Regents of the University of California (Costa) (PERB 1087H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROBERT A. 	COSTA,
Charging 	Party,
v.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
)
)
) 	Case No. 	SF-CE-374-H
PERB Decision No. 	1087-H
March 	1, 	1995
)
)
)
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Appearances: 	Robert A. 	Costa, 	on his own behalf; 	Lawrence W.
Hanson, 	Labor Relations Advocate, 	for the Regents of the
University of 	California.
Before Blair, 	Chair; 	Carlyle and Johnson, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by Robert A.
Costa 	(Costa) 	to 	the proposed decision of a PERB administrative
law judge 	(ALJ) 	(attached hereto). 	In his proposed decision, 	the
ALJ dismissed Costa's 	unfair practice 	charge 	in which he 	alleged
that 	the 	Regents 	of 	the University of 	California 	(University)
unlawfully laid him off 	in violation of 	section 3571(a) 	of 	the
Higher Education Employer-Employee 	Relations Act 	(HEERA).1
HEERA 	is 	codified at 	Government 	Code 	section 3560 	et 	seq.
Section 3571 states, 	in pertinent part:
It 	shall 	be unlawful 	for 	the higher education
employer to do any of 	the 	following:
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	Costa's 	exceptions 	and 	the University's 	response
thereto. 	The Board finds 	the ALJ's 	findings 	of 	fact 	and
conclusions 	of 	law to be without prejudicial 	error and,
therefore, 	adopts 	them as 	the decision of 	the Board itself.
ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	SF-CE-374-H are hereby dismissed.
Chair Blair and Member Johnson joined 	in this. Decision.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROBERT A. 	COSTA,
Charging 	Party,
v.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	SF-CE-374-H
PROPOSED DECISION
(10/24/94)
)
)
)
)
)
)
)
Appearances: 	American Federation of 	State, 	County and Municipal
Employees, 	Council 	10, 	by Mary Higgins, 	for Robert A. 	Costa;
Lawrence Hanson, 	Labor Relations Advocate, 	for the Regents 	of 	the
University 	of 	California.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
Robert A. 	Costa 	(Costa) 	filed an unfair practice 	charge on
May 12, 	1993. 	After investigation, 	and on June 10, 	1993, 	the
deputy general 	counsel 	of 	the 	Public 	Employment 	Relations 	Board
(PERB 	or Board) 	issued a 	complaint against 	the Regents 	of 	the
University of 	California 	(University). 	The 	complaint alleged
that 	from 1988 	through 1992, 	Costa exercised his 	Higher Education
Employer-Employee Relations Act 	(HEERA or Act)1 rights by
obtaining 	representation 	from the American 	Federation 	of 	State,
County and Municipal 	Employees 	(AFSCME), 	and by complaining on
his 	own behalf about 	overtime, 	time 	clock procedures and
reclassification. 	It 	was 	further alleged that because 	of 	this
activity, 	the University laid Costa off 	from his position as
HEERA	1HEERA 	is 	found 	in 	Government 	Code 	s e c t i o n 	3560 	et 	seq. 	All
s e c t i o n 	r e f e r e n c e s 	a r e 	to 	t h e 	Government 	Code 	u n l e s s 	otherwise
n o t e d .
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.

storekeeper. 	This 	action was 	alleged 	to be a violation of
section 3571 (a) .2
The University filed its answer on July 2, 	1993, 	denying any
violation of 	the Act.
A 	PERB-conducted 	settlement 	conference 	did 	not 	resolve 	the
dispute. 	Formal hearing was 	conducted on July 6, 	1994. 	The
University filed its post-hearing brief 	on July 27, 	1994. 	Costa
acknowledged the University's brief on August 22, 	1994, 	and
indicated 	that 	a 	response 	would be 	forthcoming. 	None 	was
received 	by 	the 	undersigned.
FINDINGS 	OF 	FACT
Mr. 	Costa was 	an employee and the University 	is 	an employer
within the meaning of 	the Act.
Costa 	has 	been 	employed within 	the 	University 	reprographics
department 	(department) 	as a storekeeper since August 	1986.
Costa is 	a member of AFSCME, 	the exclusive representative of
clerical 	and 	service 	employees 	at 	the University. 	Keith Braxton
(Braxton) 	has been the department manager since 	1987.
The 	department 	also 	employed 	reprograhic 	technicians 	and
press 	operators who worked 	in the bindery area. 	Costa was 	the
only 	storekeeper 	in 	the 	department.
2Section 3571(a) 	provides 	that 	it 	is unlawful 	for the
University 	to:
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. 	. 	. 	.
22

