California State University (San Francisco) (PERB 0559H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
STATEWIDE 	UNIVERSITY POLICE
ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA STATE 	UNIVERSITY
(SAN 	FRANCISCO),
Respondent.
Case Nos. 	SF-CE-151-H
SF-CE-166-H
SF-CE-171-H
PERB Decision No. 	559-H
January 3, 	1986
Appearances; 	Law Offices 	of 	David P. 	Mastagni 	by K. 	William
Curtis 	for 	Statewide 	University Police Association; 	William B.
Haughton, 	Attorney 	for Board of 	Trustees 	of 	the 	California 	State
University.
Before Hesse, 	Chairperson; Morgenstern and Porter, 	Members.
DECISION
PORTER, 	Member: 	This 	is 	an appeal of a proposed decision,
attached hereto, 	by a 	Public 	Employment 	Relations 	Board 	(PERB
or Board) 	administrative 	law judge 	(ALJ) 	following a hearing
and dismissal 	of 	three consolidated 	cases.l 	The 	cases 	before
us 	involve 	the 	rejection of 	three probationary employees
alleged 	to have 	been 	rejected 	during 	their 	probationary periods
in 	retaliation 	for 	their 	participation 	in 	specific protected
activities.
The	l1'l'he 	three 	cases 	that 	were 	consolidated 	for hearing were
Case Nos. 	SF-CE-151-H, 	SF-CE-166-H, 	and SF-CE-171-H. 	The ALJ
dismissed 	Case No. 	SF-CE-151-H pursuant 	to a 	settlement
agreement 	reached by the parties 	during 	the hearing, 	and 	it 	is,
therefore, 	not before us.
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The 	ALJ dismissed 	charges 	involving 	two of 	the 	three
probationers 	(Officers 	James 	Bryant 	and 	David Ceruti) 	on 	the
basis 	that 	the 	Statewide 	University Police 	Association 	(SUPA or
Charging Party) 	failed to prove a prima 	facie case of
retaliation by 	failing 	to 	establish 	that 	the 	employer's 	agent
responsible 	for 	the rejections, 	Chief John Schorle, 	had
knowledge 	of 	any protected 	activity 	engaged 	in by Officers
Bryant and Ceruti. 	As 	to the 	third probationer, 	Sergeant Myra
Sheehan, 	the ALJ 	found 	that 	SUPA did 	establish a prima 	facie
case of 	retaliation, 	but 	that 	the 	California 	State University
(San Francisco) 	(Respondent or CSUSF) 	successfully established
that 	the 	rejection was 	not 	due 	to 	the 	employee's 	exercise 	of
protected 	rights.
We have 	reviewed 	the 	record 	and 	documents 	filed 	by 	the
parties 	and 	find 	the ALJ's 	findings 	of 	fact 	to be 	free 	of
prejudicial 	error 	and adopt 	them as 	the 	findings 	of 	the 	Board
itself.2 We 	further 	adopt 	the 	conclusions 	reached 	by 	the 	ALJ
2The 	ALJ 	found 	two 	instances 	of 	conflicting 	testimony
involving 	Chief 	Schorle. 	In both 	instances, 	the ALJ discredits
Schorle's 	testimony. 	SUPA argues 	on appeal 	that 	the ALJ cannot
selectively credit portions 	of 	a witness' 	testimony while
discrediting other portions 	and, 	therefore, 	all of Chief
Schorle's 	testimony should be disregarded. 	However, 	our
reading 	of 	the 	transcript 	reveals 	no 	such 	conflicts 	between
Chief 	Schorle's 	testimony and 	that 	of 	the 	other 	witnesses.
Therefore, 	even 	if we agreed with 	the arguments 	raised by 	SUPA,
which we do not, 	it would have no bearing on the outcome of
this case.
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concerning 	Officers 	Bryant 	and 	Ceruti, 	and 	summarily affirm 	the
ALJ's 	dismissal 	of 	those portions 	of 	the cases. 	With respect
to 	the 	charges 	involving 	Sergeant 	Sheehan, 	we affirm the ALJ's
dismissal, 	but 	for 	the reason 	that 	Charging Party 	failed 	to
establish a prima 	facie 	case.w3
FACTS
The pertinent 	facts 	may be 	summarized as 	follows. 	Sergeant
Sheehan was hired 	in August 	1981 by Chief 	Schorle, 	director of
the public safety department 	at 	CSUSF, 	as 	a supervising public
safety officer. 	Her probationary period was 	two years.
During her 	probationary period, 	Sergeant 	Sheehan 	engaged 	in
three 	activities 	SUPA asserts 	are protected. 	The 	first
occurred 	in January 1983, 	when she 	joined SUPA. 	Second, 	in
February 1983, 	she 	filed a grievance, 	in which she was
represented 	by 	SUPA and 	which 	was 	resolved 	in her 	favor 	by
Chief Schorle. 	Finally, 	in late February 1983, 	Sergeant
Sheehan participated 	in the 	formulation, 	circulation and
presentation of 	a petition 	to the president 	of 	CSUSF. 	The
petition was 	highly 	critical 	of 	Chief 	Schorle's 	hiring 	and
3While 	we 	agree 	with 	the 	ALJ 	that 	Respondent 	established
Sergeant 	Sheehan was 	rejected 	for 	reasons 	other 	than her
protected activity, 	Charging Party must 	first prove 	its prima
facie case before 	the burden shifts 	to Respondent. 	This,
Charging 	Party has 	failed 	to do.
4Because 	we 	agree 	with 	the ALJ 	that 	SUPA did not
demonstrate 	knowledge 	by Chief 	Schorle 	that 	Sergeant 	Sheehan
was 	involved 	in this petition, 	we need not decide 	if 	this
activity was 	protected 	under 	the 	Higher 	Education
Employer-Employee Relations 	Act 	(HEERA) 	(Gov. 	Code section 3560
et 	seq.).
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firing practices 	and 	requested 	an 	administrative 	review.
Sergeant 	Sheehan 	was 	notified 	of her 	rejection 	from probation
on March 31, 	1983.
DISCUSSION
PERB has 	previously 	established 	the 	standard 	a 	charging
party must meet 	in proving a prima 	facie 	case of
retaliation.5 In Novato Unified 	School 	District 	(1982) 	PERB
Decision No. 	210, 	and California State University, 	Sacramento
(1982) 	PERB Decision No. 	211-H, 	PERB held that, 	to carry its
burden of proving a prima 	facie case of 	retaliation, 	charging
party must 	initially 	establish 	the 	following by a preponderance
of 	the evidence:
(1) 	the exercise of an identified protected right, 	plus,
(2) 	(a) 	an adverse action taken thereafter
(b) 	which was 	unlawfully motivated 	in
retaliation/discrimination 	for 	the 	exercise 	of 	the
protected 	right.
Unlawful 	motivation 	is 	the 	specific 	nexus between 	the
exercise 	of a protected 	right 	and 	the 	adverse action. 	To
establish 	such motivation 	through 	inference, 	charging party
5Retaliation for protected 	activities 	is 	prohibited by
HEERA.
Section 3571 provides 	in pertinent part:
It 	shall 	be 	unlawful 	for 	the higher 	education
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals 	on
employees 	. 	. 	. because of their exercise of
rights 	guaranteed 	by 	this 	chapter.
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must prove 	the 	employer had 	actual 	or 	imputed knowledge 	of 	the
employee's protected activity. 	Knowledge, 	along with other
factors, may support 	the 	inference of unlawful motive. 	Novato,
supra. 	Such other 	factors may include:
a) 	the timing of 	the adverse action in relation to the
exercise of 	the protected right;
b) 	the employer's 	disparate 	treatment of 	the employee
who engaged 	in protected activity;
c) 	the 	employer's 	departure 	from established procedures
or standards;
d) 	the 	employer's 	inconsistent 	or 	contradictory
justification for 	its 	actions.
Applying 	the 	above standard 	to 	the 	evidence 	involving
Sergeant 	Sheehan, 	Charging Party demonstrated three 	instances
in which 	it 	is 	claimed Sergeant 	Sheehan engaged 	in protected
activities. 	These were membership in SUPA, 	filing a grievance,
and circulation of a petition regarding her 	supervisor's hiring
and 	firing practices. 	The adverse action was 	Sergeant
Sheehan's 	rejection 	from probation. 	However, 	Charging Party
has 	failed 	to prove 	that 	the adverse 	action was 	motivated by
Sergeant 	Sheehan's 	exercise of 	a protected right.
With respect 	to 	Sergeant 	Sheehan's 	membership in SUPA,
Charging 	Party did not demonstrate 	that 	Chief 	Schorle knew of
this 	membership. 	Membership 	in a union cannot be 	inferred 	from
Sergeant 	Sheehan's 	representation by SUPA in her 	grievance
since, 	as exclusive representative, 	SUPA represents members and
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nonmembers 	alike. 	Chief 	Schorle, 	in 	fact, 	testified he did not
know she 	was 	a member 	of 	SUPA. 	Charging 	Party likewise 	did not
prove 	Chief 	Schorle 	knew of 	Sergeant 	Sheehan's 	involvement 	in
the petition submitted to the CSUSF president. 	Again, 	Chief
Schorle 	testified he did not 	know of 	this 	at 	the 	time 	Sergeant
Sheehan was 	rejected and, 	in fact, 	Chief 	Schorle was 	chastised
by his 	supervisor 	when he 	attempted 	to 	find out 	who was
involved. 	Without 	establishing 	employer 	knowledge 	of 	the
asserted protected 	activity, 	Charging 	Party cannot 	rely on
these two protected activities 	in claiming retaliation.6 6
However, 	Charging 	Party did demonstrate 	that 	Chief 	Schorle
knew Sergeant 	Sheehan had 	filed a grievance, 	since he 	responded
to 	it. 	Filing of a 	grievance 	under 	a 	collective bargaining
agreement 	is 	clearly a protected 	right. 	North 	Sacramento
School 	District 	(1982) 	PERB Decision No 264. 	Knowledge alone,
however, 	does 	not 	justify 	inferring 	unlawful 	motivation. 	We
therefore 	turn to the 	other 	factors 	enunciated 	in Novato, 	supra.
Charging 	Party vigorously argues 	that 	the 	timing 	of 	the
employer's 	action demonstrates 	it 	was 	unlawfully motivated.
The grievance 	was 	resolved 	in mid-February, 	and 	Sergeant
6 We 	specifically reject 	the 	ALJ's 	conclusion 	that 	"[i]t
is 	not 	crucial 	to decide 	which one or more of 	the 	three 	events
[Chief Schorle] knew of." 	(Proposed Decision, 	p. 	45.). 	On the
contrary, 	if knowledge of 	the 	specific protected activity 	is
not 	established, 	it 	cannot be 	said 	that 	that protected 	activity
was 	the motivating 	factor 	in 	the 	adverse 	action.
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Sheehan was 	notified 	of her 	rejection 	from probation on
March 31, 	1985. 	We find that, 	on this 	record, 	in the absence
of any other 	factors, 	the 	timing of 	Sergeant 	Sheehan's
rejection alone 	is 	too attenuated 	from the 	grievance 	to show
that 	the 	rejection was motivated by the grievance. 	This 	is
especially so, 	in that 	Chief 	Schorle resolved 	the grievance 	in
Sergeant 	Sheehan's 	favor.
None 	of 	the 	other 	factors 	was 	proven by Charging 	Party.
Sergeant 	Sheehan was 	certainly not 	the 	only probationary
employee 	rejected, 	since at 	least 	five others 	were 	likewise
rejected within 	the 	three years 	or 	so preceding 	the 	filing of
the charges. 	There was 	no evidence 	that 	the employer departed
from established procedures 	or 	standards, 	since, 	even though
Chief 	Schorle's 	practices 	with 	regard 	to 	evaluations 	did 	not
adhere to those of 	CSUSF, 	he applied his 	own standards
consistently. 	Finally, 	Chief 	Schorle's 	consistent
justification 	for his 	rejection of 	Sergeant 	Sheehan was 	based
upon his 	assessment 	that 	she did not 	meet 	the 	standard
required. 	The 	basis 	for his 	assessment 	was 	amply supported 	in
the 	record, 	and 	it 	is 	not 	claimed by Charging Party that 	the
employer 	has 	put 	forth 	inconsistent 	or 	contradictory
justifications. 	Rather, 	Charging Party disputes 	the
reasonableness 	of 	the assessment 	itself. 	However, 	the merit 	of
Sergeant 	Sheehan's 	rejection 	is 	not 	the 	issue before 	the
Board. 	The 	issue here 	is 	whether 	the 	employer was 	motivated 	to
reject 	Sergeant 	Sheehan due 	to her 	exercise of 	a protected
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right. 	We 	conclude 	that 	Charging 	Party 	failed 	to present
evidence 	sufficient 	to raise 	any 	inference 	of 	unlawful
motivation 	and, 	therefore, 	failed 	to 	establish a prima 	facie
case 	of 	retaliation.
ORDER
For 	the 	foregoing reasons, 	we hereby DISMISS 	the 	charges 	in
Case Nos. 	SF-CE-151-H, 	SF-CE-166-H and SF-CE-171-H.
Chairperson 	Hesse 	and Member 	Morgenstern 	joined 	in 	this
Decision.
8

