State of California (Department of Corrections) (PERB 1292S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DARRELL 	RICHARD 	CREED,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
) 	Case No. 	LA-CE-407-S
PERB Decision No. 	1292-S
October 	21, 	1998
)
)
)
)
)
)
)
Appearances: 	Darrell Richard Creed, 	on his own behalf; 	State of
California 	(Department 	of 	Personnel Administration) 	by Michael 	P.
Cayaban, 	Labor Relations Counsel, 	for State of California
(Department of Corrections).
Before Johnson, 	Dyer and Jackson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Darrell 	Richard
Creed 	(Creed) 	of an administrative law judge's 	(ALJ) 	proposed
decision 	(attached). 	The ALJ dismissed the 	charge which alleged
that 	the State of 	California 	(Department 	of 	Corrections) 	(State)
violated section 3519(a) 	and 	(b) 	of 	the Ralph C. 	Dills Act 	(Dills
Act)1 by 	issuing a Letter of 	Instruction and a Counseling
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et seq. 	Section 3519 	states, 	in pertinent part:
It shall 	be unlawful 	for the 	state 	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
e

Memorandum to 	Creed 	in 	retaliation 	for his 	protected activity.
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or reemployment.
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
The 	Board has 	reviewed 	the 	entire 	record 	including
the proposed decision, 	Creed's 	exceptions 	and the State's
exceptions and responses. 	The Board finds 	the ALJ's 	findings 	of
fact 	and 	conclusions 	of 	law to be 	free 	of prejudicial 	error and
adopts 	them as 	the decision of 	the Board 	itself.
ORDER
The unfair practice 	charge and 	complaint 	in Case
No. 	LA-CE-407-S 	is hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Dyer and Jackson 	joined 	in 	this Decision.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DARRELL 	RICHARD 	CREED,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-407-S	)
)
) 	PROPOSED 	DECISION
) 	(5/21/98)
)
)
)
Appearances: 	California 	Correctional 	Peace 	Officers Association
by Chris Uyemura, 	Senior Hearing Representative, 	for Darrell
Richard Creed; 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	by Michael P. 	Cayaban, 	Legal Counsel, 	for State
of California 	(Department of Corrections).
Before Thomas J. 	Allen, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In this 	case, 	a 	state employee 	alleges 	the 	state 	employer
retaliated against 	him because 	of 	his 	protected activity. 	The
state 	employer denies 	any 	retaliation.
Darrell 	Richard Creed 	(Creed) 	filed an unfair practice
charge 	against 	the 	State 	of 	California 	(Department 	of
Corrections) 	(State) 	on May 20, 	1997. 	The Office of the General
Counsel 	of 	the 	Public Employment 	Relations 	Board 	(PERB) 	issued a
complaint 	on July 1, 	1997, 	alleging the State retaliated against
Creed, 	by issuing him a 	letter of 	instruction and a 	counseling
memorandum, 	because 	he had 	served as 	a 	job 	steward 	for 	the
California 	Correctional 	Peace 	Officers Association 	(CCPOA) 	and
had 	filed numerous 	grievances. 	The 	State 	filed 	an answer on
July 14, 	1997, 	denying it retaliated against Creed.

PERB held an informal 	conference on September 4, 	1997, 	and a
formal hearing on January 22 	and 23, 	1998. 	With the 	filing of
post-hearing briefs on April 	20, 	1998, 	the case was 	submitted for
decision.
FINDINGS 	OF 	FACT
The 	State 	is 	the 	state 	employer under the Ralph C. 	Dills Act
(Dills 	Act).1 Creed is 	an employee under the Dills Act, 	and
CCPOA is 	an 	employee 	organization under 	the 	Dills Act.
Creed worked 	for 	the 	State 	as 	a parole 	agent 	for over 	three
years, 	until 	his 	retirement 	shortly before 	the hearing. 	By all
accounts, 	he was good at his job. 	In April 	1996, 	Creed became a
CCPOA steward. 	At 	that 	time, 	Arthur Ramirez 	(Ramirez) 	was 	the
assistant 	unit 	supervisor 	for Creed's 	unit, 	and Creed and Ramirez
had 	a 	friendly 	relationship.
Creed testified he 	had a 	conversation with Ramirez 	while
considering becoming a steward. 	According to Creed, 	Ramirez 	told
him to be 	careful 	if he became 	a 	steward, 	that 	he might win 	some
issues but 	the 	State would wait 	and retaliate 	against 	him. 	Creed
did not understand this 	to be 	a threat, 	but 	it 	understandably
caused him concern. 	Ramirez 	denies making the 	comment, 	but 	I
credit 	Creed's 	testimony on this point. 	It may have been a
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
and following. 	Unless otherwise 	indicated, 	all 	statutory
references herein are 	to the Government 	Code.
22