Costa's 	job duties 	statement 	indicated he was 	to 	spend 	50
percent 	time 	in the bindery area. 	The 	rest 	of his 	time was 	spent
in purchasing supplies, 	inventory control, 	and mailing out jobs.
He 	worked 	in 	the 	bindery 	section every day 	for a 	couple 	hours.
This 	involved boxing envelopes, 	invitations and letter heads. 	He
would also shrink wrap, 	collate, 	and drill 	some 	items. 	Braxton
said 	that 	Costa was 	never able 	to devote more 	than 20 	percent
time 	to bindery duties. 	His work 	in the bindery was mostly
boxing 	jobs 	for shipment.
Braxton urged Costa 	to 	learn 	the machinery 	in 	the 	bindery.
According 	to Costa, 	there was not 	enough time 	for him to 	take 	the
training.
The Time 	Clock
When Braxton came to the department 	in 1987, 	all 	department
employees 	used 	the 	time 	clock. 	Included 	in this 	group were an
administrative 	assistant 	and a billing assistant. 	Braxton
considered these positions 	to be 	desk-type 	jobs. 	He determined
that 	the 	administrative 	assistant 	did not 	need 	to punch 	the 	time
clock as 	the position was 	unrelated 	to production work 	for which
billing was 	required. 	Thereafter, 	the billing employee 	requested
exemption 	from the 	time 	clock and 	the 	request 	was 	granted.
On August 	9, 	1991, 	the unit had a group meeting at which was
discussed, 	among other matters, 	the 	time 	clock. 	At 	least 	two
options 	were discussed. 	One was 	that 	all 	staff 	employees 	would
punch 	in and out 	at 	the 	start 	and end of 	each working day. 	Each
employee 	was 	to have 	a 	regular 	start 	and 	end time 	approved by
33

their 	supervisor, 	with a 	15-minute 	"window period" 	before 	or
after 	their approved 	start 	time. 	Each employee was 	to work
an 	8 	hour day, 	and would take 	a 	one-half 	hour 	lunch and two
15-minute breaks.
The 	second 	option was 	that 	there would be 	no 	time 	clock
and 	staff 	would be 	expected 	to arrive 	and 	leave 	at 	the 	same
pre-approved 	time 	each day.
On October 22, 	1991, 	Braxton announced to employees 	that a
time clock policy promulgated on October 18, 	1991, 	was 	to be put
into 	abeyance 	while 	he 	conferred with 	labor 	relations 	and 	other
sources. 	The 	stated reason for this action was:
As 	of 	yesterday 	I 	have 	received 	comments
indicating 	that 	some 	employees 	still 	believe
this 	policy 	is 	not 	equitable due 	to 	fact 	that
non-represented 	employees 	would 	not 	be
required 	to use 	the 	time 	clock and that 	this
was 	not 	clear when we 	polled everyone 	for
their preferences 	on a policy.
Costa and one other employee 	in the department, 	Ed Drayton,
were members 	of 	the union. 	Costa 	complained about 	favoritism in
the department. 	He 	complained to a 	supervisor about 	the
disparity of 	the time 	clock procedures. 	Pressmen, 	lithographic
technicians, 	bindery technicians, 	a coping person and Costa had
to use 	the 	timeclock. 	All 	these 	employees 	worked 	in 	the 	shop
area.
In January of 	1992, 	a bar code was put 	into place 	instead of
the 	time 	clock. 	It 	is used for jobs 	as well 	as break and lunch
periods.
4
4

Later, 	Costa made a 	complaint 	to an AFSCME representative.
The representative, 	along with Costa, 	met with Braxton. 	Braxton
could not 	resolve 	the 	issue.
Braxton expressed frustration over 	the 	time 	clock 	issue. 	He
said 	the 	complaints 	were 	coming 	from two people, 	Costa and
Drayton. 	Two 	other people would have been adversely affected by
the elimination of 	the time clock, 	which, 	according to Braxton,
precluded 	resolution 	of 	Costa's 	complaint. 	Braxton 	testified 	the
issue was a 	"thorn" 	in his 	side.
The 	Overtime
According to Costa and Mary Higgins 	(Higgins), 	AFSCME
representative, 	overtime 	is 	supposed to be on the basis 	of
seniority. 	Overtime was not provided to all 	the employees.
Steve 	Fox, 	the supervisor, 	assigned the same people to work
the 	overtime. 	The pressmen, 	one bindery technician and a 	retiree
were used most 	frequently, 	usually on weekends.
Costa 	complained 	that 	he 	got 	no overtime. 	In September of
1992 	Costa went 	to AFSCME 	representative Dana Ahlgren 	(Ahlgren).
A few days 	later, 	Ahlgren met with Braxton on 	the 	overtime 	issue.
Costa 	testified 	that 	Braxton 	told Ahlgren 	that 	one-on-one
meetings 	with employees 	could be arranged to resolve 	the dispute.
In the 	summer of 	1992, 	Higgins 	discussed with Braxton the
unit's 	failure 	to observe 	the 	contractual 	requirements 	on
overtime. 	She 	filed a grievance 	on behalf 	of Drayton.
55