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
STATEWIDE 	UNIVERSITY 	POLICE
ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
(SAN 	FRANCISCO),
Respondent.
Unfair 	Practice
Case Nos. 	SF-CE-151-H
SF-CE-166-H
SF-CE-171-H
PROPOSED 	DECISION
(10/22/84)
Appearances: 	K. 	William Curtis, 	Attorney 	(Law Offices 	of
David P. 	Mastagni) 	for 	Statewide University Police Association;
William B. 	Haughton, 	Attorney for 	Board of 	Trustees 	of 	the
California 	State 	University.
Before: 	Terry Filliman, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	involves 	consolidated 	charges 	that 	three 	public
safety 	officers 	at 	California State University, 	San 	Francisco
were 	discharged 	during 	their 	probationary periods 	in
retaliation 	for 	their 	exercise 	of protected 	activities.
On January 	24, 	1983, 	the statewide University Police
Association 	(hereafter 	SUPA or 	Charging 	Party) 	filed 	unfair
practice 	charge 	SF-CE-151-H. 	The 	charge 	alleged 	that 	the
Trustees 	of 	the 	California 	state 	University 	(hereafter 	State
University or employer) 	violated section 3571(a), 	(b) 	and 	(d)
of 	the 	Higher 	Education 	Employer-Employee Relations 	Act
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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(hereafter 	HEERA 	or 	Act)1 by 	taking 	discriminatory 	actions
against 	Public 	Safety Officer 	James 	Hall 	at 	the 	San 	Francisco
campus 	because 	of his 	exercise of protected activities. 	A
complaint 	was 	issued on February 	15, 	1983. 	The 	charge was
subsequently 	amended. 	An 	amended 	complaint 	was 	issued 	on
June 	9, 	1983. 	The 	case was 	originally 	scheduled 	for 	formal
hearing on July 	11-13, 	1983. 	The hearing was 	cancelled based
upon 	a 	request 	by 	the 	Charging 	Party 	to 	incorporate"additional
1 T
he
HEERA 	is 	codified at Government 	Code 	section 	3560
et 	seq. 	All 	references are 	to 	the Government 	Code 	unless
otherwise 	specified. 	Section 	3571 	states 	in 	relevant 	part 	that:
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	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.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(d) 	Dominate or 	interfere with the
formation 	or 	administration 	of 	any 	employee
organization, 	or contribute financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join any 	organization 	in
preference to another; provided, 	however,
that 	subject 	to 	rules 	and 	regulations
adopted 	by 	the board pursuant 	to
Section 	3563, 	an employer 	shall not be
prohibited 	from permitting 	employees 	to
engage 	in meeting 	and 	conferring 	or
consulting 	during 	working 	hours 	without 	loss
of pay or 	benefits.
N
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• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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charges 	SF-CE-166-H 	and 	SF-CE-171-H 	and 	to 	consider 	all 	charges
in a 	single hearing.
On April 	15, 	1983, 	SUPA had filed charge SF-CE-166-H
alleging 	that 	Officer 	James 	Bryant 	was 	discharged2 during
probation 	because 	of 	his 	exercise 	of 	protected 	activities 	in
violation of 	section 	3571(a) 	and 	(b). 	The charge was amended
on June 	7, 	1983. 	A complaint was 	issued on June 	14. 	A timely
answer 	was 	filed.
On June 	14, 	1983, 	SUPA had 	filed unfair practice charge
SF-CE-171-H 	alleging 	additional 	violations 	of 	section 	3571(a)
and 	(b) 	of 	HEERA affecting 	employees 	of 	the Office of 	Public
Safety 	at 	CSUSF. 	That 	charge 	alleged 	that 	Officer 	David 	Ceruti
and 	Sergeant 	Myra 	Sheehan 	were 	discharged 	during 	their
probationary periods 	in 	retaliation 	for 	their 	exercise 	of
protected 	activities. 	A complaint was 	issued by 	the General
Counsel 	on 	June 	16, 	1983. 	A timely answer was 	filed.
Informal 	conferences were 	conducted 	in 	each of 	the 	above
cases. 	The 	conferences 	did 	not 	result 	in voluntary 	settlement.
The motion 	to 	consolidate 	the matters 	for 	hearing 	was
granted on July 18, 	1983. 	On December 	13, 	1983, 	SUPA filed a
motion 	to 	calendar 	the 	consolidated 	hearing. 	A 	formal 	hearing
was 	conducted 	by 	the 	undersigned 	in 	San 	Francisco 	on
2The 	employer's 	action 	taken 	in 	each 	instance 	in 	this
case 	was 	a 	"rejection 	during 	probation." 	The 	actions 	are
variously 	referred to as discharge, 	termination, 	or 	rejection
for 	convenience.
W	
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January 	18-20, 	1984. 	During 	the hearing 	the parties 	reached
voluntary 	settlement 	on 	case 	SF-CE-151-H.3 A 	transcript 	was
prepared, 	and 	following 	several 	joint 	requests 	for 	extensions,
briefs were 	submitted on April 	30, 	1984. 	The case was
submitted 	for 	decision 	on 	that 	date.
FINDINGS 	OF 	FACT
A. 	Background
The 	Trustees 	of 	the 	California 	State 	University 	system 	is 	a
higher 	education 	employer 	within 	the meaning 	of 	the 	HEERA.
California State University, 	San Francisco 	(hereafter CSUSF) 	is
one of 	the 	campuses 	of 	the 	employer. 	SUPA is 	an 	employee
organization which 	is 	the 	exclusive 	representative 	of 	a
systemwide 	unit 	of 	public 	safety officers.
The 	Public 	Safety Department 	is 	responsible 	for 	providing
basic 	police 	and 	traffic 	safety 	services 	at 	CSUSF 	and 	related
facilities. 	Chief John Schorle 	is 	the director 	of 	the
department. 	The 	department 	is 	organized 	into 	two 	divisions 	-
operations 	and 	administrative 	services. 	At 	the 	time 	of 	the
alleged 	terminations 	Lieutenant 	Richard 	Van 	Slyke 	supervised
the 	operations 	division 	and 	Lieutenant 	Malcolm Vaughn
supervised 	administrative 	services. 	Lieutenant McDonald
supervised 	operations 	prior 	to 	the 	appointment 	of 	Van 	Slyke.
3Pursuant 	to 	agreement 	of 	the parties 	no 	testimony was
taken 	regarding 	that 	case. 	Based 	upon 	the 	Charging 	Party's
statement 	of 	withdrawal 	made 	on 	the 	record 	the 	complaint 	will
be 	dismissed 	by 	this 	decision.
4

The patrol 	officers work 	on 	three 	shifts 	in 	the operations
unit. 	They worked 	under 	the 	direct 	supervision 	of 	Sergeants
Bennett, 	Andrews, 	Hadley and Sheehan between 1981 	and 1983.
The 	administrative 	services 	unit 	maintained 	responsibility 	for
investigations, parking, 	records and dispatch.
The 	three 	alleged 	discriminatees 	- 	David 	Ceruti,
James 	Bryant, 	and Myra 	Sheehan 	- were 	each 	serving 	a 	two-year
probationary 	period. 	Bryant 	and 	Ceruti 	were 	employed 	as
officers, 	while Sheehan was 	employed as a 	sergeant.
B. 	University 	and 	Department 	Personnel 	Policies 	and 	Practices
The 	State 	University 	has 	adopted 	various 	personnel 	policies
governing 	the 	evaluation 	and 	retention 	of 	probationary
employees. 	Each 	employee 	serving 	a 	two-year 	probationary
period 	must 	be 	evaluated 	during 	the 	tenth 	and 	nineteenth month
of 	service. 	The 	nineteenth month 	evaluation 	form 	includes
standard 	language 	requesting 	whether 	the 	hiring 	department 	will
grant 	or 	reject 	permanent 	status. 	The CSUSF president 	has
delegated 	his 	authority 	to 	grant 	or 	reject 	permanent 	status 	to
each 	department 	head.
Under 	State 	University policy 	a 	probationary 	employee 	may
be 	rejected 	at 	any 	time without 	cause. 	A 	rejection may or may
not 	be based 	upon 	a written employee 	evaluation. 	Although 	a
final 	evaluation 	is 	not 	required 	to be made 	close 	to 	the 	date
of 	a 	rejection 	from probation, 	the personnel 	department
55

considers 	such 	action 	to be a 	sound practice. 	Any final
evaluation 	which 	is 	issued 	must 	indicate 	a 	recommendation 	about
retention.
Each 	department 	may 	adopt 	evaluation 	policies 	which 	are
more 	stringent 	than 	the 	campus policy. 	The Department 	of
Public 	Safety 	policy 	requires 	an 	evaluation 	every 	three 	months
for 	probationary 	police 	officers 	who 	have 	completed 	standard
police 	training. 	Each 	of 	the 	alleged 	discriminatees 	had
completed 	such 	training. 	Other 	evaluations 	could be 	required
by 	the 	director. 	The 	final 	evaluation must 	include 	a
recommendation 	about 	retention. 	The 	campus personnel 	office
does 	not 	enforce 	department 	evaluation policies. 	That 	office
sends 	a 	form 	requesting 	a 	decision 	from a 	department 	which 	has
not 	filed 	a 	final 	evaluation 	or 	where 	the 	final 	evaluation 	did
not 	indicate 	a 	recommendation. 	The 	evaluation 	format 	used 	by
the 	safety 	department 	does 	not 	contain 	a 	recommendation 	for
action. 	In practice, 	the department has not 	issued a final
evaluation 	close 	to 	the 	time when 	employees 	are 	completing
their 	probationary 	period. 	Chief 	Schorle 	testified 	that 	he 	had
during 	the 	past 	three years 	rejected 	three 	employees 	from
probation 	in addition 	to those 	in dispute here. 	Two 	employees
were officers. 	The 	third 	employee was 	a 	lieutenant.4 Each
4The 	officers 	were 	Ted Rowe 	and 	Jan 	Conway. 	Lieutenant
McDonald 	resigned 	after 	being 	notified 	he 	would 	be 	rejected.
66

of 	the 	employees 	had 	served 	over 	one year 	of 	the probationary
period. 	In 	each 	instance 	the 	evaluations 	given to 	the
employees 	did 	not 	state 	a 	recommendation 	that 	they 	be
rejected. 	No 	testimony 	was 	offered 	regarding 	the 	union
membership 	of 	these 	employees.
C. 	Officer 	David 	Ceruti
1. 	Work 	Performance
David 	Ceruti 	was 	employed 	as 	a probationary 	officer 	on
June 	7, 	1981. 	Lieutenant 	McDonald 	reviewed 	the candidate's
employment 	history prior 	to Ceruti's 	employment. 	Ceruti 	had
been 	rejected 	during 	probation 	in 	a prior 	police 	officer
position. 	The 	former 	employer 	reported 	that 	the 	rejection was
based upon 	immaturity, 	poor 	judgment, 	decision-making problems
and 	poor 	report 	writing. 	McDonald 	recommended 	Ceruti's
employment 	on 	the 	condition 	that 	he be 	supervised 	closely.
Chief 	Schorle 	stated 	he 	hired 	Ceruti 	under 	these 	circumstances
because of 	a 	shortage of 	employees.
On December 	17, 	1981, 	the department 	received a citizen's
complaint 	against 	Ceruti 	for 	an 	alleged 	improper 	arrest. 	The
incident 	arose 	from Ceruti's 	arrest 	of 	certain witnesses 	to 	an
investigation 	because 	they 	had made 	reference 	to 	the 	"pigs
arriving." 	Lieutenant 	McDonald 	recommended 	that 	Ceruti 	receive
a two-day 	suspension 	for 	losing 	emotional 	control, 	failing 	to
exercise proper 	judgment, 	immaturity and 	lack 	of
decision-making 	ability. 	The 	suspension was 	approved by
77

Schorle. 	Schorle 	testified 	that 	he 	did 	not 	reject 	Ceruti 	at
that 	time 	because 	of 	understaffing 	and because 	of 	McDonald's
support 	for 	the 	employee's 	opportunity 	to 	improve.
Ceruti 	received 	six 	quarterly 	evaluations 	between 	the 	date
of his 	employment 	and November 	30, 	1982. 	Two of 	the
evaluations 	were 	completed 	by 	Sergeant 	Bennett 	and 	four 	were
completed 	by 	Sergeant 	Andrews. 	Ceruti 	received 	an 	overall
rating 	of 	satisfactory 	on 	the 	initial 	evaluation 	dated
October 31, 	1981. 	Of the 14 rating factors, 	he received
"improvement 	required" 	in three areas - 	knowledge,
dependability 	and 	judgment. 	Sergeant 	Andrews 	indicated 	that
Ceruti 	needed 	to 	develop competence 	in 	the areas 	of 	judgment,
positive attitude, 	maturity, 	self-discipline and 	initiative.
Director 	Schorle 	reviewed 	the 	evaluation. 	He 	indicated 	that
the 	satisfactory 	evaluation might 	be 	taken 	as 	too positive
given 	the 	limited 	opportunity 	to 	observe 	Ceruti.
In 	each 	of 	the 	subsequent 	evaluations 	Ceruti 	received 	an
overall 	rating 	of 	"displays 	qualities 	below 	the 	level 	necessary
for 	the position." 	On 	the January 	1982 	evaluation 	he 	received
ten 	"needs 	improvement" 	marks, 	one 	"unsatisfactory" 	mark and
two 	"competent" 	marks. 	Sergeant 	Bennett 	indicated 	that
Ceruti's 	continued 	employment 	was 	dependent 	upon 	a 	substantial
change 	in his 	overall 	law enforcement 	demeanor. 	The areas 	of
knowledge, 	judgment 	and decision-making were also 	found
deficient.
8
8

