Trustees of the California State University (PERB 1970H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Charging Party, Case No. LA-CE-899-H
Vv. PERB Decision No. 1970-H
TRUSTEES OF THE CALIFORNIA STATE July 18, 2008
UNIVERSITY,
Respondent.

Appearance: Steven Raskovich, University Counsel, for Trustees of the California State
University.

Before Wesley, Rystrom and Dowdin Calvillo, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the Trustees of the California State University
(CSU) to an administrative law judge’s (ALJ) proposed decision (attached). The complaint
alleged that CSU, through the actions of administrators and faculty at San Diego State
University, violated section 3571(a) of the Higher Education Employer-Employee Relations
Act (HEERA)' by failing to rehire Terrence Ireland (Ireland) into a permanent Equipment
Technician II (ETI) position in retaliation for his filing an unfair practice charge against CSU.
The ALJ concluded that CSU unlawfully retaliated against Ireland by: (1) modifying the ETI
job description to make him a less competitive applicant; (2) appointing a selection committee

that was biased against him; and (3) denying him an interview for the permanent ETII position.

'HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

The ALJ ordered CSU to rehire Ireland to the ETII position or a substantially similar position,
and to pay him back pay from the date it rejected him as an applicant to the date of its offer of
reinstatement.
The Board reviewed the entire record, including but not limited to the complaint,
CSU's answer, the hearing transcripts and exhibits, the parties' post-hearing briefs, the
ALJ's
proposed decision and CSU's exceptions." Based on this review, the Board adopts the
ALJ's
proposed decision as the decision
of
the Board itself, subject to the discussion below.
2
DISCUSSION
We agree with the ALJ that CSU' s failure to rehire Ireland constituted retaliation for
his protected activities
of
filing grievances and an unfair practice charge. However, contrary to
the ALJ's conclusion, CSU has given legitimate, non-retaliatory reasons for its actions that are
intertwined with evidence
of
retaliatory motive. 	Separating these strands in order to determine
CSU's true motivation requires an additional analytical step not taken by the ALJ.
2
Once the charging party establishes a prima facie case of retaliation, as CSEA has done
here, the employer then bears the burden
of
proving that it would have taken the adverse action
even
if
the employee had not engaged in protected activity. (Novato Unified School District
(1982) PERB Decision No. 210; Martori Brothers Distributors v. Agricultural Labor Relations
Bd. (1981) 29 Cal.3d 721, 729-730 [175 Cal.Rptr. 626] (Martori Brothers); Wright Line (1980)
251 NLRB 1083 [105 LRRM 1169].) Thus, where as here, it appears that the employer's
adverse action was motivated by both valid and invalid reasons, "the question becomes whether
the [adverse action] would not have occurred 'but for' the protected activity." (Martori Brothers.)
The "but for" test is "an affirmative defense which the employer must establish by a
2 Charging party California State Employees Association (CSEA) did not file a response
to CSU's exceptions.

preponderance of the evidence." (McPherson v. Public Employment Relations Bd. (1987) 189
Cal.App.3d 293, 304 [234 Cal.Rptr. 428].) For the following reasons, CSU has failed to meet
this burden.
The Revised Job Description
While we agree with the ALJ that the revised
job
description "was written in an attempt
to keep Ireland from being rehired," we do not agree with the conclusion that it "was
not
created for a legitimate business purpose." Karen May-Newman (May-Newman), chair
of
the
Mechanical Engineering Department (Department), testified that she updated the
job
description to include more current technology and to reflect the qualities she wanted in an
ETII. Thus, the revised job description served the legitimate business purpose
of
ensuring that
the job description met the current needs
of
the Department and accurately reflected the duties
performed by the ETII. Nonetheless, given the evidence
of
May-Newman's past retaliation
against Ireland for filing grievances and her knowledge that Ireland would narrowly
meet the
modified qualifications, the record establishes that Ireland's grievances, and not the business
needs
of
the Department, motivated May-Newman to modify the ETII
job
description.
Accordingly, CSU has failed to establish that it would have revised the job description
in
the
same way had Ireland not engaged in protected activity.
Composition
of
the Selection Committee
CSU's reasons for appointing the particular members
of
the selection committee do not
overcome the inference
of
retaliation established by the record. 	May-Newman testified that
she put three technicians on the committee because she felt they were best able to evaluate the
applicants' skill sets. 	Having technicians evaluate the applicants' ability to perform the
job
duties of a technician is a legitimate business reason for creating a committee comprised
of
technicians. 	However, Tracy Arnold (Arnold) had minimal experience as a technician.
3

Moreover, though Greg Morris (Morris) was an experienced technician, May-Newman knew
of
Morris' dislike
of
Ireland before appointing him to the selection committee. Thus, the
ability to evaluate technical skills seems not to have been the primary factor in May-Newman's
choice of committee members. Accordingly, CSU has failed to prove that it would have
selected Arnold and Morris to serve on the selection committee even
if
Ireland had not
engaged in protected activity.
We disagree with the ALJ' s further conclusion that the composition
of
the selection
committee was retaliatory because May-Newman departed from established procedure by
appointing technicians, rather than faculty, to serve on the committee. Under PERB
Regulation 32178, the charging party has the burden
of
proving its prima facie case by a
preponderance
of
the evidence.3 CSEA argued that CSU deviated from established procedure
in 2005 because the selection committee that interviewed Ireland for the ETII position in 2001
consisted entirely
of
Department faculty. 	However, CSEA presented no evidence
of
the
composition
of
any other selection committee besides the two that had considered Ireland for
the ETII position. Because CSEA failed to demonstrate that CSU had an established procedure
regarding the composition
of
selection committees, we cannot conclude that CSU deviated
from established procedure in appointing three technicians to the selection committee.
Accordingly, we do not adopt the ALJ's conclusion
of
law on this point.
Ranking
of
the Applicants
May-Newman's and Morris' explanations of why they gave Ireland low rankings also
fail to rebut the inference
of
retaliatory motive. Each justified their low rankings
of
Ireland by
stating that his application materials were weak and that they had concerns about his ability to
3PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.

do the job based on their past experiences with him. However, the record shows that
May-Newman had previously retaliated against Ireland for his grievances and Morris had
expressed strong disapproval ofireland's out
of
class pay grievance. 	Thus, while they
presented legitimate, non-retaliatory reasons for their rankings, we cannot conclude on these
facts that May-Newman and Morris would have ranked Ireland the same had Ireland not
engaged in protected activity.
We disagree with two parts
of
the ALJ's conclusion
of
law regarding Morris' ranking
of
Ireland. First, the ALJ concluded that Morris' rankings were motivated in part by his desire
to please his supervisor, May-Newman. However, the record is devoid
of
evidence that Morris
had any desire or inclination to please May-Newman by ranking Ireland last among the
applicants. 	Instead, the record shows that Morris was motivated by his own dislike
of
Ireland.
Second, there
is
no factual or legal basis for the ALJ's conclusion that May-Newman's
unlawful motivation in ranking Ireland last should be imputed to Morris. Accordingly, we do
not adopt these portions
of
the ALJ' s conclusion.
We also do not adopt the ALJ's conclusion that there was "no legitimate reason why
Ireland, with his three years' prior experience in the position, should not have been rehired."
CSU articulated a legitimate reason why it did not interview Ireland: he was not among the top
two qualified applicants. However, the ranking process itself was tainted by the revised
job
description and May-Newman's and Morris' rankings. Thus, the record fails to establish that
Ireland would not have been one of the top two applicants even
if
retaliatory motive had
played no part in the hiring process. Accordingly, despite giving a legitimate reason for its
action, CSU has failed to prove that Ireland's protected activity was not the driving force
behind its decision to deny him an interview.
UI

