Regents of the University of California (Los Angeles) (PERB 1995H)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
COALITION OF UNIVERSITY EMPLOYEES,	COALITION OF UNIVERSITY EMPLOYEES,
Charging Party,	Charging Party,
VV..
REGENTS OF THE UNIVERSITY OF	REGENTS OF THE UNIVERSITY OF
CALIFORNIA	CALIFORNIA (LOS ANGELES),	(LOS ANGELES),
Respondent.	Respondent.
Case No. SF-CE-753-H	Case No. SF-CE-753-H
PERB Decision No. 1995-H	PERB Decision No. 	1995-H
December 19, 2008	December 19, 2008
Appearances: 	Leonard Carder by Shawn C. Groff, Attorney, for Coalition of University
Employees; Atkinson, Andelson, Loya, Ruud & Romo by James 	Romo, Attorney, for	Employees; Atkinson, Andelson, Loya, Ruud & Romo by James C. Romo, Attorney, for	C.
Regents of the University of California (Los Angeles).	Regents of the University of California (Los Angeles).
Before Neuwald, Chair; McKeag and Rystrom, Members.	Before Neuwald, Chair; McKeag and Rystrom, Members.
DECISION
RYSTROM, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by the Coalition of University Employees (CUE) of the
dismissal of its unfair practice charge against the Regents of the University of California
(Los Angeles) (UCLA) by an administrative law judge (ALJ).
A violated the Higher Education Employer-Employee	The charge alleged that UCLA violated the Higher Education Employer-Employee
Relations Act (HEERA)	Relations Act (HEERA) 1 section	ection 3571(a)	3 57l(a)2 when	hen it laid off an employee, Bert Thomas	it laid off an employee, Bert Thomas
(Thomas), in retaliation for his union activities.	(Thomas), in retaliation for his union activities.
1
HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2
"HEERA section 3571(a) makes it unlawful for a higher education employer to "Impose
or threaten to impose reprisals on employees, to discriminate or threaten to discriminate
against employees, or otherwise to interfere with, restrain, or coerce employees because of
their exercise of rights guaranteed by this chapter."

We have reviewed the entire record, including but not limited to the charge, the	We have reviewed the entire record, including but not limited to the charge, the
complaint, the parties' post-hearing briefs, the ALJ's proposed decision, CUE's exceptions to	complaint, the parties' post-hearing briefs, the ALJ's proposed decision, CUE's exceptions to
the proposed decision and UCLA's response thereto. Based on our review, we affirm the	the proposed decision and UCLA's response thereto. Based on our review, we affirm the
ALJ' s dismissal of the charge for the reasons stated below.	ALJ's dismissal of the charge for the reasons stated below.
ALJ'S DECISION
The ALJ found that Thomas was not laid off in retaliation for his union activities in	The ALJ found that Thomas was not laid off in retaliation for his union activities in
violation of HEERA. Although she found that there was evidence of union animus on the part	violation of HEERA. Although she found that there was evidence of union animus on the part
of Thomas' lower-level supervisors Kevin Clark (Clark) and Ann Marie Lebsack (Lebsack),	of Thomas' lower-level supervisors Kevin Clark (Clark) and Ann Marie Lebsack (Lebsack),' 3
the ALJ found that Carma Lizza (Lizza), who alone made the layoff decision, did not have a	the ALJ found that Carma Lizza (Lizza), who alone made the layoff decision, did not have a
part in or knowledge of their animus. Lizza was manager of the Transfusion Medicine	part in or knowledge of their animus. Lizza was manager of the Transfusion Medicine
Division. Concluding that Lizza's testimony was credible, the ALJ found that Lizza harbored	Division. Concluding that Lizza's testimony was credible, the ALJ found that Lizza harbored
no animus toward Thomas' union activities and that those activities did not motivate her	no animus toward Thomas' union activities and that those activities did not motivate her
decision to lay off Thomas.	decision to lay off Thomas.
Even though the ALJ failed to find a nexus between Thomas' union activity and his	Even though the ALJ failed to find a nexus between Thomas' union activity and his
selection for layoff, she analyzed whether the layoff decision was made for legitimate business	selection for layoff, she analyzed whether the layoff decision was made for legitimate business
reasons notwithstanding Thomas' protected activities.reasons notwithstanding Thomas' protected activities. 4 The ALJ determined that there was a
legitimate business reason for the layoff decision.