On June 	29, 	1983, 	Ceruti 	received a performance evaluation
for 	the 	spring 	1982. 	Eleven of 	the 	fourteen 	rated areas 	were
listed 	as 	"improvement 	needed" 	again. 	Sergeant Andrews 	wrote
that 	Ceruti 	needed 	more 	supervision 	than 	should 	be 	necessary.
The 	evaluation 	also 	included 	a 	warning 	that 	Ceruti 	should
understand 	he 	must 	improve 	his 	performance 	during 	the
probationary period 	to meet 	the 	minimum 	standards 	of 	the
department.
Ceruti 	received 	an 	overall 	evaluation 	of 	"below 	standard"
on 	the 	evaluation 	for 	the period 	ending August 	31, 	1982.
Sergeant 	Bennett 	indicated 	that 	the 	candidate was 	at 	that 	time
reaching 	levels 	of 	competence which 	should 	have 	been 	reached
six months 	prior.
On January 	13, 	1983, 	Sergeant Andrews performed an
evaluation for 	the period of August 	- November 	30, 	1982. 	This
was 	the 	final 	evaluation 	received by Ceruti. 	The 	overall
evaluation 	was 	"improvement 	needed."
Schorle made 	a 	decision 	during April 	1983 	to 	terminate
Ceruti. 	He 	scheduled 	a meeting 	for May 	20 	with the personnel
department 	to 	discuss 	the matter. 	The personnel 	director
cancelled because of 	a 	conflict. 	Schorle sent 	a memo on May 	23
directing 	the 	termination 	be 	implemented. 	Ceruti 	was 	notified
by 	Schorle 	on 	June 	1 	that 	he was 	rejected 	for permanent
employment 	effective 	that 	date. 	Ceruti's 	two-year 	probationary
period 	would 	have 	ended 	June 	7.
Schorle 	testified 	about 	the 	reasons 	for 	his 	decision 	to
9
9

reject 	Ceruti. 	He 	considered Ceruti 	a 	"measured 	risk" 	upon
hiring 	based 	upon 	his 	prior 	police 	employment 	rejection.
Schorle 	considered 	Ceruti's 	actions 	in 	the 	December 	1981 	"pig"
incident 	to 	reflect 	immaturity. 	Ceruti 	had 	considerable
trouble 	in preparing 	police 	reports. 	He was 	not 	proficient 	in
stating 	the basic 	elements 	of 	crimes. 	Residence 	hall 	staff 	had
questioned 	Ceruti's 	presence 	in 	that 	area while on 	duty. 	They
believed 	he was making 	social 	visits. 	Schorle also 	considered
the 	fact 	that 	department 	staffing was 	close 	to 	strength 	and
personnel 	needs 	were 	going 	to be 	reduced 	during 	the 	upcoming
summer.
Schorle 	testified 	that 	he 	had 	received 	significant
information 	from 	the 	lieutenants 	about 	Ceruti's 	conduct. 	He
also 	indicated 	that 	Sergeant 	Bennett 	recommended 	Ceruti 	for
rejection. 	Sergeant 	Bennett 	testified 	that 	Schorle 	informed
him 	that 	Ceruti 	would 	receive permanent 	status 	about 	two weeks
prior 	to 	the 	date 	of 	his 	termination. 	Bennett 	indicated 	that
he 	did 	not 	recommend 	Ceruti 	for 	termination.
5 Based 	upon
their 	demeanor 	I 	find 	Bennett 	to be 	the more credible witness
on 	this 	subject. 	Sergeant Andrews also 	testified 	that 	he did
not make 	a 	recommendation 	to 	terminate 	Ceruti. 	Andrews 	had
informed 	Schorle 	several 	weeks 	prior 	to 	Ceruti's
5During 	his 	testimony 	Bennett 	also 	stated 	that 	Schorle
had 	given 	a 	stern 	lecture 	during 	his 	spring 	1983 	commencement
talk 	about 	loyalty 	in 	the 	department. 	Bennett 	believed 	that
10
5

termination 	that 	he 	felt 	Ceruti 	was 	improving 	and 	could make
probation.
2. 	Knowledge 	of 	Union Activities
Ceruti 	was 	a 	SUPA member 	during 	his 	employment. 	He 	did not
participate 	in 	"any particular 	activities" 	of 	the organization.
He 	"imagined" 	that 	Chief 	Schorle 	and 	Lieutenant Van Slyke 	knew
of 	his 	membership. 	Schorle 	testified 	that 	he did 	not 	know of
Ceruti's 	union 	membership 	at 	any 	time 	during 	his 	employment.
Van 	Slyke 	did 	not 	testify about 	any 	knowledge 	of 	Ceruti's
membership.
Approximately 	two weeks prior 	to his 	termination 	(May 	21),
Ceruti 	was 	assigned 	to 	take 	Harry Hazelrigg 	on a duty
"ride-a-long". 	Hazelrigg was 	a 	new 	job 	applicant. 	Ceruti 	told
Hazelrigg 	that 	he 	should 	consider 	employment 	elsewhere 	because
of 	low morale 	and 	unprofessional 	staff 	at 	the 	department. 	He
also 	indicated 	that 	Hazelrigg 	should 	join 	SUPA 	in 	order 	to 	be
represented. 	Hazelrigg 	did 	not 	recall 	Ceruti 	talking 	about
being 	a member 	of 	the 	union. 	He 	denied 	that 	Ceruti 	suggested
he join the organization. 6	6
On 	May 	29 	Hazelrigg 	stopped 	for 	drinks 	after 	a 	college
commencement 	exercise 	with 	Chief 	Shorle, 	Lieutenant 	Vaughn 	and
Sergeant 	Kim Wibel. 	Hazelrigg 	testified 	that 	during 	this
Schorle 	had 	referred 	to 	his 	awareness 	of 	labor 	unions 	during
the 	talk.
6This 	and 	other 	credibility 	disputes 	are 	discussed
together at p. 	37.
11
6

meeting 	he 	did 	not 	discuss 	his 	conversation 	with 	Ceruti 	during
the 	ride-a-long or 	make 	any 	reference 	to SUPA. 	Each 	of 	the
other 	participants 	also 	testified 	that 	Hazelrigg 	never
mentioned 	Ceruti 	during 	the 	evening 	or 	at 	any 	other 	time. 	No
testimony 	was 	offered 	to contradict 	these 	denials.
D. 	Officer 	James 	Bryant
1. 	Work 	Performance 	Evaluations
James 	Bryant 	was 	hired 	in May 	1981. 	The 	department
conducts 	a 	background 	investigation 	of 	potential 	officer
employees 	as 	a 	standard procedure. 	The 	investigation of 	Bryant
revealed 	that 	he 	had 	served 	as 	a 	probationary police 	officer
for 	the 	City 	of 	Glendale. 	Bryant 	had 	been notified 	of 	his
intended 	rejection 	during probation 	in 	that 	position. 	The
grounds 	included 	his 	nervousness, 	tension and 	immaturity. 	The
former 	employer 	also 	recognized 	that 	Bryant 	had 	demonstrated 	a
high 	level 	of 	dedication 	and motivation. 	Bryant 	resigned 	and
gained 	employment 	as 	a 	stockbroker. 	Lieutenant 	McDonald
recommended 	Bryant 	for 	employment 	conditioned 	upon 	close
supervision. 	Director 	Schorle 	testified 	that 	he 	hired 	Bryant
because 	the 	department 	was 	grossly 	understaffed 	and 	Bryant 	had
already 	received 	the 	required peace 	officer 	training 	hours.
The 	director's 	concern 	about 	Bryant's 	background 	and 	the
supervision 	requirement 	was 	discussed 	with 	him.
During 	his 	probationary 	period 	Bryant 	received 	overall
evaluations 	of 	"satisfactory." 	The 	first 	evaluation was
completed by Malcolm Vaughn, 	then a 	sergeant, 	and Lieutenant
12

McDonald. 	Bryant 	received 	an 	equal 	number 	of 	individual
ratings 	of 	"needs 	improvement" 	and 	"competent." 	The written
comments 	reflected 	an 	overall 	positive 	reaction 	to 	Bryant's
enthusiasm 	and 	indicated 	improvement 	in 	report 	writing,
judgment, 	and 	self 	confidence 	from his pre-employment
reputation.
The 	next 	evaluation 	was 	completed 	by 	Sergeant 	Bennett 	on
June 	30, 	1982. 	Bryant 	received consistent 	individual 	ratings
of 	"competent." 	The 	written 	comments 	were 	uniformly positive
including 	acknowledgment 	that 	Bryant 	had 	scored 	high 	in 	a
department 	promotional 	exam.
Bryant's 	final 	written 	evaluation was 	performed 	by 	Sergeant
Bennett 	on 	January 	18, 	1983. 	The 	evaluation 	reflected work
performed 	between June 	and 	December 	1982. 	The 	individual
ratings 	included 	four 	satisfactory marks 	and 	an 	above 	average
mark 	for 	work 	habits. 	The written 	comments 	reflected 	that
Bryant 	had 	served 	competently 	while 	undergoing 	unexpected
family 	illnesses. 	Bryant 	was 	cautioned 	about 	his 	conduct 	which
gave 	the perception 	of 	being 	"nervous" 	or 	"shaky." 	The 	report
finally 	noted 	that 	Bryant 	had 	received 	two 	letters 	of
commendation 	during 	the 	evaluation 	period.
Chief 	Schorle 	signed 	each 	of 	the 	evaluations 	indicating 	his
agreement 	with 	the 	comments 	noted. 	Despite 	the 	overall 	rating
of 	satisfactory 	on Bryant's 	last 	evaluation, 	Chief 	Schorle
testified 	that 	he 	considered 	the 	evaluation 	to 	be
13

unsatisfactory 	because 	one 	subcategory, 	"written 	expression,"
was 	checked 	as 	weak.7 Schorle 	indicated 	that 	he 	chose 	not 	to
make 	any 	comments 	on 	the 	evaluation 	contrary 	to 	the
satisfactory 	rating when he 	signed 	it. 	Yet 	from his
perspective, 	Bryant's 	overall performance, 	including actions
not 	covered 	by the 	evaluation, 	were 	unsatisfactory. 	He 	did 	not
believe 	that 	he 	had 	a 	duty 	to 	inform either 	Bryant 	or 	the
personnel 	department 	of 	his 	views 	until 	he made a 	final
decision 	about 	permanent 	employment.
2. 	Bryant's 	Involvement 	in Promotional 	Exams
Approximately 	nine months prior 	to Bryant's dismissal, 	the
department 	had 	offered 	a 	written promotional 	examination 	for
the position 	of 	sergeant 	- 	operations 	division. 	A memo was
posted 	indicating 	the 	rankings 	of 	the 	competitors. 	The memo
indicated 	that 	the 	final 	selection would 	result 	from combining
the 	scores 	of 	the 	written 	exam and an 	oral 	interview to be
scheduled. 	Bryant 	ranked 	first 	on 	the written exam.
Director 	Schorle 	was 	absent 	from 	the 	campus 	during 	the
summer 	1982. 	Lieutenant Van Slyke was 	appointed 	to chair 	the
interview committee. 	Following 	the 	interviews, 	Officer 	Hadley
received 	the 	highest 	combined 	score 	and 	was 	promoted.
Van Slyke 	then 	communicated 	with 	each 	of 	the 	candidates
notifying 	them 	of 	their 	overall 	ranking. 	The 	communication
7 of 	25 	subcategories 	rated on the 	form, 	Bryant 	received
6 marks 	of 	"strong," 	18 marked 	"standard" 	and 	1 marked 	"weak."
14
7

led 	the 	employees 	to 	believe 	that 	the 	exam 	had 	established 	an
eligibility 	list 	for 	future 	promotions.
On December 	6, 	1982, 	Sergeant Vaughn was promoted 	to
lieutenant 	in 	charge 	of 	the 	administrative 	division. 	Vaughn
had 	been 	the 	only 	sergeant 	in 	the 	division. 	His 	former 	duties
included 	supervising 	the 	investigations 	section. 	Vaughn
determined 	that 	the 	investigations 	unit 	needed 	immediate
supervision until 	a permanent 	sergeant was 	chosen. 	Vaughn
recommended Kim Wibel, 	an 	investigator 	in the unit, 	for 	his
replacement. 	On December 	10, 	Wibel was 	appointed to work 	out
of 	class 	as 	an acting 	sergeant. 	Wibel 	had 	not 	taken the May
1982 	sergeant 	promotional 	examination. 	Wibel 	served 	as 	an
acting 	sergeant 	for 	22 workdays. 	At 	that 	time 	the State
University 	imposed 	a 	hiring 	freeze 	on 	all 	positions 	including
promotions.
On 	December 	10 	a 	notice 	of Wibel's 	appointment 	to the
acting 	position 	was 	posted. 	Bryant 	was 	surprised 	and 	upset 	by
the 	appointment 	because 	he 	believed 	that 	any 	future
appointments 	would 	be 	made 	from 	the 	"eligibility 	list."
Officers 	Bryant 	and 	Murray 	asked 	Lieutenant 	Van 	Slyke 	about 	the
relationship 	of 	the eligibility list 	to the 	vacant 	position.
Van Slyke 	contacted 	Chief 	Schorle 	and 	was 	informed 	that 	the 	May
1982 written 	exam or 	testing 	had 	no ongoing 	status. 	Each
vacant 	position 	would 	require 	new 	testing. 	Van Slyke 	advised
the 	officers 	accordingly.
15