casual 	comment 	on Ramirez's part, 	but 	Creed had reason to
remember 	it. 	I 	do not believe 	Creed fabricated the 	incident.2
Between May and November of 	1996, 	Creed 	filed approximately
15 	grievances. 	It was 	stipulated that 	Creed engaged 	in protected
activity. 	On August 	15, 	1996, 	Ramirez became the unit 	supervisor
for Creed's unit. 	At 	some point, 	the 	relationship of 	Creed and
Ramirez 	became 	less 	friendly and more 	formal.
On November 27, 	1996, 	Creed was 	served with both a letter of
instruction and a 	counseling memo. 	The 	letter of 	instruction
stated in full 	as 	follows:
LETTER 	OF 	INSTRUCTION 	REGARDING UNAUTHORIZED
CHANGING 	OF WORK 	SCHEDULE AND 	OVERTIME
Section 	11.15(e) 	of 	the most 	recent Unit 	Six
Memorandum of Understanding 	(MOU) 	stipulates
that 	parole 	agent 	requested changes 	in the
work schedules, 	excluding emergencies, 	will
require prior 	supervisory approval. 	In
addition, 	parole 	agents will 	advise the
supervisor 	of 	emergency 	changes 	no 	later 	than
the 	next 	working day.
On August 30, 	1996, 	the above information was
reviewed during the 	Santa Ana 	II 	staff
meeting. 	Parole Administrator Art 	Lucero
also 	attended 	this 	staff 	meeting 	and 	affirmed
the 	above 	information.
On November 1, 	1996, 	I reviewed your Employee
Attendance Record 	(CDC 	998) 	for the month of
October, 	1996. 	I 	observed you changed your
work schedule on October 30 	and 31, 	1996,
without 	prior unit 	supervisor 	approval 	in
order to do non-emergency work. 	In addition,
I 	observed 	that 	you 	submitted overtime 	for
2I do not give any weight, 	however, 	to the declaration of
another 	former parole 	agent, 	who 	supposedly witnessed the
conversation. 	This 	former agent 	could have 	been 	subpoenaed to
testify but 	was 	not. 	He 	resigned after being charged with 	(among
other things) 	dishonesty.
33

three hours on October 30, 	1996, 	without
prior unit 	supervisor 	approval.
On November 1, 	1996, 	I discussed this issue
with you. 	You 	stated the 	overtime was
necessary because 	you were 	asked to 	cover
officer of 	the 	day duties 	for three 	hours 	on
October 30, 	1996. 	I had informed you on
October 30, 	1996, 	if the amount of time you
worked 	as 	OD precluded you 	from 	completing
your 	casework 	requirements 	to 	contact 	me
later 	in 	the week to discuss 	the 	issue
further.
You 	admitted that 	you 	changed your work
schedule on October 3 0 and 31, 	1996, 	without
prior unit 	supervisor approval. 	You 	stated
you 	changed your work 	schedule 	to 	add one
hour of work 	(nine hours) 	on each date, 	to
collect 	the 	overtime. 	You also 	stated that
you 	intended to work one hour 	(nine hours) 	on
November 1, 	1996, 	to collect the 	final hour
of 	overtime 	to 	compensate 	for the 	extra OD
coverage on October 30, 	1996. 	You indicated
you 	realized that 	you 	could have made 	a
request 	to 	receive 	overtime 	for 	three 	hours
later 	in 	the week 	and that 	you did not 	want
to do that.
You 	are 	instructed to 	review Section 	11.15 (e)
of 	the Unit 	Six MOU. 	It 	is 	expected that you
will 	comply with the 	requirements 	of 	the MOU
and 	future 	requests 	for work 	schedule 	changes
will 	be 	approved 	in 	advance 	by the Unit
Supervisor 	except 	in emergency 	situations.
This 	Letter of 	Instruction 	is 	not 	intended 	to
be 	construed as 	an adverse personnel 	action.
It 	may be 	used as 	supporting evidence by the
State 	in a 	later disciplinary action, 	if 	the
expiration date has not yet 	occurred, 	in
order 	to 	show that 	the 	State 	has 	attempted 	to
apply progressive 	discipline.
This 	Letter of 	Instruction will 	be placed 	in
your personnel 	file 	for 	12 	months 	from the
start of business on November 27, 	1996, 	and
will 	be 	removed 	from your 	file 	upon your
request 	after the 	close 	of 	business on
November 27, 	1997.
The 	counseling memorandum stated 	in 	full 	as 	follows:
4
4