Adverse Inference
Finally, we do not adopt the adverse inference drawn by the ALJ against CSU based on
CSU's failure to call selection committee member Stig Johansson (Johansson) as a witness. In
drawing this inference, the ALJ relied on a rule applied in National Labor Relations Board
(NLRB) proceedings that when a party fails to call a witness assumed to be favorable to the
party, the ALJ may infer that the witness would have testified adversely to the party.
(International Automated Machines (1987) 285 NLRB 1122, 1123 [129 LRRM 1265].) Here,
because CSU did not call Johansson
to
testify, the ALJ inferred that his testimony would have
been adverse to CSU.
In support
of
her application
of
the NLRB adverse inference rule, the ALJ stated that
"PERB has not specifically expressed this principle." In fact, PERB has expressed the
opposite principle. In Victor Valley Community College District (1986) PERB Decision
No. 570, the Board refused to draw an inference when a material witness was not called to
testify by either side. The Board noted that this was "consistent with judicial interpretations
of
California Evidence Code section 412, which hold that no adverse inference should be drawn
when a material witness who does not testify could have been called by either party. See, e.g.,
Patton
v.
Royal Industries, Inc. (1968) 263 Cal.App.2d 760." Here, both parties had the
opportunity to call Johansson to testify but neither did. Accordingly, no adverse inference
should have been drawn against CSU for failing to call Johansson as a witness.
ORDER
Upon the entire record in this matter, the Public Employment Relations Board finds that
the Trustees of the California State University (CSU) violated the Higher Education Employer
Employee Relations Act (HEERA), Government Code section 3571(a), by failing to rehire
Terrence Ireland (Ireland) in retaliation for filing grievances and an unfair practice charge.

Pursuant to HEERA section 3563.3, it is hereby ORDERED that CSU, its governing
board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against employees because of their protected activities; and	Retaliating against employees because
of
their protected activities; and
2. 	Failing to rehire Ireland.	Failing to rehire Ireland.
B.	
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE HEERA:
1. 	Offer to Ireland reinstatement to his former position
of
employment, or
if
that position no longer exists, then to a substantially similar position.
2 . 	Make Ireland whole for losses which he suffered as a result
of
CSU'
s
failure to rehire him, including back pay from May 2005 to the date
of
the offer
of
reinstatement.
Within ten (10) workdays following the date this Decision
is
no longer
subject to appeal, post at all work locations where Notices to employees
of
CSU are
customarily posted, copies
of
the Notice attached hereto
as
an Appendix. The Notice must be
signed by an authorized agent
of
CSU, indicating that CSU will comply with the terms
of
this
Order. 	Such posting shall be maintained for a period
of
thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered,
defaced, or covered with any other material.
3.
4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. CSU shall provide reports, in writing, as directed by the General Counsel
7

or his/her designee. All reports regarding compliance with this Order shall be concurrently
served on the California State Employees Association.
Members Wesley and Rystrom joined in this Decision.

APPENDIX
NOTICE TO EMPLOYEES	NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
C
2.
B.
1 .
After a hearing in Unfair Practice Case No. LA-CE-899-H, California State Employees
Association
v.
Trustees
of
the California State University, in which all parties had the right to
participate, it has been found that the Trustees
of
the California State University (CSU)
violated the Higher Education Employer-Employee Relations Act (HEERA), Government
Code section 357l(a), by failing to rehire Terrance Ireland (Ireland) in retaliation for filing
grievances and an unfair practice charge.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE	EASE AND DESIST FROM:	AND DESIST FROM:
1.	
Retaliating against employees because
of
their protected activities; and
2.	
Failing to rehire Ireland.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE HEERA:
1.	
Offer to Ireland reinstatement to his former position
of
employment, or
if
that position no longer exists, then to a substantially similar position.
2.	
Make Ireland whole for losses which he suffered as a result
of CSU's
failure to rehire him, including back pay from May 2005 to the date
of
the offer
of
reinstatement.
Dated: 	TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Charging Party,
v.
TRUSTEES
OF
THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-899-H	CASE NO. LA-CE-899-H
PROPOSED DECISION
January 22, 2007
Appearances: Brian Young, Labor Relations Representative, for California State Employees
Association; Steven Raskovich, University Counsel, for California State University.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
O
2 H
On July 6, 2005, the California State Employees Association (CSEA) filed an unfair
practice charge alleging that the Trustees
of
California State University (CSU) failed to rehire
applicant Terry Ireland (Ireland) in retaliation for his having filed a prior unfair practice
charge. 1
On October 4, 2005, the Office
of
General Counsel
of
the Public Employment
Relations Board (PERB or Board) issued a complaint alleging that by the above conduct, CSU
violated the Higher Education Employer-Employee Relations Act (HEERA) section 357l(a).
2
The prior charge, Case LA-CE-871-H, alleged that CSU unlawfully refused to
process one oflreland's grievances. 	The charge was withdrawn upon CSU's reinstatement
and processing of the grievance.
2 HEERA is codified at Government Code section 3560 et seq. 	Section 3571(a) makes
it unlawful for a higher education employer to "(I)mpose 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."

An informal settlement conference was held on November 9, 2005, at the Los Angeles
offices of PERB but the matter was not resolved. Formal hearing was held before the
undersigned on July 28, August 2, 24, and 25, 2006. After the submission of post-hearing
briefs the matter was submitted for decision on November 17, 2006.
FINDINGS OF FACT
CSU is a higher education employer within the meaning of HEERA section 3562(g).
CSEA is a recognized employee organization within the meaning of section 3562(p). At all
times relevant, Ireland has been a higher education employee within the meaning of section
3562(e) or for the purposes of section 3571 (a).3
Ireland was employed as an Equipment Technician II in the Mechanical Engineering
Department, College of Engineering at CSU's San Diego campus since June 2001. At that
time there was a hiring freeze but his position was exempt, allowing him to be appointed for
one-year renewable terms. The exemption provided that if he were reappointed for a fourth
year he would then become a permanent employee. He was reappointed in 2002 and 2003.
Current Classification: Equipment Technician II, E/M
Department: 	Mechanical Engineering
Supervisor: 	Chair
Mechanical Engineering Department
Ireland's duties were set forth in a written job description:
B.	B.
A. 	Position Information
The Mechanical Engineering Department is one of four
academic units in the College of Engineering at San Diego State
University. It currently has 365 students and 9.0 full-time
equivalent faculty. 	The function of the position as it relates to the
department is as follows:
The incumbent assist primarily the faculty and the students of the
Mechanical Engineering Department in research and instructionally
Some years ago, MMBA section 3571(a) was amended to specify that an applicant
for employment was an employee for purposes of that section.