~The	he ALJ found that union animus on the part of Clark and Lebsack was evidenced by	ALJ found that union animus on the part of Clark and Lebsack was evidenced by
Clark's comments in Thomas' August 2001 evaluation; Lebsack's transfer of Thomas to the	Clark's comments in Thomas' August 2001 evaluation; Lebsack's transfer of Thomas to the
Center for Health Sciences (CHS) building; Lebsack's February 2003 memo, which referenced	Center for Health Sciences (CHS) building; Lebsack's February 2003 memo, which referenced
his work rules grievance; Lebsack's comments in Thomas' 2003 through 2004 evaluation,	his work rules grievance; Lebsack's comments in Thomas' 2003 through 2004 evaluation,
which referenced his union activities; and Lebsack's denial of Thomas' request to attend	which referenced his union activities;
bargaining training in June 2004.	bargaining training in June 2004.
4Only if a prima facie case of retaliation is established does the burden then shift to the
employer to prove that its action would have been the same in the absence of the protected
activities. 	(California State University (San Francisco) (1986) PERB Decision No. 559-H;
Sacramento City Unified School District (1985) PERB Decision No. 492 (Sacramento USD).)
Because we find CUE has failed to demonstrate a prima facie case of retaliation, we do not
2

The ALJ' s proposed decision dismissed the complaint and its underlying unfair practice	The ALJ's proposed decision dismissed the complaint and its underlying unfair practice
charge.	charge.
CUE'S EXCEPTIONS TO THE PROPOSED DECISION	CUE'S EXCEPTIONS TO THE PROPOSED DECISION
CUE excepted to the following findings in the ALJ' s proposed decision:	CUE excepted to the following findings in the ALJ's proposed decision:
(1) The conclusion that Lizza possessed only minimal awareness of Thomas' protected	he conclusion that Lizza possessed only minimal awareness of Thomas' protected
union activities.	union activities.
(2) 	The finding that Lizza harbored no animus toward Thomas' union activities and
that such animus did not motivate her decision to lay Thomas off. CUE argues that unlawful
animus on the part of Clark and Lebsack should have been imputed to Lizza.
The finding that Lizza harbored no animus toward Thomas' union activities and
that such animus did not motivate her decision to lay Thomas off. CUE argues that unlawful
animus on the part of Clark and Lebsack should have been imputed to Lizza.
(3) 	The finding that the Blood and Platelet Center (BP Center) increased its revenue
after Thomas' layoff due to the mobile units. CUE contends that given the decision to lay
Thomas off was wholly without basis from a purely economic standpoint, it must have been
unlawfully motivated.
he finding that the Blood and Platelet Center (BP Center) increased its revenue
after Thomas' layoff due to the mobile units. CUE contends that given the decision to lay
Thomas off was wholly without basis from a purely economic standpoint, it must have been
unlawfully motivated.
UCLA'S RESPONSE TO CUE'S EXCEPTIONS	UCLA'S RESPONSE TO CUE'S EXCEPTIONS
UCLA urges the Board to uphold the ALJ's findings as supported by the weight of the	UCLA urges the Board to uphold the ALJ's findings as supported by the weight of the
evidence and makes the following arguments in opposition to CUE's exceptions:	evidence and makes the following arguments in opposition to CUE's exceptions:
(1) 	Lizza's knowledge that Thomas was actively involved in and held various
leadership positions with CUE is too vague and general to establish the element of knowledge
required in retaliation cases.
izza's knowledge that Thomas was actively involved in and held various
leadership positions with CUE is too vague and general to establish the element of knowledge
required in retaliation cases.
(2) An imputation of union animus is unwarranted in this case because Lizza never	An imputation of union animus is unwarranted in this case because Lizza never
conferred with Clark or Lebsack as to her decision to eliminate Thomas' position, and because	conferred with Clark or Lebsack as to her decision to eliminate Thomas' position, and because
Lizza was never aware of any animus toward Thomas.	Lizza was never aware of any animus toward Thomas.
address whether UCLA has proved that it would have taken the same adverse action even if
Thomas had not engaged in protected activity.
