California State University, Hayward (Dees) (PERB 0869H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TOMMIE R. 	DEES,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
HAYWARD,
Respondent.
Case No. 	SF-CE-252-H
PERB Decision No. 	869-H
February 25, 	1991
Appearances: 	DiNapoli, 	Norland & Kays, 	by Gregg L. 	Kays,
Attorney, 	for Tommie R. 	Dees; 	William B. 	Haughton, 	Senior Labor
Relations 	Counsel, 	for California State University Hayward.
Before Shank, 	Camilli and Cunningham, 	Members.
DECISION AND 	ORDER
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by Tommie 	R.
Dees 	(Dees) 	to the attached proposed decision by a PERB
administrative law judge 	(ALJ). 	In his proposed decision, 	the
ALJ 	dismissed 	the 	complaint 	alleging 	unlawful 	retaliation
perpetrated 	against 	Dees 	by 	the 	California 	State 	University,
Hayward 	(CSU) 	in violation of Section 3571(a) 	and 	(b) 	of the
Higher Education Employer-Employee Act 	(HEERA).1 We have
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Section 	3 571 	(subsequently amended by Chapter 	313 	of 	the 	Statutes
of 	1989, 	effective January 	1, 	1990) 	stated in pertinent part, 	as
follows:
It 	shall 	be unlawful 	for the higher 	education
employer:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
)
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)
)
)
)
)
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______________ )

reviewed the 	entire record 	in this 	case, 	including the proposed
decision, 	Dees' 	exceptions and CSU's responses thereto, 	and find
the ALJ's 	findings 	of 	fact 	and conclusions 	of 	law to be 	free of
prejudicial 	error 	and therefore 	adopt 	them as 	the 	decision 	of 	the
Board 	itself.
The complaint 	in Case No. 	SF-CE-252-H 	is hereby DISMISSED.
Members 	Camilli 	and Cunningham 	joined 	in 	this 	Decision.
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.
22

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
TOMMIE R. 	DEES,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY
HAYWARD,
Respondent.
Case No. 	SF-CE-252-H
(formerly 	SF-CE-192-H)
PROPOSED 	DECISION
(9/10/90)
Appearances: 	DiNapoli, 	Norland & Kays, 	by Gregg L. 	Kays,
Attorney, 	for Tommie R. 	Dees; 	William B. 	Haughton, Attorney, 	for
the California 	State University, 	Hayward.
Before Fred D'Orazio, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	lengthy procedural 	history begins 	with 	an unfair
practice 	charge filed on May 21, 	1984 by Tommie R. 	Dees
(hereafter Dees 	or Charging Party) 	against 	the California 	State
University, 	Hayward 	(hereafter CSU or Respondent). 	The charge,
first amended on August 21, 	1984, 	alleges that CSU committed
fourteen 	separate acts 	of 	retaliation against Dees 	for engaging
in protected 	activity.
On September 7, 	1984, 	the General Counsel of the Public
Employment Relations 	Board 	(hereafter 	(PERB or Board) 	dismissed
twelve 	of 	the 	allegations 	and 	issued a 	complaint 	on two 	acts 	of
retaliation: 	an 	involuntary 	transfer and 	subsequent placement 	on
involuntary medical 	leave. 	The 	complaint 	alleged that 	this
conduct 	violated 	the 	Higher 	Education 	Employer-Employee 	Relations
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
)
)
)
)
)
)
)
)
)
______________ )

that 	(HEERA or Act) 	section 3571 (a) 	and 	(b).1 The complaint was
placed 	in abeyance while 	Dees 	appealed the dismissal.
On December 5, 	1985, 	while the appeal was pending, 	Dees
filed 	a 	Second Amended Charge 	alleging 	additional 	facts 	to
support his 	initial 	claim of retaliation. 	On June 	10, 	1986, 	the
PERB 	General 	Counsel 	issued 	another partial 	dismissal 	and 	a 	First
Amended Complaint. 	In addition to the allegations 	in the 	initial
complaint, 	the 	First Amended Complaint alleged that CSU
retaliated 	against 	Dees 	by 	considering him 	"absent without
authorized 	leave" 	and terminating his 	employment. 	Dees 	appealed
the 	second partial dismissal.
On January 2, 	1987, 	the Board decided Dees' 	two appeals.
The 	Board dismissed 	certain allegations, 	remanded 	some 	for
further 	investigation, 	and ordered complaints 	issued on others.
------------California State University.--Haywar--d 	(1987) 	PERB Decision
1The 	HEERA is 	codified at Government 	code 	section 	3560 	et
seq. 	Unless otherwise indicated, 	all references are to the
Government Code. 	Sections 	3571(a) 	and 	(b) 	state that it 	shall be
unlawful 	for the 	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

No. 	607-H.2 Specific 	allegations will be addressed below as
necessary.
On May 	12, 	1987, 	the PERB General Counsel issued a Second
Amended 	Complaint. 	This 	complaint 	contained approximately 	nine
allegations 	of retaliation against Dees.
Throughout the entire procedural history, 	CSU, 	through its
answers, 	has denied violating the Act.
On February 23, 	1988, 	this matter was placed in abeyance by
a 	PERB administrative 	law judge pending the outcome of Dees' 	case
before 	the California Workers 	Compensation Appeals 	Board. 	A
decision eventually 	issued 	in that 	case, 	but 	it had no 	impact on
the 	settlement 	of 	the 	instant unfair practice 	charges.
On February 	17, 	1989, 	CSU moved to dismiss all allegations.
CSU contended that, 	under a then recent Board decision, 	the 	six-
month 	statute 	of 	limitations 	in 	section 	3563.2(a) 	could not be
tolled. 	For most of the allegations, 	the complaints 	assumed the
statute 	of 	limitations 	had 	been tolled by 	grievances.
At a prehearing conference on August 2, 	1989, 	the
undersigned granted 	Respondent's 	motion to 	dismiss 	all
allegations 	in the three above-referenced 	complaints, 	except 	for
the allegation in the First Amended Complaint, 	issued on June 	10,
1986, 	concerning Dees' 	termination. 	See California State
University, 	San Diego 	(1989) 	PERB Decision No. 	718-H; 	The Regents
of 	the University of California 	(1990) 	PERB Decision No. 	826-H.
2On 	remand 	the 	case 	number was 	changed 	from SF-CE-192-H 	to
SF-CE-252-H.
w3

It was 	concluded that this particular allegation was 	timely-
filed. 	See California State University. 	Hayward, 	supraf p. 	21.
Six 	days 	of 	formal 	hearing were 	conducted by the 	undersigned
in Hayward, 	California between February 	13 and 21, 	1990. 	Final
briefs were 	submitted on June 21, 	1990.
FINDINGS 	OF 	FACT
During 	1981, 	CSU officials 	became dissatisfied with the
performance 	of 	the grounds department 	at the Hayward 	campus.
Employees 	demonstrated poor work habits, 	the rate of absenteeism
was high, 	and the grounds were 	in a general 	state of
deterioration. 	According to James Buckley, 	then assistant
director of personnel 	services, 	CSU 	initiated an investigation of
the department. 	(Buckley 	is 	now the director of personnel
services.) 	Employees 	and managers were 	interviewed and the
entire department was 	evaluated. 	Among the many recommendations
implemented as 	a result of 	the 	investigation was 	the termination
of the head of 	the grounds department. 	In December 	1982, 	Buckley
testified, 	Tony Rodriguez was hired to manage the department 	"in
a businesslike 	fashion." 	In January 	1983, 	Mario Ruiz was hired
as 	a 	supervisor in the department. 	Tommie Dees was 	a
groundsworker 	in the department 	at 	the time 	Rodriguez 	and Ruiz
were 	hired.
From the beginning, 	Dees 	had a rocky relationship with Ruiz
and Rodriguez. 	Dees 	testified 	about 	several 	incidents which he
4