related laboratory activities necessary for the conduct of the
Department's mission. This includes the principal function
of
designing and fabricating unique high technology research and
instructional equipment to interface as necessary with existing
computer, plotting and read out systems: 	and requires innovative
application
of
knowledge
of
equipment components and practical
experience. The technician will also plan, organize and supervise
various aspects
of
laboratory projects, and evaluate and calibrate
prototype equipment utilized for research and instruction. Additional
functions pertaining to this position include repair, overhaul and
maintenance
of
specialized technical equipment pertaining to
electronics, sophisticated vibration measurement systems, data
acquisition systems, plotter, digital and analog computers, gasoline
and diesel engines, pumps, fans, motors, metallurgical furnaces and
controls, cameras, solar collectors, robots; and maintaining supplies
and records as necessary for the above functions. 	A thorough
knowledge
of
sources
of
scientific equipment in the specialized fields
of
Mechanical Engineering is necessary. Due to the high volume
of
students entering the mechanical engineering labs, the candidate
should have thorough knowledge
of
safety protocol and ability to
enforce them. Also to serve as chief property clerk for the
Mechanical Engineering Department, maintaining the necessary
records for the equipment under department jurisdiction. Mature
attitude and good judgment is essential for this function. 	The
technician will now be in charge
of
supervising the student
machine shop and students using the machine shop. 	This includes
the development
of
safety materials and suitable safety instructions/
test procedures to ensure that students are adequately prepared to
use the machine shop tools in a safe manner. 	The technician will
also be involved in the training
of
students on specific machine
shop tool operation procedures.
C. 	Duties and Responsibilities of the Position
a.
	Critical Duties Performed
Time
50% Design, construct and maintain new research and	Design, construct and maintain new research and
instructional instruments for highly specialized Mechanical
EEngineering experiments. This function requires (a) a thorough
knowledge
of
electro-mechanical principals and state-of-the-art
electronics, some familiarity with UNIX and/or Window/NT
computer operating systems, and (b) ability to use independent
judgment and innovation for development of one-of-a-kind
research test facilities from design to fabrication and operation. It	research test facilities from design to fabrication and operation. It
encompasses design, fabrication (with the help of machinists and
3

technicians) and operation of special amplifiers, circuits, fuel
cell test apparatus, one-of-a-kind recorders, instrument panels,
integrated circuit applications. In addition, the technician must
maintain familiarity with a wide range of electrical, optical,
mechanical and thermal instrumentation pertaining to Mechanical
engineering measurements and incorporate this instrumentation
into various fabricated devices as necessary. The technician must
also test, evaluate and calibrate newly purchased devices to verify
performance; and when requested evaluate designs of new
equipment and make purchase recommendations based on specific
performance needs.
25% 	To maintain in proper and safe operating condition all
electronic, computer, and mechanical equipment relating to more
than 6600 square feet of laboratories under jurisdiction of the
Mechanical Engineering Department: to establish and keep record
of maintenance procedures and schedules, and to keep a file of
maintenance manuals for repair, calibration, and operation of this
highly specialized equipment. A partial listing of this specialized
equipment requiring service includes: analog computers, printers,
disc drives, vibration machines, large power amplifiers for the
vibration machines, numerous x-y recorders, oscilloscopes,	vibration machines, numerous x-y recorders, oscilloscopes,
amplifiers, power supplies, noise meters, digital volt meters,
oscillators, robots, misc. metallurgical equipment, engines, pumps,
fans and numerically controlled machines such as lathes, mills and
3D rapid prototyping machine.
5% 	To work with the facility in determining needs for
equipment, instrumentation, and supplies used in conjunction with
the laboratories and facilities in the Mechanical Engineering
Department.
10% 	Establish and update a file for the purpose of making
sound purchase decisions for the maintenance of all equipment in
the Mechanical Engineering Department, including spares,
supplies, tools, safety and other related equipment. Initiate a
follow-up on purchase requisitions concerning equipment
tools, supplies, spares, catalogs, etc.	tools, supplies, spares, catalogs, etc.
5% 	Establish and keep records of maintenance procedures and
schedules and to keep a file of maintenance and operators manuals
for the troubleshooting, repair, calibration, overhaul and operation
of all equipment.
5% 	Establish and maintain an inventory of all equipment in
the Mechanical Engineering Department and advise the campus
property clerk of changes.
4

b . 	Training and Experience
Equivalent to two years of college with specialization in electro
mechanical systems, their design, construction and repair,
oror
Equivalent to three years of progressively responsible journey
level or skilled experience in the design, maintenance and
operation of scientific or technical equipment, including one year
involving modifications and fabrication of complex and highly
technical equipment,
or
Equivalent to two years of skilled experience maintaining and
repairing scientific or technical equipment or related equipment.
Experience as part of instructional support activities may be
substituted for one year of required experience,
or
Equivalent to two years of trade school or technical arts training
with specialization in electro-mechanical equipment repair,
completion of an apprenticeship program, or completion of a full
military specialization in electro-mechanical equipment
maintenance and repair may be substituted for one year of required
experience.
C. 	Scope and Effect of Work
The Mechanical Engineering laboratories are used every day of the
week for instruction, senior students are assigned to work on
special projects as an important part of their engineering training,
and they regularly use equipment and require the services of the
technician in the completion of their projects. Further, and often
more demanding, services are required for graduate and faculty
research.
d. 	upervision and Guidance Received	d. 	Supervision
The supervisor is the Chair of the Mechanical Engineering
Department, but guidance also comes primarily in the form of
written and oral communications describing the task to be
completed and establishing work priorities; however, independence
and originality are additional job requirements.

e. 	Demand for Independent Judgment and Action
Some tasks are assigned in which only a minimum oral outline of
the project is given. Also, in design of instrumentation, it is left to
the technician's judgment and experience to determine the details
of the design, fabrication, material selection and time required to
complete the task. It is then the technician's task to verify
availability and cost of materials and to satisfy the requirements of
the Purchasing Department in ordering and acquiring the
needed goods and to complete the task in a minimum of time.
The technician is responsible for establishing and following
maintenance schedules in accordance with good engineering
practices, and when necessary seek the advice of manufacturing
representatives in the repair of complex and costly equipment.
f. 	Other Qualifications
The skills required for the position are of a special type, and the
position is a challenging one in trying to keep pace with the
continuing rapid growth and development on instrumentation and
equipment in the mechanical engineering field. 	Continual study of
materials, process, and catalog literature is required to keep abreast
of the state-of-the-art in this field of endeavor.
The technician's combined knowledge of electronics and
mechanical principles, and familiarity with available equipment
components and a variety of computers (Windows and/or UNIX)
are essential.
Ireland received two performance reports, one for the period ending June 30, 2002, and
one for the period ending June 30, 2003. In the first report, he received all "Superior" marks;
in the second report, mostly "Outstanding" marks and a few "Good" marks, with the following
comments:
Good job in moving and cleaning the labs. Excellent technical
skills. Faculty complained about work not completed on time.
Improve communication with some faculty. 	Divide your time
more equally (some faculty complained that you serve only one
person).
6