3	3

(3)	3) 	The conclusion that revenues increased after Thomas was laid off from his position
as a recruiter is relevant. By retaining employees more versatile than Thomas, whose
classifications permitted them to work on the mobile unit, the division was able to further the
objective of focusing on the more efficient and productive mobile units.
as a recruiter is relevant. By retaining employees more versatile than Thomas, whose
classifications permitted them to work on the mobile unit, the division was able to further the
objective of focusing on the more efficient and productive mobile units.
STATEMENT OF FACTS	STATEMENT OF FACTS
UCLA hired Thomas as a "casual employee" (20 hours per week) for a senior clerk
position in April 1996, and made him a full-time employee in April 1998. At the time of his
layoff on May 2, 2005, Thomas was employed as a senior clerk in the BP Center, where he
served as a recruitment officer responsible for blood donor recruitment.
UCLA hired Thomas as a "casual employee" (20 hours per week) for a senior clerk
position in April 1996, and made him a full-time employee in April 1998. At the time of his
layoff on May 2, 2005, Thomas was employed as a senior clerk in the BP Center, where he
served as a recruitment officer responsible for blood donor recruitment.
Thomas' Union Activities	Thomas' Union Activities
Thomas was active in CUE since 1998, and held various offices within the union.	Thomas was active in CUE since 1998, and held various offices within the union.
From 2000 to 2002, he served on its statewide executive board. From 2002 to 2003, he was
the local president. Thomas was a steward from 2003 to 2004, and served as a member of
CUE's statewide bargaining team from June 2004 through June 2006.
From 2000 to 2002, he served on its statewide executive board. From 2002 to 2003, he was
the local president. Thomas was a steward from 2003 to 2004, and served as a member of
CUE's statewide bargaining team from June 2004 through June 2006.
In these various capacities, Thomas' activities included talking about CUE with his
fellow employees in order to increase its membership, participating in on-campus rallies,
speaking in opposition to UCLA at board meetings, and confronting management on various
CUE issues.
In these various capacities, Thomas' activities included talking about CUE with his
fellow employees in order to increase its membership, participating in on-campus rallies,
speaking in opposition to UCLA at board meetings, and confronting management on various
In July 2001, Thomas filed grievances which alleged that new rules governing	In July 2001, Thomas filed grievances which alleged that new rules governing
tardiness, dress code, eating and drinking on campus as well as other such workplace rules
were implemented by UCLA unilaterally and in violation of the parties' collective bargaining
agreement. 	He distributed CUE flyers, which solicited employee complaints about the new
rules and testified at the arbitration hearing on the grievance.
tardiness, dress code, eating and drinking on campus as well as other such workplace rules
were implemented by UCLA unilaterally and in violation of the parties' collective bargaining
agreement. He distributed CUE flyers, which solicited employee complaints about the new
rules and testified at the arbitration hearing on the grievance.
4

Thomas' Job Duties and History at the BP Center
As a senior clerk, Thomas' job duties consisted of soliciting and scheduling blood
donors at the BP Center. This was done by making "cold calls" from donor reference lists.
Thomas was the most successful recruiter and scheduled approximately 100 units of blood
donations per week and approximately five platelet donors per day. There was differing
testimony regarding the dollar value of blood and platelet donations. Thomas set the blood at
$400 per unit and a platelet donor at $900, while Lizza set a unit of blood at $300 and a
platelet donor at $450.
As a senior clerk, Thomas' job duties consisted of soliciting and scheduling blood
donors at the BP Center. This was done by making "cold calls" from donor reference lists.
Thomas was the most successful recruiter and scheduled approximately 100 units of blood
donations per week and approximately five platelet donors per day. There was differing
testimony regarding the dollar value of blood and platelet donations. Thomas set the blood at
$400 per unit and a platelet donor at $900, while Lizza set a unit of blood at $300 and a
platelet donor at $450.
Thomas' 2002 Transfer	Thomas' 2002 Transfer
In early 2002, when UCLA began renovating the CHS building to relieve overcrowding
at the BP Center, Lebsack moved two senior recruiters, Thomas and Carstelious Ervin, from
the BP Center to a room in the basement of CHS. In a memo to the recruiters dated
February 28, 2002, Lebsack explained that the temporary move would last from six to twelve
months. As of his layoff on May 2, 2005, Thomas had not been relocated from the CHS
building to the new facility.	building to the new facility.