COUNSELING 	MEMORANDUM 	REGARDING 	REQUESTING
POLICE 	ASSISTANCE 	WITHOUT 	SUPERVISORY
CONFERENCE
On October 31, 	1996, 	I reviewed the BPT
report 	written by you 	on 	Parolee 	Lawrence
Pease, 	J-68841. 	While reviewing the report,
I 	noted you requested 	the 	assistance 	of
deputies 	from 	the 	Orange 	County 	Sheriff's
Department 	(OCSD) 	in an attempt 	to 	locate
Parolee Pease, 	a pre-pal, 	at a specific motel
room 	in 	the 	City of 	San 	Clemente 	without
conferencing the 	Subject's 	case 	with a
supervisor. 	I 	asked AUS Myrtle 	Sheffield if
you 	conferenced 	the 	Subject's 	case with her
and 	she 	stated you 	did not.
A review of 	the 	Subject's 	field 	file
indicates 	an activity report, 	submitted by
you, 	showing the 	Subject's 	arrest by the OCSD
on October 22, 	1996. 	The BPT report, 	written
by you, 	states 	"On 10/22/96, 	at 1405 hours,
Deputy Higa, 	#1925 	and other deputies 	of 	the
Orange County Sheriff's Department, 	at 	the
request 	of 	the undersigned, 	responded to a
local 	transient 	motel 	in 	an 	attempt 	to 	locate
the 	Subject." 	I 	also noted that 	the 	Subject
attempted to 	flee 	the 	motel 	area 	causing 	the
OCSD 	to 	initiate 	a 	foot 	pursuit 	to place 	the
Subject 	in custody.
On October 31, 	1996, 	I discussed this with
you 	and you 	initially 	stated you 	could not
remember 	if 	you 	conferenced with 	a 	supervisor
sending 	the OCSD 	to 	attempt 	to 	locate 	the
Subject. 	You 	later 	stated you believed you
did conference 	the 	case with me. 	I 	told you
that 	you had not 	conferenced 	the 	case 	with me
regarding 	sending 	the 	OCSD 	to 	attempt 	to
detain or arrest 	the parolee 	at 	a 	specific
motel 	room. 	You stated that you believe 	it
is 	within department 	policy to 	request 	law
enforcement 	assistance 	in attempting 	to
locate 	and 	detain parolees 	until 	the 	officers
can contact 	the Agent 	for 	further
instructions.
You 	are 	instructed 	to 	review Sections
81030.5.1 	and 	81030.15.1 	of 	the 	CDC DOM which
stipulate 	the 	parole 	agent 	will 	conference
the 	case with the Unit 	Supervisor prior 	to
arresting a parolee. 	Any future 	requests 	to
55

send 	any 	other 	law 	enforcement 	official 	or
parole 	agent 	to 	attempt 	to 	detail 	or arrest 	a
parolee 	shall 	include 	a prior 	conference 	with
a 	supervisor.
The 	factual 	background of 	these 	two documents 	is 	discussed below.
The 	service 	of 	the 	two documents was procedurally unusual,
at 	least 	in part 	because 	Ramirez 	had 	just 	been transferred to 	a
different 	unit 	in a 	different 	office. 	Although 	the 	documents
called 	for Ramirez's 	signature, 	they were 	actually signed 	for him
by another unit 	supervisor, 	and they were 	served by the 	regional
employee 	relations officer. 	As was normal, 	the regional
administrator 	signed the 	letter of 	instruction 	(a higher 	level 	of
documentation) 	but 	not the 	counseling memo. 	It was unusual 	for
an employee 	to 	receive both a 	letter of 	instruction and a
counseling memo 	on 	the 	same 	day.
The 	documentation process began 	in early November, 	when
Ramirez 	told his 	superior, 	the district 	administrator, 	about
problems 	with Creed. 	The 	district 	administrator told Ramirez 	to
write memos 	about 	the problems, 	which Ramirez 	did. 	The district
administrator 	then 	forwarded 	the 	memos 	to 	the 	regional 	employee
relations 	officer 	for guidance. 	Neither Ramirez 	nor 	the 	district
administrator made 	the decision as 	to what 	documentation, 	if 	any,
would be 	issued. 	The 	regional 	employee 	relations 	officer
testified 	the 	decision was 	made 	either by 	the 	regional
administrator 	(who 	ultimately signed 	the 	letter 	of 	instruction)
or by the 	deputy regional 	administrator. 	The 	regional 	employee
relations 	director 	then put 	the 	documentation 	in 	final 	form.
6
6