viewed as harassment.3 For example, 	in April 	1983 	a group of
groundsworkers 	asked Dees 	to present 	to Rodriguez 	a health and
safety 	complaint 	concerning 	a 	road work assignment. 	According 	to
the unrebutted testimony of Margaret DuFresne, 	then a
groundsworker, 	when Dees 	attempted to present the complaint,
Rodriguez 	angrily 	"screamed at 	[Dees] 	to get his 	butt back to
work." 	In another incident, 	on April 27, 	1983, 	Ruiz told Dees 	in
a hostile tone that he would like to 	"drill" 	him. 	Ruiz
apologized 	in a meeting that 	same day where 	Dees was 	represented
by Milton Owens, 	then a California State Employees Association
(CSEA) 	representative.4 On another occasion, 	according to Dees,
Ruiz 	made 	"weird 	faces" 	in an attempt to 	intimidate him. 	In
another incident, 	Dees 	said Ruiz drove by in his vehicle and
"made all 	kinds 	of 	faces 	at me, 	and then he pretended to 	laugh
outrageously, 	rocking back and 	forth behind the 	steering wheel 	of
his truck, 	as he drove by."
Also in 	1983, 	Rodriguez told Hisashi Hara, 	a former
groundsworker who 	now holds 	the 	supervisory position 	formerly
held by Ruiz, 	that 	group meetings with groundsworkers would 	"run
3Since 	Rodriguez 	and Ruiz were not 	called to 	testify at the
hearing, 	much of 	the testimony about their conduct toward Dees 	is
uncontradicted. 	They no 	longer work 	in the 	grounds 	department 	at
CSU, 	Hayward. 	However, 	they were employed by CSU, 	Hayward on May
29, 	1985, 	the date Dees was terminated.
4At all relevant times, 	CSEA was the exclusive
representative of Unit 	5, 	operations 	support 	services. 	A
collective 	bargaining 	agreement was 	in 	effect between CSU 	and
CSEA covering that unit. 	Dees was 	a member of Unit 	5. 	Owens was
a CSEA representative; 	he 	is 	now manager of the 	custodial
department at CSU, 	Hayward.
5

a 	lot 	smoother" 	if Dees was 	not present. 	Dees 	regularly attended
these 	meetings 	and was 	outspoken on behalf 	of 	employees
concerning 	employment 	related 	matters.
Antagonism toward Dees 	spilled over 	into the 	evaluation of
his work. 	Tante Sarmiento, 	Dees' 	leadworker, 	testified that
Rodriguez' 	and Ruiz' 	repeated criticism of Dees' 	work was
unjustified. 	These 	supervisors, 	according to Sarmiento's
unrebutted testimony, 	evaluated Dees' 	work as unsatisfactory, 	but
when Sarmiento 	inspected 	the work he 	found 	it 	satisfactory.
(Even CSU, 	at the hearing, 	conceded that Dees' 	work was
satisfactory 	"when he worked.") 	Many of 	the work-related
criticisms 	occurred 	shortly after Dees 	filed the 	first 	in a
series of grievances on June 	3, 	1983.
Dees' 	June 3, 	1983 grievance claimed his 	shift was
improperly 	changed without 	the 	required 	notice 	under 	the
collective bargaining agreement. 	The grievance was 	settled
favorably 	from Dees' 	perspective at the first 	step of the
grievance procedure.
On June 	10, 	1983, 	Dees 	filed another grievance protesting
acts of 	intimidation which occurred in April 	1983 	(e.g., 	Ruiz'
"I'd like to drill you" 	comment). 	This grievance was processed
to 	step three of 	the negotiated grievance procedure, 	the 	final
step prior to 	arbitration. 	The 	grievance was 	denied by CSU.
On July 28, 	1983, 	Dees 	filed another grievance alleging
additional acts of harassment. 	For example, 	Dees 	claimed
Rodriguez 	saw him on 	campus 	en route 	from a 	grievance 	meeting
6

(concerning the June 	10, 	1983 grievance) 	to his work station and
ordered 	Sarmiento 	to write him up 	for being out 	of his work area,
even though Rodriguez 	knew of 	the 	grievance meeting. 	The
grievance 	also 	claimed that 	Rodriguez 	threatened to write 	Dees 	up
for being out of his work area at a time Dees was 	on break.
After the threat, 	Dees testified, 	Rodriguez 	chased him around the
Administration Building basement area, 	followed him to 	the plant
operations 	area, 	"snuck up" 	behind him and again chased him
around the office. 	This 	grievance was 	never processed. 	Dees
said CSU 	lost 	it.
A fourth grievance, 	filed on November 3, 	1983, 	alleged
Rodriguez 	had 	improperly 	charged 	Dees 	with 	being 	absent without
leave 	(AWOL) 	for five days. 	In fact, 	co-worker Margaret DuFrense
had given Rodriguez prior notice of 	the absence, 	Dees 	had
notified 	the 	timekeeper on the morning of 	the absence, 	and Dees
had provided 	adequate medical 	justification for the 	absence. 	In
January 	1984, 	the grievance was 	settled at 	step two of 	the
grievance procedure. 	The AWOL 	charge was 	rescinded and Dees was
reimbursed 	for 	lost monies.
In the midst of these grievances, 	on October 18, 	1983, 	Dees
was 	reassigned 	from 	the Administration Building 	to 	the North
Science Building. 	In the past, 	prior to the arrival of Rodriguez
and Ruiz, 	Dees 	had been reassigned on occasion. 	After the 	new
supervisors 	arrived, 	they 	instituted a rotation 	system. 	Thus,
the 	reassignment 	itself was 	not unusual.
7
7

Dees' 	psychologist, 	Dr. 	Robert Rosenbaum, 	issued a written
opinion that 	Dees 	would be 	"adversely 	affected by the 	change 	in
work conditions." 	Since 	the reassignment 	involved only a 	change
in work location and no change in Dees' 	actual duties, 	Buckley
asked Rosenbaum to 	clarify his 	opinion. 	Buckley didn't
understand how a mere 	change 	in 	location 	could affect 	Dees
adversely.
On November 	1, 	1983, 	Rosenbaum responded that Dees 	"feels
unsafe working 	in the basement 	of 	the 	Science Building" 	because
of 	the 	"physical 	characteristics 	of 	the room he would be using
there." 	Rosenbaum wrote 	that 	the 	reassignment 	"seems 	to have
exacerbated 	[Dees'] 	anxiety, 	and he reports an increase in
nightmares 	at the prospect of working there, 	together with fears
of 	physical 	violence." 	Rosenbaum 	concluded 	that 	the
"reassignment 	could 	lead to 	a worsening of 	[Dees'] 	psychological
conditions, 	and would best be avoided at the present time."
Neither of Rosenbaum's 	letters 	referred to Dees' 	relationship
with Ruiz 	or Rodriguez.
On November 	10, 	1983, 	a meeting was held to seek an
accommodation for Dees. 	In attendance were Dees, 	Buckley, 	Ruiz,
Rodriguez, 	and Owens. 	This was not an ordinary meeting. 	Prior
to the meeting, 	according to Owens, 	Dees 	"took off running" 	at
the mere 	sight of 	the 	supervisors. 	Eventually the meeting got
underway. 	Dees' 	fear of Ruiz and Rodriguez apparently was 	so
great that Owens, 	the CSEA representative, 	was physically
stationed between the 	two 	supervisors 	and Dees, 	who 	stood 	in the
8