In early 2002, when UCLA began renovating the CHS building to relieve overcrowding
at the BP Center, Lebsack moved two senior recruiters, Thomas and Carstelious Ervin, from
the BP Center to a room in the basement of CHS. In a memo to the recruiters dated
February 28, 2002, Lebsack explained that the temporary move would last from six to twelve
months. As of his layoff on May 2, 2005, Thomas had not been relocated from the CHS
Thomas' Training	Thomas' Training
Lebsack's June 2003 through June 2004 evaluation of Thomas stated that due to	Lebsack's June 2003 through June 2004 evaluation of Thomas stated that due to
staffing shortages, Thomas would be trained in the Fall to cover either the center front desk
duties or operations center duties regarding the mobile units and that the assignment would be
his choice. Thomas received some training for the mobile unit, but he was never assigned to a
mobile unit. As to the reason why, Lebsack testified that "we just didn't get to it."
staffing shortages, Thomas would be trained in the Fall to cover either the center front desk
duties or operations center duties regarding the mobile units and that the assignment would be
his choice. Thomas received some training for the mobile unit, but he was never assigned to a
mobile unit. As to the reason why, Lebsack testified that "we just didn't get to it."
The 2005 Staff Reductions	The 2005 Staff Reductions
As of December 2004, the three hospitals of the UCLA Medical Center (UCLA	As of December 2004, the three hospitals of the UCLA Medical Center (UCLA
hospitals) lost $11.6 million through the first six months of the fiscal year. The UCLA	hospitals) lost $11.6 million through the first six months of the fiscal year. The UCLA
5

hospitals budgeted to lose $5 .3 million during this period. Thus, with the $11.6 million loss,
the UCLA hospitals faced an additional $6.3 million shortfall. These losses mainly resulted
from expenses exceeding revenue.
hospitals budgeted to lose $5.3 million during this period. Thus, with the $11.6 million loss,
the UCLA hospitals faced an additional $6.3 million shortfall. These losses mainly resulted
from expenses exceeding revenue.
At this time, as a result of seeing the numbers on the expense side, the UCLA hospitals	At this time, as a result of seeing the numbers on the expense side, the UCLA hospitals
tried to correct the situation by evaluating and reducing expenses as well as increasing revenue.	tried to correct the situation by evaluating and reducing expenses as well as increasing revenue.
On the revenue side, the UCLA hospitals tried to maximize patient revenue reimbursement.	On the revenue side, the UCLA hospitals tried to maximize patient revenue reimbursement.
On the expense side, they initiated programs which looked at staffing and supply expenses.	On the expense side, they initiated programs which looked at staffing and supply expenses.
The situation improved on the revenue side and by the close of the fiscal year in
June 2005, the hospitals had a net income of $9.2 million. But, this was $10.8 million less
than the $20 million the UCLA hospitals had projected for net income. The $10.8 million
shortfall was mainly due to expenses being over budget by about $26.8 million. 	Staffing
salaries and benefits were $2.8 million over budget in December 2004 and $7.8 million over
budget in June 2005. 	The staffing salaries and benefits usually accounted for about one half of
the UCLA hospitals' expenses and were, therefore, a major concern at that time.
The situation improved on the revenue side and by the close of the fiscal year in
June 2005, the hospitals had a net income of $9.2 million. But, this was $10.8 million less
than the $20 million the UCLA hospitals had projected for net income. The $10.8 million
shortfall was mainly due to expenses being over budget by about $26.8 million. Staffing
salaries and benefits were $2.8 million over budget in December 2004 and $7.8 million over
budget in June 2005. The staffing salaries and benefits usually accounted for about one half of
the UCLA hospitals' expenses and were, therefore, a major concern at that time.
In February 2005, David Bruckner (Bruckner), director of clinical labs, and Lizza's	In February 2005, David Bruckner (Bruckner), director of clinical labs, and Lizza' s
immediate supervisor, told all of the managers, including Lizza, that: the UCLA hospitals had
serious financial problems, it had been decided that the organization would reduce salary costs
by cutting staff, and they each had to reduce their staff by eight percent while maintaining the
same level of service.
immediate supervisor, told all of the managers, including Lizza, that: the UCLA hospitals had
serious financial problems, it had been decided that the organization would reduce salary costs
by cutting staff, and they each had to reduce their staff by eight percent while maintaining the
same level of service.