Ramirez 	and 	the 	district 	administrator 	could have 	issued a
counseling 	memorandum without 	involving 	the 	regional
administration. 	The 	regional 	employee 	relations 	director 	could
not 	recall 	receiving 	other 	counseling memorandums 	from Ramirez.
The 	district 	administrator 	testified 	he 	involved 	the 	regional
administration 	in order 	to make 	sure 	the 	documentation was
"compatible 	with what 	we 	do 	throughout 	the Region."
After he 	received the 	documents, 	Creed 	filed a 	grievance
challenging both of 	them. 	In response to the grievance, 	the
regional 	administrator decided to 	"pull" 	the 	counseling
memorandum, 	but 	she 	let 	the 	letter of 	instruction stand.
Letter 	of 	Instruction 	(Work 	Schedule)
The 	letter of 	instruction, 	quoted in full 	above, 	cited
section 	11.15(e) 	of 	the most 	recent 	collective bargaining
agreement 	between CCPOA and the 	State. 	That 	section 	stated 	in
full as follows:
Each Parole Agent 	shall 	submit 	a
proposed work 	schedule 	to 	the 	supervisor 	for
each month at 	least 	seven 	(7) 	calendar days,
but no more 	than fourteen 	(14) 	calendar days,
prior 	to 	the beginning of 	the 	scheduled month
for 	supervisory approval. 	The 	schedule will
represent 	all 	work hours 	which 	shall 	include
all 	regular and 	irregular work hours, 	work
days, 	weekend work, 	evening work, 	days off,
Office 	Day duty, 	and other 	special 	assigned
responsibilities. 	The 	supervisor shall
insure 	that 	Agents 	comply with 	the 	scheduling
requirements 	of 	the 	Contract 	and 	the 	meeting
of 	operational 	needs. 	The 	supervisor 	shall
approve, 	unless 	it 	can be documented that 	the
scheduled work 	hours 	as 	submitted would be
detrimental 	to 	the needs 	of 	the office or
would hinder the 	Parole Agent 	in 	the
performance 	of 	his/her duties 	and
responsibilities, 	the work schedule at 	least
77

three 	(3) 	days prior to the 	scheduled month.
This 	documentation 	shall 	be 	provided upon 	the
employee's 	request. 	If 	the Parole Agent 	does
not 	submit 	a monthly work schedule, 	the
supervisor will 	assign 	the 	work 	schedule.
During 	the 	scheduled month 	the
supervisor may occasionally 	adjust 	the 	work
hours 	based on 	operational 	needs 	with written
justification to 	the 	Parole Agent. 	This
adjustment 	shall 	not 	be 	intended to 	avoid 	the
assignment 	of 	overtime 	if 	the Agent's
workload requires 	overtime work. 	Parole
Agent 	requested changes 	in 	the work
schedules, 	excluding emergencies, 	will
require prior 	supervisory approval. 	Parole
Agents will 	advise 	the 	supervisor of
emergency changes 	no 	later 	than 	the 	next 	work
day. 	[Emphasis added.]
Management 	regarded 	the 	requirement 	of 	prior 	supervisory 	approval
for 	schedule 	changes 	as 	important 	for both operational 	and 	safety
reasons.
In 	late August 	1996, 	shortly after Ramirez 	became unit
supervisor, 	he 	held a 	staff meeting at which the 	requirement 	of
prior 	supervisory approval 	for 	schedule 	changes 	was 	discussed.
The 	district 	administrator was 	present 	to 	reinforce 	the 	message;
Creed was 	also present. 	According to Ramirez, 	there was 	specific
discussion that 	a parole 	agent 	asked to do 	"officer of 	the 	day"
duties 	early in the week would need to 	show the 	unit 	supervisor
towards 	the 	end of 	the week 	that 	the 	agent 	needed overtime 	to
complete 	particular 	job 	requirements.
In September 1996, 	Ramirez became aware a parole agent 	(not
Creed) 	had changed his work 	schedule without 	prior approval.
Ramirez 	spoke 	to 	this 	agent, 	who agreed to comply with the
requirement 	in the 	future. 	Either before 	or after 	speaking with
8