doorway 	as 	the 	meeting progressed.5 Owens 	described 	the meeting
as 	a 	"circus," 	with Dees participating 	from a 	location 20 	feet
away 	from the 	others.
During the meeting, 	Buckley offered to move the 	tool 	room
from the basement 	of 	the 	Science 	Building to 	another 	location.
Buckley 	felt 	this 	offer addressed 	the 	concerns 	raised by
Rosenbaum, 	but Dees 	rejected 	it. 	Dees 	claimed the 	location of
the 	tool 	room proposed by Buckley was 	too 	close to 	the 	offices 	of
Ruiz 	and Rodriguez. 	It was 	not the North Science Building
assignment which troubled him, 	Dees 	claimed. 	Rather, 	he opposed
any 	assignment where he 	felt 	Ruiz 	and 	Rodriguez 	had 	the
opportunity 	to harass 	him. 	Dees 	further 	claimed the 	only
solution was 	at 	least 	a temporary return to 	the Administration
Building until 	a permanent 	solution could be 	found. 	Dees'
position was 	based 	in large part on the 	location of 	the
Administration Building, 	which 	is 	located close to the police
department. 	Dees 	felt that an assignment to this 	location would
enable him to run to the police quickly, 	or, 	alternatively, 	to
permit the police to respond quickly, 	in the event Rodriguez 	or
Ruiz 	threatened him. 	Dees 	also 	insisted that he take 	orders 	only
5A written 	statement prepared by 	Dees 	the next day 	gives 	the
flavor of 	the 	circumstances 	surrounding this 	meeting. 	Dees
wrote, 	among other things, 	that Ruiz and Rodriguez 	"threatened to
kill me, 	beat me up, 	or do great bodily harm and especially if
there were no witnesses 	around." 	Dees 	felt 	"Tony and Mario 	could
sneak up 	on me and 	catch me 	in a place 	I 	could not 	run from."
Dees 	labeled Tony Rodriguez 	a 	"savage primitive, 	stalking me by
sneaking up on me 	in the hallway of 	the 	Science 	Building and
would have 	liked to beat me 	or kill 	me right 	then especially 	if
there wasn't 	anyone 	around to witness."
99

from Sarmiento, 	and that he have no 	contact with 	either Rodriguez
,or Ruiz.
Buckley 	convincingly 	testified 	that 	he 	could 	have
accommodated Dees 	by reassigning him to 	another 	location, 	but 	no
agreement was 	reached because 	Dees 	rejected 	any arrangement which
included 	contact with 	either of his 	two 	supervisors.6 Under
these 	circumstances, 	Buckley 	concluded, 	no 	accommodation 	could 	be
reached.77
6On rebuttal, 	Dees 	testified that he did not refuse to have
"verbal 	contact" 	with Ruiz 	or Rodriguez. 	He 	said he merely
"preferred" 	not to have contact. 	However, 	the record 	supports
the 	finding that 	Dees 	insisted 	on no 	contact with 	these
supervisors. 	Buckley 	convincingly testified 	that 	Dees 	refused 	to
have 	such contact, 	and 	insisted 	instead on taking orders 	from
leadworker 	Sarmiento. 	Owens 	also testified that 	Dees wanted 	"all
directions" 	from Sarmiento, 	and 	said he would 	"run away" 	if 	Ruiz
or Rodriguez 	approached him. 	Other evidence 	supports 	Buckley's
and Owens' 	recollections. 	Dees' 	subsequent grievance concerning
this 	matter 	(described more 	fully below) 	also 	seeks 	a remedy
which allows 	instructions 	to 	come 	only 	from Sarmiento. 	And a
related 	complaint 	filed by 	Dees 	with 	the 	Department 	of 	Public
Safety on November 	11, 	1983, 	states that Dees wanted to work in
the Administration Building 	so 	that 	he 	could 	"run away 	from Mario
and Tony 	if 	they 	should try to get 	close 	to me." 	This 	evidence
strongly 	suggests 	that 	Dees 	considered a 	"reasonable
accommodation" 	would 	include no 	contact with Ruiz 	or Rodriguez.
7The Charging Party, 	relying primarily on two documents,
contends 	it was 	not uncommon for employees 	to have no 	contact
with 	supervisors. 	First, 	Charging Party introduced a July 	13,
1983 	memo 	from Rodriguez 	directing Ruiz 	to 	limit his 	"contact 	in
the 	field to 	leadmen only, 	except 	in the 	case of 	emergency or
safety problems." 	Buckley, 	who 	attended the key meeting where
this 	memo was 	discussed among managers 	and 	leadworkers,
convincingly testified that 	it 	is 	not CSU policy. 	He described
it 	as 	a poorly worded attempt 	to reinforce 	the role of
leadworkers 	who have 	a 	much 	larger 	area 	of 	responsibility 	than
employees. 	Buckley 	explained that 	contact with a 	supervisor,
however limited, 	is 	a required condition of 	employment.
Buckley's 	testimony was 	corroborated by Owens. 	Second, 	Charging
Party points 	to a June 	10, 	1985 	settlement agreement between CSU
and 	groundsworker Sam Walton. 	That 	agreement, 	entered 	into 	on
the 	eve 	of 	Walton's 	State 	Personnel 	Board disciplinary hearing,
10

On November 	11, 	1983, 	Rosenbaum sent Buckley another letter
clarifying his 	earlier opinion regarding Dees. 	The 	letter
stated:
Mr. 	Dees 	has paranoid 	fears 	and 	ideation
regarding two 	of 	your 	grounds 	department
supervisors. 	I have, 	of course, 	no direct
knowledge of these people 	and this 	letter
should not be 	construed as 	a 	statement about
these supervisors. 	I can state, 	however,
that because of his 	paranoid 	suspiciousness,
Mr. 	Dees' 	psychological condition is worsened
when he has 	occasion to be 	in close proximity
to 	these 	supervisors 	in 	situations which he
feels are unsafe. 	He has told me, 	however,
that he does 	feel 	safe working around your
administration building, 	apparently because
it is 	near the police 	station.
In my opinion, 	Mr. 	Dees 	is able to work in
situations were he feels he 	is 	in no danger,
but 	is 	unable to work in 	situations where his
paranoid 	fears 	about his 	supervisors 	are
activated.
On November 	15, 	1983, 	Dees was placed on medical 	suspension
by Robert Kennelly, 	CSU vice president 	for administration.
Kennelly 	stated the reasons 	for the 	suspension as 	follows:
On the basis 	of 	information provided 	by your
psychologist and your 	supervisors 	the
University has 	determined 	that 	you 	are
currently unable 	to 	carry 	out 	the 	normal
duties 	of your assignment 	as 	Groundsworker on
provides 	that Walton need not report to Ruiz, 	unless 	no other
supervisor or 	leadworker 	is 	available. 	Buckley testified 	that
this was the 	"type" 	of accommodation Dees 	sought, 	but it was not
exactly the 	same. 	Where Walton was 	not required to have 	contact
with Ruiz unless no other option was 	available, 	Dees 	sought a
flat ban on all 	contact with either Ruiz 	or Rodriguez. 	Further,
Buckley testified, 	the agreement was 	entered 	into 	to 	avoid
litigation at a 	time Walton, 	who had 	suffered an industrial
injury, 	was 	on leave under a vocational 	rehabilitation program
and his 	return was 	a 	"remote possibility." 	The Walton agreement
was 	a 	"calculated risk," 	according to Buckley, 	and did not
represent 	CSU policy.
11