January 2004 Karen May-Newman (May-Newman) became chair of the Mechanical	In January 2004 Karen May-Newman (May-Newman) became chair of the Mechanical
Engineering Department. On April 4, 2004, Ireland filed a grievance complaining that he was	Engineering Department. On April 4, 2004, Ireland filed a grievance complaining that he was
performing supervisory work without being paid for the higher level classification. In thisperforming supervisory work without being paid for the higher level classification. In this
regard, Ireland claims that, at the request of David Hayhurst (Hayhurst), dean of San Diego	regard, Ireland claims that, at the request of David Hayhurst (Hayhurst), dean of San Diego
State's College of Engineering, he performed certain supervisory duties over Greg Morris	State's College of Engineering, he performed certain supervisory duties over Greg Morris
(Morris), an Engineering Technician III, and found out later that Morris had a higher wage	(Morris), an Engineering Technician III, and found out later that Morris had a higher wage
classification than himself. Hayhurst, May-Newman, and Morris all deny that Ireland ever	classification than himself. Hayhurst, May-Newman, and Morris all deny that Ireland ever
acted as Morris' supervisor. Morris told Ireland that filing a grievance against your boss was	acted as Morris' supervisor. Morris told Ireland that filing a grievance against your boss was
not the way to ask for more money, and he should tear it up. CSU denied the grievance and	not the way to ask for more money, and he should tear it up. 	CSU denied the grievance and
Ireland decided not to pursue it further.	Ireland decided not to pursue it further.
The June 2004 Termination	The June 2004 Termination
On June 16, 2004, Ireland was called to the office of Human Resources Director Carol	On June 16, 2004, Ireland was called to the office of Human Resources Director Carol
Cunard (Cunard) and told that he would not be reappointed for the fourth year; he was given	Cunard (Cunard) and told that he would not be reappointed for the fourth year; he was given
no reason. Although Ireland's termination would not officially take effect until the expiration	no reason. Although Ireland's termination would not officially take effect until the expiration
of his current contract on June 30, he was required to immediately turn in his keys, gather his	of his current contract on June 30, he was required to immediately turn in his keys, gather his
belongings, and leave the campus.	belongings, and leave the campus.
Hayhurst, along with May-Newman, made the decision not to renew Ireland's contract.	Hayhurst, along with May-Newman, made the decision not to renew Ireland's contract.
He testified that he had three concerns about Ireland: his lack of skills; his failure to keep the	He testified that he had three concerns about Ireland: 	his lack of skills; his failure to keep the
areas to which he was assigned at the required safety level; and his lack of response to faculty	areas to which he was assigned at the required safety level; and his lack of response to faculty
members. As to skills, Hayhurst testified that he had several conversations with Ireland	members. As to skills, Hayhurst testified that he had several conversations with Ireland
regarding the new "CNC" computer-driven machine; in one conversation, Ireland said it did	regarding the new "CNC" computer-driven machine; in one conversation, Ireland said it did
not work properly and he wanted to get a new one; Hayhurst agreed and suggested he get	not work properly and he wanted to get a new one; Hayhurst agreed and suggested he get
prices, but Ireland never followed up with anything in writing. As to safety, Hayhurst testified	prices, but Ireland never followed up with anything in writing. 	As to safety, Hayhurst testified
that students were not wearing required safety glasses or gloves, and labs were not in good	that students were not wearing required safety glasses or gloves, and labs were not in good

He assigned a faculty member
to
evaluate all
of
the college's labs, which resulted in a
finding
of
"minor violations." Hayhurst spoke to Ireland about his concerns and Ireland made
suggestions for improvement, but according to Hayhurst, "very little got done." As to
working with faculty, Hayhurst relied on reports that Ireland favored only one faculty
member, Dr. James Burns, and was not responsive to the needs
of
others. There is no
evidence that Hayhurst ever criticized Ireland's work or disciplined him about it or that he
ever spoke to Ireland about his favoring Dr. Burns.
May-Newman also testified that Ireland's work was deficient. She claimed that in
early 2003, before she became his supervisor and before he filed his first grievance, he failed
to complete a project involving plastic components for a machine, students complained that
they could not get completed parts from him, and he did not properly install a gasket seal. 	At
some point in time she discussed department safety concerns in general with Hayhurst,
including clutter, lack
of
cleanliness, containers not properly labeled, and potential OSHA
problems in her labs; she also discussed with Ireland measures which could be taken to
remedy safety problems. 	When she became department chair, she met with Ireland regarding
her expectations regarding the need for safety and for adequate responses to faculty requests;
she said she hoped Ireland could start off "on a new foot." May-Newman testified that she got
complaints about Ireland's work from one faculty member and from Morris (himself the
subject
of
a faculty complaint), who she said expressed frustration with him. 	She discussed
Ireland's work performance with Hayhurst and they decided not to renew his contract; she
claims that her reasons were that work was not getting done, projects were not getting
finished, and the shop was a "mess." However, there is no evidence that she ever issued an
oral or written warning or otherwise disciplined Ireland because of safety concerns or because
of his performance.

Hayhurst and May-Newman also raised the inspection of San Diego State's College of
Engineering by the Accreditation Board for Engineering Technology (ABET),4 which was
scheduled to be performed in late 2003.
	It is
undisputed that preparation for ABET's visit was
a stressful time for everyone at the college, as it was extremely important that CSU receive a
favorable report and be accredited. 	Staff meetings were held for this purpose, at which
several areas were discussed including design, cleanup, and safety. May-Newman testified
that Ireland, who had responsibility for ensuring that safety standards were met in the
Mechanical Engineering Department, did not remedy all
of
the problems. However, there
is
no evidence that he was counseled about any such failure, and the college received a good
report and a 6-year accreditation from ABET. Hayhurst acknowledged that ABET did not
make any criticism
of
the Mechanical Engineering Department labs; but May-Newman
testified that in one paragraph
of
its report, ABET noted student complaints about broken
equipment and poor laboratory conditions.
After the Termination
In July 2004, after Ireland's termination, Newman-May took photos
of
the
department's labs and machine shop, which show a fair degree of clutter and disorganization,
mostly created by students eating and drinking in the labs. According to May-Newman, the
photos also reflect safety concerns, as one might have to "trip" over a non-working machine to
reach a working machine. She contended that during Ireland's employ she had asked him in	reach a working machine. 	She contended that during Ireland's employ she had asked him in
general to clean up the department, and	general to clean up the department, and that it was his responsibility to notify the faculty,	that it was his responsibility to notify the faculty,
students, or anyone else responsible for fixing those areas. She testified that the areas shown	students, or anyone else responsible for fixing those areas. 	She testified that the areas shown
in the photos had not been	in the photos had not been touched since Ireland left, but she did not say how much more	touched since Ireland left, but she did not say how much more
clutter the	clutter the students caused since he left. The photos were filed away and the areas were	students caused since he left. The photos were filed away and the areas were
4 ABET accredits engineering schools for either a 2- or 6-year period.

cleaned up over the next several months in preparation for a student contest. May-Newman
also prepared a time-line of the clean-up process at the request of Dean Hayhurst, and decided
to close some of the labs. 	The photos were used for the first time at the instant hearing. 	When
asked why she took the photos, May-Newman testified:
I was concerned that there would be some issues raised regarding
my perception of what needed to be done to clean up this
laboratory space . . . (raised by) Mr. Ireland or Dr. Burns.
May-Newman also engaged in the following exchange:
Q: 	There would be a challenge to your closing the lab?
A: Yes.
Q: Why? Why would there be a challenge to you closing the
lab?
A: 	Because it would interfere with some people getting work
done in there.
Q: Well, if this was after Mr. Ireland was no longer employed
by the University, why would he - why could he possibly be one
of the people to challenge closing the lab?
A: I was more concerned about Dr. Burns making a challenge.
Q: Yeah, but apparently there was some concern that Mr.
Ireland might challenge it. Why would that be if he was no
longer employed there, in your mind?
A: I thought he would want to come back and that he would -
he would - I know he was not happy with not being reappointed
and that he would likely seek employment again. And I wanted
to document the condition of the lab for that purpose, but also for
this other purpose of, more importantly, of closing it on the basis
of environmental health and safety's advice.
Q: Okay. So in your mind at the time that you took these
pictures, you thought that if he wanted to come back, you didn't
want him to?
A: 	I wanted to document the condition the laboratory had been
in when he left.
10

