Kern County Office of Education (PERB 0630E)

STATE OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	Chapter 512,
Charging 	Party,
v.
KERN 	COUNTY OFFICE OF 	EDUCATION,
Respondent.
)
)
) 	Case No. LA-CE-2168
PERB 	Decision No. 	630
July 14, 1987
)
)
)
)
Appearances; 	Harry J. Gibbons, 	Jr., 	Attorney, 	California
School 	Employees 	Association, 	for California 	School 	Employees
Association, 	Chapter 512; 	Fekete, 	Carton, 	Velman, 	Hartsell &
Chambers 	by Frank J. 	Fekete, 	for Kern County Office of
Education.
Before Hesse, 	Chairperson; 	Porter and Shank, 	members.
DECISION
SHANK, 	Member: 	This 	case 	is before 	the 	Public 	Employment
Relations 	Board 	(PERB or Board) 	on 	exceptions 	filed by the
California 	School 	Employees Association 	(CSEA) 	to the proposed
decision, 	attached hereto, 	of a PERB administrative law judge
(ALJ). 	The ALJ dismissed the 	unfair practice charge against
the 	Kern 	County Office 	of 	Education 	of 	alleged 	violations 	of
sections 	3543.5(a) 	and 	(b) 	of the Educational 	Employment
Relations Act 	(EERA)l 	by terminating Mildred Hamaker, 	a
1 EERA 	is 	codified at Government 	Code 	section 	3540 et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
----------
)
)
)

custodian, 	because 	of protected 	union 	activity rather 	than
failure 	to perform her 	assigned duties.
PROCEDURAL 	HISTORY
By letter dated November 15, 	1984, 	the 	superintendent
dismissed 	Hamaker 	from her position 	as 	Custodian 	II. 	On
November 29, 	1984, 	Hamaker filed an appeal 	to the Personnel
Commission, 	Office of 	Kern 	County Superintendent of 	Schools.
On January 7, 	1985, 	a hearing was held before J. 	S. Wallace, 	a
hearing 	officer 	appointed by 	the 	Personnel 	Commission. 	The
hearing continued on 	January 8 and 	17, 	and concluded on
February 8, 	1985. 	The hearing officer 	recommended 	and 	the
Commission held on February 17, 	1985, 	that Hamaker's
termination be 	upheld. 	The 	employee 	did 	not 	appeal 	the
Personnel 	Commission's 	decision to the 	courts.
On May 	2, 	1985, 	the California School 	Employees Association
filed 	an 	unfair 	practice charge 	with 	the 	Board 	and on 	June 	4,
herein 	are 	to the Government 	Code. 	Sections 	3543.5(a) 	and 	(b)
provide, 	in pertinent part, 	as follows:
It 	shall be 	unlawful 	for a public 	school
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.
N	
2

1985, 	the general 	counsel 	issued a 	complaint. 	Respondent 	Kern
County Office 	of 	Education 	filed an 	answer 	and 	formal hearing
was held on July 22, 	23 and 24, 	1985. 	The ALJ issued a
proposed decision on December 30, 	1985, 	and the matter is 	now
before 	PERB on 	exceptions 	to the 	proposed 	decision 	filed by
CSEA.
DISCUSSION
We 	find 	that 	the ALJ's 	findings 	of 	fact 	are 	free 	from
prejudicial 	error and we 	adept 	them 	as 	our own. 	The 	Board 	also
affirms his 	decision 	in dismissing the 	unfair practice charge.
In 	adopting 	the ALJ's 	findings 	of 	fact 	and 	affirming his
decision, 	however, 	we do not approve his disposition of the
respondent's 	motion 	to dismiss 	the 	instant 	complaint 	of 	unfair
practice, 	made at the 	inception of the hearing, 	or that portion
of his 	analysis wherein he 	applies 	the 	criteria 	set 	forth 	in
Novato Unified School 	District 	(1982) 	PERB Decision No. 	210.
I. 	Motion 	to Dismiss
Respondent's 	motion 	to dismiss 	was 	based 	upon 	the 	doctrine
of collateral estoppel. 	Respondent contended that a 	full
evidentiary hearing had been extended Mrs. 	Hamaker, 	at her
request, 	by the 	Personnel 	Commission of 	the Office of 	the 	Kern
County Superintendent of Schools 	(Commission). 	The local
Commission 	is 	established under 	section 	45245 	of 	the 	Education
Code 	and 	consists 	of a member 	nominated by 	the 	employees 	of 	the
district, 	a 	member 	selected by the district 	and 	a 	third party
W	
3

selected by the 	first 	two nominees. 	In 	turn the 	Commission
appoints a hearing officer who, 	in this case, 	held several days
of hearings 	and heard 	17 	witnesses 	and whose decision
terminating Mrs. 	Hamaker was 	adopted en banc.
The ALJ, 	after hearing short arguments, 	denied the motion
on 	the 	ground 	that 	PERB had 	established 	no precedent 	applying
collateral 	estoppel. 	While this was 	true 	at 	the 	time of 	the
hearing 	in this 	case, 	we 	note 	that 	PERB has 	since 	addressed 	the
doctrine 	and 	a precedent 	now 	exists.2 Because of 	the 	Board's
affirmance of 	the 	substantive 	issue before 	the ALJ 	in 	this
case, 	it 	is unnecessary to further consider the 	issue of
collateral 	estoppel 	except 	to 	reaffirm 	that 	collateral 	estoppel
may bar 	the 	relitigation 	of 	issues 	before 	PERB which have been
heard and decided 	in a prior proceeding, 	where all 	of 	the
2In 	State 	of 	California 	(Department 	of 	Developmental
Services) 	(1987) 	PERB Decision No. 	619-S, 	the relitigation of
the 	issue 	of 	discrimination against 	an 	employee 	for union
activity was 	barred where 	the 	State 	Personnel 	Board had 	decided
against 	the employee 	in a prior disciplinary hearing. 	PERB
relied upon People 	v. 	Sims 	(1982) 	32 Cal.3d 468, 	and United
States v. 	Utah Constr. 	& Min. Co. 	(1966) 	384 U.S. 	394, 	86 S.Ct.
1545, 	which held 	that 	collateral 	estoppel 	may be 	applied 	to
decisions 	made 	by administrative 	agencies 	when 	they 	are 	acting
in 	an 	adjudicatory 	capacity 	resolving 	disputed 	questions 	of
fact 	and 	the 	requirements 	of due process 	have been met.
California 	courts 	do 	not 	distinguish between 	local 	boards,
state-wide 	agencies 	exercising 	statutory powers, 	and 	agencies
deriving their authority 	from 	the 	California 	Constitution, 	in
applying 	collateral 	estoppel. 	(See, 	City and County of San
Francisco v. Ang 	(1979), 	97 Cal.App.3d 673, 	159 Cal.Rptr. 	56;
Greatorez v. 	Boar	- 	d of Administration 	(1979) 	91 Cal.App.3d 54,
154 Cal.Rptr. 	37.)
44

elements of the doctrine were present. 	Here, 	had the parties
been provided 	an 	opportunity to make 	a 	full 	and 	complete
presentation on the 	issue, 	the 	issue of collateral 	estoppel
could have 	been properly before 	us.
II. 	The Novato Test
Because 	of difficulties 	in demonstrating 	that 	an unlawful
motive, 	rather than the employer's 	stated 	reasons, 	was the
cause 	of discipline 	where 	the 	employee has 	engaged 	in protected
activity, 	this Board 	in Novato set 	forth circumstances which,
if proved, 	would 	support 	an 	inference upon which a prima 	facie
case may be based. 	Novato states at page 	6:
In Carlsbad 	[Unified 	School 	District 	(1979) 	PERB
Decision No. 89], 	. 	. 	. the Board concluded that
unlawful 	motive 	can be 	established by
circumstantial 	evidence 	and 	inferred 	from 	the
record as a whole. 	Carlsbad, 	supra, 	at p. 	11;
Republic Aviation Corp. 	v. 	NLRB 	(1945) 	324 U.S.
793 [16 LRRM 620; 	Radio Officers Union v. 	NLRB,
supra, at pp. 40-43.
To 	justify such 	an 	inference, 	the charging party
must 	prove 	that 	the employer had actual 	or
imputed knowledge 	of 	the 	employee's 	protected
activity. 	NLRB v. 	South 	Shore Hospital 	(1978 1st
Cir.) 	571 	P.2d 677 	[97 LRRM 3004]. 	Knowledge
along 	with 	other 	factors 	may 	support 	the
inference of unlawful motive. 	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 general, 	the inference can be drawn
from a 	review of 	the 	record as a whole. 	See
Radio Officers, 	supra.
55

Application of 	the Novato test 	to 	the 	record 	in 	this 	case
leads 	the Board 	to conclude 	that 	Charging 	Party has 	not made 	a
prima 	facie 	showing 	of 	an 	unfair practice.
A. 	Disparate 	treatment. 	The 	record 	contains 	no evidence
demonstrating 	that 	Hamaker 	was 	treated 	differently 	from 	others
similarly 	situated.
B. 	Timing. 	Evidence of 	timing 	of adverse 	action 	in 	relation
to protected activity does not 	support Mrs. 	Hamaker's 	claim.
While 	it 	is 	not 	clear exactly when her 	employer learned 	of her
union activity, 	that date 	is 	irrelevant because her employment
problems 	predated her protected 	activity. 	Her employer's
testimony at a 	separate PERB hearing 	(Office 	of 	Kern 	County
Superintendent of Schools 	(1985) 	PERB Decision No. 	533) 	was
correctly 	found by the ALJ 	to be 	no more 	than 	coincidentally
concurrent with 	the 	evaluation dated August 	8, 	1984, 	and which
ultimately 	led 	to her 	termination. 	The performance 	evaluation
upon 	which Mrs. 	Hamaker's 	separation was based 	covered 	the
period from June 17, 	1983, 	to June 17, 	1984. 	Mrs. Hamaker was
absent 	on 	leave 	from April 	4 through July 15, 	1984. 	No
significance 	can be 	reasonably attached 	to 	the 	employer's 	delay
in discussing Hamaker's 	evaluation 	due 	to her absence.
C. 	Shifting or 	Inconsistent 	Justification. 	No facts were
proven 	that 	showed 	the 	employer gave 	varying 	justifications 	for
the 	Charging 	Party's 	termination.
66

D. 	Departure 	from Established 	Procedures. 	Again, 	we 	find no
evidence 	in 	the 	record 	that 	the 	employer 	departed 	from 	its
established 	procedure*
As 	none of the 	above 	elements could be 	shown, 	the Charging
Party has 	failed to establish a 	prima 	facie 	case 	that 	she 	was
terminated because 	of her exercise 	of protected 	rights.
The ALJ made 	specific 	findings 	that 	the 	Respondent had
ample 	business 	justification 	for 	its 	action 	against 	Charging
Party. 	The 	findings were unnecessary, 	however, 	because the
Charging 	Party never proved 	a prima 	facie 	case, 	and 	thus 	the
burden of 	proof 	never 	shifted 	to 	the 	employer 	to 	show that,
"but 	for" 	the protected activity, 	the 	termination would
nonetheless 	have 	taken place.
ORDER
The 	unfair practice charge 	and 	complaint 	filed 	in 	this 	case
are 	hereby DISMISSED.
Chairperson 	Hesse 	and Member 	Porter 	joined 	in 	this 	Decision.
7