the agent, 	Ramirez verbally 	"noticed" 	the district 	administrator
about 	the 	situation, 	which was 	not 	documented at 	that 	time.
On November 1, 	1997, 	Ramirez became aware the 	same agent 	had
again 	changed his 	schedule 	without 	prior 	approval. 	Ramirez 	again
talked to the 	district 	administrator, 	who told Ramirez 	to write 	a
memo. 	The 	resulting memo 	then apparently went 	through the 	same
process 	as 	the memo about 	Creed's 	schedule 	change: 	the 	district
administrator 	forwarded 	the 	memo 	to 	the 	regional 	administration,
and 	the 	regional 	administrator ultimately 	signed 	a 	letter of
instruction, 	which was then served on the 	agent.
The 	letter 	of 	instruction 	regarding 	Creed's 	schedule 	change
arose out 	of 	events beginning on October 29, 	1996. 	Creed was
scheduled to work 10 	a.m. 	to 	6 p.m. 	that 	day, 	but 	he arrived at
the 	office early. 	The agent 	assigned to do 	"officer of 	the 	day"
duties was not 	there, 	so the 	assistant unit 	supervisor asked
Creed 	to 	cover those 	duties. 	Creed asked 	if 	he 	could have
overtime. 	The 	assistant 	unit 	supervisor checked with Ramirez,
who 	said Creed could have 	overtime 	if 	he 	needed 	it. 	Creed then
told the unit 	supervisor he 	did need overtime. 	It 	does not
appear, 	however, 	that 	Creed told anyone 	he needed a 	specific
amount of overtime to complete particular tasks, 	or that 	he
received 	authorization to make 	any 	specific 	schedule 	changes.
On his 	attendance 	record 	for 	the 	October 	1996 	pay period,
Creed put 	down 	9 	hours of work 	for both October 29 	and 30,
instead of 	the 	8 	hours he was 	scheduled to work. 	October 	31
was part 	of 	the November 	1996 	pay period; 	Creed 	later put 	down
S
9

9 hours 	for that 	day too. 	On November 1, 	1996, 	when Ramirez 	saw
Creed's 	October attendance 	record, 	he 	questioned Creed about 	it.
Thereafter, 	Ramirez 	spoke 	to 	the 	district 	administrator and wrote
the 	memo 	that 	led to 	the 	letter of 	instruction.
The 	letter of 	instruction was 	inaccurate 	in at 	least 	one
detail: 	it 	stated Ramirez 	observed 	from Creed's 	October
attendance 	record 	that 	Creed 	had 	changed 	his 	schedule 	on 	"October
3 0 and 31." 	The correct dates would be October 2 9 	and 30. 	I
attach no significance to this 	inaccuracy, 	however. 	I 	do not
believe 	Ramirez 	deliberately misrepresented 	this 	or 	any other
fact 	to his 	superiors, 	nor do 	I believe 	the 	inaccuracy shows
inadequate 	investigation.
Counseling 	Memorandum 	(Police 	Assistance)
The 	counseling memorandum, 	quoted in full 	above, 	cited
section 8103 0 of the Department Operations Manual 	(DOM), 	which
covers 	the 	subject 	"Arrest 	and 	Parole 	Hold." 	Subsection 	81030.1
states 	in part, 	"A parolee 	shall 	be 	arrested and a 	. . . 	parole
hold placed when 	there 	is 	reasonable 	cause 	to believe 	a parolee
has violated the conditions of parole and 	. 	. 	. 	[m]ay abscond."
Subsection 	81030.5 	states 	the 	following planned arrest 	policy:
Arrests 	are 	situations 	of 	high potential
danger 	that 	require 	thoughtful 	planning.
Every arrest, 	when possible, 	will be reviewed
with the unit 	supervisor prior 	to 	the 	arrest.
Arrests will not be made at all 	cost 	[sic].
Subsection 	81030.5.1 	then 	establishes 	certain planned 	arrest
procedures; 	it 	states 	in part 	that prior to the 	arrest 	the parole
agent 	"[r]eviews 	planned arrest 	with unit 	supervisor," 	including
10