the University campus. 	Under the provisions
of the Agreement between Unit 	5, 	Operations
Support Services, 	California State Employees'
Association and 	The 	California 	State
University 	you 	are 	hereby placed 	on 	leave
until 	such time 	as 	you are 	able and willing
to perform the 	full 	range of your normal
duties 	as 	and where 	assigned by your
supervisors.
You may 	return to work when you 	submit 	a
medical 	release 	confirming your ability 	to
perform your normal 	assignment without 	damage
to 	your health 	and well-being 	and 	indicate
your willingness 	to perform your 	normal
assignment 	under normal working 	conditions.
You may 	elect 	to 	use 	any 	accrued 	sick 	leave
or other 	leave 	credits while you are on
leave. 	In the 	event you exhaust your 	sick
leave 	credits 	you 	should 	contact 	the
Personnel 	Officer to 	inquire about 	non-
industrial 	disability 	insurance 	benefits
available to you.
Buckley, 	Rodriguez, 	Ruiz and Slade Lindemon, 	personnel director,
had 	input 	into this decision. 	Don Farley, 	director of plant
operations, 	also played a minor role 	in the decision-making
process. 	There 	is 	no evidence that Kennelly, 	who was 	not called
to testify, 	had Rosenbaum's November 	11, 	1983 	letter at the time
he placed 	Dees 	on 	leave. 	Asked 	if he believed Kennelly had the
letter, 	Buckley testified 	"I would be 	surprised 	if he did."
The 	authority 	for the 	action taken by Kennelly 	is 	found 	in
the contract between CSEA and CSU. 	Article 	14, 	section 	14.9,
provides 	that CSU may direct an employee to 	take 	sick 	leave 	if 	it
is 	determined 	that 	an employee 	has 	restricted ability 	to 	carry
out his duties due to 	illness.
Dees' 	refusal 	to work at the North Science Building and his
refusal 	to 	take 	direction 	from Ruiz 	and 	Rodriguez 	could 	have 	been
12

considered insubordination. 	On this basis 	alone, 	Buckley
testified, 	Dees 	could have been disciplined or considered to 	have
resigned. 	Asked why CSU placed Dees 	on medical 	leave 	instead,
Buckley explained the decision as 	follows:
It 	seemed to us 	to be the most humane thing
to do at the time. 	I mean, 	we weren't
operating 	in a vacuum; 	we did have obviously
something 	from the 	doctor 	saying he was
disturbed. 	We did -- we 	saw Mr. 	Dees visibly
shaken. 	We didn't want to compound that. 	It
seemed 	like the best 	thing to do 	at the time
was 	to 	-- 	to put him on leave until we 	could
sort things out.
On December 7, 	1983, 	Dees 	filed the 	so-called 	"medical
accommodation grievance" 	challenging 	the 	decision to place 	him 	on
leave. 	As a remedy, 	Dees 	sought the accommodation first proposed
at the November 	10, 	1983 	meeting. 	He testified that he wanted
"Tony and Mario to 	stay away 	from 	[him], 	from having direct
verbal or physical contact with 	[him]."
Dees' 	last grievance was 	filed on December 28, 	1983. 	It
covered 	several 	incidents 	of 	alleged harassment 	beginning 	in June
1983.8
At least two of Dees' 	grievances 	- the December 28, 	1983
retaliation grievance and the December 7, 	1983 	medical
accommodation grievance 	- were processed 	into 	1984. 	Grievance
meetings were attended by Dees, 	Lindemon, 	Farley, 	CSEA
representative Marilyn Sardonis, 	and Roger Meredith, 	an attorney
hired by Dees. 	Dees' 	representatives 	communicated his desire 	to
8 8All 	grievances 	were 	filed under the 	collective 	bargaining
agreement 	between CSEA and CSU. 	CSEA representatives 	were 	named
on each grievance.
13

return to work under certain conditions. 	They 	continued to
demand that CSU reassign Dees 	to an area 	such as 	the
Administration Building. 	They 	also 	raised 	the possibility 	that
Dees work only weekends 	so he would have 	no 	contact with Ruiz 	or
Rodriguez. 	They continued 	to 	insist 	that he have 	no 	contact with
Rodriguez 	or Ruiz 	and that he 	receive orders 	only 	from 	leadworker
Sarmiento. 	Dees testified that the CSU representatives, 	during
all meetings, 	misunderstood his 	concerns. 	These representatives,
he 	claimed, 	erroneously believed he was 	afraid of 	the 	tool 	room.
However, 	he was 	not afraid of the tool room. 	He was 	afraid of
working 	in any 	isolated 	location where 	Ruiz 	and 	Rodriguez 	had 	the
opportunity 	to 	harass 	and abuse him.
Further processing of Dees' 	grievances 	for all 	intents 	and
purposes 	stopped on or about May 21, 	1984, 	when he filed the
instant unfair practice charge against CSU, 	and a 	separate unfair
practice 	charge 	against CSEA.9 Apparently, 	the 	grievances were
informally placed 	in abeyance. 	Dees 	adopted a 	new 	strategy of
seeking redress 	through PERB.
Meanwhile, 	Dees 	eventually exhausted his 	leave 	credits 	and
some action was 	necessary to define his 	employment 	status. 	On
March 8, 	1984, 	Lindemon informed Dees that his 	leave credits were
exhausted, 	and he must be placed on unpaid 	leave 	status, 	return
9Dees' 	alleged CSEA breached the duty of 	fair representation
in the manner it processed the various 	grievances. 	The Board, 	on
March 	14, 	1985, 	upheld a Regional Attorney dismissal of the
charge. 	Dees v. 	California 	State Employees Association 	(1985)
PERB Decision No. 	496-H; 	See also Dees v. 	California State
Employees Association 	(1986) 	PERB Decision No. 	590-H.
14

to work or terminate 	employment. 	Lindemon explained 	each option.
With respect to Dees' 	possible return to work, 	Lindemon wrote:
If 	you 	are able 	and willing to 	return to
work, 	you 	should contact your supervisor,
Mr. 	Mario Ruiz, 	immediately. 	Upon your
return, 	you must 	submit a physician's 	or
psychologist's written 	statement 	to 	confirm
that you are able 	to 	resume your employment
without 	endangering your health. 	Resumption
of 	your assignment must 	include 	normal
working 	relations 	with your 	supervisors 	as
explained 	in Dr. 	Kennelly's 	memo to you on
11/15/83.
Lindemon concluded the memo: 	"inaction would result 	in
termination of 	your 	employment 	since 	you have 	not 	requested 	an
approved 	leave."
After Dees 	and 	Lindemon 	exchanged 	additional 	correspondence,
CSEA representative Sardonis, 	on April 	12, 	1984, 	informed
Lindemon that Dees was able to work. 	She objected to Lindemon
contacting 	Dees 	directly while 	the 	related grievance was 	pending,
and 	she asked 	for a meeting to work out 	a 	"reasonable
accommodation." 	Further discussions were 	held 	during 	the 	1984
grievance meetings, 	but the parties' 	positions remained
unchanged.
Since Dees 	did not respond to Lindemon's March 	8, 	1984 	memo,
he was 	placed 	on unpaid 	leave 	status 	for 	an 	indefinite period 	of
time. 	According to Buckley, 	the normal practice 	is 	to terminate
an 	employee who 	is 	absent without approved 	leave 	for more 	than
five days. 	However, 	Dees was not terminated because of his
outstanding grievances. 	Buckley 	feared that, 	under the
circumstances, 	termination would be viewed as 	retaliation.
15

By September 	1984, 	Dees' 	two outstanding grievances 	-
concerning 	alleged 	retaliation 	and 	the 	attempt 	at 	securing 	an
accommodation regarding his 	work assignment 	- 	had reached 	step
three of 	the negotiated grievance procedure. 	The next 	step 	is
arbitration. 	Only CSEA can 	invoke 	arbitration under the
contract.
On September 	13, 	1984, 	CSU employee relations 	specialist
Irene Cordoba, 	having received no response to earlier 	inquiries,
wrote 	to 	Sardonis 	to determine the 	status 	of 	the outstanding
grievances. 	Cordoba 	suggested 	formally placing the 	grievances 	in
abeyance pending the outcome of 	the unfair practice 	charge.
However, 	she 	informed Sardonis 	that 	she would consider the
grievances 	"resolved" 	if 	she received no response by
September 28, 	1984.
On October 	1, 	1984, 	Dees wrote to Cordoba 	informing her that
CSEA no 	longer represented him. 	He wrote:
I 	have at this 	time an Appeal before the PERB
BOARD 	in which the 	IMPASSE PROCEDURE, 	Article
9 	of the PERB rules 	are 	still 	in effect
concerning the above. 	Also, 	I have requested
that 	I 	be 	represented by 	some 	independent
third party other 	than CSEA and do 	not wish
to proceed at 	level 	three but 	either go
directly 	to Arbitration by 	the 	PERB 	or 	the
above Grievances 	to be 	included 	in the 	Unfair
Charges 	in order to be 	ruled on that way as
an alternative 	at 	no 	cost 	to the Charging
Party. 	The Grievance charges 	that CSEA sent
you are 	incorrect and I 	rewrote them as 	the
Amended 	Unfair 	Labor 	Practice Charges 	against
the CSU as 	they 	should have been written in
the 	first place 	CSEA had not 	given me 	the
opportunity 	to 	edit 	or 	approve 	of 	them before
they 	illegally 	sent 	them past 	level 	II
improperly to level 	III.
16