Q: But did you feel at that time that if he made such a request,
you would not want to honor it?
A:
	I wouldn't say that. 	I just wanted to cover my behind in the
decisions that I had made why they were justified.
Q: Why? Why what was justified?
A: Why closing the laboratory to general use was justified.
Why not renewing Mr. Ireland's appointment was justified.
As noted above, Ireland's job performance was not mentioned by either Hayhurst or
Cunard when he was notified
of
his termination.
On August 9, 2004, Ireland filed a second grievance alleging that the termination
of
his
appointment was in retaliation for the first grievance. He and a CSEA representative
met
on
the grievance with May-Newman, who said his termination was because the department
needed to make some changes. 	The CSEA representative asked her what changes; she said
she did not know. At that meeting, Ireland's job performance was not mentioned as a reason;
as noted above, during his tenure at CSU he had never been disciplined, warned, or counseled.
CSU denied the second grievance.
Filling the Vacant Position	Filling the Vacant Position
In October 2004 May-Newman decided to fill Ireland's vacant position on an
emergency basis. A temporary agency was contacted and applications submitted by the
agency were reviewed. 	But the successful candidate, Mike Lester (Lester), did not come
through the agency; rather, he was a soccer acquaintance of May-Newman's husband. 	CSEA
witnesses testified without contradiction that Lester performed the same duties as Ireland.
During this period CSU arranged for Lester to receive training at the local city college on the
new CNC procedures, specifically the CAD/CAM machine.
11

December 3, 2004, Ireland filed a third grievance regarding the filling of his former
position, in which he restated the complaints in his prior grievances. 	CSU denied the
grievance on the basis that Ireland was no longer an employee. 	On February 25, 2005, CSEA
filed the unfair practice charge in Case LA-CE-871-H, alleging CSU's failure to process
Ireland's termination grievance. 5
Thereafter, Hayhurst told May-Newman to review the current job description to ensure
that it was appropriate for hiring a new employee. According to May-Newman, she found the
current job description "a bit confusing ... a lot of redundancy and overlapping descriptions."
In consultation with Cunard, she prepared a new job description; she claimed her purpose was
to ensure that the new employee would have "the qualifications necessary for the job that
needed to be done," including "specific things that I cared about, which was the CNC
machining, computer skills, ability to produce solid models." May-Newman contended that
the new description differs from the old in its emphasis on modern technology and equipment,
specifically the new CNC machine and in its requirement for a higher level of skills and
experience.6 The new job description reads:
Job Title: Equipment Technician II, Electro-Mechanical
Department: Mechanical Engineering
Name and Title of Supervisor: Karen May-Newman, Chair
A. 	Function of the Employing Unit
The College of Engineering is one of seven major instructional
As noted above, this case was settled and withdrawn upon CSU's processing of the
gnevance.
6 Back in May 2004 Cunard had sent Ireland a written response to his first grievance,
in which she stated, inter alia, that May-Newman would review his current job description and
contact him no later than June 4 to "share any changes or revisions she believes are
appropriate ... " However, neither Cunard nor May-Newman ever contacted Ireland to
discuss potential changes.
On December 3, 2004, Ireland filed a third grievance regarding the filling of his former
position, in which he restated the complaints in his prior grievances. CSU denied the
grievance on the basis that Ireland was no longer an employee. On February 25, 2005, CSEA
Thereafter, Hayhurst told May-Newman to review the current job description to ensure
that it was appropriate for hiring a new employee. According to May-Newman, she found the
current job description "a bit confusing . . . a lot of redundancy and overlapping descriptions."
In consultation with Cunard, she prepared a new job description; she claimed her purpose was
to ensure that the new employee would have "the qualifications necessary for the job that
needed to be done," including "specific things that I cared about, which was the CNC
machining, computer skills, ability to produce solid models." May-Newman contended that
the new description differs from the old in its emphasis on modern technology and equipment,
specifically the new CNC machine and in its requirement for a higher level of skills and
experience. 	he new job description reads:
Job Title: Equipment Technician II, Electro-Mechanical
Department: Mechanical Engineering
Name and Title of Supervisor: Karen May-Newman, Chair
filed the unfair practice charge in Case LA-CE-871-H, alleging CSU's failure to process
Ireland's termination grievance."
" T
A. 	Function of the Employing Unit
As
The College of Engineering is one of seven major instructional
noted above, this case was settled and withdrawn upon CSU's processing of the
grievance.
Back in May 2004 Cunard had sent Ireland a written response to his first grievance,
in which she stated, inter alia, that May-Newman would review his current job description and
contact him no later than June 4 to "share any changes or revisions she believes are
appropriate . . ." However, neither Cunard nor May-Newman ever contacted Ireland to
discuss potential changes.
12

units of San Diego State University. The primary objective of the
College is to prepare students for professional career in
engineering. 	The Department
of
Mechanical Engineering is one
of
four departments in	four departments in the College. The department currently has	the College. The department currently has
nine full-time faculty members, and serves approximately 400
undergraduates and 50 graduate students. 	In addition to our
undergraduate program, our students populate two Master
of
Science degree programs, a Master
of
Engineering and a Joint
Ph.D. program.
B. 	Function
of
the Position
The position
of
the technician is primarily technical, but good
record keeping, computer and communication skills (verbal and
written) are essential to proper job function. 	The technician will
plan, organize and supervise various aspects
of
laboratory projects,
and design, fabricate and calibrate prototype and other equipment
and instrumentation utilized for research and instruction. 	This
includes providing a safe work environment and providing safety
training to users
of
lab facilities. 	In order to oversee the general
state
of
experimental facilities, the technician is responsible for the
cleanliness, safety, security and effective utilization
of
laboratories
and other department-maintained space. The technician must
communicate	communicate regularly with faculty and Department Chair	regularly with faculty and Department Chair
regarding status and needs
of
instructional laboratories, shops and
project courses.
The technician supports the faculty and students
of
the College
of
Engineering in instructionally-related and research laboratory
activities. 	The position	activities. The position reports to and is supervised by the Chair of	reports to and is supervised by the Chair
of
Mechanical Engineering.
C. 	Duties
Approximate Distribution
of
Time
(40%) Lab/Equipment
The technician is responsible for the repair, maintenance and
replacement of specialized technical and instructional equipment.
The technician will coordinate maintenance and repair of
departmental equipment and arrange for acquisition and
disposition of equipment and supplies.
(20%) Student Fabrication Laboratory (E105)
The technician will also oversee the fabrication shop currently
located in E 105, and must coordinate with the design course
instructions and the Department Chair to maintain the laboratory
13

in safe operating condition. This includes providing safety
materials and keeping equipment in safe working order.
(20%) Design/Fabrication
The technician will design and fabricate new experimental apparatus	The technician will design and fabricate new experimental apparatus
for instructional and research laboratories.
(20%) Student Interaction
Technician will assist undergraduate and graduate students with
projects. 	Provide lab instruction/presentations that include
technical information and safety policies and procedures. 	Project
scheduling will be prioritized with the help
of
the faculty and
Department Chair.
Knowledge, Skills and Abilities
* Extremely diverse background fabrication
of
metals, plastics,
and wood,
* Knowledge
of
principles
of
welding and welding equipment,
* Experience with troubleshooting and maintenance
of
engineering and shop equipment,
* Knowledge
of
computers and software including CADCAM,
CNC programming knowledge,
* Ability to produce finished parts from solid models,
* Ability to solve problems with equipment and science-related
issues with minimal expense and time,
* Effectively organized, able to work well with diverse
personalities in a professional and respectful way,
* Experience with implementation and enforcement
of
laboratory/shop safety practices,
* Ability to lift 50 pounds,
* Strong oral and written communications skills
Qualifications
Equivalent to three years
of
journey-level or skilled experience in
the maintenance, repair, fabrication and operation of scientific or
technical electro-mechanical equipment including one year
involving construction and fabrication with a variety
of
materials.
Formal course experience or certification in CAD/CAM, Machining,
GD & T, Welding, Safety and other fabrication shop skills is highly
desirable.
14