Thomas' Layoff
When Lizza received the direction to reduce her staff by eight percent, she believed she
had to eliminate about eight positions given she had approximately 40 employees in
transfusion services and 50 in the BP Center. Lizza initially decided to try and eliminate four
When Lizza received the direction to reduce her staff by eight percent, she believed she
had to eliminate about eight positions given she had approximately 40 employees in
transfusion services and 50 in the BP Center. Lizza initially decided to try and eliminate four
66

positions without laying off any employees, although she knew that she might be asked to
reduce more positions later.
positions without laying off any employees, although she knew that she might be asked to
reduce more positions later.
Lizza reviewed her staff list and found three positions to recommend for elimination.	Lizza reviewed her staff list and found three positions to recommend for elimination.
First, she suggested "absorbing" a vacant unlicensed lab technician position in the transfusion
service section by spreading the position's duties among a "fair number" of unlicensed
technical people. Next, she recommended discontinuing the employment of a licensed
technologist in the transfusion service section who was a per diem at-will employee. Lizza
suggested eliminating the third position by restructuring and reassigning the work of the
highest administrative supervisor position in the BP Center, which became vacant in February
2005, when its incumbent retired. At this point, Lizza determined that she could not avoid a
layoff.
First, she suggested "absorbing" a vacant unlicensed lab technician position in the transfusion
service section by spreading the position's duties among a "fair number" of unlicensed
technical people. Next, she recommended discontinuing the employment of a licensed
technologist in the transfusion service section who was a per diem at-will employee. Lizza
suggested eliminating the third position by restructuring and reassigning the work of the
highest administrative supervisor position in the BP Center, which became vacant in February
2005, when its incumbent retired. At this point, Lizza determined that she could not avoid a
Lizza next looked at classifications that would have the least impact on operations if	Lizza next looked at classifications that would have the least impact on operations if
eliminated. She determined that a reduction could be made to the clerical staff without
negatively impacting the needs of the department. 	She mistakenly thought there were three
individuals in administrative assistant I clerical positions and determined that Thomas had the
least seniority among the three. 	She selected him for layoff on that basis."
eliminated. She determined that a reduction could be made to the clerical staff without
negatively impacting the needs of the department. She mistakenly thought there were three
individuals in administrative assistant I clerical positions and determined that Thomas had the
least seniority among the three. She selected him for layoff on that basis. 5
Bruckner approved each of Lizza's staff reduction recommendations. Lizza gave	Bruckner approved each ofLizza's staff reduction recommendations. Lizza gave
Thomas a layoff notice on March 1, 2005, which was effective May 2, 2005. Thomas was
offered a choice of being placed on a preferential rehiring list or receiving severance pay. 	He
chose the severance pay.
Thomas a layoff notice on March 1, 2005, which was effective May 2, 2005. Thomas was
offered a choice of being placed on a preferential rehiring list or receiving severance pay. He
chose the severance pay.
5 After making her decision regarding Thomas' layoff, Lizza discovered when looking
at the roster that Thomas was actually classified as a senior clerk. This classification was a
lower clerical classification than the administrative assistant I position Lizza had thought
Thomas had. As a senior clerk, Thomas' position was less cross trained and did not handle
blood. The discovery of this new information about Thomas' classification did not change
Lizza's layoff recommendation.
After making her decision regarding Thomas' layoff, Lizza discovered when looking
at the roster that Thomas was actually classified as a senior clerk. This classification was a
lower clerical classification than the administrative assistant I position Lizza had thought
Thomas had. As a senior clerk, Thomas' position was less cross trained and did not handle
blood. The discovery of this new information about Thomas' classification did not change
Lizza' s layoff recommendation.
77

Approximately 30 employees were laid off in this staff reduction, including supervisors
and managers. 	Approximately 65 other employees resigned, retired, or were dismissed.
Approximately 30 employees were laid off in this staff reduction, including supervisors
and managers. Approximately 65 other employees resigned, retired, or were dismissed.
Since Thomas' layoff, the BP Center has collected more blood and platelet donations
due to its use of the mobile units. The operation changed significantly to scheduling mobiles
out in the field from tele-recruitment of blood donors.
Since Thomas' layoff, the BP Center has collected more blood and platelet donations
due to its use of the mobile units. The operation changed significantly to scheduling mobiles
out in the field from tele-recruitment of blood donors.