Aside 	from unfair practice 	filings 	and workers 	compensation
claims, 	this was 	the only response CSU received 	from Dees 	after
Lindemon's March 8, 	1984 	letter.
Since Cordoba never responded to Dees 	October 	1, 	1984
letter, 	Dees 	assumed the grievances were 	in abeyance until
resolution of 	the unfair practice 	charge 	or 	the 	decision by an
arbitrator. 	However, 	the grievances were never resolved amicably
and CSEA decided not to take the 	cases 	to 	arbitration. 	This
effectively 	ended 	the processing of 	the 	grievances.
By May 	1985, 	Buckley was 	informed by Cordoba that CSEA,
despite 	inquiries by CSU, 	had made no demand to pursue the
outstanding grievances 	to 	arbitration. 	Both of 	the 	cases were
then 	considered 	closed.
Buckley, 	Lindemon and Carolyn Spatta, 	vice president 	for
administration and business 	affairs, 	met 	and decided to 	terminate
Dees. 	Neither Rodriguez 	nor Ruiz played a role 	in this 	decision.
On May 29, 	1985, 	Spatta informed Dees of his termination.
In accordance with Article 	12.1 	and 	12.2 	of
the Agreement between the 	Trustees 	of 	The
California 	State 	University 	and 	the
California State Employees' 	Association for
Unit 	5, 	Operations 	Support Services
employees, 	you are hereby notified that you
have 	automatically 	resigned 	from 	employment
with the 	University. 	You were 	informed 	in
March, 	1984 of the actions necessary to
protect your employment. 	These 	included
returning to your normal 	assignment with 	a
medical release, 	or requesting a leave of
absence 	if you were unable to return to work.
You 	failed 	to respond and your 	status 	since
17

that time 	is 	therefore absence without
authorized 	leave.10
Several 	provisions 	in the 	collective 	bargaining agreement
are relevant here. 	Article 	14, 	section 14.12, 	provides that an
employee may be placed on 	"unpaid 	sick leave," 	but 	Dees was
placed on 	"unpaid 	leave" 	in March 	1984, 	a category not covered by
the 	contract. 	The 	limit on leaves 	of absence without pay under
Article 	15, 	section 15.1, 	is one year. 	Dees remained on leave
without pay 	in excess 	of one year, 	even though he did not request
this 	status. 	Article 	15, 	section 15.3, 	of the agreement provides
that 	an employee must apply 	for a 	leave 	of 	absence without pay.
Thus, 	having made no request for a 	specific 	leave, 	Dees was
unilaterally placed 	in a 	leave 	category not 	defined by the
contract.
10Article 	12, 	sections 	12.1 	and 	12.2 	state:
Automatic 	Resignation
12.1. 	An employee who 	is 	absent 	for five 	(5)
consecutive workdays without 	securing
authorized 	leave 	from the 	President 	shall 	be
considered 	to 	have 	automatically 	resigned
from CSU employment 	as 	of 	the 	last day
worked. 	All unauthorized absences, 	whether
voluntary or involuntary, 	shall 	apply to the
five 	(5) 	consecutive workday limitation. 	The
five 	(5) 	day period referred to above 	shall
commence at the beginning of 	the 	first 	shift
of 	such absence 	and 	shall 	be deemed to have
been completed 	at the 	end of 	the 	employee's
scheduled work hours 	on the 	fifth 	consecutive
day of 	unauthorized 	absence.
12.2 	The 	President 	shall 	notify 	the 	employee 	as 	soon as
possible after 	the 	effective date 	and time 	of 	the
resignation that he/she 	is 	no 	longer a CSU
employee.
18

Later, 	in May 	1985, 	CSU terminated Dees on the basis 	that he
was 	in an AWOL 	status 	- 	as 	opposed to an unpaid leave 	status 	-
and 	considered to have 	"automatically resigned." 	The 	contract
provides 	in article 	12, 	section 	12.1, 	that an employee who is
absent without 	leave 	for more 	than 	five 	consecutive days 	may be
considered 	to 	have 	automatically resigned. 	Section 	12.2 	provides
that CSU 	shall 	notify the employee 	"as 	soon as possible" 	after
the 	effective date 	that the 	employee 	is 	no 	longer considered a
CSU employee.
Buckley 	conceded 	that 	Dees 	was 	unilaterally placed 	on
unpaid 	leave 	in March 	1984, 	and that this 	action is 	not expressly
covered by the 	contract. 	He 	also conceded that Dees 	remained on
leave without pay 	for a period 	longer than permitted by the
contract. 	But he also pointed out 	that 	Dees 	could have been
considered AWOL 	five workdays after March 8, 	1984, 	and considered
to have 	automatically resigned. 	Buckley 	said Dees was 	in
"limbo." 	He was placed in a dual 	status 	from March 	1984 	to May
1985; 	that is, 	he was put on unpaid leave for 	"payroll purposes"
so he wouldn't have to be 	separated, 	but technically he was
absent without 	leave because he 	failed to 	respond to 	the March 	8,
1984 	letter 	from Lindemon. 	Buckley testified that 	Dees was
carried on the 	rolls 	in this 	fashion because 	of 	the pending
grievances. 	Buckley felt Dees' 	termination while these
19
.

grievances were pending would have 	been 	construed 	as 	further
retaliation.11
ISSUE
Whether 	Tommie 	Dees 	was 	considered absent without 	leave 	and
terminated 	in retaliation 	for his 	protected 	activities?
DISCUSSION
The 	complaint 	in this 	case 	alleges 	that CSU took the
complained of conduct 	"because of" 	Dees' 	protected conduct.
Section 	3571(a) 	prohibits 	retaliation against an employee 	for
engaging 	in conduct protected by the Act. 	To prove unlawful
retaliation, 	the Charging Party bears 	the burden of 	showing that
Dees 	engaged 	in protected activity, 	that 	the 	Respondent knew of
the 	activity, 	and that the protected activity was 	a 	"motivating
factor" 	in the Respondent's 	decision to terminate him. 	Novato
Unified School District 	(1982) 	PERB Decision No. 	210; 	California
State University. 	Sacramento 	(1982) 	PERB Decision No. 	211-H. 	The
Charging Party must also 	show, 	under objective standards, 	that
the 	employer's 	action was 	adverse to Dees. 	Palo Verde Unified
School District 	(1988) 	PERB Decision No. 	689.
Once this 	is 	established, 	the burden shifts to the
Respondent to demonstrate that 	it would have 	taken the 	same
. . .. . Bi . . .:
11Buckley's concerns were not without 	foundation. 	Dees 	had
filed 	several 	retaliation claims 	in other 	forums. 	Among others,
these 	included 	claims 	of 	religious 	and political 	discrimination
filed with the 	U.S. 	Equal 	Employment Opportunity Commission and
the U.S. 	Department of Labor, 	Office of Federal Contract
Compliance. 	He also 	filed 	lengthy harassment and retaliation
complaints with the campus police. 	All Dees' 	complaints were
duly 	investigated by the 	appropriate 	authorities, 	but no
discrimination or retaliation was 	found.
20