Working Environment	Environment
Mechanical Engineering department laboratories including the
student machine shop, project fabrication lab, and engineering lab
building. 	Research and instructional laboratories for department
faculty, including offices and classrooms. 	Some local trips for
equipment and supplies may be needed, but not central to the
position.
License and/or certificates
Valid California driver's license
See above qualifications
In March 2005 CSU posted Ireland's former position as a permanent position, citing
the requirements
of
the new
job
description. 	May-Newman directed the search process. 	Prior
to that search process, the customary selection committee had consisted
of
Mechanical
Engineering Department faculty; the most recent committee had included Drs. Burns
and
Lambert, both supportive
of
Ireland. 	However, instead
of
appointing faculty, May-Newman,
in collaboration with Hayhhurst and Cunard, appointed three unit employees to form the
selection committee along with herself: 	Morris, the engineering technician whom Ireland
claimed he supervised; Tracy Arnold, an information technology consultant; and Stig
Johansson, an equipment technician specializing in aerospace. 	Neither Arnold nor Johansson
were employed in the Mechanical Engineering department; Arnold had little contact
with
Ireland during his tenure, and it is not known whether Johansson had any. 	May-Newman
testified that she chose them to "assess the skill sets," and that Arnold was there particularly to
assess the computer knowledge, including the CNC machine, notwithstanding that she
had
no
direct experience with the other principal machines used in the position. Four individuals
applied for the position, including Ireland and Lester. 	Instructed to use the newjob
description as a guide, the committee members rated the four applicants; Ireland received the
lowest rating. 	Two applicants, including Lester, were chosen to be interviewed, and Lester
15

was hired in late May 20057 It is CSU's failure to rehire Ireland at that time which inform
these proceedings.
As to the selection process, May-Newman testified that she rated Ireland the lowest
because he lacked the necessary qualifications. 	She contended that his prior jobs before CSU
were "primarily related to the automotive field," skills not necessary for a Mechanical
Engineering technician. When asked why Ireland was hired in the first place with even less
experience, she responded that she did not know what the pool
of
applicants or the selection
process was at that time. When asked why his past three years' experience in the very
position he was now applying for did not get him a higher rating, May-Newman said that the
others were more qualified, but
if
there had been no other candidates, he would have been
interviewed. She said he primarily lacked "CNC experience and training and ability to
produce solid models." As to why the committee selected only two candidates to interview,
she stated:
We thought we'd start with two and if we found someone that
we - was satisfactory, then we did not feel the need to continue.
Arnold testified that Ireland's application and resume had the following defects: 	( 1) he
did not have experience with the CAD/CAM machine; (2) his education was not relevant to
the job; and (3) he misspelled words, which Arnold said is her pet peeve. The only spelling	the job; and (3) he misspelled words, which Arnold said is her pet peeve. The only spelling
errors which I could find on Ireland's 3-page application and 3-page resume are "Mooved"
instead
of
"Moved", "Chesnit St." instead
of
"Chesnut St." and "employee's" instead
of
"employees", while hundreds
of
more difficult words were correctly spelled. It appears that
7 May-Newman recommended two applicants for further consideration (these two
were interviewed) and two not for further consideration (Ireland and another applicant);
Arnold did the same. Morris recommended two yes (Lester and an applicant who was not
interviewed) and two no (Ireland and an applicant who was interviewed). Johansson
recommended three yes and one no (Ireland).
16

these errors were typographical and that he did not use a spell-check. Arnold knew Ireland
while he was employed, but had never worked directly with him. 	She testified that she knew
there was some "controversy" in the Mechanical Engineering department but did not
know
why; and she knew Ireland had been terminated but did not know why. 	She claimed
that
she
was not aware
of
his wage grievance until the instant hearing. 	(In rebuttal, Ireland testified
that at the time he filed the wage grievance, Arnold came into his office to use his microwave,
as	as she often did, and he told her he had filed it. "She didn't have much to say about it. She	she often did, and he told her he had filed it. "She didn't have much to say about it. 	She
just
said, you know, I hope it works for you.") Arnold claimed that no one told her
how
to
view Ireland's application or how to rate the candidates. As to why only two candidates were
interviewed, Arnold testified as follows:
Q: Did anybody at any time ever tell you how many people you
could recommend for no further consideration or conversely for
further consideration?
A: You know, I don't remember that, but - I don't recall that. I	You know, I don't remember that, but - I
don't
recall that. I
mean, you know, I found out at some point that we could just do
two.
Q: 	You found out at some point that you could just do two?
A: Yeah.
Q.	
How did you find that out?
A: I don't remember. I mean, this is a long time ago. And I
don't remember when.
Morris also testified that he received no instructions on how to rate the applicants or
evaluate Ireland. He contended that he rated Ireland low because there were errors on his
resume, which Morris did not specify; it was incomplete, which Morris did not explain; and he
had a "jumpy" history, which Morris did not explain. Morris acknowledged that Ireland had a
good background in mechanics and had management experience, but that he had no
17

experience in fabrication. He also contended that Ireland was untruthful in his application by
stating that he supervised Morris. He testified that several times before Ireland's termination
he observed Dr. Burns talking to Ireland about his attitude. On one occasion in spring 2004,
Morris joined the conversation and said he agreed that Ireland's attitude was not positive but
rather was defiant and proud; in response, Ireland said, 'Tve been acting like this forever and
I'm not going to change." Morris testified that Ireland's first grievance was "inappropriate,"
that he should have discussed the matter informally with his supervisor or with Human
Resources, and that he (Morris) would never have filed a grievance for more money. 	Morris
claimed that May-Newman told him Ireland was not reappointed because things were not
getting done. As to Lester, Morris had met him five years before his hire, and knew that May
Newman had a "connection" with him; Morris testified that he "got along great with him."
Morris was aware that Lester received training while in his emergency position; Morris said
this "improved his ability to work to a limited extent." Morris, as well as Arnold, indicated
that although Ireland was the lowest rated, he was not unqualified for the position.
Johansson did not testify.
ISSUE
Did CSU fail to rehire Terry Ireland in retaliation for his protected activities?
CONCLUSIONS OF LAW
To demonstrate a violation of HEERA section 3571(a), the charging party must show
that: (1) the employee exercised rights under HEERA; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced	discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. iliovato Unified School District (1982)
18

PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.
Here, there is no question that Ireland engaged in protected activities, i.e., his
grievances and prior unfair practice charge, and that CSU, in particular Hayhurst and May
Newman, were aware of them. 8
he issue then is whether there is a connection, or "nexus",
between those activities and the adverse actions taken against Ireland. As direct evidence of
nexus is seldom available, it may be shown by circumstantial evidence. (Contra Costa
Community College District (2003) PERB Decision No. 1520.)
Circumstantial evidence of nexus includes the important factor of timing, i.e., whether
the employer's adverse action occurred in close temporal proximity to the employee's
protected conduct. (North Sacramento School District (1982) PERB Decision No. 264.)
However, timing, without more, does not demonstrate the necessary connection. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more
of the following additional factors must also be present: (1) the employer's disparate
treatment of the employee (State of California (Department of Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104.); (3) the employer's inconsistent or contradictory justifications for its actions (State
of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the
employer's cursory investigation of the employee's misconduct; (5) the employer's failure to
offer the employee justification at the time it took action or the offering of exaggerated,
19
Although the instant complaint cites Ireland's protected activity as only his filing of
the prior unfair practice charge, the record reveals that his three grievances also played a part
in his failure to be rehired. Accordingly, I shall consider them as part of the protected
activities at issue.