STATE OF 	CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION. 	Chapter 	512.
Charging 	Party,
v .
KERN COUNTY OFFICE OF EDUCATION.
R e s p o n d e n t .
Unfair 	Practice
Case No. 	LA-CE-2168
PROPOSED DECISION
(12/30/85)
Appearances: 	Harry J. Gibbons. 	Jr.. Attorney. 	California
School 	Employees 	Association for 	Charging Party;
Frank J. Fekete. Attorney. 	Schools Legal Service, 	for
Respondent.
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On May 2, 	1985. 	the California School Employees
Association. 	Chapter 512, 	(hereafter Charging Party, 	CSEA or
Association) 	filed 	an unfair 	practice 	charge with 	the Public
Employment Relations 	Board 	(hereafter Board 	or PERB) 	against
the Kern County Office 	of 	Education 	(hereafter Respondent 	or
Superintendent of 	Schools) 	alleging violation of 	sections 	3543,
3543.1, 	3543.5(a) 	and 	(b) 	of the Educational Employment
Relations 	Act 	(hereafter EERA or Act) 	(commencing with section
3540 	et seq. 	of 	the Government Code. l On June 4. 	1985, 	the
1 All 	s e c t i o n 	r e f e r e n c e s , 	unless 	otherwise 	i n d i c a t e d , 	are
to 	the 	Government 	Code. 	Sections 	3543, 	3543.1, 	3543.5(a) 	and
(b) 	a r e 	as 	follows:
This Board agent decision has been appealed to
the Board i t s e l f and is not f i n a l . 	Only to the
extent the Board i t s e l f adopts this decision and
rationale may it be cited as precedent.
)
)
)
)
)
)
)
)
)
)
)

General Counsel 	of 	PERB 	issued 	a 	Complaint against 	the
Respondent 	in this matter. 	On June 24, 	1985. 	the Respondent
3543. 	Rights Of Employees
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee organizations 	of
their 	own choosing for 	the 	purpose 	of
representation on all 	matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also 	have 	the 	right 	to
refuse 	to 	join or 	participate 	in the
activities 	of 	employee 	organizations 	and
shall 	have 	the right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with the public 	school 	employer, 	except 	that
once 	the employees 	in an appropriate unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized 	pursuant 	to
Section 3544.1 or 	certified 	pursuant 	to
Section 3544.7, 	no employee 	in that unit may
meet 	and 	negotiate with 	the 	public 	school
employer.
Any employee 	may at 	any 	time 	present
grievances 	to his employer, 	and have such
grievances 	adjusted, 	without 	the
intervention of 	the 	exclusive
representative, 	as 	long as 	the adjustment 	is
reached 	prior 	to 	arbitration pursuant 	to
Sections 3548.5, 	3548.6. 	3548.7. 	and 3548.8
and 	the 	adjustment 	is 	not 	inconsistent with
the terms 	of 	a written agreement 	then in
effect; 	provided 	that 	the public 	school
employer 	shall not agree 	to a 	resolution of
the 	grievance until 	the 	exclusive
representative has 	received 	a 	copy of 	the
grievance 	and 	the 	proposed 	resolution and
has 	been given the opportunity to 	file a
response.
3543.1. 	Rights 	of Employee Organizations
(a) 	Employee organizations 	shall 	have 	the
right 	to 	represent 	their 	members 	in their
22

filed 	its Answer 	to 	the Charge 	and 	the Complaint. 	The 	parties
did not meet 	in an 	informal 	conference 	in this matter. 	The
formal hearing was held on July 22, 	23, 	and 24, 	1985, 	at the
employment 	relations with 	public 	school
employers, 	except that once an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to 	Section 	3544.1
or 3544.7, 	respectively, 	only that employee
organization may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	employer. 	Employee 	organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join 	and 	may make 	reasonable
provisions 	for 	the dismissal 	of 	individuals
from membership.
(b) 	Employee organizations 	shall 	have 	the
right of 	access 	at 	reasonable 	times 	to areas
in which employees work, 	the 	right to use
institutional bulletin boards, 	mailboxes,
and other means 	of 	communication, 	subject 	to
reasonable 	regulation, 	and 	the 	right 	to use
institutional 	facilities 	at 	reasonable 	times
for 	the purpose 	of 	meetings 	concerned with
the exercise of 	the 	rights 	guaranteed by
this chapter.
(c) 	A reasonable 	number 	of 	representatives
of 	an exclusive 	representative 	shall 	have
the 	right 	to 	receive 	reasonable 	periods 	of
released 	time without 	loss 	of 	compensation
when meeting 	and 	negotiating 	and 	for 	the
processing of 	grievances.
(d) 	All 	employee organizations 	shall have
the 	right 	to 	have membership dues 	deducted
pursuant 	to 	Sections 	13532 	and 	13604.2 	of
the Education Code, 	until 	such time as an
employee 	organization 	is 	recognized 	as 	the
exclusive 	representative 	for 	any of 	the
employees 	in an appropriate unit, 	and then
such deduction as 	to 	any employee 	in 	the
w3

Respondent's 	headquarters. 	Both 	sides 	briefed 	their 	respective
positions 	and 	the matter was 	submitted 	on November 	13, 	1985.
negotiating unit 	shall 	not 	be 	permissible
except 	to 	the exclusive 	representative.
3543.5. 	Unlawful Practices: 	Employer.
It 	shall 	be unlawful 	for 	a 	public 	school
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.
JURISDICTION
The 	parties 	stipulated 	to 	the 	Charging Party 	being 	an
exclusive 	representative 	and 	the 	Respondent 	being 	a 	public
school 	employer within the meaning 	of 	the Act.
INTRODUCTION
This 	case 	involves 	an employee 	of 	the Kern County Office 	of
Education, 	Mildred Hamaker, 	who was 	terminated from her
employment position as 	a 	custodian 	in November 	1984. 	She
alleges 	that 	the 	termination was 	in retaliation for 	her
protected activities 	on behalf 	of 	the Association. 	The
Respondent 	insists 	that whatever 	protected 	activities 	she 	did
engage 	in had 	nothing 	to 	do with 	the 	termination and 	that 	her
termination was 	the 	result 	of 	her 	not 	properly fulfilling 	the
duties 	assigned 	to 	her.
4

RESPONDENT'S MOTION 	TO DISMISS
The Respondent, 	very early in the formal 	hearing
proceedings, 	made a Motion to Dismiss 	the Charge and Complaint
in this matter. 	The Motion was 	based 	on 	its 	contention that
PERB 	should 	defer 	to 	the 	decision of 	the Personnel 	Commission
of 	the Office of 	the Kern County Superintendent 	of 	Schools. 	It
supported 	its Motion with 	the 	argument 	that 	a 	full 	evidentiary
hearing was held 	in the matter 	of Mrs. 	Hamaker's 	termination
before 	a 	hearing 	officer 	appointed 	by 	the 	Personnel 	Commission,
and at that time, 	one of Mrs. 	Hamaker's defenses was 	that she
had 	received 	discriminatory and 	retaliatory 	treatment 	by 	the
employer 	because 	of 	her 	participation as 	a member 	and 	officer
of CSEA, 	Chapter 	512. 	The hearing officer, 	in his 	conclusions
and 	recommendations 	stated, 	"I 	did not find direct evidence of
discriminatory 	or 	retaliatory 	supervisory 	treatment 	of 	this
employee." 	The Respondent 	insists 	that PERB 	should 	defer 	to
the decision of 	this neutral body, 	the Personnel Commission, 	in
precisely the 	same way 	that 	it 	does 	to 	arbitration decisions.
Respondent 	cites Local 	8599. 	United 	Steel Workers 	of America,
AFL-CIO v. 	Board of Education of 	the Fontana Unified 	School
District 	(1984) 	162 Cal.App.3d 823. 	209 Cal.Rptr. 	16 and
Hollywood Circle. 	Inc. 	v. 	Department of Alcoholic Beverage
Control, 	55 Cal.2d 728, 	361 P.2d 712 	to support 	its contentions.
The Charging Party, 	in rebuttal, 	cited, 	(1) 	the fact that
the Personnel 	Commission's 	decision, 	although administratively
5

final, 	was 	still 	subject 	to appeal 	in the Courts 	on an
Administrative Mandamus Writ, 	Code of Civil Procedure 	1094.5;
and 	(2) 	a 	number 	of 	evidentiary rulings 	of 	the Personnel
Commission's 	hearing 	officer 	limiting 	the 	scope 	of 	examination
concerning union activities 	and union animus. 	The 	Charging
Party also 	requested 	a 	continuance 	to 	prepare 	and 	submit
further 	evidence 	in rebuttal 	to 	the Motion. 	It did 	this 	to
preserve 	its 	rights 	on appeal 	to 	present 	such materials 	in 	the
future should 	the Board, 	itself, 	decide 	the Motion had merit.
The 	request 	for 	a 	continuance was 	denied.
The Motion was 	denied 	by the undersigned 	on 	the 	grounds
that 	there have 	been no 	precedential 	PERB 	cases 	to date 	giving
decisions 	of 	a Personnel Commission the 	same 	level 	of 	impact 	as
an arbitration decision.
FINDINGS 	OF FACTS
I. 	Work Product 	Incidents
A. 	Background
Mildred Hamaker was 	hired 	as 	a 	custodian by the Respondent
on February 20, 	1979. 	Throughout 	the period of 	time covered by
the 	events 	of 	this 	case CSEA was 	the 	exclusive 	representative
of 	the 	bargaining unit 	to which 	the 	custodian classification
was assigned. 	Mrs. 	Hamaker did not become a member 	of CSEA
until April 	1983.
B. 	Early Evaluations
Mrs. 	Hamaker was 	formally evaluated 	four 	times 	between
June 	1980, 	when she 	first 	became a 	probationary employee and
6

June 	1982. 	Although she was 	given 	"Standard" 	or 	"Above
Standard" 	ratings on all of 	these evaluations, 	there was a
decline 	in both the number 	of 	"Above 	Standard" 	marks 	and 	the
general 	tone 	of 	the 	accompanying 	"Comments." 	In two 	instances
the 	"Comments" 	dealt with suggestions 	that 	she be careful when
lifting objects. 	During 	this period Mrs. 	Hamaker was 	off work
for 	several 	periods 	of 	time on workers' 	compensation leave due
to back injuries.
C. 	March 22. 	1983 	"Out of Work Area" 	Incident
In the morning of March 22, 	1983, 	Alan Hall, Director of
Maintenance 	and Operations 	and Hamaker's 	immediate 	supervisor,
went 	throughout 	her work area 	looking 	for 	her. 	He was
accompanied by Dr. 	Jack Stanton, 	Director, 	Research and
Development. 	They were unable 	to 	find her 	in her work area.
Approximately 20 	minutes 	later 	she 	approached 	them and 	said
that 	she 	had 	heard 	that 	they were 	looking for 	her. 	She
explained 	that 	she had 	left 	her 	area 	and gone 	over 	to 	the
nurse's 	office 	in order 	to 	be weighed as 	part 	of 	an
employer-sponsored 	"weight 	loss" 	contest. 	She 	insisted 	that
she 	had 	tried 	to 	find 	and 	report 	her 	anticipated 	absence 	to 	her
supervisor 	but was 	unable 	to 	find 	him. 	The 	contest 	rules
required 	that 	she be weighed by the 	employer's 	nurse and, 	as
the 	nurse was 	often in and out of her 	office, 	she went 	to 	the
office when she 	knew that 	the 	nurse was 	available.
Mrs. 	Hamaker 	eventually won the contest with a weight 	loss 	of
7