action even 	in the absence 	of protected 	conduct. 	Ultimately, 	the
employee 	must 	show that 	"but 	for" 	the protected 	conduct he 	or 	she
would 	not have 	suffered the 	adverse 	action. 	Novato 	Unified
School District, 	supra. 	Once employer misconduct is
demonstrated, 	the employer's action,
. 	. 	. 	should not be deemed an unfair labor
practice unless 	the 	Board determines 	that 	the
employee would have been retained 	"but 	for"
his 	union membership or his performance 	of
other protected activities. 	Martori 	Brothers
Distributors v. 	Agricultural 	Labor Relations
Board 	(1981) 	29 Cal.3d 721, 	729-730.
In applying this 	test, 	the trier of 	fact 	is required to weigh
both direct 	and 	circumstantial 	evidence 	in order 	to determine
whether an action would not 	have been taken against 	an 	employee
"but 	for" 	the 	exercise of protected rights. 	Novato Unified
School District, 	supra; 	California State University. 	Sacramento,
supra: 	Martori Brothers Distributors v. 	Agricultural Labor
Relations Board, 	supra.
It is 	clear that, 	from early 	1983 until his termination in
May 	1985, 	Dees 	engaged in activities protected under the Act. 	He
regularly 	attended 	staff 	meetings 	and 	spoke 	out 	concerning
employment related matters. 	In April 	1983, 	for example, 	he
presented 	a 	health 	and 	safety 	complaint 	to 	Rodriguez 	concerning 	a
road work assignment. 	Pleasant Valley School 	District 	(1988)
PERB Decision No. 	708. 	He was represented, 	on April 27, 	1983, 	by
CSEA in a meeting concerning Ruiz 	threat to 	"drill" 	him. 	The
meeting 	ended with an apology 	from Ruiz. 	The right 	to
representation is 	fundamental under the Act. 	Section 3565.
21

Dees 	also 	filed 	four grievances 	from June 	3, 	1983 	to
November 3, 1983; 	after he was placed on leave, 	he 	filed two
additional grievances 	in December 	1983. 	These grievances were
filed 	under a 	collective 	bargaining 	agreement 	and 	Dees 	was
represented by CSEA 	in each 	grievance.12 North 	Sacramento 	School
District 	(1982) 	PERB Decision No. 	264. 	Dees also filed the
instant unfair practice charge on May 21, 	1984. 	He amended the
charge on August 21, 	1984 and December 5, 	1985. 	Participation in
the Board's 	unfair practice procedures 	is protected conduct. 	See
Placer Hills Union School District 	(1984) 	PERB Decision No. 	377;
Riverside Unified School District 	(1987) 	PERB Decision No. 	639.
Dees 	also filed complaints with the U.S.; 	Department of Labor and
the 	U.S. 	Equal 	Opportunity Commission alleging employment
discrimination. 	San Joaquin 	Delta 	Community College 	District
(1982) 	PERB Decision No. 	261. 	All of this conduct is protected
by the Act, 	and there 	is 	no dispute that Respondent was 	aware of
Dees protected activities. 	It 	is 	similarly clear that Dees
suffered adverse action as 	a 	result 	of 	the CSU decisions 	to place
him 	on 	leave 	and 	eventually 	terminate 	him.
In addition, 	the evidence points to 	sufficient unlawful
motive to 	connect 	the protected conduct to the 	adverse 	action.
12The 	contract between CSU and CSEA 	(Article 	5, 	section
5.14) 	provides 	for binding arbitration of 	grievances 	alleging
"reprisals 	for participation 	in union activities." 	This 	arguably
raises 	a question of deferral. 	However, 	under the contract an
employee has 	no right to 	invoke the arbitration procedure, 	and
CSEA has decided not to do 	so. 	Under the circumstances, 	deferral
would be 	futile. 	See State of California 	(Department of
Corrections') 	(1986) 	PERB Decision No. 	561-S.
22

[•he timing of 	the November 	15, 	1983 	decision to place Dees 	on
Leave 	is 	suspicious.13 This 	decision came 	soon after Dees 	filed
a series 	of grievances 	(the most recent on November 3, 	1983) 	and
was represented by Owens 	at the November 	10, 	1983 	meeting to 	seek
a resolution to his 	situation. 	Suspicious 	timing is 	evidence
7hich 	suggests unlawful motive. 	North Sacramento School 	District
supra, p. 9 .
Other 	indications 	of 	unlawful 	motive 	are 	found 	in the
conduct of Rodriguez 	and Ruiz, 	both of whom contributed to
Kennelly's November 	15, 	1983 decision to put Dees 	on medical
suspension. 	As described above, 	Dees was outspoken on behalf of
employees during meetings 	where 	employment 	related matters 	were
discussed. 	Rodriguez' 	comment to Hara that 	such meetings would
run a 	lot 	smoother if 	Dees were not present 	suggests 	that
Rodriguez was annoyed at Dees' 	conduct. 	On another occasion,
lees 	raised a health 	and 	safety 	complaint 	on behalf 	of
groundsworkers, and 	Rodriguez 	angrily told him to 	get 	his 	"butt
back to work." 	When Dees 	resorted to 	the 	grievance machinery,
Rodriguez 	responded with obstructionist 	conduct. 	He 	ordered
Sarmiento to write Dees up 	for being out of his work area, 	even
13As pointed out 	earlier in the Procedural 	History, 	all
allegations except the alleged unlawful 	termination of 	May 	29,
985, 	have been dismissed as 	time-barred and are not 	considered
here as independent violations. 	They are, 	however, 	intertwined
with the 	final termination decision. 	Because the trier of 	fact
lay 	consider the 	totality of 	evidence 	and draw inferences
reasonably justified therefrom, 	the entire 	series 	of 	events
beginning with the November 	15, 	1983 decision to place Dees 	on
leave will be considered as background to the final termination
decision.
23

though he knew that Dees was 	en route 	from a grievance meeting.
On yet 	another occasion, 	Rodriguez wrongfully changed Dees work
schedule 	and denied him 	leave, 	requiring Dees 	to 	seek redress
through protracted grievance meetings. 	Finally, 	Rodriguez 	and
Ruiz routinely criticized Dees' 	work, 	but Sarmiento's 	unrebutted
testimony 	is 	that Dees' 	work was 	satisfactory. 	Even CSU at the
hearing 	conceded that Dees' 	work was 	satisfactory 	"when he
worked." 	The 	totality of 	these 	circumstances 	suggests 	a hostile
attitude 	from which 	an unlawful 	motive 	on the part 	of 	Rodriguez
and Ruiz 	may be 	inferred.
Unlawful 	motive having been established, 	the burden now
shifts 	to 	the 	Respondent 	to demonstrate<that 	it would have taken
the 	same 	action even 	in the 	absence 	of protected activity.
As 	Respondent points 	out in its brief, 	there were valid
reasons 	to place Dees 	on leave 	in November 	1983, 	and eventually
terminate him. 	Dees' 	reassignment to the North Science Building,
the 	event 	that 	triggered 	a 	chain reaction which 	ended with 	Dees'
termination, 	was 	not 	itself an unusual assignment. 	Dees 	had been
reassigned before, 	and this 	assignment was 	consistent with
Rodriguez' 	and Ruiz' 	newly implemented rotation system.
Nevertheless, 	the reassignment resulted 	in a major confrontation
between Dees 	and his 	supervisors 	at the meeting on November 	10,
1983. 	While 	Buckley would have 	considered other 	locations 	or
even 	reassigned 	Dees 	to the Administration Building 	temporarily,
Dees' 	adamant 	insistence on having no 	contact with his
supervisors was 	simply not acceptable. 	It was 	Dees' 	insistence
24