On 	December 	12 	Bryant 	discussed Wibel's 	appointment 	with
Van Slyke 	again. 	Bryant 	testified 	that 	he 	told Van 	Slyke 	he
was 	upset 	that 	procedures 	had 	not 	been 	followed 	in making 	the
appointment. 	He was 	going 	to 	"pursue whatever 	remedies 	he had
through 	the 	union 	and 	so 	forth." 	Van 	Slyke 	testified 	that 	he
did 	not 	consider 	Bryant's 	remarks 	to 	constitute a 	grievance.
He 	did 	not 	report 	the 	conversation 	to 	Schorle 	"because 	there
was 	nothing 	of 	significance 	to 	report." 	Nor 	did 	he 	discuss 	the
conversation with Vaughn. 	Both Vaughn 	and 	Schorle 	testified
that 	they 	were 	unaware 	of 	any 	complaint 	made by Bryant 	to
Van Slyke.
On 	December 	30 	Vaughn 	expressed 	a 	concern 	to 	Schorle 	that
Wibel 	had 	been 	appointed 	to 	the 	acting 	position without 	posting
the 	vacancy 	and 	providing 	an 	opportunity 	for 	other 	candidates
to 	compete. 	Both 	State 	University policy and 	the 	collective
bargaining 	agreement 	required 	posting 	of 	such 	vacancies. 	The
position was 	then posted. 	Bryant 	and 	Murray 	filed
applications. 	After 	the 	filing period 	ended 	Schorle posted 	a
notice 	indicating 	that 	because 	of 	the 	hiring 	freeze 	the 	acting
position 	could 	not 	be 	filled 	until 	a 	freeze 	exemption 	was
obtained.
On 	February 	4, 	1983, 	Schorle 	drafted 	a memo noting 	that 	a
freeze 	exemption 	had 	been 	received. 	The 	memo 	scheduled
interviews 	for Wibel, 	Murray and Bryant. 	Schorle did not 	issue
the memo. 	He 	testified 	that 	someone 	stole 	the memo 	from the
16

Public 	Safety 	office. 	On the 	same 	day 	Schorle 	decided 	to
reject 	Bryant 	during 	probation. 	Schorle 	had previously placed
Lieutenant 	Vaughn 	in 	charge 	of 	conducting 	the 	interview panel
for 	the 	sergeant 	promotional 	examination. 	Schorle 	informed
Vaughn 	that 	Bryant 	would 	be 	rejected 	from probation 	in 	the 	near
future.8
Vaughn 	engaged 	in 	several 	discussions 	with 	campus 	personnel
staff 	about 	whether 	Bryant was 	required 	to 	be 	interviewed 	for
the promotion 	in light 	of 	his 	termination. 	Personnel 	advised
Vaughn during 	the week 	of 	February 7 	that 	it was 	not 	necessary
to 	interview all 	applicants. 	On February 	11 Vaughn advised
Wibel 	and 	Murray 	of 	their 	interview appointments. 	Bryant 	was
not 	notified 	of 	the 	interviews.
Wibel 	and 	Murray were 	interviewed 	on 	February 	18. 	On 	the
same 	date Wibel 	was 	selected 	and 	reappointed 	to 	the 	acting
sergeant 	position.
8Lieutenant 	Vaughn 	testified 	that 	he 	did 	not 	interview
Bryant 	because 	Schorle 	had 	informed 	him 	that 	Bryant 	was 	going
to be 	terminated. 	The personnel 	department 	advised 	him that
not 	every 	candidate 	had 	to 	be 	interviewed. 	Schorle 	testified
that 	he 	contacted Vaughn 	to 	verify 	the 	accuracy 	of 	his
February 	4 	draft memo 	scheduling 	the 	interviews. 	Vaughn told
him that 	Bryant 	should 	not 	be 	included 	in 	the memo 	because 	he
was 	not 	going 	to be 	interviewed. 	In 	this 	area 	I 	find 	Schorle's
testimony 	to be 	at 	odds with any 	logical 	reading 	of 	the 	facts.
It 	is 	highly 	unlikely 	that 	Vaughn made 	the 	decision 	not 	to
interview Bryant 	and 	then 	influenced 	Schorle 	in 	light 	of
Schorle's 	role 	in the department. 	I 	find that Vaughn's
testimony 	is 	an 	accurate 	recitation of 	the 	true 	facts.
17

On 	February 	20 	Bryant 	filed an oral 	Level 	I 	grievance
contesting, 	among other 	claims, 	the failure of the department
to 	interview him for 	the 	acting 	sergeant 	position. 	The
grievance 	was 	denied. 	He 	subsequently 	filed 	a 	written
grievance.
3. 	Grounds 	for 	Rejection 	During 	Probation
Schorle 	notified 	Bryant 	on February 	8 	that 	he was 	to be
rejected 	on probation 	effective March 	7.
Bryant 	received 	no 	final 	evaluation 	for 	the period
immediately 	preceding 	his 	termination. 	Schorle 	received 	a 	memo
from 	campus 	personnel 	requesting 	information 	on whether 	Bryant
should 	be 	granted 	permanent 	status 	sometime 	after 	February 	8.
Schorle 	signed 	the 	form on 	February 	15 	indicating 	that 	he 	did
not 	recommend permanent 	status. 	Schorle wrote:
Officer 	James 	Bryant 	was 	last 	evaluated 	on
11-30-82. 	At 	that 	time 	his performance was
below a 	satisfactory 	level. 	Currently a
successful 	completion 	of 	probation 	is 	not
anticipated. 	Therefore, 	tenure 	is not
recommended 	until 	a 	follow-up 	evaluation 	can
be 	conducted.
Schorle 	testified 	that 	his 	comments 	meant 	that 	he 	did 	not
want 	the personnel 	department 	to 	issue 	a 	rejection 	statement
because 	he gave 	Bryant 	30 	days 	to 	seek 	other 	employment 	and
submit 	a 	resignation.
Schorle 	further 	testified 	that 	his 	reasons 	for 	rejecting
Bryant were:
. 	. 	. 	poor 	judgment, 	inability to complete
written 	reports 	in 	an adequate 	fashion,
inability 	to 	exhibit 	promise 	for 	development
18

and 	growth 	in 	terms 	of 	the 	exercise 	of
common 	sense 	and 	good 	judgment 	in 	the 	field,
immaturity, 	and a clear 	indication of
hyperactivity 	and 	easily 	unsettled 	nature.
Schorle 	did 	not 	discuss 	his 	decision 	to 	reject 	Bryant 	with
any 	of 	the 	supervising 	sergeants prior 	to 	taking 	the 	action.
The 	record 	contains 	reference 	to 	several 	incidents
involving 	Officer 	Bryant 	during 	his 	probationary period. 	While
these 	incidents were 	not mentioned 	on Bryant's 	evaluations,
Schorle 	stated 	that 	they were 	considered 	as 	a 	basis 	for 	his
decision. 	The 	incidents were 	offered 	to 	demonstrate 	Bryant's
lack 	of 	judgment, 	competence and calm.
On June 	28, 	1982, 	Bryant 	observed a woman wearing a hand
gun. 	Bryant 	unholstered 	his 	weapon 	and 	ordered 	the woman 	to
put 	her 	hands 	over 	her 	head. 	When 	she 	raised her 	hands 	Bryant
observed 	that 	she was 	carrying 	handcuffs. 	He 	inquired as 	to
whether 	she 	was 	a police officer. 	He 	was 	informed 	that 	she was
a 	sheriff's 	deputy 	and was 	carrying 	identification. 	Despite
her 	response 	Bryant 	required 	the woman 	to 	remain 	in 	the 	arrest
position 	for 	a minute 	or 	so until 	a backup officer 	arrived.
The 	woman 	was 	a 	deputy 	sheriff. 	The 	deputy 	filed 	a 	citizen's
complaint. 	An 	investigation 	failed 	to 	confirm allegations 	of
unprofessional 	conduct 	against 	Bryant. 	Bryant 	was 	counseled
because 	Schorle 	believed 	that 	Bryant's 	"police procedures,
while 	legal, 	were 	certainly not 	desirable 	or 	of the nature we
would 	hope 	our 	officers would 	exercise 	in 	the 	field." 	The
19

deputy 	sheriff 	subsequently 	filed 	a 	monetary 	claim 	against 	the
University. 	The 	status 	of 	the claim was 	unknown at 	the 	date 	of
hearing.
In 	another 	instance Bryant 	drew his 	gun 	on a 	campus
custodian. 	No 	specifics of 	this 	incident 	were 	offered.
Sergeant 	Hadley 	testified 	that 	on 	one 	occasion 	Bryant 	made
a 	car 	stop 	and 	brought 	the 	driver 	to 	the 	station 	in 	handcuffs
because 	the 	driver 	refused 	to 	identify 	himself. 	The 	driver
provided 	his 	name 	and 	address 	at 	the 	station and was
immediately 	released.
On January 	20, 	1983, 	Bryant made out 	a drunk 	driving arrest
report. 	Lieutenant 	Van Slyke 	admonished 	Bryant's 	supervisor,
Sergeant 	Sheehan, 	for 	accepting 	the 	report 	because 	it 	contained
numerous 	spelling 	errors 	and 	other 	substantive 	errors. 	The
report 	indicated 	that 	Bryant 	had 	incorrectly 	advised 	the
suspect 	regarding 	the 	criminal 	law. 	The 	error 	could 	have
resulted 	in 	the 	arrest 	being 	thrown 	out.
The 	record 	also 	indicates 	that 	Bryant 	received 	more 	than
10 written 	letters 	of 	commendation from supervisors, 	campus
officers 	and 	others 	during 	his 	employment 	with 	the 	department.
As 	an 	example, 	the 	San Francisco Police Department 	issued 	a
letter 	of 	commendation 	to 	Bryant 	and 	Sergeant 	Sheehan 	on
January 	6, 	1983, 	for 	their 	actions 	leading 	to the apprehension
of 	a 	homicide 	suspect. 	Bryant was 	also 	commended by the 	campus
vice president 	on February 1, 	1982, 	for 	thorough police work.
20

4. 	Union Activity
Bryant 	joined 	SUPA 	in 	1981 	soon 	after 	commencing 	his
employment. 	He believed 	that 	everyone 	in the 	department 	knew
of 	his 	union membership. 	He 	gave no evidence 	of participation
in 	any 	specific 	SUPA activities. 	Bryant 	testified 	that 	all
officers 	received 	a 	memo 	from Chief 	Schorle's 	secretary 	at 	one
point 	requesting 	an 	updated 	list 	of 	those 	employees 	who were
members 	of 	the 	union. 	No date was 	offered. 	The memo was
intended 	to 	assist 	the 	department 	in 	supplying written
materials. 	Bryant's 	union 	dues 	were 	deducted 	from his
paycheck. 	Schorle 	denied 	having 	any 	knowledge 	of 	Bryant's
union membership 	or 	activities.
E. 	Sergeant 	Myra 	Sheehan
1. 	Work 	Performance Evaluations
Myra 	Sheehan 	was 	hired 	as 	a 	supervising public 	safety
office by 	Chief 	Schorle 	in August 	1981. 	Her 	probationary
period 	was 	two years. 	She 	had previously been 	employed 	as 	a
patrol 	officer 	and 	investigator 	at 	California 	Polytechnical
University 	San 	Luis Obispo 	since 	1977.
Sheehan's 	first 	performance 	evaluation 	covered 	the 	period
of August 	through December 	1, 	1981. 	All 	of 	the ratings on the
report 	including 	the 	overall 	evaluation 	were 	listed 	as
"competent." 	The 	evaluator, 	Lieutenant Van Slyke, 	noted that
Sheehan 	had 	transferred 	from 	patrol 	supervision 	to
investigation 	supervision 	after 	three months. 	The 	transfer 	was
21

made 	because 	of 	the 	need 	to 	reorganize 	the 	investigation 	unit,
not 	based 	upon 	problems 	with 	Sheehan. 	Sheehan was 	commended
for 	giving 	strong 	direction 	and 	supervision 	to 	a 	staff 	which
was 	undertrained. 	She was 	described 	as 	a 	"valuable asset 	to
the 	division, 	department 	and 	University." 	Schorle 	approved 	the
evaluation.
Lieutenant 	Van 	Slyke 	rated 	Sheehan 	somewhat 	lower 	during
the 	next 	evaluation period. 	The 	evaluation 	covered 	December
1981 	through May 	31, 	1982. 	She 	received a 	satisfactory overall
score, 	but 	three 	rating 	factors 	were checked as 	"improvement
needed." 	Sheehan's 	duties 	during 	this 	period 	involved
supervising 	two 	investigators 	involved 	in 	crime prevention,
criminal 	investigation 	and 	administrative 	duties. 	Van 	Slyke
believed 	that 	while 	Sheehan 	had 	performed 	daily 	supervision
duties 	adequately, 	she 	had 	not 	shown 	the motivation 	to 	organize
a 	crime 	prevention program 	to 	the 	expected 	standards.
Sheehan 	received 	six 	letters 	of 	commendation 	during 	the
period. 	Van Slyke 	did 	not 	prepare 	the 	evaluation 	until 	late
August. 	Sheehan 	submitted a 	reply to 	the 	evaluation. 	She
noted 	that 	the 	investigations 	unit 	had 	been 	described 	as 	"in 	a
state 	of 	disarray" 	upon her 	assignment 	in 	her 	first 	evaluation.
She 	described 	her 	efforts 	to develop 	a 	crime prevention program
including 	four 	major 	projects 	she 	had 	initiated. 	Sheehan
pointed 	out 	that 	staff 	time 	had 	been 	reduced 	by 	approximately
50 percent 	due 	to 	sending 	the 	investigators 	to peace 	officer
22

