Trustees of Cal. State University v. Public Employment Relations Bd.

• Decision Date: 21 April 1992
• Docket Number: No. F015482,F015482
• Citation: 8 Cal.Rptr.2d 60,6 Cal.App.4th 1107
• Court: California Court of Appeals Court of Appeals
• Parties: , 144 L.R.R.M. (BNA) 2258, 74 Ed. Law Rep. 194 TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, STATEWIDE UNIVERSITY POLICE ASSOCIATION et al., Real Parties in Interest.

Page 60

8 Cal.Rptr.2d 60

6 Cal.App.4th 1107, 144 L.R.R.M. (BNA) 2258,

74 Ed. Law Rep. 194

TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, STATEWIDE UNIVERSITY POLICE ASSOCIATION et al., Real Parties in Interest.

No. F015482.

Court of Appeal, Fifth District, California.

April 21, 1992.

Ordered Published on May 18, 1992.

[6 Cal.App.4th 1110] Bruce M. Richardson, William B. Haughton and Sonny Lo, Long Beach, for petitioner.

John W. Spittler, Robert G. Thompson and Andrea H. Jespersen, Sacramento, for respondent.

Mastagni, Holstedt & Chiurazzi and Mark R. Kruger, Sacramento, for real parties in interest.

OPINION

MARTIN, Acting Presiding Justice.

Petitioner Trustees of the California State University (University) seeks writ of prohibition/mandate (Gov.Code, § 3542) to compel respondent Public Employment Relations Board (PERB or Board) to dismiss an unfair labor practice charge arising from rejection of a probationary police officer.

On June 29, 1988, real parties in interest, Gilbert Washington, Jr., and his labor union, the Statewide University Police Association (SUPA), filed an unfair practice charge (case No. S-CE-35-H) against petitioner under the Higher Education Employer-Employee Relations Act (Gov.Code, § 3571, subds. (a)-(d)) (HEERA). Real parties specifically alleged petitioner rejected Washington from probation as a California State University, Fresno (CSUF), police officer in retaliation for his testimony on behalf of a fellow officer at a formal PERB hearing (unfair practice case Nos. S-CE-32-H and S-CE-33-H).

On August 18, 1988, real parties withdrew their allegations regarding a violation of Government Code section 3571, subdivisions (c) and (d) without prejudice.

On August 23, 1988, the PERB Office of General Counsel issued a complaint alleging petitioner took adverse action against real party Washington by rejecting him from continued employment during his probationary period. The complaint alleged petitioner took the adverse action because of Washington's exercise of his right to testify at a formal PERB hearing on June 22, 1988, a protected activity. Petitioner timely answered the PERB complaint.

After an extended contested hearing, a PERB Administrative Law Judge (ALJ) issued his proposed decision and dismissed the unfair practice charge and complaint. The ALJ stated in relevant part:

"A combination of the timing of the rejection, inconsistencies in the employer's actions and the inadequacies of the investigation into Washington's capabilities all lead to a conclusion that the Charging Party has presented a prima facie case of discrimination.

"The FSPD [Fresno State Police Department] insists that it had an operational justification to take the action that it did. It insists it has a right to either accept or reject any probationary employee it chooses. There is no serious dispute with that statement. It is only where there are allegations that such actions were taken in retaliation for protected activities that PERB becomes involved.

"...

"In this case, the FSPD had an employee whose past employment record had been somewhat inconsistent, at best. He had some definite strengths and yet several consistent and persistent weaknesses also showed themselves. The FSPD failed to meet the most minimum of standards in documenting Washington's police officer performance throughout his employment....

"... [T]he FSPD still has evidence of a probationary employee who (1) was rejected in probation from two previous employers, (2) has mixed 'recommendations' from his previous supervisors, (3) had a series of Internal Affairs incidents when he was with the Sheriff's Office, (4) engaged in a loud confrontation with his supervisor when discussing a performance report, (5) embarrassed the FSPD by twice disrupting an important security briefing, and (6) [FSPD] Chief Anderson believes, not only referred to his supervisor in the most derogatory of terms but consistently lied about it.

"Based on all of the above, it must be concluded that the FSPD has manifested a sufficiently plausible operational justification for the rejection of Gilbert A. Washington, Jr. from his position as a peace officer at the CSUF. The Charging Party was unable to prove, by a preponderance of the evidence, that the rejection of Washington was due, in whole or in part, to his protected activities."