90 pounds. 	She 	estimates 	she was 	gone 	from her 	duty station
only a few minutes. 	The nurse's 	office 	is 	only a few hundred
feet 	away from Hamaker's work station 	in a 	separate, 	but
nearby, 	building. 	The employer 	estimated her 	absence at
20 minutes.
This 	incident 	triggered a meeting with Hamaker. 	Hall 	and
Stanton that 	same day. 	Later 	that 	day Stanton wrote 	a memo 	to
Hamaker which stated 	that 	the 	reason for 	the memo was 	to 	be
certain 	that 	the 	issues 	that were discussed 	that morning were
understood 	by all 	parties 	involved. 	The 	memo 	covered 	such
diverse topics 	as 	(1) 	the fact 	that Mrs. 	Hamaker 	had recently
been given a medical release to full 	duty, 	(2) 	a request that
she 	obtain a 	letter 	from her 	doctor 	stating 	that 	she was 	unable
to work from February 15 	to March 21, 	1983. 	(3) 	an upcoming
special evaluation of her work, 	(4) 	the parameters of her
scheduled workday. 	(5) 	a specific delineation of 	her duties,
and 	(6) 	a 	concluding 	sentence which stated 	"[D]uring 	this
discussion you were 	afforded 	the 	opportunity 	to 	ask 	any
questions 	and 	make 	any comments 	you 	deemed 	appropriate 	or
necessary."
The general 	tone 	of 	the memo was 	business-like 	but was 	not
specifically negative or 	punitive. 	There was 	no 	evidence
proffered 	at 	the 	hearing which would 	suggest 	that 	employees 	who
are meeting all 	the 	standards 	in 	their 	assigned 	tasks would
receive such a memo. 	It 	is 	inferred 	from the 	lack of 	such
CO

evidence 	and 	from the 	general 	tone 	of 	the 	text 	that 	although
the memo, 	on its 	face, 	was not punitive 	the very fact that
Mrs. 	Hamaker's 	supervisors felt 	it necessary to 	issue such a
memo 	meant 	that 	such 	letter 	could 	reasonably 	be 	interpreted 	as
a warning 	that, 	in their 	opinion, 	she 	had 	not 	previously been
adhering 	to 	the 	scheduled workday and 	list 	of 	duties 	set 	forth.
In April 	1983 Mrs. 	Hamaker became a member of CSEA.
D. 	The May 9. 	1983 	Special Evaluation
On May 9, 	1983, Mrs. 	Hamaker received a special
evaluation. 	In the 27 	separate categories 	in which she
received a 	rating she received 	13 	ratings 	of 	"Standard," 	8 	of
"Improvement Needed." 	and 	6 	of 	"Unsatisfactory." 	The 	six
"Unsatisfactory" 	ratings were 	in neatness, 	thoroughness,
attendance, 	follows 	instructions, 	initiative and attitude. 	In
the "Comments" 	section Mr. 	Hall, 	the rater, 	stated that
improvements 	in 	the deficient areas 	"are 	to 	be made 	prior 	to
her annual evaluation date of June 17, 	1983, 	or 	it will be
recommended 	that 	disciplinary action 	be 	taken by this 	office."
The 	evaluation form stated 	that Mrs. 	Hamaker 	refused 	to 	sign 	it,
Mrs. 	Hamaker 	prepared 	and 	attached 	a 	rebuttal 	to 	the
special 	evaluation. 	In her 	rebuttal 	she 	insisted 	that 	she 	had
not 	been uncooperative 	and 	that 	she 	had 	been doing 	the 	same
amount of work 	in the 	same way that 	she had 	in previous years
and 	had 	consistently 	received 	"Standard" 	or 	above 	ratings 	in
the 	past. 	She 	stated 	that 	she did 	not 	see 	how her work 	could
9

have 	changed 	so 	drastically within a 	few short months. 	With
regard 	to 	her 	"Unsatisfactory" 	rating 	in attendance 	she 	cited
the 	fact 	that 	she 	had 	"over 	two days 	of 	sick time 	left and
quite a bit of vacation time."
Mrs. 	Hamaker, 	in her rebuttal, 	also 	insisted that she did
not 	refuse 	to 	sign 	the 	evaluation form and 	that Hall 	never 	gave
it 	to her 	for 	her 	signature. 	She admits 	to having had 	health
problems 	but 	insisted 	that 	she 	had 	been doing what 	she 	could 	to
improve 	her 	health. 	In summary she 	stated 	that 	she 	felt 	that
the 	marks 	given her 	on 	that 	evaluation were 	in general 	unfair
and untrue. 	Nowhere 	in her 	rebuttal 	does 	she 	state 	that 	the
marks were a 	result 	of 	any union activity on her 	part.
E. 	The June 	17. 	1983 Annual Evaluation
On June 17, 	1983, 	Mrs. 	Hamaker 	received her Annual
Evaluation. 	She received 	25 	ratings 	of 	"Standard" 	and 2 	of
"Improvement Needed." 	The 	two 	lower 	ratings were 	in Attendance
and 	Health 	and Vitality.
The 	Comments 	section contained 	the 	following:
Mrs. 	Hamaker's 	attitude 	and work performance
have 	both 	improved 	since 	her 	special
evaluation on May 9, 	1983. 	Attendance still
has 	room for 	improvements. 	Supervisory
personnel will 	continue 	to monitor 	and
subsequent 	special 	evaluations will 	be made
if 	deemed 	necessary.
F. 	The August 8. 	1984 Evaluation and Accompanying
Termination 	Recommendation
On August 8, 	1984, 	a little over a year later, Mrs. Hamaker
received another Annual Evaluation. 	Of 	the 	27 	categories 	rated
10

she 	received 	10 	ratings of 	"Standard," 	8 	of 	"Improvement
Needed," 	and 	9 	of 	"Unsatisfactory." 	The Unsatisfactory ratings
were in Thoroughness, Meeting Schedules, 	Speed of Work, 	Volume
of Work. Adaptability, Attendance. Dependability, Organization,
and Health and Vitality. 	The 	overall 	performance 	rating 	in
this 	evaluation was 	"Unsatisfactory" 	and 	her 	termination was
recommended. 	In the 	"Comments" 	section the 	rater. 	Alan Hall,
inserted 	the 	following 	narrative:
Prior 	to Mrs. 	Hamaker's 	special evaluation
on 5/9/83, 	her work was 	becoming
increasingly unsatisfactory. 	A discussion
was 	held 	on that date and Mrs. 	Hamaker
participated 	in 	that 	discussion. 	She was
told 	at 	that 	time 	that 	there would 	be
another 	evaluation soon. 	The 	subsequent
evaluation was 	done 	in 	6/19/83. 	Her work
and 	her 	attendance 	did 	improve 	between 	the
two 	evaluations 	and was 	so 	noted. 	Since 	the
6/19/83 	evaluation, 	her 	work and 	her
attendance 	have 	steadily deteriorated. 	Her
work 	load 	has 	been 	lightened 	because 	she 	has
asserted 	to me 	that 	she 	has 	certain physical
limitations, 	but her performance remains
inadequate. 	Mrs. 	Hamaker disappears from
her 	assigned 	work 	area 	for 	extended 	periods
of 	time. 	This makes her 	inaccessible for
urgent 	requests 	or 	for 	instructions. 	She
has 	been repeatedly 	instructed 	to 	remain 	in
her 	assigned work area 	and 	she 	has
consistently 	ignored 	those 	instructions.
Her 	absences 	from her 	assigned 	area 	have
placed 	additional 	burdens 	on her 	fellow
employees 	because 	they have 	to 	substitute
for 	her 	even when she 	is 	here.
Hall 	later 	admitted 	at 	both 	the 	Personnel 	Commission
hearing and 	at 	the 	formal 	hearing 	in this 	case 	that Hamaker
never 	asserted 	to 	him 	that 	she 	had 	certain physical 	limitations.
11

Following 	these 	"Comments" 	Supervisor Hall 	inserted 	a
series 	of 	summarized 	Incident Reports 	as 	examples 	of 	the
concerns 	he 	had 	indicated 	on 	the 	evaluation 	form.
Although the PERB 	is 	not 	empowered with 	the 	authority 	to
determine whether 	the Respondent was 	justified 	in 	terminating
its 	employee 	it does 	have 	the 	right and 	responsibility to
determine whether 	or 	not 	such employee was 	terminated 	due 	to
activities 	protected 	by the EERA. 	In order 	to determine
whether 	a violation of 	the Act 	occurred 	it 	is 	necessary to
examine 	the manifested 	reasons 	given 	by 	the 	employer 	for 	such
termination.
Each of 	the 	Incident Reports 	included 	in the August 	8
evaluation will 	be set forth, 	verbatim, 	followed by such
additional 	circumstances 	as were 	presented 	at 	the 	formal
hearing:
1. 	On August 12. 	1983, Mrs. Hamaker
requested 	to 	take 	3 	days Personal Necessity,
2 	days Personal Necessity - No Reason,
2 days Comp. 	Time, 	7 days Vacation and
7 	days Off Without Pay. 	Subsequently,
Dr. 	Stanton reported 	the 	following:
Had 	discussion with Mildred 	Hamaker
about my concerns 	over 	the 	attached
requests 	to have 	the 	entire month of
September 	off 	duty.
The 	following 	points 	were 	stressed:
1. 	Earlier 	evaluation had 	criticism
and 	low rating 	regarding 	attendance.
2. 	Same criticism may be made again.
12

3. 	This 	action 	leaves 	her with no
Sick Leave 	days 	or 	Personal
Necessity days.
Mrs. 	Hamaker 	said 	she still 	needed 	to 	go.
Hamaker's 	Rebuttal
Management 	granted 	the 	leave 	although 	somewhat
reluctantly. 	If 	asking for 	the 	leave 	supports 	a 	termination
why did 	they grant 	it? 	It 	is unfair 	to 	grant a 	leave 	and 	then
chastise 	an employee 	for 	requesting 	it.
2. 	On August 31, 	1983, 	the last day prior
to her vacation, 	she 	received 	1/2 	day Sick
Leave. 	While she was on vacation, 	she
called 	to 	inform 	Irene Mitchell 	(Office
Manager) 	that one of her grandparents 	(that
she was 	traveling to visit) 	had passed
away. 	Subsequently, 	5 of her days Off
Without 	Pay were 	changed 	to 	Bereavement
Leave.
Hamaker's 	Rebuttal
She did 	not 	request 	that 	she be 	given 	the Bereavement Leave.
Mitchell 	or 	someone 	else 	in the office, 	credited her with such
leave without 	asking her 	about 	it.
3. 	On February 21, 	1984, Mrs. Hamaker
requested a Leave of Absence from 3 	p.m. 	to
5 	p.m. 	to meet with her 	physician,
Dr. 	Armstrong. 	Mrs. 	Hamaker was seen by
Jess Gaitan and Wayne Roberts 	at
approximately 4 p.m. 	at 	the Aurally
Exceptional 	Center.
An 	inquiry as 	to 	the 	time 	of 	her 	appointment
with Dr. 	Armstrong's 	office 	revealed 	that
her appointment for February 21, 	1984. 	was
for 	11:45 a.m.. 	however, 	she was 	late for
her appointment, 	according to
Dr. 	Armstrong's receptionist, 	and her
appointment 	eventually began at 	12:30 	p.m.
on that date.
13