"location of 	arrest 	and potential 	interference by others." 	The
unit 	supervisor 	then 	"[d]etermines 	which parole 	agents 	or 	law
enforcement personnel 	will 	assist 	in the 	arrest," 	while 	the
parole 	agent 	"[d]etermines 	tactics 	to be 	used 	(as 	person 	in
charge)." 	Subsection 	81030.15.1 	similarly states 	in part 	the
parole 	agent 	"[r]eviews 	proposed arrest 	with unit 	supervisor,"
"[p]articipates 	in arrest," 	" [r]equests assistance of 	law
enforcement" 	and 	"[a]ssumes 	tactical 	command."
Subsection 	81030.6 	states 	the 	following unplanned 	arrest
policy:
The 	parole 	agent 	may unexpectedly 	find a
parolee 	engaged 	in behavior which 	calls 	for
arrest. 	The decision to arrest must be made
quickly and without 	the 	opportunity to 	confer
with the unit 	supervisor. 	Such an arrest 	is
usually made 	without 	assistance 	and 	thus
potential 	for 	injury may be 	increased.
Subsection 	81030.6.1 	then 	establishes 	unplanned 	arrest 	procedures
without 	mentioning 	the unit 	supervisor.
Subsection 	81030.16 	states 	the 	following policy on
delegation of 	search and 	arrest 	authority 	to 	law enforcement:
A parole 	agent 	who, 	based on 	reasonable
belief 	concludes 	that 	a parole violation has
occurred, 	can delegate 	[the State's]
authority to 	search and arrest 	a parolee.
The 	agent 	is not 	required to be personally
present 	during 	the 	law enforcement 	arrest 	or
investigation of 	a parolee.
Subsection 	8103 0.16.1 	then 	establishes 	delegation procedures
without mentioning the unit 	supervisor; 	it 	states 	in part 	the
parole 	agent 	"makes 	independent 	judgment 	whether 	a parole
violation or 	criminal 	act 	has 	occurred" 	and 	"[d]elegates 	parole
11

authority to 	law enforcement 	to 	arrest 	or 	search a parolee 	if
reasonable belief 	exists."
It 	is 	unclear 	from the 	record exactly how all 	these 	DOM
subsections 	are 	supposed to 	fit 	together. 	Creed and another
parole 	agent 	testified 	they understood 	the 	planned 	arrest 	policy,
with 	its 	emphasis 	on unit 	supervisor 	review, 	did not 	apply when
parole 	agents were not 	involved in the 	actual 	arrest. 	This 	is 	a
plausible 	interpretation of 	the 	DOM, 	especially given 	subsections
81030.16 	and 	81030.16.1 	on delegation.
Ramirez, 	on the other hand, 	testified he understood the
planned 	arrest 	policy 	applied 	even when parole 	agents 	would not
be 	involved 	in the 	arrest. 	Citing DOM subsection 	81030.5.1, 	he
testified, 	"The unit 	supervisor makes 	the 	decision whether parole
agents 	themselves will 	participate 	in the 	arrest 	and whether 	law
enforcement personnel 	. 	. 	. 	will assist in the arrest." 	This too
is 	a plausible 	interpretation of 	the DOM. 	There was 	no 	specific
evidence 	that 	Ramirez 	or his 	superiors were 	inconsistent 	in
enforcing 	this 	interpretation.
Prior to 	the 	events 	giving 	rise 	to 	the 	counseling
memorandum, 	Ramirez 	and 	Creed had 	another disagreement 	about 	the
application of 	the planned arrest 	policy, 	when Ramirez 	questioned
whether a particular 	arrest 	was 	planned or unplanned. 	Creed
testified Ramirez 	"finally concurred" 	with 	Creed's 	view of 	the
arrest, 	but 	in his grievance 	Creed stated, 	"There did not 	seem to
be 	any way to 	resolve 	the 	disagreement."
12