The 	Layoff
Braxton 	felt 	the 	storekeeper's 	position was 	the most
expendable because 	it 	did not 	create 	revenue 	for 	the department.
The 	storekeeper's 	duties 	could be 	spread among 	other workers.
On October 2, 	1992, 	Braxton submitted a plan to Linda
Glasscock, 	University labor relations 	coordinator, 	to reorganize
the 	reprographics department. 	The 	core 	of 	the plan was 	to assign
storekeeper duties 	of purchasing and 	inventory of 	supplies, 	and
receiving 	orders 	and 	supplies 	to 	the 	senior 	reprographic
supervisor. 	In addition, 	ordering 	supplies was 	to be 	integrated
into 	a 	computer program to 	automate 	purchasing 	and 	inventory
maintenance. 	Packaging 	of 	reprographic 	jobs would be 	done by 	the
bindery 	staff. 	The plan was 	approved by 	labor 	relations.
On November 13, 	1992, 	Braxton notified Costa that he was 	to
be 	laid off 	from employment 	with 	the University, 	effective
December 	13, 	1992. 	The action was 	stated to be predicated upon
the 	need 	to 	reduce 	staff 	in 	the 	reprographics 	department 	due 	to
"internal 	reorganization." 	Costa was 	relieved 	from daily work
attendance, 	from November 14, 	in order to give him additional
time 	to 	look 	for another position.
No 	other department 	employees were 	laid off 	at 	this 	time.
The 	layoff 	was 	in accordance 	with 	the memorandum of 	understanding
provisions 	on layoff.
Braxton 	testified 	that 	the 	department 	had 	suffered 	reduction
in income, 	as a recharge unit, 	because its customers, 	other
University departments, 	were 	experiencing 	severe budget
66

reductions, 	resulting in fewer job orders. 	In addition, 	other
University departments 	are 	not 	required 	to use 	the 	reprographics
department 	services, 	thus 	it must 	compete with outside printers
and copy services. 	The Department 	cannot 	incur a deficit, 	as 	it
has 	no 	other revenue 	resources.
Documentation 	submitted by 	the 	University 	reflecting 	year-
to-date revenues and expenses as of September 30, 	1992, 	show an
anticipated deficit 	of 	$106,758. 	With this 	information, 	Braxton
designed 	the 	reorganization 	that 	resulted 	in the 	elimination of
Costa's 	storekeeper position.
The 	department 	has 	continued 	to downsize 	since 	October 	of
1992. 	In October of 	1992, 	just before Costa's layoff, 	a
principal 	reprographics 	technician 	resigned. 	The vacancy was 	not
filled for budgetary reasons. 	After Costa's 	layoff, 	two senior
clerks were 	laid off 	in May of 	1993, 	and an administrative
assistant 	II 	clerk was 	laid off 	in December of 	1993. 	These
layoffs 	were 	to 	offset 	reduction 	in 	income.
Costa was 	a 	candidate 	for other 	jobs 	at 	the University.3 In
January of 	1993, 	he was 	offered a position as a 	stores worker in
the material 	management 	department. 	Costa declined because 	he
did not 	like 	the hours.
At 	the 	time 	of 	hearing, 	Costa had retired 	from the
University. 	By retiring he 	give up preferential 	rehire 	rights.
3The 	collective 	bargaining 	agreement 	gave 	him preferential
rehire 	status 	for 	reemployment.
77