(POST) 	training. 	Finally, 	she noted that 	no one had expressed
any 	concern 	about 	her 	performance 	or 	the 	investigative 	unit
during 	the 	evaluation period. 	Schorle 	then 	reviewed 	the
evaluation and 	responded. 	He 	considered 	the 	evaluation 	too
positive 	and 	drafted 	a 	memo 	on September 	21 	stating 	his
position 	(see 	below).
Both 	Van 	Slyke 	and 	Sheehan were 	transferred back 	to 	the
operations 	unit 	effective August 	1, 	1982. 	Lieutenant Vaughn
resumed 	direct 	supervision 	of 	the 	investigators 	on 	that 	date.
Vaughn 	testified 	that 	upon 	reviewing 	the 	operations 	of 	the 	unit
he 	found 	that 	the 	investigators 	had 	been 	operating 	without
adequate 	supervision. 	He 	also 	determined 	that 	Sheehan 	had 	not
developed 	a 	comprehensive 	crime 	prevention 	program 	as
expected. 	Chief 	Shorle 	indicated 	that 	he 	transferred 	Sheehan
because 	he 	was 	thoroughly 	convinced 	that 	she 	did 	not 	have 	the
skills 	or 	desire 	to be a 	supervisor. 	He put 	her 	back 	in patrol
with 	the 	understanding 	that 	she was 	to 	be 	supervised 	closely
and 	that 	her 	progress 	was 	to 	be 	monitored 	carefully 	to
determine 	whether 	she would make 	probation.
On 	September 	14 	Schorle 	explained 	his 	continuing 	concerns
about 	Sheehan 	to one 	of 	the campus 	deans, 	Nancy McDermott.
McDermott 	served 	as 	an 	informal 	liaison 	between the 	campus 	and
the department.
On 	September 	21 	Schorle 	sent 	memos 	to 	both Sheehan 	and
Van Slyke 	about 	her probationary 	status. 	The memo to Sheehan
stated 	in part:
23

Looking 	back 	over 	the past year, 	you 	have
failed 	to 	perform at 	satisfactory 	levels.
If you are 	to 	raise your 	level 	of
performance to acceptable levels, 	several
things must 	occur. 	The management 	staff 	and
I 	are 	eager 	and willing 	to 	support 	and
assist you. 	It 	is 	our 	desire 	that you
succeed. 	. . . 	I 	have 	directed
Lieutenant 	Richard 	Van 	Slyke 	and 	Acting
Lieutenant 	Malcom 	Vaughn 	to 	meet 	with you
and define a course of action. 	. 	. 	.
The 	memo 	to 	Van Slyke 	specifically 	outlined areas 	of 	work
performed 	by 	Sheehan 	which were 	to be 	reviewed. 	The 	direction
included 	"formal 	evaluation 	of 	her 	every 	two months 	-
additional 	if 	needed." 	The 	report 	ordered 	Sheehan 	to 	be
assigned 	to 	"relief" 	watch 	for 	two months. 	After 	that 	time 	she
was 	to be assigned to Watch 	III 	(days) 	or 	II 	(evenings) 	if
needed. 	At 	the 	hearing 	Schorle 	described 	the memo 	as 	a 	"shape
up or ship out" 	notice.
Lieutenants 	Van 	Slyke 	and Vaughn 	held 	a 	counseling meeting
with 	Sheehan 	to 	implement 	the 	directive. 	She 	requested 	some
direction 	and 	notice 	from 	the 	supervisors 	of 	any 	errors 	they
observed. 	She was 	advised 	that 	all 	of 	her written 	reports 	and
review 	work 	would 	be 	scrutinized. 	Sheehan 	requested 	a 	written
description 	of 	criteria 	she 	was 	being 	reviewed 	upon.
On 	October 	8 Van 	Slyke 	issued 	a memo 	to 	Sheehan 	listing 	the
criteria 	upon 	which 	she would be 	evaluated. 	The 	criteria
included 	measuring 	the 	effectiveness 	of 	officers 	on 	her 	shift,
reviewing 	the 	written 	work 	prepared 	by 	the 	shift, 	and 	attention
to detail.
24

Sheehan 	received 	no written 	evaluations 	of 	her 	overall
performance between May 31, 	1982, 	and the date of her
termination 	(March 	30, 	1983). 	She also did not 	receive any
formal 	evaluations 	every 	two months 	pursuant 	to 	Schorle's 	memo
of September 	21, 	1982. 	Van Slyke testified that 	he was
negligent 	in not preparing 	the written 	evaluations. 	Both
Van 	Slyke 	and 	Schorle 	testified 	that 	they 	had 	instead 	sent
written memos 	to 	Sheehan 	critiquing 	her 	work.
Schorle 	testified 	about 	his 	review 	of 	a police 	report 	filed
on November 10, 	1982, 	by two officers and Sheehan. 	The report
involved 	three potential 	felony 	arrests 	for 	burglary. 	Schorle
found 	that 	the 	report 	failed 	to provide 	adequate 	information 	to
legally 	sustain 	a 	search 	for 	stolen property. 	One 	officer
wrote 	in 	the 	report 	that 	he 	had 	conducted 	an 	illegal 	search.
Schorle 	stated 	that 	the 	report 	"exemplified 	a 	very 	sloppy piece
of 	police work 	with 	little 	or 	no 	supervision." 	He 	held 	Sheehan
responsible 	for 	condoning 	the 	officer's 	conduct 	and 	the
inadequate 	report.
Also 	in November 	1982 	Schorle 	noted 	that 	Sheehan 	had 	failed
to 	carry 	out 	an 	instruction 	to place 	traffic 	barricades 	at 	the
site 	of 	a 	simulated 	emergency 	relief 	exercise 	conducted 	by
campus 	departments 	and 	the San Francisco 	Fire 	Department. 	The
inaction 	required 	additional 	work 	to 	clear 	parked 	vehicles.
On January 	20, 	1983, 	Sheehan 	reviewed and 	submitted a
police 	report written by Officer 	Bryant. 	The 	report 	was
25

severely 	criticized 	by 	Lieutenant 	Van 	Slyke 	as 	being 	poorly
written with many misspellings. 	Sheehan 	responded 	by 	admitting
that 	the 	report 	was poor, 	but 	both 	of 	them had been 	tired 	after
a 	long 	shift.
According 	to Sheehan, 	she 	did 	not 	receive 	any 	feedback
between 	September 	1982 	and 	January 	1983 	about 	police 	reports
she 	had 	approved. 	She 	also 	did 	not 	receive 	any 	feedback 	on 	her
review of 	time 	logs prepared by her 	shift 	officers. 	She
initiated 	several 	conversations 	with Van 	Slyke 	about
procedures, 	but 	received 	little 	input 	initiated 	by 	him. 	She
believed 	that 	she 	received 	less 	direct 	supervision 	after
September 	1982 	because 	she was 	assigned 	to 	Shift 	I
(graveyard). 	No administrators 	above 	sergeant work 	the
graveyard 	shift. 	On 	February 	1 	she was 	assigned 	to 	supervise
Watch 	II. 	The 	lieutenants 	and 	Chief 	Schorle 	worked 	on
Watch III.
Around February 	18, 	1983, 	Schorle 	requested Van Slyke 	to
determine 	why 	Sheehan was writing 	traffic 	citations 	in 	a 	campus
parking garage 	in her performance of 	duties 	as a 	sergeant.
Van 	Slyke 	reported 	that 	Sheehan wanted 	to 	have 	first-hand
knowledge 	of 	the 	various 	campus 	parking 	situations 	since 	she
was 	assigned 	to 	day 	shift. 	Certain 	citations 	issued 	by 	Sheehan
had 	been 	rescinded 	by 	the 	coordinator 	of 	parking 	because 	the
parking 	spaces 	cited 	had 	been 	accepted 	as 	legal 	parking 	"by
practice" 	although 	they were 	not 	so marked. 	Van 	Slyke 	decided
26

that 	the 	citations 	were 	an 	inappropriate 	use 	of 	supervisory
time 	on 	the 	basis 	that 	other 	sergeants 	issue 	citations 	only 	to
set 	examples 	rather 	than on a 	routine basis. 	Schorle 	replied
to Van Slyke's 	report 	by 	indicating 	"we 	are 	calling 	it
inappropriate 	- 	just 	one more 	example.
g
9 The 	parking 	spaces
were 	officially 	designated 	as 	valid 	following 	the 	incident.
On February 23, 	1983, 	Schorle directed Van Slyke to 	join
him 	in 	reviewing 	log 	reports 	from Sheehan's 	shift 	for 	the
months 	of 	January and 	February. 	Schorle 	testified 	that 	he was
curious 	how Sheehan was 	spending 	her 	time 	in 	light 	of 	the
parking 	ticket 	incident. 	He was 	also 	concerned 	that 	daily
field 	activity 	reports 	were 	not 	being 	filled 	out 	correctly. 	He
testified 	that 	his 	concerns 	were 	not 	limited 	solely 	to 	Sheehan,
but 	decided 	to 	start 	the 	review process 	with 	her.
On March 	6, 	1983, 	Van Slyke assigned 	Sheehan to 	interview
the 	victim 	of 	a possible 	rape. 	Sheehan 	conducted 	the 	interview
and 	filed 	a written 	report. 	Van Slyke was 	highly critical 	of
the 	report. 	He 	testified 	that 	he would 	expect more 	from a
first-year 	line 	officer. 	Sheehan 	testified 	that 	she 	had
9I do 	not 	use 	this 	incident 	to 	support 	good 	cause 	for
action 	against 	Sheehan. 	SUPA Exhibit 	23 	reveals 	ambiguous
statements 	and 	inconsistent 	logic 	by 	both 	Van 	Slyke 	and 	Schorle
regarding 	the 	incident. 	Van Slyke's 	comments 	admit 	that 	other
sergeants 	make 	"similar 	checks 	and 	issue 	citations." 	Schorle's
written 	comments 	relate 	to whether 	the 	specific 	citations 	were
valid 	rather 	than 	to 	whether 	supervisory 	time 	was 	appropriately
used. 	The witness' testimony 	did 	not 	bolster 	a 	legitimate
rationale 	to 	consider 	the 	incident 	as 	poor 	judgment.
27

requested 	advice 	from Van 	Slyke 	in 	advance 	about 	which 	Penal
Code 	section 	the 	accusation 	should 	be written 	under. 	She 	had
relied 	upon 	his 	advice. 	Sheehan 	still 	rewrote 	the 	report
according 	to 	Van 	Slyke's 	revised 	view after 	she 	received 	his
memo.
On March 	7, 	1983, 	Schorle 	issued a memo to all 	supervisors
including 	Sheehan 	reminding 	them 	that 	transmittal 	of 	all
personnel 	related 	correspondence was 	confidential. 	The memo
started 	by 	indicating 	"obviously 	the 	affect 	of 	unionization 	is
beginning 	to 	show 	in 	various 	ways." 	Schorle 	testified 	that 	he
sent 	the memo 	because 	confidential memos were being 	stolen 	and
were 	being 	used 	to 	show that 	the management 	was 	acting
inappropriately.
On 	March 	23 	the 	department 	investigation 	unit 	received 	a
request 	from 	the 	San 	Francisco 	Police 	Department 	for 	a 	copy 	of
an 	incident 	report. 	The 	incident 	had 	occurred 	on March 	1. 	On
that 	date 	a 	department 	officer 	had 	assisted 	the San 	Francisco
Police Department 	in an arrest. 	Lieutenant Vaughn 	found 	that
no 	report 	of 	the 	arrest 	had 	been made 	although 	the 	daily 	log
indicated 	that 	an 	officer 	had 	responded. 	Vaughn 	directed 	a
memo 	to Lieutenant 	Van Slyke 	to 	review the 	situation. 	In
Vaughn's 	opinion 	it 	appeared 	that 	the 	supervisor 	had 	not
monitored 	the 	incident 	or 	required 	a 	follow-up 	report 	to be
made 	correctly. 	Sergeant 	Sheehan was 	the 	supervisor 	involved.
The 	record 	does 	not 	indicate whether 	Van 	Slyke 	reviewed 	the
28

matter 	or 	determined 	any 	improper 	actions 	by Sheehan. 	No
evidence 	was 	offered 	to 	show 	that 	Van 	Slyke 	communicated 	the
episode 	to Schorle 	or 	the Schorle 	considered 	it 	in his 	decision
to 	reject 	Sheehan. 	The 	incident 	is 	not 	considered. 	Evidence
that 	Van Slyke 	reprimanded 	Sheehan 	for 	failure 	to 	conduct 	a
briefing 	session 	correctly on March 	30, 	the day prior 	to 	her
termination, 	is not considered for 	the same reason.
Sheehan was 	rejected 	from probation on March 	31. 	Schorle
called 	Sheehan 	to 	his 	office 	that 	day. 	He 	gave her 	the 	notice
of 	rejection without 	explanation. 	In 	response 	to her 	inquiry,
he 	stated 	that 	"the 	document 	speaks 	for 	itself." 	He 	further
stated 	that 	the 	termination was 	effective 	the 	same 	day.
Van 	Slyke 	indicated 	that 	Schorle 	had 	informed 	him 	of 	Sheehan's
impending 	termination 	in 	advance. 	Van Slyke 	had 	mixed 	feelings
about 	Sheehan's performance 	as 	a 	supervisor. 	Sergeants Bennett
and 	Andrews 	testified 	that 	they 	were 	surprised 	at 	Sheehan's
termination. 	They 	expressed 	support 	for 	her 	professional
competence.
2. 	Union Activities
Sheehan was 	interviewed 	by Schorle prior 	to being
employed. 	Schorle 	asked Sheehan about 	her 	opinion 	of 	unions
during 	the 	interview. 	At 	the 	time 	Sheehan 	told him she 	had
never 	belonged 	to 	a 	union 	and 	did 	not 	see 	any 	reason 	for 	them.
The 	unit 	represented 	by 	SUPA was 	modified 	to 	include 	the
position of 	sergeant 	in later 	1982. 	(See page 	44.) 	Sheehan
29