on this point, 	not his protected activity, 	which in large part
prevented 	the 	parties 	from 	reaching 	an accommodation 	on November
10, 1983. 	,
The 	Charging Party argues 	that the 	refusal 	to permit 	Dees 	to
have 	contact 	only with 	leadworker 	Sarmiento was 	inconsistent with
CSU policy and amounts 	to disparate treatment. 	This 	argument,
based primarily on the 	Sam Walton case 	and Rodriguez' 	July 	13,
1983 memo to Ruiz, 	is not persuasive.
Buckley 	and 	Owens 	convincingly 	testified that 	it was 	not 	CSU
policy 	to permit 	employee 	contact 	only with 	leadworkers.
Leadworkers 	typically have 	a 	much 	larger 	area 	of 	responsibility
than rank-and-file employees, 	and they are not always 	available.. :".
to 	employees. 	While many directives 	are routinely conveyed to
employees 	by 	leadworkers 	in the 	course of 	day-to-day operations,
supervisors 	must be 	free 	to have 	at 	least minimal 	contact with
employees. 	It 	is 	unrealistic 	that any organization could
function under 	a 	blanket prohibition of 	supervisor-employee
contact 	such as that 	sought by Dees. 	Furthermore, 	it 	seems
likely that managerial efforts 	defining 	lines of 	authority, 	if
truly 	intended 	to 	represent 	formal policy, 	would have been
incorporated 	into 	an 	official 	CSU publication or 	operations
manual. 	A single, 	handwritten memo hardly qualifies 	as CSU
policy and, 	in fact, 	suggests 	just the opposite. 	For these
reasons, 	Buckley's testimony is 	credited and Rodriguez' 	July 	13,
1983 	memo 	is 	not 	construed as 	CSU policy.
25

In addition, 	the 	Sam Walton case 	is 	easily distinguished.
The Walton settlement, 	an isolated event, 	came on the eve of a
disciplinary hearing before 	the 	State Personnel 	Board. 	At 	the
time, 	Walton had 	suffered an 	industrial 	injury and was 	on 	leave
under a rehabilitation program. 	His 	return was 	a remote
possibility. 	As 	Buckley pointed out, 	the agreement was 	an
inducement 	to avoid 	litigation 	in circumstances where 	it was
highly unlikely that 	the parties would have 	to 	live under 	its
terms. 	More 	significantly, 	the terms of the Walton agreement are
quite different 	from the 	arrangement 	sought by Dees. 	Where
Walton was 	not required to have 	contact with Ruiz 	unless 	no 	other
option was 	available, 	Dees 	sought a 	flat ban on all 	contact with
Ruiz 	and Rodriguez. 	This was plainly unacceptable to Buckley.
Based on the foregoing, 	it is 	concluded that CSU, 	in
refusing to 	agree 	to Dees 	demand 	for no 	contact with Ruiz 	or
Rodriguez, 	did not deviate 	from established policy, 	nor did 	it
subject Dees 	to disparate treatment.
Dees' 	emotional 	condition also played a role 	in the
November 	15, 	1983 decision to place him on leave. 	At the time
the decision was 	made, 	Kennelly had two of Rosenbaum's 	letters
explaining 	that 	Dees 	would be 	"adversely 	affected" 	by 	the mere
reassignment 	to 	the North 	Science 	Building.14 Buckley 	too
14These 	letters did not mention Ruiz 	or Rodriguez. 	It has
not been established that Kennelly, 	at the time the November 	15,
1983 	memo was 	issued, 	had Rosenbaum's November 	11, 	1983 	letter
where he 	first mentioned Dees' 	reaction to his 	supervisors. 	But
even if 	it 	is 	found that Kennelly had Rosenbaum's November 	11,
1983 	letter at the time the November 	15, 	1983 memo was 	issued, 	it
would not 	alter the 	outcome here. 	Rosenbaum's 	letter merely
26
. ....

witnessed Dees' 	unusual behavior at the November 	10, 	1983
meeting, 	and he 	testified CSU representatives 	knew Dees was
"disturbed." 	Accordingly, 	CSU placed Dees 	on medical 	leave, 	an
available 	option under 	the 	collective 	bargaining 	agreement
(Article 	14, 	section 	14.9) 	for employees who have 	"restricted
ability to 	carry out his/her duties 	due 	to 	illness." 	Buckley 	saw
Dees 	"visibly 	shaken" 	and at that time didn't want to 	compound
the 	situation by more drastic 	action, 	such as 	forced resignation.
As 	pointed out by Kennelly 	in his memo, 	Dees 	could have returned
to work under 	an appropriate medical 	release which 	indicated he
was 	able 	to perform his 	"normal 	assignment under normal working
conditions." 	Dees did not do 	so.
represents 	a professional 	opinion that 	Dees 	could not work with
Ruiz 	or Rodriguez, 	a 	situation CSU found to be unworkable. 	CSU
still had the right under Article 	14, 	section 	14,9, 	of the
contract to place Dees 	on medical 	leave.
Under the circumstances described above, 	it is 	concluded
that CSU had the authority to place 	Dees 	on leave on November 	15,
1983, 	and that CSU would have taken this 	action even 	if 	Dees 	had
engaged 	in no protected 	conduct.
The 	subsequent 	actions 	of 	CSU were 	similarly not 	unlawful
under the Act. 	Beginning with the March 8, 	1984 	memo placing
Dees 	on unpaid 	leave, 	all CSU decisions were made by Lindemon,
Buckley, 	Farley and/or Spatta. 	There is no evidence 	in the
record that 	Ruiz 	or Rodriguez played a 	continuing role 	in Dees'
cases, 	nor has 	it been established that Buckley, 	Lindemon, 	Farley
or Spatta harbored an unlawful motive. 	Unlawful motive harbored
27

by Rodriguez 	and/or Ruiz 	is 	not 	automatically 	imputed to 	their
superiors. 	Therefore, 	the decisions made on March 8, 	1984 and
thereafter are not 	subject to attack under the Act, 	and the
unfair practice 	complaint must be dismissed on this 	basis 	alone.
Konocti Unified School District 	(1982) 	PERB Decision No. 	217.
Even assuming, 	for argument's 	sake, 	the presence of an
unlawful 	motive 	and a 	shift 	in the burden of proof 	to 	Respondent,
the record does 	not 	support a 	conclusion that the Act has 	been
violated. 	Lindemon's 	March 	8, 	1984 	letter placing Dees 	on unpaid
leave was prompted by Dees' 	exhaustion of 	leave credits.
Lindemon explained the available options, 	and Dees was 	clearly
.1informed 	of 	the 	required 	steps 	to 	return to work or 	secure
approved 	leave. 	Dees was warned that 	"inaction would result 	in
termination of 	your 	employment 	since you have 	not 	requested an
approved 	leave." 	But Dees 	did not comply. 	Instead, 	Sardonis
wrote 	Lindemon a 	letter 	complaining 	that 	Lindemon had 	contacted
Dees 	directly and 	asking 	for 	an accommodation. 	Further 	grievance
meetings were held and various 	options discussed, 	but 	in the 	end
no 	realistic 	alternative 	emerged.
The parties 	ultimately were 	left with 	a 	situation that
required Dees 	to 	return to work 	in the grounds department 	at CSU,
Hayward or 	seek an approved 	leave. 	Dees 	refused to 	seek an
approved 	leave 	and he 	insisted 	on returning 	to work only on 	the
condition he have no 	contact with Ruiz 	or Rodriguez. 	CSU's
continued rejection of Dees' 	proposal as unworkable was 	not
without 	foundation. 	While the conduct of Rodriguez 	and Ruiz 	left
28