At 	the 	time 	of 	hearing Costa was working 	for the 	San Mateo 	County
Schools Office.
ISSUE
The 	issue 	in 	this 	case 	is whether the University laid Costa
off 	from his 	position as 	storekeeper because 	of 	his 	protected
activities 	in violation 	of 	HEERA?
CONCLUSIONS 	OF 	LAW
In 	order to prevail 	on a 	retaliatory adverse action 	charge,
the 	charging party must 	establish 	that 	the 	employee was 	engaged
in protected activity, 	the activities were known to 	the 	employer,
and 	that 	the 	employer 	took adverse 	action because 	of 	such
activity. 	(Novato Unified School District 	(1982) 	PERB Decision
No. 	210 	(Novato).) 	Unlawful motivation is 	essential 	to charging
party's 	case. 	In the absence of direct 	evidence, 	an inference of
unlawful 	motivation may be 	drawn 	from the 	record as 	a whole, 	as
supported by 	circumstantial 	evidence. 	(Carlsbad Unified 	School
District 	(1979) 	PERB Decision No. 	89.) 	From Novato and a number
of 	cases 	following 	it, 	any of a host 	of 	circumstances may justify
an 	inference 	of unlawful motivation on the part 	of 	the 	employer.
Such 	circumstances 	include: 	the 	timing 	of 	the 	adverse action 	in
relation 	to 	the 	exercise 	of 	the protected activity 	(North
Sacramento School District 	(1982) 	PERB Decision No. 	264); 	the
employer's 	disparate 	treatment 	of 	the 	employee 	(State 	of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S); 	departure from established procedures or standards
(Santa Clara Unified School District 	(19 79) 	PERB Decision No.
8

104); 	inconsistent 	or contradictory justification for its actions
(State of 	California 	(Department 	of 	Parks and Recreation) 	(1983)
PERB Decision No. 	328-S); 	or employer animosity towards union
activists 	(Cupertino Union Elementary School District 	(1986) 	PERB
Decision No. 572).
Once an inference is made, 	the burden of proof 	shifts 	to the
employer 	to 	establish 	that 	it 	would have 	taken 	the 	action
complained of, 	regardless 	of 	the 	employee's protected activities.
(Novato; 	Martori Brothers Distributors v. 	Agricultural 	Labor
Relations Board 	(1981) 	29 	Cal.3d 721 	[175 	Cal.Rptr. 	626].) 	Once
employee 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 	to 	other
protected activities. 	[Ibid.; 	emphasis
added.]
Section 3565 provides:
Higher education employees 	shall 	have 	the
right 	to 	form, 	join and participate 	in the
activities 	of 	employee 	organizations 	of 	their
own choosing 	for the purpose 	of 	representa-
tion on all matters 	of 	employer-employee
relations 	and 	for 	the purpose 	of meeting 	and
conferring. . . .
Costa 	complained about 	time 	clocks 	over a 	two year period
into 	the 	summer of 	1992. 	He 	and an AFSCME 	representative met
with Braxton on the 	time 	clock 	issue. 	The 	issue was 	a 	thorn 	in
Braxton's 	side.
Costa 	complained about 	the 	absence 	of 	overtime 	in 	the 	summer
of 	1992. 	As a result of his 	complaint, 	Ahlgren met with Braxton
in September of 	1992 	on the overtime 	issue.
9

Using a union 	representative 	to pursue matters 	relating 	to
working 	conditions 	is protected conduct. 	(Regents 	of 	the
University of 	California 	(1983) 	PERB Decision No. 	319-H.)
Costa's 	use 	of AFSCME 	representation on both 	the 	time 	clock 	issue
and his 	entitlement 	to overtime 	constitutes 	protected activity.
There 	is 	no question that 	the University was 	aware 	of
Costa's 	activities 	as 	both 	issues 	were 	raised directly with
Braxton.
These 	issues 	preceded 	the 	layoff 	by 	only a 	few months.
Indeed, 	uncontradicted was 	Costa's 	testimony that Ahlgren met
with Braxton in September 1992, 	about 	the overtime 	issue. 	In
October Braxton 	submitted plans 	to 	reorganize 	the 	department 	by
eliminating 	Costa's 	position.
Although timing 	of 	the adverse action alone 	is 	not
sufficient 	to 	justify an 	inference 	of 	unlawful 	motivation
(Charter Oak Unified School 	District 	(1984) 	PERB Decision No.
404) 	it may, 	when coupled with other factors, 	constitute a basis
for such 	conclusion. 	(Campbell 	Union High School 	District 	(1988)
PERB Decision No. 	701; 	Moreland Elementary School District 	(1982)
PERB Decision No. 	22 7.)
The 	time 	clock 	issue was 	a 	long and 	contentious problem for
Braxton. 	He 	could not bring resolution to the 	issue. 	Costa was
one 	of 	two people 	on one 	side 	of 	the 	issue. 	The 	issue was a
thorn in his 	side, 	said Braxton.
I 	draw an 	inference 	of 	unlawful 	motivation 	from this 	candid
display 	of 	Braxton's 	reaction 	to 	Costa's 	persistence 	on 	the 	time
10