vague, or ambiguous reasons; (6) employer animosity towards union activists (Cupertino
Union Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts
which might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Here, the adverse actions taken against Ireland include his termination, the emergency
filling of his position by Lester instead of himself, and the failure to rehire him on a
permanent basis. I cannot find independent violations based on either his termination in June
2004 or the emergency filling of his position in October 2004 as these were not alleged in the
complaint, are time-barred, and do not arise from the same set of facts as those relating to the
failure to rehire him in May 2005. However, they were all decided by May-Newman along
with Hayhurst, thus they may serve as background evidence of their motivation. (California
State University, Hayward (Dees) (1991) PERB Decision No. 869-H; North Sacramento
School District (1982) PERB Decision No. 264.)
The Termination
At the time oflreland's termination in June 2004 he was given no reason at all; and
when he met with May-Newman in August 2004 regarding his termination grievance, he was
told only that the department needed to make some changes, but she was unable or unwilling
to specify what those changes were. 	Yet at the instant hearing, May-Newman, as well as
Hayhurst, proffered that Ireland's job performance was lacking. Thus, CSU's failure to offer
justification at the time of the termination, and its contradictory justification for the
termination made at the hearing are indicia of unlawful motivation. 	(Novato, supra; State of
California (Department of Parks and Recreation), supra.) Timing is also a factor, as Ireland
received notice of termination only two months after he filed his wage grievance. Further, as
Ireland's initial contract was renewed twice, he had received generally excellent performance
20

reviews, and had never received any reprimand or discipline, I find May-Newman's and
Hayhurst's complaints about his job performance to be pretextual, in order to hide their true
motivation, i.e., Ireland's grievance. (Sonoma County Junior College District (1991) PERB
Decision No. 895.)
The Filling of Ireland's Position on an Emergency Basis
May-Newman's decision in October 2004 to temporarily fill Ireland's vacant position
on an "emergency" basis was made shortly after his termination grievance was filed in August
2004. 	Thus timing is also factor here. And for the reasons stated above, I conclude that
CSU's decision to hire Lester instead of Ireland was not because oflreland's prior job
performance, but rather cited as pretext to hide an unlawful motivation.
Added to that is May-Newman's admission that she took the lab and shop photos,
which she used only for the instant hearing, in order to justify Ireland's termination and to
keep him from coming back, which also evidences an unlawful motivation. 	(North
Sacramento School District, supra.)
The New Job Description
May-Newman's decision in early 2005 to issue a new job description and permanently
fill the position was made shortly after the prior unfair practice charge was filed in February
2005. Thus timing is also a factor here. In addition, a thorough reading of the old and the
new job descriptions for Equipment Technician II shows striking similarities between the two.
In this regard, the sequence of paragraphs in the old job description was drastically altered for
the new job description, thereby making comparison difficult. However, a color-coded
comparison of the two documents, submitted as an exhibit by CSEA, was a great help in
making this analysis. The similarities include: the description and supervision of the
Mechanical Engineering Department; the functions and duties of the position, most
21

importantly keeping a safe work environment, instructing students in safety measures and
machine shop procedures, assisting students and faculty, repairing, maintaining, and acquiring
equipment, and designing and fabricating new equipment; required knowledge and skills in
fabrication, welding, engineering and shop equipment; skill in working with scientific
equipment and with faculty and students; and enforcing safety practices.
One difference between the two documents
is
that the old job description lists several
specific types
of
equipment in sections
Band
C,
including computers, while the new
job
description specifically cites knowledge and skill in the new computer-driven CAD/CAM and
CNC machines, and CAD/CAM course-work or certification as a "highly desirable" but not
required qualification. However, Lester, who was awarded the permanent position, was hired
as an emergency replacement without such experience or certification and was provided it by
CSU during his emergency tenure. I see no legitimate reason why Ireland, who already had	CSU during his emergency tenure. I see no legitimate reason why Ireland, who already had
some CNC experience, or any other new hire, could not have been given this same
opportunity after rehire. 	Another difference is that the old job description cites the required
training as two years
of
college or either the equivalent of three years' journey-level
experience or other similar alternatives; the new job description requires three years journey
level experience including one year
of
construction and fabrication, with no alternatives.
During Ireland's tenure at CSU, he had already gained the required three years
of
journey
level experience.
In summary, except for the CAD/CAM and CNC qualification and the elimination
of
alternatives to the required three years' experience, the new job description does not
materially alter the description, duties, or requirements of the position. I therefore find that it
was not created for a legitimate business purpose, but rather was written in an attempt to keep
Ireland from being rehired. (Novato, supra.)
22

The Selection Committee
This selection committee was unusual in that it was composed of unit employees rather
than faculty. May-Newman testified that she chose people experienced in new technology.
However, neither Arnold nor Johansson were employed in the Mechanical Engineering
Department and there is no evidence that they knew the real requirements or workings of that	Department and there is no evidence that they knew the real requirements or workings of that
department. Thus, they had to rely entirely on the new job description, which specifically lists
experience with the CNC and CAD/CAM machines. Had the committee been composed
instead of Mechanical Department faculty, they would have known the many similarities
between the new and old job descriptions, that Ireland already had some experience with the
CNC machine, and that he could have been further trained as Lester had been. I find May
Newman's reasons for her appointments unconvincing and her departure from established
procedure to be evidence of unlawful motivation. (Santa Clara Unified School District,
supra.) Further, I find that the appointment of Morris to the committee was a deliberate
attempt to sabotage Ireland's rehire, as May-Newman was well aware of Morris' hostility	attempt to sabotage Ireland's rehire, as May-Newman was well aware of Morris' hostility
toward Ireland.
Accordingly, I find that May-Newman's unusual appointments to the selection
committee were motivated by a desire to keep Ireland from being rehired because of his
grievances and unfair practice charge.
The Committee Ratings
Ireland was not rehired after he was rated the lowest of four applicants by the selection
committee, with each member rating him as not qualified for further consideration. Although
three committee members - Arnold, Johansson, and Morris - were not in supervisory or
management positions, they were given the authority by May-Newman to make a hiring
decision, later ratified by CSU; thus they were acting as agents of CSU. (Chula Vista
23

School District (2004) PERB Decision No. 1647; Compton Unified School	Elementary School District (2004) PERB Decision No. 1647; Compton Unified School
District (2003) PERB Decision No. 1518.) Their motivation in giving Ireland the lowest	District (2003) PERB Decision No. 1518.) Their motivation in giving Ireland the lowest
rating is therefore at issue.	rating is therefore at issue.
Arnold testified that she was motivated by Ireland's lack
of
experience with the new
CAD/CAM machine, his lack
of
certification on the CNC machine; and misspellings on his
application. However, Arnold was probably unaware that Ireland already had CNC
experience, as she did not work in his department and had infrequent contact with him.
Arnold was probably also unaware that Lester did not have CAD/CAM experience when he
was first hired as Ireland's replacement, but was later provided training by CSU. As to
there were but a few minor mistakes, which might have been typographical
errors. 	I therefore do not find Arnold's reasons convincing. 	Further, I find suspicious her
lack
of
memory as to how she learned there were to be only two applicants rated for
interviews, while she was very specific in her objections to Ireland's application. As to
knowledge, there is a conflict as to whether she knew oflreland's wage grievance. 	She
summarily denied she ever heard
of
the grievance until the instant hearing. 	Ireland, however,
testified that while Arnold was using the microwave in his office, he told her about having
filed the grievance and she responded, "I hope it works for you." Because
of
the specificity
of
Ireland's testimony, and the problems with Arnold's testimony noted above, I credit Ireland in
this regard and find that he told Arnold about the grievance around the time it was filed in
April 2004. 	However, there is no evidence that her response to the grievance indicates any
anti-union animus nor is there any other evidence upon which to find her motive unlawful.
Johansson did not	Johansson did not testify, thus there is no direct evidence regarding the motivation for	testify, thus there is no direct evidence regarding the motivation for
his ratings. "When a party fails to call a witness who may reasonably be assumed to be	his ratings. 	"When a party fails to call a witness who may reasonably be assumed to be
favorably disposed to the party, an adverse inference may be drawn regarding any factual	favorably disposed to the party, an adverse inference may be drawn regarding any factual
24