The 	counseling memorandum 	itself 	arose 	out 	of 	events
occurring on October 22, 	1996. 	On that date, 	Creed received
information 	that 	one 	of 	his parolees was 	possibly at 	a particular
motel 	in San Clemente. 	Creed was 	looking for this parolee, 	who
had 	absconded 	from a 	drug 	rehabilitation program. 	Creed had
already written a Parolee At Large 	(PAL) 	report, 	which Ramirez
had 	just 	signed. 	A PAL report 	is 	submitted to 	the 	Board of
Prison Terms, 	which can suspend parole 	and issue 	a warrant,
authorizing 	law enforcement 	to 	arrest 	the 	parolee 	on 	sight.
Creed was 	able 	to get 	the 	address 	of 	the motel 	but 	not 	a
phone 	number 	or 	the parolee's 	room number. 	Creed 	testified he
then went 	to 	Ramirez 	and 	told him 	they might 	not 	need 	the 	PAL
report, 	because 	Creed thought 	he 	had 	found the parolee 	and was
"talking 	to 	the 	cops 	to 	send them there." 	According 	to 	Creed,
Ramirez's response was 	"okay, 	well, 	let me know." 	Ramirez
testified he 	did not 	remember such a conversation. 	It 	is 	clear
in any case 	that 	Creed and Ramirez 	did not 	have 	the 	kind of
planned 	arrest 	conference 	described 	in DOM 	subsection 	81030.5.1.
Creed 	then 	called 	the 	Sheriff's 	Department 	and 	asked 	an
officer to go to 	the motel 	to 	see 	if 	the parolee was 	there 	and,
if 	so, 	to detain him while Creed sent a parole hold. 	About 	3 0
minutes 	later 	the 	officer called back, 	huffing and puffing and
cursing at 	Creed, 	because 	the officer had chased the parolee, 	who
had 	jumped out 	a back window. 	The 	officer told Creed to 	send the
parole hold to 	the 	Orange 	County jail, 	where 	the parolee was
being 	booked 	for 	evading 	arrest.
13

Creed testified he 	then went 	to Ramirez, 	told him the
parolee was 	in 	jail, 	and asked what 	to do with the 	PAL report.
According to 	Creed, 	Ramirez 	said to 	"do whatever you want," 	so
Creed tore 	it up.
On October 31, 	1996, 	Ramirez 	read Creed's 	report on the
parolee 	and noted 	that 	Creed had requested 	the 	assistance 	of 	the
Sheriff's 	Department 	in 	locating the parolee. 	Ramirez 	asked 	the
assistant 	unit 	supervisor 	if 	Creed had 	conferenced 	the 	case 	with
her; 	she 	said no. 	Ramirez 	then discussed the matter with Creed
and with 	the 	district 	administrator, 	before writing 	the memo 	that
led 	to 	the 	counseling memorandum.
The 	counseling memorandum was 	inaccurate 	in 	at 	least 	one
detail: 	it 	stated Creed asked the 	Sheriff's 	Department 	to 	help
locate the parolee 	"at a specific motel 	room." 	In fact, 	Creed
did not 	know the 	specific 	room. 	I 	attach no particular
significance to this 	inaccuracy, 	however. 	I do not believe
Ramirez 	deliberately misrepresented 	this 	or 	any other 	fact 	to 	his
superiors, 	nor do 	I believe the 	inaccuracy shows 	inadequate
investigation.
In her response to Creed's grievance, 	the 	regional
administrator 	stated 	in part:
In our grievance 	conference 	you provided
information which 	I 	feel 	mitigates your
actions 	in the 	incident 	described 	in the
Counseling Memorandum. 	You 	had 	submitted 	a
PAL Report 	on the 	case prior 	to 	requesting
the 	assistance 	of 	the police 	department 	in
arresting the parolee. 	I 	am pulling the
Counseling 	Memorandum 	from 	your 	supervisor's
file 	and 	it will 	be provided to you.
14

She 	further 	explained to 	Creed 	"that 	you presented a 	reasonable
argument 	that while 	the 	PAL warrant 	was 	technically not 	yet 	in
the 	system, 	you had 	initiated the paperwork 	to begin 	the
process."
ISSUE
Did 	the 	State 	retaliate 	against 	Creed?
CONCLUSIONS 	OF 	LAW
In order to prevail 	on a 	retaliatory adverse 	action charge,
a 	charging party must 	establish 	that 	the 	employee 	was 	engaged 	in
protected activity, 	the 	activities were known to the 	employer,
and 	the 	employer 	took 	adverse 	action because 	of 	such activity.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210
(Novato).) 	Unlawful 	motivation 	is 	essential 	to 	a 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 	(1979) 	PERB Decision No.
15