In the second 	sentence of 	the first paragraph above, 	after
the words. 	"Mrs. 	Hamaker was" 	the words 	"reported to have been"
were 	inserted 	in cursive writing. 	The 	original 	copy of 	the
report 	itself was 	typewritten. 	These words were 	inserted 	by
the Respondent during 	an 	investigative 	process 	that 	occurred
after 	the 	initial 	recommendation had 	been promulgated. 	Later,
an 	amended 	copy was 	retyped 	and 	inserted 	into 	her 	personnel
file. 	This 	process was 	initiated after Mrs. 	Hamaker 	had 	been
given an opportunity to 	respond 	to 	these 	Incident Reports. 	The
purpose of 	the 	investigative 	process was 	to determine whether
Mr. 	Hall's 	recommendations would 	be 	supported 	by Respondent's
administration.
Note: 	This 	incident was 	never 	put 	in separate written form
by Alan Hall; 	nor was 	it discussed with Mrs. 	Hamaker until
after 	the August 	8, 	1984 	evaluation form was 	prepared.
Hamaker's 	Rebuttal
Mrs. 	Hamaker went 	to Dr. 	Armstrong's 	office on her 	lunch
break between noon and 	1 	p.m. 	for her medical 	appointment.
Dr. 	Armstrong told 	her 	to 	obtain some X-rays. 	She 	received 	an
appointment for 	the X-rays 	later 	that 	same day. 	Mrs. 	Hamaker
went 	back 	to work and 	asked 	to 	take medical 	leave 	between
3 	p.m. 	and 	5 	p.m. 	According 	to 	the uncontradicted 	testimony of
both Mrs. 	Hamaker and Mrs. 	Lucille Haven, 	the technician who
took the X-rays. 	Mrs. 	Hamaker arrived at Mrs. 	Haven's office at
3:45 	p.m. 	and 	stayed until 	4:30 	p.m. 	This 	testimony 	is
14

corroborated 	by the 	fact 	that Mrs. 	Haven 	left work at 	4:30 p.m.
in order 	to 	catch a 	bus 	and 	her 	log for 	that 	day shows 	that
Mrs. 	Hamaker was 	the 	last 	person to 	receive an X-ray that day.
The 	particular 	series 	of X-rays 	given to Mrs. 	Hamaker usually
take approximately 25 	minutes. 	The X-ray 	log was 	first 	shown
to 	the Respondent 	at 	the Personnel 	Commission hearing.
The direct 	testimony of Mrs. 	Hamaker and Mrs. 	Haven
contrast with 	the 	hearsay 	statements 	contained 	in 	the 	Incident
Report. 	According 	to 	the 	Incident Report Gaitan and Roberts
saw Hamaker 	at 	her 	husband's work 	site, 	the Aurally Exceptional
Center, 	at 	"approximately" 	4 p.m. 	Mrs. 	Hamaker 	testified she
left 	the X-ray office at 4:30, 	too 	late 	to 	return to work, 	and
proceeded 	home without ever 	going to 	the A.E. 	Center.
When Hall, 	or 	someone on his behalf, 	called Dr. 	Armstrong's
office he was 	informed, 	correctly but 	incompletely, 	that
Mrs. 	Hamaker 	had been in the doctor's 	office 	at about
12:30 	p.m. 	Based 	on 	this 	limited 	and 	incomplete 	information
Hall 	concluded 	that Hamaker 	had 	abused 	her 	medical 	leave
request. 	Neither 	Gaitan nor Roberts 	testified 	at 	the 	formal
hearing about 	the facts 	in this 	incident.
Mr. 	Hall did not ask Mrs. 	Hamaker 	for 	an explanation at the
time 	of 	the 	incident 	in January but 	rather 	noted 	the 	incident
and 	five months 	later 	used 	the 	incident 	to 	support 	a
termination 	recommendation.
4. 	On March 1, 	1984, 	on two separate
occasions, 	once 	in the morning and once 	in
15

the afternoon, 	neither time Mrs. 	Hamaker's
assigned 	breaktimes, 	Joyce Bussell 	entered
the 	Custodial 	Storage 	Room nearest 	the
Lounge 	to make announcements 	on 	the
loudspeaker. 	On both occasions,
Mrs. 	Hamaker was 	standing and apparently
reading 	a 	magazine which 	she 	quickly covered
and 	tried 	to 	conceal.
Note: 	This 	incident was 	never 	put 	in separate written form
by Alan Hall; 	nor was 	it discussed with Mrs. 	Hamaker until
after 	the August 8, 1984 	evaluation form was 	prepared.
Hamaker's 	Rebuttal
Mrs. 	Hamaker 	did 	not 	submit 	any 	testimony or 	other 	evidence
in rebuttal of 	this 	particular 	charge.
5. 	At 10:40 a.m., 	March 23, 	1984,
Barbara Bergquist 	reported 	to 	Joyce Bussell
that Mrs. 	Hamaker was 	sitting and apparently
reading 	in one of 	the 	stalls 	in the 	east
Ladies' 	Room. 	Barbara also 	stated 	that 	she
had 	observed 	that Mrs. 	Hamaker 	has 	often
been in the Ladies' 	Room - apparently
reading 	since you 	could 	clearly hear 	her
turning the pages 	of a 	book or a magazine.
Mrs. 	Hamaker also 	stayed 	for 	some 	time 	since
she 	did 	not 	leave 	the 	room 	before Barbara
did.
Joyce Bussell 	checked 	the 	same Ladies' 	Room
at 	10:50 a.m. 	and 	also 	observed 	that
Mrs. 	Hamaker was 	apparently reading and 	that
she was 	still 	there when Joyce 	left 	the 	room
several minutes 	later.
Note: 	This 	incident was 	never 	put 	in separate written form
by Alan Hall 	nor was 	it discussed with Mrs. 	Hamaker until
after 	the August 	8, 	1984, 	evaluation form was 	prepared.
Mrs. 	Hall's secretary did, 	however, 	make and keep notes about
the 	incident.
16

Hamaker's 	Rebuttal
Mrs. 	Hamaker 	denied 	that 	she ever 	took a magazine 	or 	a
newspaper 	into 	the 	ladies' 	room or 	that 	she 	ever was 	reading 	in
one of 	the 	stalls 	there. 	She also 	testified 	that she would
find reading material, 	obviously brought 	in there by others, 	in
both the men's 	and 	ladies' 	restrooms 	several 	times 	a week when
she went 	in there to clean.
6. 	Mrs. 	Hamaker was 	released at noon on
April 18 by her physician, 	Dr. 	Pulskamp, 	to
return to work. 	She did not 	report for work
until 2:05 p.m. 	on April 	19.
Note: 	This 	incident was never 	put 	in separate written form
by Alan Hall; 	nor was 	it discussed with Mrs. 	Hamaker until
after 	the August 	8, 	1984 	evaluation form was 	prepared.
Hamaker's 	Rebuttal
This 	criticism 	is 	also 	based 	on an 	incomplete
investigation. 	Had Mr. Hall 	inquired of Mrs. 	Hamaker. 	he would
have 	found 	out 	that 	although Mrs. 	Hamaker's 	doctor 	had 	released
her to return to work on April 18, 	1984. 	she had to go to the
emergency room at Mercy Hospital 	once, 	her 	doctor's 	office
once, 	and 	return to 	the hospital 	for 	further 	tests within the
next 24 hours. 	District attendance 	records 	show that
Mrs. 	Hamaker 	worked 	sporadically for 	two weeks 	after 	this
incident 	and was 	then off 	for 	the next 	two months. 	All 	of 	this
time off was due 	to worker's 	compensation leave. 	Once again,
there was 	no 	immediate 	inquiry as 	to what Mrs. 	Hamaker's
version of 	the 	incident was. 	Hall 	merely noted 	the 	incident
17

and used 	it 	two months 	later 	to 	support 	a 	termination
recommendation.
7. 	In a memo dated 4/9/84, 	from Alan Hall
to Jack Stanton. Mr. 	Hall requested
suggestions 	for 	additional 	duties 	for 	the
substitute for Mrs. 	Hamaker. 	In that memo.
Mr. 	Hall stated:
I would 	like 	to 	bring to your 	attention
that 	the 	substitute 	custodian 	for
Mrs. 	Hamaker 	(Dale McCoy) 	has been
covering all 	of 	the assigned 	tasks 	in
Mrs. 	Hamaker's work area so efficiently
that 	he 	has 	time 	for 	additional
assignments. 	This was 	also 	the case
when Mrs. 	Calhoun substituted for
Mrs. 	Hamaker 	two weeks ago.
I 	would 	like 	any 	suggestions 	you might
have 	for 	additional 	duties 	besides 	the
ones 	I 	have already given him. 	He 	is
already working 	on 	some 	areas 	that 	have
been neglected 	for 	some 	time 	because of
Mrs. 	Hamaker's 	absences 	and 	performance
evaluations.
I 	would also 	like 	to 	point out 	that
Mrs. 	Hamaker's 	routine duties 	are being
accomplished 	by Mr. 	McCoy 	in 	less 	than
3 	hours. 	She required 	8 	hours 	for 	the
same duties. 	I 	have also observed 	that
Mr. 	McCoy is 	easily located 	for
requests 	and 	instructions 	since he 	is
always working 	in 	the 	assigned work
area and he adheres 	to 	the work
schedule 	assigned 	to 	him.
Note: 	Although reduced 	to writing on April 	9. 	1984 	the
subject of 	this 	memo was 	not 	shown 	to 	or 	discussed with
Mrs. 	Hamaker until 	after 	the August 	8, 	1984 	evaluation form was
prepared.
Hamaker's 	Rebuttal
Mr. 	McCoy did not 	testify as 	to 	the 	length of 	time 	it 	took
18

him to complete his duties. 	Mrs. 	Hamaker 	insisted 	that 	it
would 	be 	virtually 	impossible 	for 	anyone 	to 	complete 	her 	former
duties 	in three hours.
8. 	On July 25, 	1984. 	Harry Coleman.
Mrs. Hamaker's leadperson. 	reported:
I 	have 	told Mrs. 	Hamaker 	on at 	least
three 	occasions 	during 	the 	last
12 months and again today that 	she 	is
to 	remain in her work area 	at all
times, 	except on her 	lunch and 	break
periods. 	The 	reason for 	these requests
is 	that too often Mrs. 	Hamaker cannot
be 	located 	in or 	near 	her work 	station
when she 	is 	needed.
Note: 	Although reduced 	to writing on July 25, 	1984 	this
memo was 	not 	shown to or discussed with Mrs. 	Hamaker until
after 	the August 8, 	1984 evaluation form was prepared.
Hamaker's 	Rebuttal
There was 	no direct evidence 	regarding Mrs. 	Hamaker 	being
out 	of 	her work area 	other 	than 	the March 	1983 	incident which
was 	discussed 	earlier. 	The March 1983 	incident, 	Hamaker
contends, 	was 	effectively rebutted 	by the 	overall 	rating of
"Standard" 	in her June 30. 	1983, 	Annual Evaluation and the
following 	"Comments" 	contained therein: 	"Mrs. 	Hamaker's
attitude 	and work 	performance 	have 	both 	improved 	since 	her
special evaluation on May 9. 	1983.
Coleman himself 	did not 	testify. 	Hamaker 	insists 	that
Coleman never 	told 	her 	he was 	upset with her 	actions 	regarding
leaving 	the 	area 	other 	than a 	memo 	concerning 	that 	subject 	from
him on March 22, 	1983. 	Rather, 	in the conversations 	she had
19

with him he 	spoke 	generally about 	all 	the 	custodians 	and 	told
Hamaker 	to 	be careful 	because 	"they are watching us." 	She did
not 	take 	these 	remarks 	to 	be 	aimed 	directly at 	her 	nor 	did 	she
interpret 	them as 	criticisms 	of 	her work performance. 	She
admits 	she 	might 	have 	said 	something 	about 	staying 	in her 	work
area 	but 	she 	really doesn't 	remember 	it. 	She 	remembers 	only
one other occasion, 	prior 	to April 	1984, 	when Coleman told her
Hall 	and 	Stanton were 	"raising hell" 	about 	custodians 	in
general.
9. 	Mrs. 	Hamaker does not demonstrate the
necessary dedication to 	the 	duties 	of 	her
position. 	Although she worked 	only 153 	days
of 	her 	250 	day schedule 	for 	1983-84 	and was
on leave July 1 through July 25, 	she has
requested vacation for 	the 	full 	period 	of
August 31 through September 	28. 	1984.
Hamaker's 	Rebuttal
Much of 	the 	lost 	time 	can be attributed 	to workers'
compensation 	leave 	and 	should 	not 	be 	held 	against 	her. 	The
vacation 	leave was 	granted 	by her 	supervisor 	and 	the
Respondent's management. 	If 	the Respondent did 	not 	feel 	she
should 	have 	taken 	the 	September 	vacation 	it 	should 	not 	have
granted 	her 	leave 	to 	do 	so. 	By granting 	her 	that vacation
period 	her 	supervisors 	are 	estopped 	from 	complaining 	that 	she
went 	on vacation.
G. 	General Work Deficiency Compilations 	by Hall's 	Secretary
Joyce Bussell, 	Hall's secretary, 	collected the written
materials 	and 	oral 	reports which formed 	the 	basis 	of 	the 	nine
sections 	of 	the June 	1984 	termination recommending 	evaluation.
20