much to be desired, 	it was 	not 	so outrageous 	to 	justify 	the
extreme 	and unyielding position taken by Dees. 	Rodriguez 	and
Ruiz were admittedly aggressive 	supervisors. 	However, 	based on
the 	evidence presented here, 	Dees' 	fear of physical violence was
exaggerated. 	Under these 	circumstances, 	CSU could not tolerate a
situation 	in the 	grounds 	department where 	supervisors were
precluded 	from having any contact with Dees. 	If 	Dees was 	able 	to
return to work, 	he had an obligation to have contact, 	however
minimal, 	with his 	supervisors. 	If, 	on the other hand, 	he was not
able 	to return to work, 	he had an obligation to 	seek an approved
leave. 	These were 	essentially the 	options presented to him by
Lindemon in March 	1984.
On September 	13, 	1984, 	Cordoba informed Sardonis 	she would
consider the 	grievances 	resolved 	if 	she received no 	response by
September 28, 	1984. 	On October 	1, 	1984, 	Dees sent Cordoba a
letter dismissing CSEA as 	his 	representative. 	He 	announced he
had 	"an appeal 	before 	PERB" 	and did 	"not wish to proceed at 	level
three but 	either go directly to 	arbitration by the 	PERB or the
above grievances 	to be 	included 	in the unfair charges 	in order to
be 	ruled on that way as 	an alternative at 	no 	cost to 	the 	charging
party." 	Although 	the parties 	disagree 	about the meaning of 	this
inartfully worded 	letter, 	Respondent's 	conclusion that 	it
indicated 	Dees 	had 	effectively 	abandoned 	the 	grievances 	in 	favor
of pursuing a 	remedy before 	PERB 	is 	at 	least 	a plausible
interpretation and 	therefore 	does 	not 	suggest unlawful 	motive
under the Act.
29

In any event, 	whether Dees had abandoned his 	grievances 	is 	a
moot point. 	CSEA retained 	control 	of 	the 	arbitration process
under the 	contract. 	After CSEA decided not to take Dees'
grievances to arbitration, 	the cases were closed. 	When Buckley
learned of 	this, 	he met with Spatta 	and Lindemon and they decided
to 	terminate Dees. 	Having 	failed to 	exercise any of 	the options
set out in Lindemon's March 8, 	1984 	letter, 	Dees was AWOL and
considered to have resigned under Article 	12, 	sections 	12.1 	and
12.2, 	of 	the 	collective bargaining agreement between CSU and
CSEA.
The 	Charging Party 	argues 	that 	the manner 	in which 	CSU
applied the 	contract 	suggests 	an unlawful 	motive under the Act.
The 	Board has 	no 	authority 	to 	enforce 	collective bargaining
agreements. 	Section 3563.2(b). 	However, 	the Board has the
authority to 	interpret a 	contract 	to determine 	if 	an unfair
practice has 	been committed. 	Grant 	Joint 	Union High School
District 	(1982) 	PERB Decision No. 	196.
Although 	several 	CSU 	acts 	arguably violate 	the 	agreement,
the 	overall 	application of 	the 	contract 	suggests 	no unlawful
motive. 	First, 	when Dees exhausted his leave credits, 	Lindemon,
on March 8, 	1984, 	placed him on unpaid leave, 	a category
admittedly not covered by the contract. 	Second, 	if 	the 	contract
had 	been applied 	strictly, 	Dees 	could have been declared AWOL 	and
terminated five workdays 	after March 8, 	1984. 	Third, 	CSU 	should
have 	informed Dees 	of his AWOL 	status 	"as 	soon as possible," 	but
it 	failed to do 	so. 	Instead, 	CSU carried Dees 	in an unpaid 	leave
30

status 	for much 	longer than the 	contractually prescribed 	one 	year
. period, 	even though he did not 	expressly request this 	status 	as
required 	under the 	contract.
However, 	as Buckley explained, 	Dees' 	unique situation did
not 	fit neatly 	into the various 	circumstances 	contemplated by 	the
agreement. 	Although Dees 	did not expressly request 	leave, 	he
nevertheless 	refused 	to 	return 	to work 	except under his 	own
terms. 	Dees was 	in 	"limbo." 	From March 	1984 to May 	1985, 	he was
placed on unpaid 	leave 	so he would not have 	to be 	terminated, 	but
he was 	technically AWOL because 	he didn't 	respond 	to 	Lindemon's
March 	8, 	1984 memo. 	CSU took these actions and in effect delayed
termination as part 	of 	a tactical 	decision to avoid more
allegations 	of 	retaliation. 	Whether this 	conduct was 	right or
wrong, 	it did not disadvantage Dees. 	Dees 	could have been
considered AWOL and terminated 	five workdays 	after March 	8, 	1984.
If anything, 	the 	so-called technical violations 	of the 	contract
postponed termination and 	in effect preserved Dees' 	various
options 	for 	a period 	longer 	than that 	contemplated under 	the
contract.
Nor did the application of 	the 	contract affect Dees' 	appeal
rights. 	As pointed out earlier, 	CSU had the authority under
Article 	12 	of 	the 	collective bargaining agreement to 	conclude,
based on Dees' 	AWOL 	status, 	that he had automatically resigned.
Absent 	the 	collective bargaining agreement, 	Education Code
section 89541(a), 	contains the procedure to appeal such
decisions. 	However, 	Education Code section 89541(b), 	provides
31

that 	if 	these appeal 	rights 	are 	in conflict with a 	collective
bargaining agreement, 	the agreement governs. 	In this case,
Article 	12, 	sections 	12.3, 	12.4 and 	12.5, 	of the contract provide
for direct appeal 	of 	automatic 	resignation decisions 	to 	the CSU
president. 	The contract also provides, 	in Article 	12, 	section
12.6, 	that the agreement 	supercedes 	Education Code 	section 89541.
Thus, 	CSU and the 	exclusive representative had 	earlier agreed 	to
the 	automatic 	resignation provision, 	and they also 	agreed to make
the 	contractual 	procedure 	the 	exclusive method 	to 	appeal
automatic 	resignation decisions. 	Dees was 	free 	to appeal under
this provision, 	but he chose not to do so. 	There is nothing
unlawful 	under the Act 	in negotiating 	such a provision and
implementing 	it 	under 	appropriate 	circumstances.
Based on the 	foregoing, 	it 	is 	concluded that application of
the 	contract, 	even assuming the presence of technical violations,
is 	not evidence of unlawful motive under the Act.15
CONCLUSION
Based on the 	foregoing findings 	of 	fact, 	conclusions 	of 	law
and 	the 	entire record herein, 	the 	complaint 	in Unfair Practice
15It has 	been 	found that 	the decision to 	terminate Dees was
free of unlawful motive under the Act. 	It has 	also been found
that, 	even assuming the presence of unlawful motive, 	CSU had
valid reasons 	for 	the decision to 	terminate 	Dees 	and would have
taken the 	same 	action even 	in the absence of protected conduct.
To 	the 	extent 	Charging 	Party 	contends 	Respondent's 	conduct
constitutes 	independent violations 	of 	Dees' 	Education Code and/or
constitutional 	rights, 	those matters must be taken up 	in another
forum. 	See Oxnard School District 	(1988) 	PERB Decision No. 	667;
Leek v. 	Washington Unified School District 	(1981) 	124 	Cal.App.3d
43 	[177 Cal.Rptr. 	196].
32

Charge No. 	SF-CE-252-H 	(formerly SF-CE-192-H) 	is hereby
dismissed.
Pursuant to California Administrative Code, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	if any,
relied upon for 	such exceptions. 	See California Administrative
Code, 	title 8, 	section 32300. 	A document is considered 	"filed"
when actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
on the 	last day set for filing 	". 	. 	. o r when sent by telegraph
or 	certified or Express 	United States 	mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of 	exceptions
and 	supporting brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to this proceeding. 	Proof of 	service 	shall
accompany 	each 	copy 	served 	on 	a party 	or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 	8, 	sections
32300, 	32305 and 32140.
Dated: 	September 	10, 	1990 Fred 	D'Orazio
Administrative 	Law 	Judge
33