question on which the witness is likely to have knowledge," International Automated
Machines (1987) 285 NLRB 1122, 1123; Daikichi Sushi (2001) 335 NLRB 622.9 Here, it
may reasonably be assumed that Johansson would be favorably disposed toward CSU's
selection process and its hiring decision, in which he took part. Accordingly,
as
CSU failed to
call him as a witness, I make an inference that
if
called, his testimony would not be any more
convincing than Arnold's or Morris'. 	However, there is no evidence that Johansson was
aware
of
any
of
Ireland's grievances or his prior unfair practice charge. I therefore cannot
find that his ratings were unlawfully motivated.
Morris, however, is another matter. He expressed animus toward Ireland's wage
grievance in testifying that it was an "inappropriate" way to ask for more money. He also
testified that the grievance, as well as Ireland's application, were untruthful, as they falsely
claimed that Ireland had supervisory duties over him. Morris also criticized Ireland's resume
for errors and incompleteness, but he gave no details. He acknowledged that Ireland had a
good background in mechanics and had management experience, but proffered that he had no
experience in fabrication. 	However, the job description under which Ireland was initially
hired, states that the position "includes the principal function
of
designing and fabricating
unique high technical research and instructional equipment ... " As Ireland's contract was
renewed twice before his termination, it must be assumed that CSU was satisfied with his
design and fabrication abilities. I therefore do not find Morris' concerns well-founded.
Morris also testified to Ireland's defiant attitude, but that he "got along great" with Lester,
whom he had known for some time before his hire and whom he knew had a personal
connection with May-Newman. He also testified that May-Newman told him that Ireland was
9 Although PERB has not specifically expressed this principle, it may appropriately
take guidance from decisions of the National Labor Relations Board. (Fire Fighters Union v.
City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr. 507].)
25

not reappointed because things were not getting done. Thus, it appears that Morris was
motivated by his animus toward Ireland's wage grievance and by his desire to please May
Newman, his supervisor, rather than by any legitimate concerns about Ireland's work. 	As
May-Newman was herself unlawfully motivated, I therefore conclude that Morris' ratings
were also unlawfully motivated.
As to May-Newman, she testified generally that she rated Ireland lowest because his
background did not satisfy the new job description. However, as discussed above, the new job
description	description did not impose any additional requirements which Ireland could not have been	did not impose any additional requirements which Ireland could not have been
trained to fulfill, and was itself unlawfully motivated, as were May-Newman's other actions
with regard to Ireland. Accordingly, I conclude that her ratings
of
Ireland during the selection
process were similarly unlawfully motivated.
I have therefore found that two out
of
the four selection committee members were
unlawfully motivated when they rated Ireland the lowest
of
the candidates. This in itself
would not guarantee that Ireland would have been selected but for their ratings. 	However, the
selection committee itself and the job description upon which they were instructed
to
rely
were unlawfully created, and I find no legitimate reason why Ireland, with his three years'
prior experience in the position, should not have been rehired.
Accordingly, I find that CSU failed to rehire Ireland in May 2005 in retaliation for his
protected activities, i.e., his grievances and prior unfair practice charge, in violation
of
MMBA section 3571(a).
REMEDY
HEERA section 3563.3 gives PERB:
26
. . . the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action . . . as will effectuate the policies of this chapter.

Here, CSU failed to rehire Terry Ireland in retaliation for his filing grievances and a	retaliation for his filing grievances and a
prior unfair practice charge, in violation of HEERA section 3571(a). In two fairly recent
cases, the National Labor Relations Board (NLRB) defined the differences between a failure
to consider for hire and a failure to hire, and delineated the different remedies thereupon. 	In
FES (A Division of Thermo Power) (2000) 331 NLRB 9 [164 LRRM 1065], the NLRB
declared that the elements of a discriminatory refusal to hire are: (1) the employer was hiring;
(2) the applicant(s) had experience in the position; and (3) anti-union animus contributed to
the decision not to hire; and the remedy for a violation includes an order to hire the applicant
to the applied-for position or an equivalent position. The elements
of
a discriminatory refusal
to consider for hire are: (1) the employer excluded applicants from the hiring process; and (2)
anti-union animus contributed to the decision; the remedy includes an order to offer the
applicants a subsequent position when it becomes open. In Stamford Taxi, Inc. (2000) 332
NLRB No. 149 [170 LRRM 1483], the employer had terminated drivers' lease agreements and
the union called a strike. Several drivers then abandoned the strike, agreed to the employer's
new lease terms, and were rehired. However, three of these drivers were refused rehire for
anti-union reasons. The union then made an unconditional offer for the 32 remaining drivers
to return to work; however, the employer hired seven new drivers and refused to consider the
returning strikers as applicants. Following the guidelines set forth in FES, the NLRB found
that the three drivers who abandoned the strike and agreed to the new lease terms were victims
of an unlawful refusal to hire, and ordered their immediate reinstatement; the drivers offering
to return to work after the strike were found victims of an unlawful refusal to consider for
hire, and potential reinstatement to further openings was ordered.
27

Here, Ireland was considered as an applicant, but was not rehired for discriminatory
reasons. He is therefore the victim of a refusal to hire, and the appropriate remedy is to order
CSU to rehire Ireland to his former position or,
if
that position no longer exists, then
to
a
substantially similar position, and to pay him back pay for his loss
of
earnings. 	It is also
appropriate that CSU be ordered to post a notice incorporating the terms of the order. It
effectuates the purposes of the HEERA that employees be informed by a notice, signed by an
authorized agent, that the respondent has acted unlawfully, is being required to cease
and
desist from its unlawful activity, and will comply with the order.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Trustees of the California State University (CSU) violated the Higher
Education Employer-Employee Relations Act (HEERA), Government Code section 3571(a),
by failing to rehire Terry Ireland in retaliation for his filing a grievance and a prior unfair
practice charge.
Pursuant to HEERA section 3563.3, it hereby is ORDERED that CSU, its governing
board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1 . 	Retaliating against employees because
of
their protected activities;
2. 	Failing to rehire Terry Ireland.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.
1.
1 . 	Within ten (10) work days of the service of a final decision in this
matter, offer to rehire Terry Ireland to his former position
of
employment or,
if
that position
no longer exists, then to a substantially similar position;
28

2. 	Within ten (10) work days
of
the service
of
a final decision, make Terry
Ireland whole for losses which he suffered
as
a result
of
CSU' s failure to rehire him, including
paying him back pay for his loss
of
earnings from May 2005
10
to the date
of
its offer
of
rehire.
3.	
Within ten (10) workdays
of
the service
of
a final decision, post at all
work locations where notices to employees
of
CSU customarily are posted, copies
of
the
Notice attached hereto
as
an Appendix. The Notice must be signed by an authorized agent
of
CSU, indicating that it will comply with the terms
of
this Order. 	Such posting shall be
maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
4.	4 . 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. 	Respondent shall provide reports, in writing, as directed
by the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on CSEA.
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
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
3.
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
10
29
As noted above, the instant case cannot remedy Ireland's termination in June 2004,
or CSU's failure to rehire him on an emergency basis in October 2004, thus the back pay
should not be figured back to those dates, but rather to May 2005 when CSU failed to rehire
him, as alleged in the complaint.

FAX: (916) 327-7960	(916) 327-7960
30
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. (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. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before
the
close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
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,
32140, and 32135(c).)
Ann L. Weinman
Administrative Law Judge