joined 	SUPA 	in January 	1983. 	Sergeant 	Nick 	Bennett 	joined 	the
organization at 	the 	same time. 	The 	record 	implies 	that 	other
sergeants 	were 	not members 	at 	that 	time.
On February 16, 	1983, 	Sheehan was 	represented by
Robert 	Jones, 	SUPA staff member, 	in a grievance with the
department. 	Jones 	filed 	a 	lengthy written grievance 	for
Sheehan 	contesting 	a 	letter 	of 	reprimand 	she 	had 	received 	from
Schorle. 	The grievance was 	approved 	on March 	1 by Schorle.
The 	reprimand 	was 	expunged.
In 	late February, 	Officer 	Bryant 	had 	approached 	Sheehan
regarding 	his 	dismissal. 	He 	inquired whether 	she or 	the 	other
sergeants 	had 	recommended 	the 	action. 	Sheehan 	expressed
surprise at 	the 	termination. 	The 	incident 	caused 	Sheehan and
other 	sergeants 	to 	discuss 	Schorle's 	firing practices 	and
morale problems 	in 	the 	department. 	They decided to 	request 	an
administrative 	review of Schorle's practices. 	They 	circulated
a petition 	to 	that 	effect 	among 	department 	staff 	in 	late
February 	or 	early March. 	Sheehan 	and 	Bennett 	took 	the petition
to 	the 	office 	of 	the 	CSUSF 	president. 	They met with 	the
president's 	secretary Norma 	Siani. 	Siani 	later 	informed 	them
that 	the 	president 	advised 	them 	to pursue 	the matter 	through
their 	union 	steward. 	Siani 	testified 	that 	Schorle 	later 	called
her 	and 	requested 	the 	names 	of 	the 	two 	employees who presented
the petition. 	She did not 	divulge 	the names. 	Later 	Schorle
was 	criticized 	by 	the 	president 	and 	vice 	president 	for 	his
30

attempt 	to 	obtain 	the 	names. 	Schorle 	testified 	that 	the 	vice
president 	had 	originally 	called 	the 	matter 	to 	his 	attention
prior 	to his 	call 	to 	the president's 	office.
Schorle 	testified 	that 	he 	did 	not 	know Sheehan was 	a member
of 	SUPA 	or 	of 	any participation by 	her 	in protected
activities. 	He 	did 	not 	know she was 	one of 	the 	employees who
went 	to 	see 	the president 	until 	he 	read 	the 	allegations 	in 	the
unfair 	practice 	charge 	after 	Sheehan's 	rejection. 	Lieutenant
Vaughn 	indicated 	that 	he 	knew Sheehan 	had 	filed 	a 	grievance 	in
February 	1983 	and 	was 	represented 	by 	SUPA 	sometime 	prior 	to 	her
termination. 	Van Slyke 	also 	stated 	that 	he 	knew Sheehan was
represented 	by 	SUPA as 	of 	the 	time 	the 	grievance was 	filed.
Neither 	stated 	that 	they 	knew 	she was 	a 	union member 	or 	about
the 	petition 	taken 	to 	the president.
ISSUE
Were 	the 	employees 	at 	issue 	rejected 	from probation 	in
violation 	of 	section 	3571(a) 	of 	the Act?
DISCUSSION
A. 	Legal 	Principles
Section 	3565 	of 	HEERA grants 	employees 	the 	right 	to 	form,
join 	and 	participate 	in 	the 	activities 	of 	employee
organizations 	for 	the 	purpose 	of 	representation 	on 	all matters
of 	employer-employee 	relations. 	Subsection 	3571(a) 	expressly
prohibits 	the 	employer 	from 	discriminating 	against 	employees
because 	of 	their 	exercise 	of 	rights 	guaranteed by HEERA.
31

PERB 	adopted 	standards 	for 	determining 	whether 	a 	violation
of 	section 	3571(a) 	has 	occurred 	in 	California 	State University /
Sacramento 	(4/30/82) 	PERB Decision No. 	211-H.
. . . 	A party 	alleging 	a 	violation 	of
subsection 	3571(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 	engage 	in 	the 	conduct 	of 	which
the employee complains. 	Once this 	is
established, 	the burden shifts 	to 	the
employer 	to 	demonstrate 	that 	it 	would 	have
taken 	the 	same action 	even 	in 	the 	absence 	of
protected 	conduct.
The 	PERB 	test 	is 	identical 	to 	its previous 	interpretation
of 	section 	3543.5(a) 	of 	the 	Educational 	Employment 	Relations
Act 	which 	prohibits 	discriminatory 	treatment 	by 	public 	school
employers. 	Novato Unified School 	District 	(4/30/82) 	PERB
Decision No. 	210.
Under 	both 	Novato 	and 	California 	State 	University 	the party
alleging 	discrimination has 	the 	burden 	to 	raise 	an 	inference
that 	the protected 	conduct was 	a 	"motivating 	factor" 	in 	the
employer's 	decision 	to 	engage 	in 	the 	conduct 	complained 	of.
The 	Board 	recognized 	that 	direct 	proof 	of 	motivation 	is 	rarely
possible 	since motivation 	is 	a 	state of mind. 	Unlawful motive
may 	be 	established 	by 	circumstantial 	evidence 	and 	inferred 	from
the 	record as 	a whole. 	Republic 	Aviation Corp. 	v. 	NLRB 	(1945)
324 U.S. 	793 	[16 LRRM 620]. 	To 	justify such an inference, 	the
Charging 	Party must prove 	that 	the 	employer 	had 	actual 	or
imputed 	knowledge 	of 	the 	employee's 	activity. 	Moreland
32

Elementary School District 	(7/27/82) 	PERB Decision No. 	227.
Once 	the 	employer's 	knowledge 	is 	shown, 	the 	Charging 	Party must
still 	produce 	some 	evidence 	creating 	a 	nexus 	between 	the
employee's 	conduct 	and 	the 	employer's 	action. 	PERB 	cited
several 	factors 	in Novato which may 	create 	such 	a 	nexus:
The 	timing 	of 	the 	employer's 	conduct 	in
relation 	to 	the 	employee's 	performance 	of
protected 	activity, 	the 	employer's 	disparate
treatment 	of 	the 	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.
If 	the 	Charging 	Party presents 	evidence 	sufficient 	to 	infer
improper 	motive, 	the 	burden 	shifts 	to 	the 	employer 	to 	show that
the 	protected 	activity was 	not 	a 	motivating 	factor 	in 	the
employer's 	decision to act. 	Alternatively, 	an employer may
factually 	rebut, 	in 	its case-in-chief, 	the Charging Party's
efforts 	to 	establish 	the 	threshold 	inference 	of 	unlawful
motivation. 	California State University, 	Sacramento, 	supra,
PERB 	Decision 	No. 	211-H. 	Under 	either 	approach 	the 	employer's
action 	should 	not 	be 	deemed 	an 	unfair 	labor 	practice 	unless
PERB 	determines 	that 	the 	employee 	would 	have 	been 	retained 	"but
for" 	his 	union membership 	or 	his performance 	of 	other protected
activities. 	The mere 	fact 	that 	an employee 	is participating 	in
union 	activities 	does 	not 	insulate 	him or 	her 	from 	discharge
for 	misconduct 	or 	give 	the 	employee 	immunity 	from 	routine
employment 	decisions. 	Martiori 	Brothers 	Distributers 	v.
33

Agricultural 	Labor Relations 	Board 	(1981) 	29 	Cal.3d 	721 	[75
Cal.Rptr 626].
B. 	General 	Elements 	of Charging 	Party's Case
Charging 	Party 	has 	not 	alleged 	or 	argued 	discriminatory
treatment 	of 	the 	officers 	based 	solely 	upon 	their 	union
membership. 	While 	the 	act 	of 	joining 	an 	employee 	organization
is a protected activity, 	this 	case does 	not 	reveal 	evidence of
broad 	discrimination 	based 	upon 	union membership. 	Officers
Ceruti 	and 	Bryant 	had 	been 	union members 	for 	almost 	two years.
As 	described 	below, 	several 	probationary 	employees 	had 	been
rejected 	under 	similar 	circumstances 	in 	recent 	years.
Instead 	SUPA asserts 	that 	Ceruti, 	Bryant 	and 	Sheehan had
each 	engaged 	in 	a 	specific 	protected 	activity 	shortly 	before
their 	rejection from probation. 	Each 	case 	is 	framed as a
reprisal 	by 	the 	employer 	in 	response 	to 	such 	exercise of 	a
specific 	right. 	In 	addition to the timing of 	the event, 	SUPA
seeks 	to bolster 	its 	argument 	against 	the 	employer 	by
(1) 	establishing 	a general 	anti-union animus 	by Chief 	Schorle;
(2) 	discrediting Schorle's 	denial 	of 	knowledge about 	each
protected 	activity; 	(3) 	demonstrating 	that 	standard personnel
procedures were not followed; 	and 	(4) 	disputing the stated
grounds 	for 	each 	rejection.
C. 	General Animus
Chief 	Schorle's 	general 	animus 	and 	overall 	credibility 	are
central 	issues 	in each of 	the cases. 	Three 	incidents were
offered 	to 	demonstrate 	Schorle's 	attitude 	of 	animus 	against
34

unions. 	In 	1981 	he 	asked Sheehan 	her 	opinion 	of 	unions 	during
her 	employment 	interview. 	She 	generally 	denied any 	interest 	in
them. 	Next, 	in March 	1983, 	Schorle 	issued a memo to his
supervisors 	about 	the 	disappearance 	of 	certain 	confidential
personnel 	memos. 	The 	first 	sentence 	in 	his 	directive 	read,
"obviously 	the 	effect 	of 	unionization 	is 	beginning 	to 	show 	in
various 	ways." 	Schorle 	implied 	that 	personnel 	memos 	were 	being
stolen 	and 	later 	used 	by 	SUPA 	to 	discredit 	the 	department 	in
his 	explanation 	of 	the 	language 	given 	at 	hearing. 	Finally,
Sergeant 	Bennett 	offered 	vague 	testimony 	that 	Schorle 	had
admonished 	department 	employees 	to 	remain 	loyal 	in 	1983
commencement 	ceremony 	speech. 	Bennett 	indicated 	that 	Schorle
stated 	an 	awareness 	of 	the 	functions 	of 	unions 	based 	upon 	his
prior 	employment 	experiences. 	No 	negative 	references 	to 	unions
were 	alleged.
Based 	upon 	the 	entire 	record 	it 	is 	found 	that 	Schorle was
aware 	of 	the presence 	of 	SUPA and 	that 	most 	officers 	in 	the
department 	were members 	of 	the 	union. 	The 	record 	covers most
major 	events 	occurring 	in 	the 	department 	during 	the period 	of
1981-1983. 	No 	other 	instances 	of 	remarks 	or 	actions 	by Schorle
relating 	to 	unions 	was 	offered. 	Without 	more 	evidence 	it
cannot 	be 	inferred 	that 	Schorle 	held 	or 	demonstrated 	a 	general
anti-union 	animus 	beyond 	a 	vague 	concern 	about 	an 	impact 	on 	the
department's 	proper 	functioning.10 Further, 	the 	above
in
10Charging 	Party 	raised 	no 	argument 	that 	the 	"small 	plant
35
, n

incidents 	do 	not 	establish 	that 	he 	held 	knowledge 	about 	the
specific union membership of any individual employee.11 11
D. 	Chief 	Schorle's 	Credibility
Chief 	Schorle's 	overall 	credibility 	is 	raised 	as 	the major
issue 	in 	the case. 	Schorle's 	testimony 	that 	other 	departmental
managers 	or 	supervisors 	either 	instigated 	or 	supported 	his
rejection 	of 	Ceruti 	and Bryant 	was 	contradicted 	to 	a 	certain
extent. 	Schorle's 	testimony was 	not 	accepted 	in 	those 	limited
areas 	based 	upon 	a 	belief 	that 	the 	testimony by 	other 	witnesses
more 	reasonably 	restated 	the 	actual 	events. 	Yet 	Schorle 	is 	not
found 	to 	be 	a 	totally 	unreliable 	witness 	based 	upon 	these
findings. 	His 	testimony about 	his 	lack 	of 	knowledge 	of 	union
activities 	by 	either 	Ceruti 	or 	Bryant 	was corroborated in
several 	instances. 	No 	rebuttal 	evidence was 	offered 	nor was
any 	cross-examination 	of 	him 	undertaken 	regarding 	these
denials. 	Moreover, 	Schorle's explanation of his 	rationale for
the 	rejections 	of 	all 	three 	employees 	was 	direct 	and 	believable
irrespective 	of whether his 	views were 	reasonable. 	There 	is no
basis 	upon which 	to 	discredit 	Schorle generally as 	a witness 	in
order 	to 	infer 	a 	general 	anti-union motive 	against 	him.
doctrine" 	adopted 	by 	the 	NLRB 	should 	be 	applied 	to 	infer
employer 	knowledge. 	See 	Coral Gables 	Convalescent 	Home, 	Inc
(1978) 	234 NLRB 1198 	[297 LRRM 1435], 	Hadley Manufacturing
Corp. 	(1954) 	108 	NLRB 	1641 	[34 	LRRM 	1246]
11Bryant's 	testimony 	that 	he 	received 	a 	memo 	from
Schorle's 	secretary 	about 	union 	dues 	deductions 	was 	never
linked 	to 	Schorle.
36
11