Bussell 	did 	not 	testify as 	to when she 	began to 	formally
compile 	this 	information. 	She did 	testify that 	she had 	been
receiving 	informal 	reports 	from employees 	for 	"months" 	before
she 	began to 	compile 	them for Hall's use. 	She had not
considered 	these 	reports 	"terribly 	important" 	until 	later.
They 	became more 	important 	in 	the 	overall 	picture 	as 	their
frequency 	increased. 	Hall 	and 	Stanton mentioned 	to 	her 	that
Hamaker's 	performance was 	deteriorating.
The ladies' 	room reading incident, 	for example, 	had been
preceded by 	similar 	incidents 	for 	over 	a 	month 	prior 	to
Bussell 	actually calling 	the 	incident, 	reported 	in the June
1984 evaluation, 	to Hall's attention.
Bussell 	further 	testified 	that when Mrs. 	Hamaker 	first 	came
to 	the main building as 	a 	custodian everyone was 	pleased with
her work performance. 	However, 	in early 1982 	the custodian
hours were 	changed 	to 	8:30-5:00 	in order 	to 	conserve 	on energy
costs. 	Bussell does 	not remember what Hamaker's hours were
prior 	to 	that 	date 	but does 	remember 	that 	she 	(Hamaker)
requested 	an 	earlier 	starting 	time 	-- 	some 	time 	between 	7:00
and 	7:30 	a.m. 	The 	request was 	denied. 	The 	administration
believed that, 	for 	her 	own safety, 	a woman should 	not 	be 	in the
building alone. 	Mrs. 	Hamaker's work performance 	started 	to
deteriorate 	after 	that 	schedule 	change 	denial.
H. 	Charging Party's 	Rebuttal Witnesses
The general 	tone 	of 	both the 	nine 	Incident Reports 	attached
to 	the June 	1984 	termination recommendation as well 	as
21

Joyce Bussell's 	testimony 	support 	an 	inference 	that
Mrs. 	Hamaker's 	assigned areas were 	not 	properly cleaned 	and
otherwise 	cared 	for. 	In rebuttal, Charging Party brought 	in a
number 	of 	employees who were assigned work space 	in the 	subject
areas 	to 	testify 	in Hamaker's 	behalf.
Those 	testifying were Mark Underwood, 	a 	former 	maintenance
worker, 	Adrian Agundez, 	a former electronic equipment
repairman, 	Frances Callahan, 	a 	supervisor 	in the Payroll and
Auditing Section and Lauren Barnes, 	the Director 	of
Instructional Resource Center. 	Mr. 	Barnes went so far 	as 	to
write, 	on August 15, 	1984, 	one week after Hamaker received the
termination 	recommendation, 	an unsolicited 	memorandum praising
Mrs. 	Hamaker's 	job performance. 	However, 	Hall testified 	that
Hamaker's 	performance would 	improve 	for 	a 	certain 	period 	of
time 	after 	each negative 	evaluation or 	"talking 	to."
Mrs. 	Hamaker worked 	in the west 	end 	of 	the Respondent's
main building from about 	1980 until July 	1984 	and 	in 	the 	east
end 	from July 	1984 	until 	her 	termination. 	Callahan and
Underwood 	observed Mrs. 	Hamaker's 	performance 	in the west end
of 	the 	building during the 	time 	covered 	by Mr. 	Hall's
April 	1984 memorandum. 	Barnes 	and Agundez 	observed 	her
performance 	in 	the 	east end 	from July 1984 	until 	her
termination.
I. 	Mrs. 	Hamaker's Grievance Procedures
Mrs. 	Hamaker 	grieved her 	evaluation and 	its 	accompanying
termination 	recommendation. 	After 	the 	superintendent 	conducted
22

an investigation the grievance was 	denied on October 	25, 	1984.
According 	to 	the 	rules 	and 	regulations 	and 	other 	laws
pertaining 	to 	this 	public 	school 	employer 	a 	hearing was 	held
before 	the Personnel Commission of 	the Respondent. 	The
four-day 	hearing was 	held 	before 	an 	independent 	hearing
officer. 	During 	this 	termination hearing 17 witnesses
testified. 	9 for the Respondent and 8 for Mrs. Hamaker. 	at
least one 	of which was an adverse witness. 	Alan Hall.
Mrs. 	Hamaker's appeal was 	based on the following reasons:
1. 	The 	charges 	are untrue and do not
reflect 	the 	real 	reason for 	my dismissal.
2. 	The quality and 	speed 	of 	my work 	is 	not
and has 	never 	been the 	issue, 	and
further, 	is 	not and has 	not been below
standard.
3. 	My absences 	from work were 	due 	to
illnesses and can be so proved. 	I 	have
no 	control 	over 	an 	injury or 	illness 	and
this 	should 	not 	be 	held 	against me.
4. 	My 	immediate 	supervisor 	has
discriminated 	against 	me 	for 	my
affiliation with 	the 	employee
organization. CSEA.
5. 	If 	the facts were 	investigated, 	it could
be 	proved 	that 	the 	charges 	set 	forth are
not the true facts.
The 	hearing 	officer 	submitted 	the 	following 	conclusions 	and
recommendations:
Upon reviewing the 	findings 	of 	this 	hearing
it 	is my conclusion that 	the charges 	by the
superintendent 	are 	supported 	by 	the
evidence. 	No one charge 	in 	itself would 	be
sufficient 	to warrant 	so 	severe a 	penalty.
23

but 	taken as 	a whole 	they constitute a
pattern of 	unsatisfactory performance.
Further 	I 	did not find direct 	evidence of
discriminatory 	or 	retaliatory 	supervisory
treatment of 	this 	employee.
Therefore, 	I 	recommend to the commission
that 	the dismissal 	action taken by the Kern
County Superintendent 	of 	Schools 	be upheld.
On February 19, 	1985, 	the Personnel Commission of 	the Kern
County Superintendent 	of 	Schools 	met 	in executive 	session and
found 	that 	the 	following 	charges 	were 	sustained 	and 	that 	no
evidence 	of 	discrimination was 	found.
1. 	Lack of 	thoroughness.
2. 	Lack of 	speed and volume 	of work.
3. 	Failure 	to meet 	schedules 	and 	frequent absence
from work 	areas.
4. 	Unsatisfactory 	attendance 	and 	dependability.
5. 	Unsatisfactory health and 	vitality 	to 	meet 	the
demands of 	the 	job.
The 	reasons 	cited 	by the Commission for 	those 	findings 	are
as follows:
1. 	It was 	demonstrated 	repeatedly 	in the 	hearing
that Mrs. 	Hamaker's 	responsibilities were 	not 	carried 	out 	in a
thorough manner, 	particularly in regard 	to details 	of 	cleaning.
2. 	Lack of 	speed 	and 	volume were 	shown when
substitutes were able 	to 	accomplish her work assignment 	in 	less
time than did she. 	It was 	necessary to move her 	to 	a 	less
demanding work 	assignment 	area.
24

3. 	This 	employee was 	frequently away from her 	work
area 	and 	often 	could 	not 	be 	counted 	upon 	to 	meet 	prescribed
work schedules.
4. 	Her 	poor 	attendance 	pattern during 	1983-84,
primarily because 	of workers' 	compensation sick 	leave,
contributed 	to 	her 	unsatisfactory 	evaluation.
5. 	Mrs. 	Hamaker's health became 	so poor 	that 	she
could 	not 	accomplish 	the 	ordinary 	tasks 	of 	her 	assignment
satisfactorily. 	These 	prescribed duties 	brought 	on an
inordinate 	number 	of 	work-related 	illnesses.
The 	ruling 	of 	the 	commission was 	that 	the 	dismissal 	order
of 	the 	superintendent 	be upheld. 	The dismissal was 	effective
on November 16, 	1984.
II. 	Protected Activity
A. 	Mrs. 	Hamaker's CSEA Activities
Mrs. 	Hamaker 	started working for 	the Respondent 	in February
of 	1979, 	became 	full-time 	in June of 	1980 	and 	joined CSEA in
April 	of 	1983, 	shortly after 	she 	received 	her 	first 	"warning"
letter 	and 	shortly before 	she 	received 	her 	first 	negative
evaluation.
In February or March 1984 Melinda Poison, 	CSEA chapter
president, 	asked Hall to change Mrs. 	Hamaker's 	lunch period
from 12:00 noon to 	1:00 p.m. 	in order 	to 	allow her 	to 	attend 	a
CSEA meeting. 	The meeting was 	with 	the 	local 	CSEA 	leadership
and 	some 	out-of-towners 	to 	plan 	strategy for 	the upcoming
25

decertification election. 	Hall was 	not 	told 	of 	the 	reason for
the meeting 	but 	due 	to 	the upcoming decertification election 	it
was 	logical 	to 	assume 	that decertification was 	the 	subject 	of
the meeting. 	Mr. 	Hall 	said 	that 	there would be no 	problem with
her 	changing her 	lunch period. 	It was 	at 	this 	time 	that he
first 	learned 	of 	her 	status 	as 	an officer 	in 	the CSEA chapter,
although he 	knew of 	her membership 	earlier. 	He did 	not
remember 	exactly when or 	how he 	learned 	of 	that membership.
During late summer/early fall of 	1983, 	CSEA, 	the exclusive
representative, 	circulated 	a 	proposed 	collective 	bargaining
agreement 	among 	the 	rank-and-file. 	There 	had 	been no 	such
agreement prior 	to 	this 	time. 	A number 	of 	employees 	became
upset 	over 	this 	action and 	circulated 	the 	following 	statement
which came 	to 	be 	known as 	the Letter 	of Concern.
Employees 	of 	the Kern County Superintendent
of Schools Office receive benefits equal, 	if
not 	superior 	to, 	any other 	public agency 	in
the 	State. 	These benefits 	are paid 	by the
Kern County Superintendent 	of 	Schools 	Office
with no 	contributions 	from employees.
Unlike most school districts, 	we have now
been placed 	in a 	position of 	negotiating
increased 	costs 	for 	the 	benefits we 	receive.
We 	have 	always 	had 	a very close working
relationship with Dr. 	Richardson and
Dr. 	Blanton 	in regard 	to 	employee/employer
matters.
During 	the 	recent 	money 	shortage 	situation,
not 	one classified employee was 	laid off 	or
fired. 	This 	is contrary to 	the common
practice 	of 	school 	districts. 	Classified
employees 	are more 	easily and quickly
dismissed 	than certificated 	employees. 	In
the 	recent 	reduction of 	positions 	in the
26