104); 	inconsistent or contradictory justifications 	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).
In the present 	case, 	there 	is no dispute 	Creed engaged 	in
protected activity known 	to 	the 	State. 	There 	is 	also no dispute
the 	State 	took 	adverse 	actions 	against 	Creed.3
The 	question is whether the 	State 	took the 	adverse 	actions
against 	Creed because 	of 	his 	protected 	activity.4 The 	timing 	of
the 	adverse 	actions, 	after some 	six months 	of protected activity
by Creed, 	makes unlawful motivation a possibility, 	but 	there 	is
nothing else 	particularly 	suspicious 	about 	the 	timing. 	Timing by
itself 	would not 	support 	an 	inference 	of 	unlawful 	motivation 	in
any case. 	(Moreland Elementary School 	District 	(1982) 	PERB
Decision No. 	227.)
Creed argues 	he 	received disparate 	treatment, 	because 	the
other parole 	agent 	who changed his 	work 	schedule 	did not 	receive
a 	letter of 	instruction until 	his 	second violation. 	Under 	the
circumstances, 	however, 	I do not believe this difference in
3Although the 	State 	does 	not 	regard a 	letter of 	instruction
or a 	counseling memorandum as 	an 	"adverse personnel 	action" 	for
its 	own purposes, 	the 	letter and memorandum to 	Creed were 	adverse
actions 	for PERB's purposes, 	because 	a reasonable person under
the 	circumstances 	would 	consider 	them 	to 	have 	an 	adverse 	impact
on Creed's 	employment. 	(Newark Unified School 	District 	(1991)
PERB Decision No. 	864.)
4The 	question 	is 	not 	whether the 	adverse 	actions were 	right
or wrong 	in any other way.
16

treatment 	justifies 	an inference 	of 	unlawful motivation. 	The
previous 	verbal 	agreement 	with 	the 	other parole 	agent 	had proved
unsuccessful 	in achieving compliance, 	even while Ramirez 	remained
supervisor of 	the 	unit. 	With Ramirez 	transferring 	away 	from the
unit, 	it made 	sense 	for the 	State to 	issue 	formal 	counseling
memorandums 	to both Creed and the other parole 	agent, 	in order to
give 	the 	new unit 	supervisor a 	reasonable 	assurance 	of
compliance.
Creed 	also 	argues 	the 	State 	departed 	from established
procedures, 	because 	the 	counseling memorandum could have been
issued without 	involving 	the 	regional 	administration. 	Again,
under the 	circumstances, 	I 	find nothing suspicious 	about 	the
procedure the 	State 	followed. 	Ramirez, 	the unit 	supervisor who
would normally sign 	a 	counseling memorandum, 	was 	being
transferred, 	and a new unit 	supervisor would have 	to 	deal 	with
the 	situation in the 	future. 	Furthermore, 	the 	contemporaneous
letter 	of 	instruction 	to 	Creed would 	already normally 	involve 	the
regional 	administration. 	It made 	sense 	for the 	State 	to have
both contemporaneous 	documents 	reviewed at 	the 	regional 	level, 	to
make 	sure 	(as 	the district 	administrator testified) 	they were
"compatible with what 	we 	do 	throughout 	the Region."
Creed also 	argues Ramirez's 	comment 	in or around April 	1996
demonstrated animosity towards 	union activists. 	I 	have 	credited
Creed's 	testimony that Ramirez 	told him to be 	careful 	if 	he
became a 	steward, 	that he might win some 	issues but 	the 	State
would wait 	and retaliate 	against 	him. 	Creed himself, 	however,
17

did not 	understand this 	to be 	a 	threat 	by Ramirez, 	with whom he
then had a 	friendly relationship. 	If 	anything, 	the 	comment would
seem to show that Ramirez, 	before he became unit 	supervisor, 	may
have 	had 	some 	animosity towards management. 	I 	do not believe
Ramirez 	changed 	so much 	in 	six months 	he 	became 	guilty of 	the
same 	unlawful 	practices 	he 	previously 	attributed 	to management
(however casually). 	I 	conclude Creed has not 	established a
reasonable 	inference 	that 	the 	adverse 	actions 	against 	him were
unlawfully motivated 	by 	his 	protected 	activity.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and upon the entire 	record in this matter, 	it 	is ordered
that 	the 	complaint 	and the 	underlying unfair practice 	charge 	in
Case No. 	LA-CE-407-S, 	Darrell Richard Creed v. 	State of
California 	(Department of 	Corrections), 	are hereby dismissed.
1
Pursuant 	to California Code of Regulations, 	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 Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before 	the close of business 	(5 p.m.) 	on the 	last 	day
set 	for 	filing 	". 	. 	. o r when sent by telegraph or certified or
18

Express United States mail, 	postmarked not 	later than the 	last
day set for filing . 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code 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. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs
32300, 	32305 and 32140.)
THOMAS J. 	ALLEN
Administrative Law Judge
19