E. 	Officers 	Ceruti 	and Bryant
1. 	Protected Activity
Officers 	Ceruti 	and 	Bryant 	each 	engaged 	in 	a 	single
isolated 	exercise 	of 	protected 	activity 	prior 	to 	their
rejection 	from probation. 	Although 	amounts 	of protected
activity 	are 	not 	quantified, 	PERB 	does 	consider 	the 	degree of
union activity, 	among 	other 	factors, 	in determining whether 	to
infer 	knowledge 	or 	improper 	motivation 	to 	an 	employer. 	San
Joaquin Delta 	Community College 	District 	(11/30/82) 	PERB
Decision No. 	261; 	Coast 	Community College District 	(10/15/82)
PERB Decision No. 	251.
SUPA 	offers 	no 	direct 	evidence 	to 	show 	that 	the 	rejection
of 	Ceruti 	and 	Bryant 	from probation 	by 	Schorle 	was 	motivated 	by
anti-union 	animus. 	Thus, 	the Charging Party must 	raise 	facts
sufficient 	to 	raise 	such 	an 	inference.12 As 	described 	below,
the Charging 	Party has 	failed 	to provide 	facts 	sufficient 	to
draw an inference of 	knowledge, 	animus, 	disparate treatment or
other 	elements 	sufficient 	to 	state a prima 	facie 	case.
12An 	inference 	is 	a 	deduction 	of 	fact 	that 	may 	logically
and 	reasonably 	be 	drawn 	from another 	fact 	or 	group 	of 	facts
found 	or 	otherwise 	established. 	Evidence 	Code 	section 	600 	B.
It 	is 	possible 	to 	draw a 	reasonable 	inference from
circumstantial 	evidence 	in 	the 	face 	of 	direct 	evidence 	where 	no
contradictory 	testimony was 	offered. 	California 	Bank 	v. 	Clay
(1962) 	207 CA2d 	25 	[24 Cal.Rptr. 	185]. 	On the other hand, 	an
inference 	is more than a 	surmise, 	possibility or 	conjecture; 	it
is 	a 	reasonable 	deduction 	from 	facts 	proven 	and 	must 	be
logical. 	Woehr Estate 	(1958) 	166 CA2d 4 	[332 P.2d 	818].
37

2. 	Lack 	of 	Knowledge 	about 	Protected Acts 	of 	Ceruti 	and
Bryant
Charging 	Party 	offered 	a 	conversation 	between 	Ceruti 	and 	a
potential 	employee, 	Harry Hazelrigg, 	as 	the protected activity
which 	triggered Ceruti's 	dismissal. 	Assuming 	the 	conversation
occurred, 	the 	solicitation 	of 	union membership would be 	a
protected 	activity. 	Yet 	the 	Charging 	Party 	has 	failed 	to 	show
that 	Chief 	Schorle 	or 	any of 	the department managers 	had
knowledge 	of 	the 	conversation. 	SUPA alleged 	that 	Hazelrigg
must 	have 	communicated 	about 	his 	conversation 	with 	Ceruti 	to
Schorle at a cocktail 	hour on May 29, 	1983. 	No testimony
supported 	the 	speculation. 	To the contrary, 	Hazelrigg 	and 	each
of 	several 	participants 	at 	the 	cocktail 	party 	denied 	any
discussion of 	Ceruti. 	Moreover, 	Hazelrigg 	denied 	that 	Ceruti
solicited 	his membership 	in 	the 	union. 	Even 	assuming 	the 	truth
of 	Ceruti's 	testimony 	there's 	no 	reason 	to 	reject 	the 	testimony
of 	all 	other witnesses 	to 	the 	effect 	that 	Schorle 	had 	no
knowledge 	of 	the 	conversation.
More 	importantly, 	Schorle 	sent 	a memo 	to campus personnel
on May 	23 	indicating 	his 	intent 	to 	dismiss 	Ceruti. 	The memo
was 	sent 	on 	the 	same 	day 	as 	the 	initial 	conversation between
Ceruti 	and 	Hazelrigg 	allegedly occurred. 	Thus, 	Schorle's
decision was made 	several 	days prior 	to 	the 	date 	he 	allegedly
learned 	of 	Ceruti's 	activities 	from 	Hazelrigg.
Officer 	Bryant 	also 	engaged 	in minimal 	protected 	activity
beyond 	his 	membership 	in 	SUPA. 	Bryant 	surmised 	that 	everyone
38

in 	the 	department 	knew of 	his 	union membership. 	Schorle 	denied
having 	any 	knowledge 	of 	Bryant's 	union membership 	or
activities. 	Again, 	no evidence was offered 	to support 	an
inference 	that 	Schorle 	was 	aware 	of 	Bryant's 	union 	affiliations
short 	of 	a 	total 	discrediting 	of 	Schorle's 	overall 	testimony.
Schorle 	was 	not 	cross-examined 	on 	this 	subject.
Officer 	Bryant 	contacted 	Lieutenant 	Van 	Slyke 	on
December 	10, 	1983, 	challenging the procedures used to promote
Kim Wiebel. 	Bryant 	told Van 	Slyke 	that 	he was 	upset 	that
proper 	procedures 	had 	not been 	followed. 	He was 	going 	to
pursue 	whatever 	remedies 	he 	had 	including 	going 	through 	the
union. 	It 	is 	argued 	that 	this 	informal 	protest 	lead 	directly
to 	Bryant's 	rejection 	from 	employment 	approximately 	two 	months
later. 	Van 	Slyke 	gave 	unbutted 	testimony 	that 	he 	did 	not
consider 	Bryant's 	comments 	to constitute a grievance, 	so he did
not 	report 	the 	conversation 	to 	anyone. 	Both Lieutenant 	Vaughn
and 	Chief 	Schorle 	indicated 	that 	they 	were 	unaware 	that 	the
conversation 	had 	occurred. 	SUPA 	offered 	no 	valid 	reason 	to
discredit 	the 	unrebutted 	testimony 	of 	the 	three managers.
Bryant 	did 	not 	file 	an 	actual 	grievance 	over 	the 	issues 	until
several 	days 	after 	he'd 	been 	notified 	of 	his 	rejection. 	Again,
the 	facts 	do 	not 	call 	for 	an 	inference 	that 	Schorle had
knowledge 	of 	Bryant's 	specific 	exercise 	of 	a protected 	activity
on December 10, 	1983.
39

3. 	Nexus 	to 	Improper 	Motivation
The 	fact 	that 	Bryant 	and 	Ceruti 	were 	rejected 	from
probation 	close 	in 	time 	to 	their 	minimal 	exercise 	of protected
activity does 	not 	in 	itself 	create 	a 	nexus 	to 	anti-union
motivation.
The mere 	coincidence 	in 	time 	between 	the
employee's 	union 	activities 	and 	his
discharge 	does 	not 	raise 	an 	inference 	of
knowledge 	on 	the part 	of 	the 	employer
without 	some 	direct 	or 	persuasive
circumstantial 	evidence 	in 	the 	record.
California 	State University, 	Sacramento
(4/30/82) 	PERB Decision No. 	211-H citing
Amyx Industries, 	Inc. 	v. 	NLRB 	(8th Cir.
1972) 	457 	F.2d 	904 	[79 	LRRM 	2930].
Charging 	Party's 	main 	arguments 	towards 	inputing 	an
improper 	motive 	to 	both 	officer's 	rejections 	relate 	to 	the
reasonableness 	of 	Chief 	Schorle's 	personnel 	decisions 	and
procedures. 	It must 	be noted that 	an employee at 	the 	State
University 	may 	be 	rejected 	for 	less 	than 	"good 	cause" 	prior 	to
the 	completion 	of 	his 	or 	her 	probationary period. 	University
and 	campus 	regulations 	require periodic 	evaluations 	of
probationary 	employees. 	A 	final 	evaluation 	during probation
must 	indicate a 	recommendation 	for 	retention 	or 	rejection. 	Yet
a 	rejection 	need 	not 	be 	based 	upon prior 	evaluations 	or
specific 	deficiencies 	stated 	in an 	evaluation. 	Campus
departments 	may 	adopt 	procedures 	more 	stringent 	than 	these
general 	policies. 	The 	Public 	Safety Department 	rules 	provided
for 	a two-year 	probation period at 	the 	time 	of 	this 	case.
40

Employees 	were 	required 	to 	receive 	numerous 	evaluations 	during
the probationary period. 	The 	evaluations 	were performed 	by
supervising 	sergeants 	and were 	reviewed 	by 	Chief 	Schorle. 	The
record 	indicates 	that 	the 	department 	commonly 	did 	not 	perform
the 	required 	number 	of 	evaluations 	for 	each probationary
employee. 	Employees 	normally did 	not 	receive a 	final
evaluation 	covering 	the 	last 	months 	of 	their 	probation period.
None 	of 	the 	evaluations 	contained 	a 	recommendation 	for
retention or 	rejection by the 	supervisor. 	At 	the 	request 	of
the 	campus personnel 	department, 	Schorle merely 	sent 	a memo
wherein he 	checked 	a 	box 	rejecting 	an 	employee 	from probation.
A 	campus 	personnel 	officer 	testified 	that 	that 	office 	did 	not
enforce 	compliance 	by 	departments 	with 	their 	own personnel
policies.
SUPA 	contends 	that 	Chief 	Schorle's 	departure 	from
department 	written procedures 	and 	his 	failure 	to 	consider 	input
from 	sergeants 	who 	directly 	supervised 	Ceruti 	and 	Bryant
demonstrate 	an 	improper motive. 	From a 	viewpoint of 	standard
personnel practices 	and employee morale, 	the personnel 	actions
of 	Chief 	Schorle 	described 	in 	the 	record 	are 	highly 	suspect.
The 	chief 	admitted with 	candor 	that 	he 	hired 	both 	Ceruti 	and
Bryant 	despite 	their 	spotted 	police 	background 	because 	of
staffing 	deficiencies 	existing 	at 	the 	time. 	At 	least 	Bryant
was 	led 	to 	believe 	by 	his 	direct 	supervisor 	that 	he was
successfully 	completing 	his 	long 	probationary 	period. 	Ceruti
41

was 	given no 	indication to 	the 	contrary. 	Bryant's periodic
evaluations 	were 	rated 	"average" 	overall 	despite 	specific 	marks
below average. 	Neither 	received 	an 	evaluation 	during 	the 	final
months 	of 	probation. 	Schorle 	had 	indorsed 	the written
evaluations performed as accurate 	appraisals 	of 	the 	employees'
competence. 	Schorle 	indicated 	that 	he 	felt 	no need 	to 	inform
either 	of 	the 	affected 	employees 	or 	their 	supervisors 	that 	he
believed 	their 	performances 	to 	be 	unsatisfactory. 	His 	belief
was 	based 	upon 	incidents 	he 	described 	which 	were 	never 	listed
in the employees' 	evaluations. 	Contrary to the stated
evaluations 	and 	the 	general 	feelings 	of 	his 	supervisory 	staff,
Schorle 	relied 	upon 	his 	ultimate 	authority 	delegated 	from 	the
campus 	president 	to 	reject 	employees 	within 	his 	department
during 	probation. 	His 	decision 	was 	based more 	upon 	his
personal 	feelings 	about 	the 	employees' 	qualifications 	than 	upon
any documented 	factors. 	In part, 	his 	decision was affected by
a 	less 	severe 	shortage 	of 	staff 	at 	the 	time 	of 	the 	rejection
than 	had 	existed 	at 	the 	time 	the 	employees 	were 	initially
hired. 	Schorle 	gave 	a 	listing 	of 	reasons 	why 	he 	believed
Ceruti 	and 	Bryant 	did 	not 	meet 	permanent 	employment 	standards.
The 	reasons 	were 	based 	in part 	upon 	several 	incidents 	where
they 	allegedly performed 	in 	an 	inappropriate 	manner. 	The
incidents 	are 	described at 	length 	in 	the 	factual 	findings.
SUPA 	did 	not 	contend 	that 	the 	incidents 	cited 	by 	Schorle 	did
not 	occur. 	The 	organization merely 	gave 	a 	differing 	subjective
42