office due to financial difficulties, 	no
more 	classified 	positions 	were 	reduced 	than
certificated 	positions.
CSEA. 	Chapter 512, 	is asking that its
members 	draft 	a 	collective 	bargaining
agreement 	proposal 	to 	be 	presented 	to 	the
administration. 	Since 	the 	law and 	the merit
system provide 	specific 	and 	detailed
guidelines on employee rights, 	it 	is assumed
that 	a 	collective 	bargaining agreement would
cover 	potential 	salary 	increases 	and 	fringe
benefits.
While 	the merit 	system 	is 	sometimes 	hard 	to
understand 	and 	sometimes 	hard 	to 	implement,
it does 	provide more protection for
employees 	than any 	other 	negotiated 	contract
in the 	schools 	system.
Since 	our 	office 	currently possesses 	one 	of
the 	best 	fringe 	benefit 	programs 	for
employees would 	it 	not 	be 	extremely harmful
to re-negotiate these benefits. 	By
re-negotiating a 	"good 	thing." 	employees
could 	find 	themselves 	faced 	with 	the
possibility of paying all or 	a part of
increased 	premium costs.
CSEA has 	never 	contributed 	a 	thing 	toward
building 	the 	tremendous 	job 	security we
presently have, 	toward 	building 	the
competitive 	salary 	schedule we 	presently
have, 	nor 	the tremendous 	fringe 	benefits we
presently have.
There 	is 	an old saying: 	"If 	it 	is 	not
broken, 	don't fix it." 	The only possible
thing 	that 	classified 	employees 	could 	gain
from changing our 	present 	policies 	of
representation for 	employees 	is
confrontation, 	conflict, 	controversy and
divisiveness 	with 	the 	possibility 	that 	we
could become 	the 	big 	loosers 	[sic] 	in the
end.
It 	is not right that a few (40) 	employees
should 	take 	it upon themselves 	to 	change
what 	is 	so 	important to 	so many with less
27

than 	three 	days 	notice 	and without 	giving
the 	other 	approximately 	300 	classified
employees a chance 	to express 	their views.
On 	the 	copy of 	the 	Letter 	of 	Concern entered 	into 	evidence
the 	first 	signature 	below the 	text was 	that 	of Alan Hall,
Mrs. 	Hamaker's 	immediate supervisor.
Shortly after 	this 	Letter 	of 	Concern was 	circulated 	a
number 	of 	classified 	employees 	organized 	and 	mounted 	a
decertification campaign against 	CSEA. 	The 	employees
supporting 	this 	decertification 	campaign 	formed 	an 	organization
called 	the 	Superintendent 	of 	Schools 	Classified Association or
SOSCA. 	Alan Hall was 	in favor 	of 	such campaign and went 	so far
as 	to 	carry a 	copy of 	the 	"Letter 	of 	Concern" 	out 	to 	employees
in the 	field 	in order 	to 	facilitate 	their 	signing 	such document.
Throughout 	this 	campaign Mrs. 	Hamaker 	spoke out 	in favor 	of
CSEA, 	wore 	a 	CSEA button 	to work and 	regularly attended 	CSEA
meetings. 	Sometime during 	this 	period, 	probably on January 1,
1984, 	but 	the evidence regarding the 	exact date 	is 	sparse and
conflicting, 	she assumed 	the office 	of 	the 	secretary of 	the
CSEA chapter. 	Hall was 	aware of 	her 	having become a CSEA
officer 	a month or 	two 	later. 	After 	assuming the office of
secretary, 	Hamaker would sit at 	the 	head 	table at all CSEA
meetings with the 	rest of 	the officers. 	However, 	there was 	no
evidence 	proffered 	at 	the 	hearing 	that 	stated 	or 	inferred 	that
Hamaker was 	involved 	in any grievance meetings, 	engaged 	in any
confrontations with management 	on CSEA's 	behalf 	or 	sponsored 	or
circulated 	petitions 	regarding management 	policies 	or 	positions.
28

B. 	Alan Hall's Actions 	vis-a-vis 	CSEA/SOSCA Conflict
One 	incident 	concerning Stanton. 	Hall 	and Hall's 	secretary.
Joyce Bussell, 	should be noted. 	Bussell was 	presented a
document by the 	two men. 	She gave 	it a very cursory reading.
She 	is 	very active 	in 	local 	partisan politics 	and 	has 	strong
pro-union beliefs. 	The document made her 	angry. 	Stanton and
Hall were 	both previously aware of 	her views 	on such matters.
Her 	attitude 	towards 	the 	document was 	apparent 	from her
action. 	She had 	"utter contempt" 	for 	the document, 	put 	it back
in the 	in-basket and walked 	out. 	She was 	not asked 	to 	sign the
document. 	When Dr. 	Stanton became aware 	that 	she was 	going 	to
be 	testifying at 	the 	previous 	PERB 	formal 	hearing he mentioned
to her 	that he 	had not shown her 	a 	petition but 	the Letter 	of
Concern. 	She 	is 	not 	absolutely certain whether 	the 	document
was 	the Letter 	of 	Concern or 	a decertification petition.
A decertification 	election was 	held 	and won 	by 	SOSCA on
March 24, 	1984. 	Hall was 	linked 	by at 	least 	two witnesses with
the 	dissemination of 	the 	petition 	to 	request 	a decertification
election. 	CSEA, 	however, 	contested 	the results 	and a hearing
was 	held 	in July of 	1984 	regarding 	the 	circumstances
surrounding such appeal. 	Mrs. 	Hamaker was 	not a witness at 	the
hearing. 	However. 	Hall was 	a witness. 	The hearing concluded
on July 19, 	1984. 	The PERB administrative 	law judge ordered a
new election, 	both parties 	filed exceptions 	but 	the PERB,
itself, 	affirmed 	the 	proposed 	decision and 	ordered 	a 	new
29

election 	in Office 	of 	Kern County Superintendent 	of 	Schools
(1985) 	PERB Decision No. 	533. 	The Respondent 	is presently
under 	an order 	to 	post 	the Board's 	decision. 	A new election
will 	follow.
The administrative law judge 	in that case, 	in the
Conclusions 	of 	Law section of 	her 	Proposed Decision, 	concluded
the 	following with 	regard 	to Alan Hall's 	actions 	vis-a-vis 	the
Letter 	of 	Concern:
There 	is no dispute that Hall, 	however
innocently, 	made known his 	disapproval 	of
certain CSEA activities. 	In addition to his
statements. 	Hall 	signed 	the 	letter 	of
concern and 	assisted 	in 	its 	circulation. 	On
working time, 	he 	transported 	the 	letter 	of
concern to Duane Haskins 	and 	gave 	him an
opportunity to read 	it, 	review it and 	sign
it. 	Moreover, 	during working hours, 	he
invited 	Garbett 	and 	Salazar 	to 	review and
sign 	the 	letter 	of 	concern and when 	they
indicated 	that 	they were CSEA members, 	they
were 	ordered 	back 	to work. 	In addition,
Hall directed 	two 	other 	employees. 	Joe Riehl
and Mark Underwood 	to 	go 	to 	Kathy Freeman's
office 	for 	the purpose 	of 	reading and
reviewing, 	and possibly signing, 	the 	letter
of concern.
The 	administrative 	law 	judge 	eventually 	concluded 	that,
(S)uch conduct by the 	supervisor, 	although
admittedly not egregious, 	crosses 	over 	the
line of 	a 	permissible 	expression of
opinion. 	Given the content of 	the 	letter,
given his 	active 	role 	in both 	its
distribution and 	the 	gathering 	of
signatures, 	it is found that the employer
violated 	the Act.
The Charging Party stressed, 	in 	its 	brief, 	the fact 	that
Hall's 	termination 	recommendation was 	given to Hamaker 	a 	few
30

days 	after Hall was 	called 	as 	a witness 	in the decertification
appeal 	hearing. 	However, 	it must be noted 	that Hamaker was 	on
a workers' 	compensation leave from March 28 	to July 25. 	with
the 	exception of 	a 	few partial 	and 	some 	full 	days 	in 	late
April. 	July 25 was 	the first 	time 	in over 	three months 	that
Hamaker 	had 	been 	back 	to work 	in anything 	near 	a 	full-time
capacity.
ISSUE
Was Mildred Hamaker 	terminated 	from her 	position 	as 	a
custodian at 	the Kern County Office 	of 	Education 	in violation
of section 3543. 	3543.1. 	3543.5(a) 	or 	(b)?
CONCLUSIONS 	OF 	LAW
I. 	Precedent 	and 	Test
The Board, 	in Carlsbad Unified 	School District 	(1979) 	PERB
Decision No. 	89, 	set forth the following test for 	the
disposition of 	charges 	alleging violations 	of 	section 	3543.5(a)
or (b):
(1) 	A single 	test shall 	be applicable 	in
all 	instances 	in which violations 	of
section 3543.5 	(a) 	are alleged:
(2) 	Where 	the 	charging party establishes
that 	the 	employer's 	conduct 	tends 	to 	or
does 	result 	in some harm to 	employee 	rights
granted under 	the EERA, 	a 	prima 	facie case
shall 	be deemed 	to 	exist;
(3) 	Where 	the harm to the employees'
rights 	is 	slight, 	and 	the employer 	offers
justification 	based 	on 	operational
necessity, 	the competing 	interest 	of 	the
31

employer 	and 	the 	rights 	of 	the 	employees
will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
(4) 	Where 	the harm is 	inherently
destructive of employee rights, 	the
employer's 	conduct will 	be 	excused 	only on
proof 	that 	it was 	occasioned 	by
circumstances 	beyond 	the 	employer's 	control
and 	that 	no 	alternative 	course 	of 	action
was 	available;
(5) 	Irrespective of the foregoing, 	a
charge will 	be 	sustained where 	it 	is 	shown
that 	the 	employer would 	not 	have 	engaged 	in
the 	complained-of 	conduct 	but 	for 	an
unlawful motivation, 	purpose or 	intent.
(Emphasis 	added.)
Proof 	of Unlawful 	Intent Where Offered 	or
Required
Unlawful motivation, 	purpose or 	interest 	is
essentially a 	state of mind, 	a 	subjective
condition generally 	known only 	to 	the
charged 	party. 	Direct 	and 	affirmative
proof 	is not always available or possible.
However, 	following generally accepted 	legal
principles, 	the presence of 	such unlawful
motivation, 	purpose or 	intent may be
established 	by 	inference 	from 	the 	entire
record.
In Novato Unified 	School District 	(1982) 	PERB Decision
No. 	210, 	the Board 	clarified 	the Carlsbad 	test 	for 	retaliation
or 	discrimination 	in 	light 	of 	the NLRB decision 	in Wright Line
(1980) 	105 LRRM 1169. 	In Novato, 	unlawful motive must be
proven in order 	to 	find a violation.
In both cases, 	a nexus 	or 	connection must 	be demonstrated
between the 	employer's 	conduct 	and 	the 	exercise 	of 	a 	protected
right 	resulting 	in harm or 	potential 	harm to 	that 	right.
32