clock 	issue 	and 	the 	timing 	of 	the 	decision and 	implementation of
Costa's 	layoff. 	In the 	summer of 	1992, 	Costa was pushing Braxton
on the 	time 	clock policy. 	In September, 	Ahlgren visited Braxton,
on Costa's 	complaint 	about 	the 	overtime policy. 	The next month
Braxton drew up a plan to 	eliminate 	Costa's 	position.
The burden now shifts 	to 	the University to demonstrate 	it
would have 	taken the action it 	did, 	regardless 	of 	Costa's
protected 	activity.
The 	evidence presented by 	the University 	is 	that 	the
reprographics 	department was 	operating with a deficit 	budget. 	As
of 	the 	end of 	the 	first 	quarter of 	the 	1992-93 	fiscal 	year, 	there
was projected a deficit 	of 	over $100,000. 	Because 	the unit was
not 	generally 	funded, 	but 	relied on 	revenue 	from jobs 	the unit
serviced, 	there 	could be no deficit 	at 	the 	end of 	the 	fiscal
year.
One 	reprographics 	technician had 	resigned and was 	not
replaced, 	because of 	the budgetary shortfall. 	Costa's position
as 	storekeeper was not directly billable, 	but was part 	of 	the
overhead 	charged to 	each project. 	His 	duties 	did not 	generate
billable hours.
In addition, 	part of Costa's duties, 	the manual 	inventory
for ordering 	supplies, 	was 	automated by the new computer system.
Other duties 	of 	the 	storekeeper were 	able 	to be undertaken by
others 	in the department. 	Thus, 	where the department 	clearly
needed to 	reduce expenses, 	the 	storekeeper position was 	the most
expendable.
11

Other staff were 	laid off 	after Costa, 	further 	confirming
that 	the 	action taken against 	Costa was 	not 	retaliatory, 	but
rather 	in keeping with a drastic 	fiscal 	shortfall, 	necessitating
the 	reduction 	in staff.
It 	is 	concluded that 	the University has 	demonstrated 	that 	it
would have 	laid Costa off, 	regardless 	of 	his 	exercising his 	right
to protest 	the 	time 	clock or the 	overtime 	issue. 	The unfair
practice 	charge 	should be 	dismissed.
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the entire 	record in this 	case, 	it 	is 	ordered that 	the 	complaint
and 	the 	underlying 	unfair practice 	charge 	are 	hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8, 	section
323 05, 	this 	Proposed Decision and Order 	shall 	become 	final unless
a party 	files 	a 	request 	for an 	extension of 	time 	to 	file
exceptions 	or a 	statement 	of 	exceptions 	with the Board 	itself.
This 	Proposed Decision was 	issued without 	the 	production of
a written transcript 	of 	the 	formal 	hearing. 	If 	a 	transcript 	of
the hearing 	is 	needed 	for 	filing exceptions, 	a 	request 	for an
extension of 	time 	to 	file 	exceptions must be 	filed with the Board
itself 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132). 	The request for
an 	extension 	of 	time must 	be 	accompanied by a 	completed
transcript 	order form 	(attached hereto). 	(The 	same 	shall 	apply
to 	any 	response 	to 	exceptions.)
In accordance with PERB 	regulations, 	the 	statement 	of
exceptions must be 	filed with the Board 	itself 	within 20 	days 	of
12

service 	of 	this 	Decision or upon service 	of 	the 	transcript 	at 	the
headquarters 	office 	in Sacramento. 	The 	statement 	of 	exceptions
should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of 	the record, 	if any, 	relied upon for such exceptions. 	(Cal.
Code of Regs., 	tit. 	8, 	sec. 	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 	. . . " 	(Cal. 	Code 	of
Regs., 	tit. 	8, 	sec. 	32135; 	Cal. 	Code of Civ. 	P r o c , 	sec. 	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. 	(Cal. 	Code of
Regs., 	tit. 	8, 	secs. 	32300, 	32305 and 32140.)
'
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'Gary MJ Gallery
Chief Administrative Law 	Judge
I Gary,,il{J 	Ga(llery 	~
Ch!"""ef-"'Administrati~