 	part III, 	section 32300 and 32305.
Dated: 	June 7, 	1985
GARY M, GALLERY	G~_/GALIERY
Administrative 	Law Judge
47