In order 	to 	establish a prima facie case. 	Charging Party-
must 	first 	prove 	the 	subject 	employees 	engaged 	in 	protected
activity. 	Next, 	it must establish that 	the employer had
knowledge 	of 	such protected 	activity.
In that regard, 	section 3543 	of 	the Act grants 	public
school employees,
. 	. 	. 	the right to form, 	join, and
participate 	in the 	activities 	of 	employee
organizations 	of 	their 	own choosing for 	the
purpose 	of 	representation on all matters 	of
employer-employee 	relations.
There 	is 	little doubt 	that Mrs. 	Hamaker was 	engaged 	in some
level 	of 	protected 	activity 	in her 	role 	as 	secretary of 	the
local CSEA chapter. 	Nor 	is 	there doubt 	that 	the District, 	in
general, 	and her 	immediate supervisor, 	Alan Hall, 	in particular
were 	aware 	of 	her 	position with the Association early 	in 	1984.
The 	crucial question 	is whether 	the 	termination was 	motivated
in whole 	or 	in part 	by her 	participation 	in such protected
activity.
Any level 	of 	such activity 	is 	protected 	by the Act.
However, 	the 	level 	of 	protected activity becomes 	important
later when we 	are 	required 	to measure 	the 	reasonableness 	of 	the
Respondent's 	actions 	towards 	her. 	A negative 	employment
evaluation 	is 	more 	likely to 	be 	attributed 	to 	protected
activity when the 	subject 	employee 	is 	an active 	antagonist 	in
comparison to 	other 	employees. 	Conversely an employee who
engages 	in passive 	and 	nonconfrontational 	behavior 	is 	less
33

likely to 	incur 	the wrath 	of 	his/her 	employer 	and 	provoke 	the
type 	of 	negative 	employment 	retaliation 	that 	is 	actionable
under section 3543.5(a).
Mrs. 	Hamaker's 	"activism" 	with the CSEA was 	at a 	relatively
low level. 	She could not 	remember 	if 	she was 	elected more 	than
once 	to union office. 	She 	could 	not 	remember when 	she 	became
the 	secretary of 	the 	local 	chapter. 	She 	did 	remember 	that 	it
was 	in April 	but 	could not 	remember whether 	it was 	in 1983 	or
1984. 	Later 	she thought 	it was 	near 	the end of 	some year. 	She
also 	said 	that 	she 	"spoke up" 	at CSEA meetings 	and wore 	a 	CSEA
button at work. 	She also 	sat 	at 	the 	head 	table 	at 	those CSEA
meetings. 	She 	never 	accompanied 	or 	represented 	other 	union
members 	at grievance meetings 	nor was 	there 	any evidence 	that
she 	ever 	engaged 	in any confrontational 	or 	adversarial
dialogues with any members 	of 	supervision or 	management 	over
employer-employee 	relations 	issues.
However, 	it 	is 	not only Mildred Hamaker's CSEA
participation that 	must 	be 	examined 	in 	order 	to 	determine
whether 	or 	not 	there was 	a violation of 	the Act. 	Alan Hall's
actions 	regarding 	the 	Letter 	of 	Concern and 	the 	decertification
petition both 	left 	little doubt 	on which 	side 	of 	the CSEA/SOSCA
controversy he 	stood. 	His 	actions 	regarding 	the 	"sounding out"
of 	his 	secretary on signing 	the Letter 	of 	Concern add weight 	to
his 	partisan role. 	These facts 	are 	important 	to 	the ultimate
determination, 	as his advocacy, 	as concluded 	in the previous
34

proposed decision, 	and affirmed 	by the Board 	itself, 	in its
decision, 	would 	reasonably create a 	heightened 	level 	of
sensitivity 	to 	those 	employees 	that 	disagreed with his 	position.
The 	incident 	in early 	1984 	concerning CSEA president Poison
asking Hall 	to 	change Hamaker's 	lunch period 	in order 	to
accommodate 	the 	scheduling 	of 	a 	CSEA 	leadership meeting would
tend 	to negate, 	somewhat, 	the 	image of Hall as an avowed
supporter 	of 	the 	SOSCA cause 	and 	one 	prone 	to 	take 	swift 	and
heavy handed measures 	against 	anyone 	opposing 	his 	views.
II. 	Examples of Circumstances to be Examined
Novato 	sets 	forth examples 	of 	the 	types 	of 	circumstances 	to
be 	examined 	in a 	determination of whether 	or 	not union animus
is 	present and a motivating factor 	in the 	employer's 	action.
The 	types 	of 	circumstances 	to be examined are 	(1) 	disparate
treatment of 	the Charging Party. 	(2) 	proximity of 	time between
the 	participation 	in protected 	activity and 	the 	adverse 	action,
(3) 	inconsistent explanations of the employer's action(s), 	and
(4) 	departure 	from established 	procedures 	or 	standards. 	Each
of 	these will 	be 	examined 	in order.
A. 	Disparate Treatment 	of 	the Charging Party
The 	only 	real 	disparate 	treatment 	alleged 	by 	the 	Charging
Party 	in 	this 	case 	can be 	subsumed within the 	third 	of 	the
Novato 	enumerated 	circumstances, 	inconsistent 	explanations 	of
the employer's 	actions, 	and 	consists 	of 	the Charging Party's
rebuttal 	of 	the 	employer's 	manifested 	reasons 	for
35

Mrs. 	Hamaker's 	termination. 	These allegations will 	be dealt
with below.
B. 	Proximity of 	Time Between the Participation 	in
Protected Activity and 	the Adverse Action
There 	are 	two 	separate 	and 	distinct 	circumstances 	to 	be
analyzed with regard 	to 	this 	category. 	The 	first deals with
the beginning of Mrs. 	Hamaker's membership 	in the Association
and 	the 	second 	concerns 	a 	time 	correlation between Mr. 	Hall's
testimony 	in a 	PERB 	formal 	hearing and 	his 	recommendation of
Mrs. 	Hamaker's 	termination. 	These circumstances will be dealt
with 	separately.
1. 	Mrs. 	Hamaker's Membership Enrollment
Mrs. 	Hamaker worked for 	the Respondent 	from early 	1979 	to
June 	1980 	as 	a 	part-time 	temporary custodian. 	She 	became a
probationary full-time 	employee 	in June 	of 	1980. 	She was
evaluated 	four 	times 	between June of 	1980 	and June of 	1982.
Although her 	ratings were 	standard 	or 	above 	in all 	of 	these
evaluations 	they did 	show a 	general 	decline 	from the 	first 	to
the 	last. 	In 1983 	she 	had 	some 	difficulty with her 	immediate
supervisor, Mr. Hall, 	and their supervisor, Dr. 	Jack Stanton.
She was 	given a 	memorandum which did 	not 	specifically 	chastise
her 	but would 	not 	have 	been necessary had 	these 	two 	men felt
that 	she was 	performing her 	assigned 	tasks 	adequately.
She 	joined the CSEA a month later. 	On May 9, 	1983. 	a month
after 	she 	joined 	CSEA and 	two 	months 	after 	her 	memo 	from
36

Dr. 	Stanton she 	received 	a 	special 	evaluation with an overall
evaluation of 	"Improvement Needed."
This 	chronology is 	set forth, 	not 	necessarily to 	give added
validity to 	the negative evaluation, 	nor 	to suggest that
Mrs. 	Hamaker 	joined CSEA to 	obtain assistance 	should 	there 	be
any adverse employment action against her. 	There 	is 	no
empirical evidence 	to 	support 	such an 	inference. 	The
chronology 	is 	set 	forth to 	show that 	the 	negative 	evaluation
preceded even 	her 	membership 	and 	certainly 	whatever 	level 	of
activism she 	attained 	later 	in her 	employment 	career.
2. 	Time Correlation Between Mr. 	Hall's Testimony in a
PERB Formal Hearing and His 	Recommendation of
Mrs. 	Hamaker's Termination
In 	the usual 	circumstance 	the Charging Party attempts 	to
show that 	a 	particular 	action of 	an employee was 	followed 	by a
corresponding retaliatory employer 	reaction. 	In 	this 	case we
have 	a 	novel 	approach 	in that 	the Charging Party 	is 	attempting
to 	show that Hall's 	CSEA animus was 	heightened 	by his 	stint 	as
a witness 	in the unfair 	practice 	formal 	hearing and 	that 	this
heightened 	animus 	was 	the 	reason for 	the 	termination
recommendation.
Mr. 	Hall did 	testify at 	the PERB formal 	hearing called 	to
determine whether 	there 	had 	been an unfair 	practice 	committed
and whether 	such unfair 	practice would 	operate 	as 	a 	bar 	to 	the
certification of 	the 	results 	of 	the 	decertification election.
His 	testimony was 	given during 	the 	formal 	hearing, 	which was
37

held on July 17, 	18. 	and 	19. 	He recommended 	termination for
Mrs. 	Hamaker 	on a Classified 	Performance Review 	(evaluation
form) 	dated August 	8. 	1984. 	The Rating Period was 	from
June 17. 	1983 	to June 17, 	1984. 	The reason for the rating was
given as 	an Annual Evaluation.
Although 	the 	date 	of 	the 	recommended 	termination was
approximately six weeks 	after Hall's 	PERB 	testimony 	it 	must 	be
noted 	that Hamaker was 	not 	available 	to 	be 	given any sort 	of
review, 	annual or otherwise, 	between April 4 and July 25 with
the 	exception of 	a few days 	near 	the 	end 	of April. 	Therefore,
even 	if Hall 	had determined 	on May 	1 	that 	he must 	recommend
Hamaker's 	dismissal 	he would 	not 	have 	been able 	to 	serve 	the
termination 	recommendation on her 	until 	she 	returned 	in 	late
July. 	It 	is 	also not unreasonable for Hall 	to have delayed
preparing 	the Annual Review due 	to 	serious 	doubts 	as 	to whether
Hamaker 	would 	ever 	be 	returning 	to 	her 	employment 	after 	what
amounted 	to 	almost 	a 	four-month medical 	leave.
C. 	Inconsistent Explanations 	of 	the Employer's Action(s)
It 	is 	under 	this 	category that 	the Charging Party sets
forth what 	it 	considers 	its most 	persuasive evidence. 	Its
point 	by point 	rebuttal 	to 	each of 	the 	allegations 	set 	forth by
the 	employer 	to 	support Mrs. 	Hamaker's 	termination has 	been set
forth in the Findings of Fact, 	supra, 	and need not 	be repeated
here. 	Its rebuttal, 	in many cases, 	had some merit. 	However,
as 	pointed 	out 	before, 	PERB 	is 	not empowered with the authority
38

to determine whether 	the Respondent was 	justified 	in
terminating 	its 	employee. 	However, 	when PERB exercises 	its
authority 	to 	determine whether 	or 	not 	such employee was
terminated due 	to 	activities 	protected 	by the EERA, 	it must
examine 	the manifested 	reasons 	for 	the 	termination 	in order 	to
determine whether 	these 	reasons 	reasonably support 	the
termination. 	A determination that 	the 	reasons 	given by the
employer 	are 	not 	sufficiently plausible 	to 	support 	the
termination will 	give 	rise 	to 	an 	inference 	that 	there must 	be
some 	other 	reason for 	the 	termination. 	This 	inference 	can 	lead
to a determination, 	if supported by sufficient evidence, 	that
the 	employee 	is 	correct when he/she 	insists 	that 	the
termination was 	due 	to 	protected 	activities.
An examination of 	the 	evidence 	offered 	by 	the District 	to
support 	the 	termination and 	the 	rebuttal 	evidence 	offered 	by
Mrs. 	Hamaker 	results 	in the following synopsis.
Charges 	1, 	2 and 9 	should 	be rejected. 	Charge 	1 deals with
a 	request 	to 	go 	on leave 	that was 	granted 	by the 	employer.
Charge 2 	concerns 	an acceptance 	(a passive acceptance 	insists
the employee) 	of bereavement 	leave. 	Charge 9 	concerns the
inordinate use of workers' 	compensation leave. 	There 	is no
negative 	inference 	to 	be drawn from the 	talcing of 	a 	leave
granted by the employer. 	Mrs. 	Hamaker, 	according to the
unrebutted evidence, 	used 	the 	bereavement 	leave 	for 	exactly the
reason that 	it was 	supposed 	to be used. 	The fact 	that 	she
39

combined 	it with an already 	scheduled 	leave 	does 	not 	suggest
any impropriety. 	Workers' 	compensation leave 	is 	to be used for
the 	rehabilitation of 	persons 	injured 	on the 	job. 	If 	the
District 	feels 	there was 	something 	improper 	about 	her 	injuries
or 	the 	length of 	her 	rehabilitation they have 	their 	remedies
through the workers' 	compensation law. 	a punitive 	termination
is not one of 	those remedies.
However, 	after 	disregarding 	those 	three 	charges we 	still
have 	six other 	specific 	charges 	before us. 	They range
chronologically from February 21. 	1984, 	to July 25, 	1984. 	They
encompass 	seven separate 	incidents 	of 	either 	not 	being 	in her
work area 	at 	the 	appropriate 	time 	or 	completing 	an 	inadequate
level of work. 	The employer relied, 	directly or 	indirectly, 	on
eight separate employees. 	One of 	these employees was, 	if
anything pro-CSEA, 	or 	at 	least 	pro-union 	in general 	and 	refused
to 	have anything 	to do with either 	the Letter 	of 	Concern or 	the
decertification petition, 	testified 	that 	she 	had 	been receiving
informal 	reports 	from employees 	for 	months 	before 	she 	began 	to
compile 	them for use 	by Mrs. 	Hamaker's 	supervisor. 	The 	only
rebuttal we have 	is 	(1) 	four 	employees who 	said 	that 	they
thought Mrs. 	Hamaker was doing a good 	job, 	one of whom wrote an
unsolicited 	letter 	praising her 	job performance, 	(2) 	an X-ray
technician who 	said 	she 	administered 	an X-ray at 	the 	time 	that
two 	other 	employees 	said 	she was 	at her 	husband's 	place 	of
employment, 	and 	(3) Mrs. 	Hamaker's 	insistence that all of the
40
.