view of 	each 	event. 	I 	have 	reviewed 	each 	incident. 	While
Schorle's 	view of 	the 	seriousness 	of 	each 	officer's 	conduct may
be 	disputed, 	anti-union animus 	may 	not 	be 	attributed 	to 	him 	for
that 	reason 	alone. 	PERB 	has 	held 	that 	an 	employer may
discharge 	an 	employee 	for 	many 	improper 	reasons 	which 	do 	not 	in
themselves 	demonstrate 	anti-union 	animus. 	Moreland 	Elementary
School District 	(7/27/82) 	PERB Decision No. 	227.
Additionally, 	the 	Charging 	Party 	has 	failed 	to 	show any
disparate 	treatment 	resulting 	from 	Schorle's 	harsh 	personnel
practices. 	In fact, 	the record demonstrates 	that 	Schorle had
consistently 	given 	the 	same 	treatment 	to 	probationary 	employees
and probationary 	supervisors 	in 	the past. 	No 	evidence 	showed
that 	this 	treatment 	was 	administered 	differently 	to union 	or
nonunion members. 	Schorle 	described 	the 	history 	of 	his
appointment 	as 	chief 	of 	the 	department 	including 	his 	direction
to 	elevate 	the 	professional 	standards 	including 	his 	views
towards 	probationary 	employees. 	He 	had 	either 	rejected 	or
forced 	resignations 	from 	two 	probationary 	officers 	and 	one
probationary 	supervisor 	in 	addition 	to 	those 	affected 	in 	this
case 	during 	the past 	two years. 	Schorle 	had a 	history of 	not
giving 	rejected 	employees 	a 	final 	evaluation. 	The 	consistency
of 	Schorle's practices 	does 	not 	imply a motive 	related 	to
protected 	activity.
In 	sum, 	it 	is 	found that 	the exercise of 	a protected
activity by 	Officer 	Ceruti 	in 	late May 	1983 	was 	not 	a
43

motivating 	factor 	in Schorle's 	decision 	to 	reject 	him. 	The
conversation between 	Officer 	Bryant 	and 	Lieutenant 	Van Slyke 	in
December 	1982 was 	not 	a motivating 	factor 	in Chief 	Schorle's
decision 	to 	reject 	him from probation 	in March 	1983. 	These
cases 	should 	be 	dismissed.
F. 	Sergeant Sheehan
Myra 	Sheehan 	served as 	a probationary 	sergeant prior 	to 	her
rejection 	from 	employment. 	PERB 	has 	found 	that 	supervising
public 	safety 	officers 	(sergeants) 	in 	the State University
system 	"are 	not 	supervisors" 	excluded 	from protections 	under
HEERA. 	They 	are 	included 	within 	the 	safety 	officer 	unit 	and
are 	entitled 	to 	all 	protections 	afforded 	rank 	and 	file
employees. 	See 	California 	State University 	and 	Statewide
University 	Police Association 	(10/20/83) 	PERB 	Decision
No. 351-H.
In 	this 	case 	the 	Charging 	Party 	has 	presented 	sufficient
evidence 	to 	establish a prima 	facie case. 	In February 	1983
Sheehan was 	represented by 	the 	SUPA 	staff 	representative 	in 	a
grievance 	over 	a 	reprimand. 	Chief 	Schorle 	had 	issued 	the
reprimand. 	He 	personally 	reviewed 	the 	written grievance 	and
approved 	it. 	The 	right 	to pursue a grievance 	through 	a
representative 	without 	discrimination 	is 	a 	protected 	activity.
In 	early March 	1983 	Sheehan participated 	in 	an attempt 	to
petition 	the 	campus 	president 	seeking 	a 	review of 	Chief
Schorle's personnel practices. 	Sheehan was 	upset 	about
44

Schorle's 	rejection 	of 	Officer 	Bryant. 	Sheehan 	and 	Sergeant
Bennett 	circulated 	a 	petition 	among 	other 	sergeants 	and
officers 	seeking 	their 	signatures. 	They 	carried 	the petition
to 	the president's 	office 	but 	never met 	with 	him.
At 	the 	hearing, 	Chief 	Schorle 	denied 	any 	knowledge 	that
Sheehan was 	a member 	of 	the 	union 	or 	of 	any participation by
her 	in 	any 	protected 	activity. 	He 	specifically 	denied 	that 	he
knew Sheehan was 	one 	of 	the 	two 	employees 	who 	took 	the 	petition
to the president's 	office. 	Schorle 	testified 	that 	he 	had
sought 	the 	names 	of 	the 	employees 	from 	the president's 	office
but 	was 	denied 	that 	information 	on 	the 	basis 	it 	was
confidential. 	He 	further 	indicated 	that 	both 	the 	campus
president 	and 	vice 	president 	admonished 	him 	for 	his 	inquiry.
In 	Sheehan's 	case 	the 	act 	of 	joining 	the 	union must 	be
considered 	a 	more 	substantial 	protected 	activity 	because 	of 	the
proximity of 	time 	to her 	dismissal. 	Thus, 	she engaged 	in three
protected 	acts 	within 	a 	60-day period 	prior 	to 	being 	rejected.
From 	the 	entire 	record 	it 	is 	found 	that 	Schorle 	had 	some
knowledge 	or 	reasonable belief 	that 	Sheehan was 	engaging 	in
protected activities. 	It 	is not 	crucial 	to decide which one or
more 	of 	the 	three 	events he 	knew of. 	Schorle 	certainly was
aware 	of 	the grievance 	because 	he 	directly 	participated 	in
it.1 3
13It
45
13rt 	is 	also 	surmised without 	so 	deciding 	that 	Schorle
would 	have 	known which members 	of 	his 	supervising 	team were

A 	reasonable 	inference 	of 	improper 	motive 	arises 	because 	of
Schorle's 	knowledge 	or 	reasonable 	belief 	of 	Sheehan's 	union
activities, 	the timing of the personnel 	decision, 	and one other
significant 	factor. 	Sergeants 	continued 	to play a 	key 	role 	in
the 	support 	of 	management 	directing 	personnel 	on 	administrative
matters 	at 	CSUSF 	following 	their 	inclusion 	in 	the 	bargaining
unit. 	Only two sergeants became members 	of 	the organization.
Schorle 	clearly 	implied 	that 	he was 	aware 	of 	the potential
conflict 	between 	the 	sergeants' 	allegiance 	to 	the 	union and 	to
management 	by his 	March 7, 	1983 memo. 	He 	acknowledged the
presence 	of 	the 	union 	and 	reminded 	the 	sergeants 	of 	their
obligation 	to 	keep management matters 	confidential. 	His
express 	concern 	about 	the 	union 	taken 	together 	with 	these 	other
factors 	require 	the 	employer 	to 	carry 	the 	burden 	of 	showing 	a
justification 	for 	the 	action.
Sheehan 	was 	evaluated 	regularly 	during 	her 	first 	year 	of
probation. 	The 	employer 	offered 	her 	evaluations 	and 	several
examples 	of 	alleged 	subpar 	conduct 	to 	demonstrate 	that 	she was
rejected 	for 	legitimate business 	reasons. 	Sheehan had
members 	of 	the 	union 	because 	of 	the 	dual 	role 	that 	sergeants
were performing. 	This 	is 	particularly 	true 	because 	of 	his
concern 	about 	a 	loss 	of 	confidentiality 	among 	his 	supervisors.
It may 	also be 	reasonably speculated, 	without 	deciding, 	that
Schorle 	would 	have 	determined 	who 	circulated 	the 	petition 	and
carried 	it 	to 	the president's 	office. 	The 	record 	clearly
demonstrates 	his 	interest 	in 	the 	matter 	and 	his 	close 	working
relationship 	with 	other 	sergeants 	who 	were 	contacted 	by 	Sheehan
to 	sign 	the petition.
46

not been 	hired on a 	"risk" 	basis as 	had Ceruti 	and Bryant. 	She
came 	to 	CSUSF 	from 	another 	campus 	with 	high 	recommendations
regarding 	her 	investigative 	skills. 	After 	an 	initial 	positive
evaluation, 	Sheehan 	began 	receiving 	ratings 	which 	indicated
that 	she was 	not 	living 	up to 	the 	expectations 	of 	Schorle 	or
Van Slyke. 	Her 	second 	evaluation 	covering 	the period 	of
December 	1981 	through 	May 	1982 	indicated 	concerns 	about 	her
motivation. 	Chief 	Schorle 	added 	comments 	to 	the 	evaluation
indicating 	that 	he 	considered 	the 	satisfactory 	rating 	to 	be 	too
positive.
The 	record 	reveals 	a 	continuing pattern 	of 	concern
expressed 	by 	Schorle 	through 	the 	fall 	of 	1982 	about 	Sheehan's
performance. 	In 	August 	he 	directed 	that 	Van Slyke monitor
Sheehan more 	closely 	because 	she 	did 	not 	seem 	to 	have 	the
skills 	or 	desire 	to be a 	supervisor. 	In 	September 	he 	issued a
memo 	directing 	counseling 	of 	Sheehan 	and 	requiring 	numerous
close evaluations 	of her work. 	At 	the 	same 	time, 	he wrote 	to
Sheehan 	indicating 	that 	she 	had 	failed 	to perform at 	an
acceptable 	level 	during 	the past 	year. 	During 	November 	1982
Schorle 	became 	upset 	over 	Sheehan's 	performance 	in 	two 	separate
incidents.
In 	February 	1983 	Schorle 	started 	to personally 	review
Sheehan's 	daily 	supervising 	logs 	retroactive 	to 	January. 	He
testified 	as 	to 	four 	incidents 	involving 	Sheehan 	which 	occurred
in 	February 	and March. 	He 	considered 	these 	incidents 	to
reflect 	inappropriate 	judgment 	by 	Sheehan.
47

The 	record, 	viewed 	from the 	employer's 	evidence, 	reveals 	a
concern 	by 	Schorle 	about 	Sheehan's 	supervisory 	skills 	over 	a
significant 	period 	of 	time prior 	to 	her 	rejection. 	The concern
was 	expressed 	to 	Sheehan 	during 	the 	fall 	1982 	long 	before 	her
initial 	exercise 	of 	protected 	activity.
SUPA 	offers 	several 	examples 	of 	poor 	personnel 	practice 	and
alleged 	harsh 	treatment 	of 	Sheehan 	in 	an 	attempt 	to 	discredit
the 	business 	motives 	raised 	by 	the 	employer.14 It 	is 	noted
that 	Sheehan 	received 	less 	supervision 	rather 	than 	more 	after
Schorle's 	September 	1982 memo. 	She was 	assigned 	on the
graveyard 	shift 	for 	a period where 	no managers worked. 	She
also 	received 	no 	written 	evaluations 	although 	Schorle 	had
directed 	that 	she 	be 	evaluated 	bi-monthly. 	She 	also was 	given
no 	notice 	or 	explanation of 	her 	rejection 	from probation.
Finally 	Sheehan was 	not 	offered 	the 	opportunity 	to 	revert 	to 	an
officer 	position 	although 	Bryant's 	rejection 	had 	created 	a
vacancy.
I 	have 	considered 	these 	facts 	as well 	as 	each 	of 	the
employer's 	examples 	of grounds 	for Schorle's decision. 	I 	find
numerous 	instances 	of 	poor 	personnel 	relations 	and personnel
practices, 	but 	insufficient 	evidence 	to discredit 	the
1 4 In 	Baldwin 	Park 	Unified 	School 	District 	(6/30/82) 	PERB
Decision No. 	221, 	PERB considered the 	irregularity of 	the
employer's 	procedure 	and the 	harshness 	of 	the punishment 	in
discrediting 	an 	uncontroverted 	explanation 	for 	disciplinary
action 	against 	employees.
48

employer's 	stated motive 	for 	the 	actions. 	The 	record 	does 	not
show 	any 	treatment 	inconsistent 	with 	Schorle's 	past 	practice 	or
of 	disparate 	treatment. 	Department 	management 	believed 	that
Sheehan 	did 	not 	develop an 	adequate 	crime 	prevention 	program.
Schorle 	later 	determined 	that 	her 	supervision 	skills 	in 	the
operations 	unit 	were not up to his 	standards. 	The 	incidents
supporting 	these 	beliefs may 	have 	two 	versions. 	Yet 	nothing 	in
the 	record 	causes 	me 	to believe 	that 	Schorle 	did 	not 	in 	fact
find 	Sheehan's 	performance 	to 	be unacceptable for 	reasons
separate 	from 	her 	participation 	in protected 	activity. 	It 	is
more 	likely 	that 	Sheehan 	joined 	SUPA 	in 	part 	in 	response 	to 	the
mounting 	pressure 	on 	her 	from 	Schorle 	rather 	than 	viewing 	the
rejection 	as 	a 	response to her 	union affiliation. 	The employer
has 	demonstrated 	that 	Sheehan 	would 	have 	been 	rejected
notwithstanding 	her 	union 	activity.
In addition, 	the 	record again 	shows 	no 	disparate
treatment. 	Although 	Ceruti 	and 	Bryant 	were 	dismissed 	at 	the
end 	of 	their 	probations, 	Rowe, 	Conway and Lieutenant McDonald
were 	notified 	by 	Schorle 	at 	least 	several 	months 	prior 	to 	the
completion 	of 	their 	trial 	status.
The 	charge 	is 	dismissed.
CONCLUSIONS 	OF 	LAW
The 	employer 	is 	found 	not 	to 	have 	discriminated 	against
David 	Ceruti, 	James 	Bryant 	or Myra Sheehan 	in violation of
section 	3571(a) 	of 	HEERA by 	its 	decision to 	reject 	those
employees 	during 	probationary 	employment.
49

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusion 	of 	law
and 	the 	entire 	record 	in 	unfair 	practice 	cases 	SF-CE-151-H,
SF-CE-166-H and 	SF-CE-171-H, 	the 	complaints 	against 	the
California 	State University 	(San 	Francisco) 	are 	hereby
DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed Decision and Order 	shall
become final on November 	13, 	1984, 	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
Sacramento before 	the 	close of 	business 	(5:00 p.m.) 	on
November 	13, 	1984, 	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
50

service 	shall 	be 	filed with 	the Board 	itself. 	See 	California
Administrative Code, 	title 	8, 	part 	III, 	section 32300 and 32305,
Dated: 	October 	22, 	1984
Terry 	Tilliman
Administrative 	Law 	Judge
51
•