On October 23, 1989, real parties filed exceptions to the ALJ's proposed decision and petitioner duly filed its response to the statement of exceptions.

On October 4, 1990, respondent filed PERB decision No. 845-H which reversed the proposed decision of the ALJ. Respondent stated in relevant part:

"Based on the inconsistent testimony and the FSPD's failure to meet the most minimum of standards in documenting Washington's performance throughout his probationary period, the Board finds CSU failed to present credible evidence of an operational justification for Washington's rejection from probation. Accordingly, the Board finds the charging parties proved, by a preponderance of the evidence, that Washington's rejection from probation was due to his protected activity."

Respondent directed the reinstatement of real party Washington as an FSPD officer and ordered other affirmative actions to effectuate the policies of HEERA. Petitioner filed a request for reconsideration of PERB Decision No. 845-H, alleging prejudicial errors of fact, and on February 13, 1991, respondent issued PERB Decision No. 845a-H which denied the request for reconsideration.

On March 5, 1991, petitioner filed a petition for writ of review with this court. On September 24, 1991, this court directed issuance of a writ of review returnable before the court on January 14, 1992, at 1:30 p.m. (Cal.Rules of Court, rule 59.) On December 10, 1991, this court changed the date of oral argument to Monday, March 16, 1992.

FACTS

The following facts are taken substantially from the proposed decision of the ALJ and PERB Decision No. 845-H.

The FSPD hired real party Washington as a public safety officer effective July 13, 1987. The position had a one-year probationary period. Washington had peace officer experience prior to that hiring. He spent three years with the Washington, D.C., Metropolitan Police Department, two years as a cadet and one year as a probationary patrol officer. The Metropolitan Police Department rejected him at the end of the probationary period. Washington explained, "[I]t was my first job out of high school and I was still young and immature." He also admitted he was "quick with the mouth, slow with the brain."

Washington also spent four years in the United States Air Force Military Police and nine months as a student intern with the California Department of Alcoholic Beverage Control. In addition, he was employed for ten months as a Deputy United States Marshal. Washington was rejected during his probationary period in the latter position because he was caught sleeping during the transportation of a suspect from Los Banos to Fresno. Immediately prior to his employment by FSPD, Washington served as a Fresno County Deputy Sheriff for eight years.

Sergeant Richard Snow of the FSPD conducted a background investigation of Washington prior to his employment. Snow contacted three lieutenants and five sergeants from the Fresno County Sheriff's Office. These officers either worked with and/or supervised Washington. Two officers insisted Washington was an excellent officer. They were enthusiastic about Washington's performance when he worked with them. A third officer reported no problems. The fourth said Washington's problems were "really supervisors' problems. I'd have him work with me anytime." The fifth officer said "... no real problems ... minor report difficulty ... takes a lot of supervising." The sixth said "... takes things personal ... tries to get around the rules ... had slow response times." The seventh officer commented "won't take responsibility for his actions ... some minor report writing problems." The last stated "... lots [o]f supervision ... tests the waters ... continual problems."

The sheriff's office conducted three or four internal affairs investigations of Washington during his eight years in that department for which he received several reprimands and he was removed from the canine unit for unsatisfactory conduct. Despite these reports, Snow stated in his FSPD evaluation that he "found no significant and lasting problems." Snow elaborated: "It would appear that WASHINGTON is dependable and interested in helping people. He seems sincere in his desire to assist the public and [should] be well suited to the campus community style of police work."

The FSPD placed Washington under the supervision of Sergeant Larry Foote and assigned Corporal Margie Hernandez, a field training officer, to monitor Washington's transition from deputy sheriff to university police officer. She worked directly with Washington for approximately four weeks and believed he was a safe and knowledgeable officer who had good rapport with the public. Hernandez said he was very trainable and open to suggestions on how to improve his performance. Washington's report writing was acceptable and any problems were normal to new officers in the department. Hernandez said there was no need to teach Washington general police procedures, only the university policies and procedures. Hernandez was aware of Washington's conflicts with Officer Guadalupe Canales, another FSPD officer on the graveyard shift. Canales had recently joined the FSPD and, in Hernandez's opinion, was a little "badge heavy." In other words, Canales attempted to throw her weight around due to greater seniority in the department. Hernandez counseled Washington to just keep doing his job.

Hernandez worked at the Kingsburg Police Department prior to her employment at FSPD. She trained five officers in Kingsburg but Washington was the...