District's 	evidence 	and 	supporting 	testimony 	is 	in error. 	The
"praise" 	letter, 	it must be noted was 	dated one week after
Mrs. 	Hamaker 	received 	her 	termination 	recommendation which
raises 	a 	legitimate question of 	its 	status 	as 	"unsolicited."
In addition, 	we have 	three Certificated Employee Reviews 	on
record which encompass 	a 	15-month period 	of 	employment, 	two 	of
which 	insist 	that 	she was 	doing either 	"Improvement Needed" 	or
"Unsatisfactory" 	work, 	and 	one 	of 	"Standard." 	The 	"Standard"
and 	"Improvement Needed" 	evaluations 	preceded 	her 	becoming 	an
officer 	in CSEA. 	She also has a 	letter 	from her 	second 	level
supervisor 	dated 	16 	months 	prior 	to 	her 	termination
recommendation 	in which he 	finds 	it 	necessary to 	delineate 	her
duties 	and hours 	and make 	specific mention that 	"the 	level 	of
cleanliness 	in your 	area 	of 	responsibility has 	been acceptable
during 	these 	last 	three weeks, 	a 	period 	during which you were
not 	on duty." 	This 	letter was 	dated 	prior 	to 	her 	joining CSEA.
It 	is 	determined 	that 	there 	are 	too many 	independent
corroborating witnesses, 	too 	little 	hard 	rebuttal 	evidence and
too many negative 	employment 	evaluations 	over 	too 	long a 	period
of 	time, 	some of which was 	before any protected activity, 	to
conclude 	that 	the 	reasons 	given by the 	employer were
implausible. 	This 	is 	not necessarily a 	conclusion that 	the
employer 	was 	justified 	in dismissing 	the 	subject 	employee 	but
rather 	a 	determination that 	the 	reasons 	given by the 	employer
were not 	so 	implausible as 	to give 	rise 	to an inference 	that
there was 	some 	other 	reason for 	the 	termination.
41

D. 	Departure 	from Established 	Procedures 	or 	Standards
The Charging Party 	insists 	that 	the 	employer 	departed 	from
established 	procedures 	in 	two 	separate 	and 	distinct 	areas.
First, 	it failed to notify Mrs. 	Hamaker that various
negative 	incident 	reports 	were 	being 	prepared 	against 	her.
Second, 	the employer 	stated 	in Hamaker's June 17, 	1983 Annual
Evaluation, that:
Mrs. 	Hamaker's 	attitude 	and work 	performance
have 	both 	improved 	since 	her 	special
evaluation on May 9. 	1983. 	Attendance still
has 	room for 	improvement. 	Supervisory
personnel will 	continue 	to monitor 	and
subsequent 	special 	evaluations will 	be made
if 	deemed 	necessary.
This, 	the Charging Party insists, 	obligated 	the employer 	to
issue a 	special 	evaluation prior 	to any termination. 	No
further 	evaluations 	were 	issued 	prior 	to 	the 	termination
recommendation.
1. 	With regard 	to 	the 	first 	allegation of 	departing 	from
established 	procedures 	the 	Charging 	Party 	cites 	Education Code
section 440312 and Miller 	v. 	Chico Unified 	School 	District
(1979) 24 Cal.3d 703, 711-712.
2Education 	Code 	section 44031 	states 	as 	follows:
Personnel 	file 	contents 	and 	inspection.
Materials 	in personnel 	files 	of 	employees
which may serve 	as 	a 	basis 	for 	affecting 	the
status 	of 	their 	employment are 	to 	be made
available 	for 	the 	inspection of 	the 	person
involved.
Such material 	is 	not 	to 	include 	ratings,
reports, 	or records which (1) were obtained
42

prior 	to 	the 	employment 	of 	the 	person
involved, 	(2) 	were prepared by identifiable
examination committee members, 	or 	(3) were
obtained 	in connection with a 	promotional
examination.
Every employee shall 	have 	the 	right 	to
inspect 	such materials 	upon 	request,
provided 	that 	the request 	is made at a 	time
when such person 	is 	not 	actually required 	to
render 	services 	to 	the 	employing district.
Information of a derogatory nature, 	except
material 	mentioned 	in 	the 	second 	paragraph
of 	this 	section, 	shall not be entered or
filed unless 	and until 	the 	employee 	is 	given
notice 	and 	an opportunity 	to 	review and
comment 	thereon. 	An employee 	shall 	have 	the
right to enter, 	and have attached 	to any
such derogatory statement, 	his 	own comments
thereon. 	Such review shall 	take 	place
during normal 	business hours, 	and the
employee 	shall 	be 	released 	from duty for
this 	purpose without 	salary 	reduction.
43
Education Code section 44031. 	inter alia, 	states:
"[I]nformation of a derogatory nature, 	. 	. 	. 	shall not be
entered 	or 	filed unless 	and until 	the 	employee 	is 	given notice
and 	an opportunity 	to 	review and 	comment 	thereon." 	Miller 	v.
Chico U.S.D.. 	supra, 	states 	in pertinent part:
Unless 	the 	school 	district 	notifies 	the
employee 	of 	such derogatory material within
a 	reasonable 	time 	of 	ascertaining 	the
material 	so 	that 	the 	employee may gather
pertinent 	information in his defense, 	the
District may not 	fairly rely on 	the 	material
in 	reaching 	any decision affecting 	the
employee's 	employment 	status.
The 	Charging Party 	relied 	very 	heavily 	on 	the 	language 	just
cited 	from both 	the 	statute and Miller, 	a 	California 	Supreme

Court case. 	The Respondent, 	just as 	strongly, 	insisted that,
as Mrs. 	Hamaker was 	given the derogatory materials 	prior 	to
Mr. 	Hall's 	recommendation being relied upon by the
superintendent, 	the 	requirements 	of Miller 	and Education Code
section 44031 were met.
Both 	parties 	miss 	the 	primary 	reason 	these 	circumstances
are pertinent to a decision under Novato, 	supra. 	The 	crucial
issue 	is 	not whether 	the District violated 	an Education Code
section when it dismissed an employee; 	it 	is whether, 	based on
the alleged violation of 	the code section, 	it can be 	inferred
that 	the District 	harbored an unlawful 	motive. 	Even assuming
the Education Code was 	violated 	and 	an unlawful 	motive 	is
inferred 	by the 	trier 	of 	fact, 	this 	finding merely suggests
that 	circumstantial 	evidence 	exists 	to 	show a 	nexus 	between
Hamaker's 	protected 	conduct 	and 	the 	complained-of 	employer
conduct. 	It does 	nothing to alter 	the ultimate 	conclusion
reached 	above 	that 	the District 	had 	adequate 	reasons 	to
terminate Hamaker 	and 	therefore 	she was 	not 	terminated 	because
of 	her 	protected 	conduct.
There 	is 	also a question as 	to whether 	the Education Code
section 	is 	technically applicable 	to many of 	the 	incidents
relied upon in Mrs. 	Hamaker's 	case 	in that Mr. 	Hall's
unrebutted 	testimony 	stated 	that many of 	the 	incidents 	were 	not
reduced 	to writing 	at 	the 	time 	they occurred. 	He 	insisted 	that
he 	relied 	on his 	memory to 	prepare 	the 	summarizations 	of 	such
incidents 	when he 	prepared 	the 	termination 	recommendation.
44

This 	alleged 	breach of 	the Education Code 	section may have
properly operated 	as 	a valid 	defense 	to 	the 	charge 	before 	the
Personnel Commission and 	its 	hearing officer, 	but 	is 	only
relevant 	to 	these 	proceedings 	before PERB 	in the manner
described 	above.
2. 	The 	second 	example 	of 	the 	employer 	departing 	from
established 	procedures 	concerns 	the 	fact 	that Mrs. 	Hamaker's
June 17, 	1983 Annual Evaluation states 	that 	"subsequent special
evaluations will 	be made 	if 	deemed 	necessary." 	The 	Charging
Party 	insists 	that 	the 	fact 	that 	the 	employer 	did 	not 	issue 	any
"subsequent 	special 	evaluations" 	supports 	a 	reasonable
contention on Mrs. 	Hamaker's 	part 	that 	her 	performance was
meeting expectations. 	The 	employer's 	failure 	to 	issue 	such
evaluation(s) 	should 	estop 	it 	from terminating her.
The analysis 	of 	this 	allegation must parallel 	that 	of 	the
one above. 	The employer's 	failure 	to 	issue 	another 	special
evaluation prior 	to 	the 	termination 	recommendation 	creates 	an
inference of unlawful motive. 	However, 	as pointed out above it
does 	nothing 	to 	alter 	the ultimate 	conclusion that 	the 	employer
had 	adequate 	reasons 	to 	terminate Hamaker.
Novato describes 	four 	examples 	of 	circumstances 	to 	be
examined 	in any 	investigation of 	whether 	an employee's
employment 	status 	has 	been 	improperly denigrated 	as 	a 	result 	of
an employer's union, 	or union activity, 	animus. 	All four of
these 	examples 	have 	been 	examined 	and 	the 	resulting
45

determination 	is 	that 	the Charging Party has 	not 	been able 	to
produce 	the 	quantum of 	evidence 	necessary 	to 	create 	an
inference 	of 	the presence of union animus 	or 	that 	such animus,
if proven, 	was 	a motivating factor 	in the employer's 	action.
CONCLUSION
Based on all 	of 	the foregoing, 	it 	is 	specifically
determined 	that 	the Kern County Office 	of 	Education has 	not
violated section 3543, 3543.1, 	3543.5(a) 	or 	(b) 	of the
Educational Employment Relations Act. 	It 	is determined 	that
all 	charges 	filed 	by the Charging Party 	in 	this 	case 	are
without 	merit 	and 	should 	be 	dismissed.
PROPOSED ORDER
Based on the foregoing Findings 	of Facts, 	Conclusions 	of
Law and 	the entire 	record, 	the unfair 	practice 	charge and 	the
complaint 	in this 	case 	are 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III. 	section 32305. 	this Proposed Decision and Order 	shall
become final on January 21, 	1986, 	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
January 21, 	1986, 	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: 	December 30, 	1985 Allen 	R. 	Link
Administrative Law Judge
47