DISCUSSION	DISCUSSION
In considering an appeal, PERB reviews the entire record de novo. It may reverse legal
determinations of an ALJ and from the factual record, may draw opposite inferences from
those drawn by the ALJ. 	(Woodland Joint Unified School District (1990) PERB Decision
No. 808a (Woodland); Santa Clara Unified School District (1979) PERB Decision No. 104.)
In considering an appeal, PERB reviews the entire record de novo. It may reverse legal
determinations of an ALJ and from the factual record, may draw opposite inferences from
those drawn by the ALJ. (Woodland Joint Unified School District (1990) PERB Decision
No. 808a (Woodland); Santa Clara Unified School District (1979) PERB Decision No. 104.)
In this case we must decide whether CUE demonstrated that UCLA's decision to lay off	In this case we must decide whether CUE demonstrated that UCLA's decision to lay off
Thomas was made in retaliation for his having engaged in protected union activities.	Thomas was made in retaliation for his having engaged in protected union activities.
To establish a prima facie case of retaliation in violation ofHEERA section 357l(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 the employee because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
To establish a prima facie case of retaliation in 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 the employee because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato).
8
The charging party has the initial burden of showing the elements of a prima facie case
of retaliation. (Novato.) The issues in this case are whether CUE has demonstrated both that
Lizza had sufficient knowledge of Thomas' union activities and that Lizza selected Thomas for
layoff because of those activities.
nder HEERA, the Board has adopted the test in Novato for discrimination and
retaliation. (California State University (Sacramento) (1982) PERB Decision No. 21 1-H;
Trustees of the California State University (1990) PERB Decision No. 805-H.)
8
6
The charging party has the initial burden of showing the elements of a prima facie case
of retaliation. (Novato.) The issues in this case are whether CUE has demonstrated both that
Lizza had sufficient knowledge of Thomas' union activities and that Lizza selected Thomas for
layoff because of those activities.
'UUnder HEERA, the Board has adopted the test in Novato for discrimination and
retaliation. 	(California State University (Sacramento) (1982) PERB Decision No. 211-H;
Trustees of the California State University (1990) PERB Decision No. 805-H.)

Knowledge	Knowledge
There can be no retaliation if an employer is unaware of a charging party's protected
activity. 	(Sacramento USD.)
There can be no retaliation if an employer is unaware of a charging party's protected
activity. (Sacramento USD.)
CUE argues that there is ample evidence in the record to show that Lizza was aware of
Thomas' union activity. For example, Lizza testified that "Mr. Thomas was very active and
everybody was aware that he was involved with the Union within the Department." CUE also
points out that Lizza testified she knew Thomas served as both a president and a steward of
CUE and that she assumed Thomas was directly involved in the work rules grievance and
arbitration.
CUE argues that there is ample evidence in the record to show that Lizza was aware of
Thomas' union activity. For example, Lizza testified that "Mr. Thomas was very active and
everybody was aware that he was involved with the Union within the Department." CUE also
points out that Lizza testified she knew Thomas served as both a president and a steward of
CUE and that she assumed Thomas was directly involved in the work rules grievance and
We find in this case that while Lizza was not aware of all of Thomas' union activities,
CUE demonstrated that Lizza possessed awareness of them so as to satisfy the employer
knowledge requirement.
We find in this case that while Lizza was not aware of all of Thomas' union activities,
CUE demonstrated that Lizza possessed awareness of them so as to satisfy the employer
knowledge requirement.
In addition to the evidence cited by CUE above, Lizza testified when asked about	In addition to the evidence cited by CUE above, Lizza testified when asked about
Thomas' union activities in relation to her layoff decision that she "regarded his participation
in Union activities not to be a reason to target him or to exclude him." Regarding the work
rules grievances, although Lizza was not at the arbitration hearing and did not know that
Thomas testified at the hearing, she assumed that he was involved. Lizza also recalled seeing a
CUE flyer written in opposition to the work rules and assumed that Thomas had been involved
in authoring it.
Thomas' union activities in relation to her layoff decision that she "regarded his participation
in Union activities not to be a reason to target him or to exclude him." Regarding the work
rules grievances, although Lizza was not at the arbitration hearing and did not know that
Thomas testified at the hearing, she assumed that he was involved. Lizza also recalled seeing a
CUE flyer written in opposition to the work rules and assumed that Thomas had been involved
in authoring it.
Unlawful Motivation	Unlawful Motivation
When direct evidence of unlawful motive is not available, such motive can be
established through circumstantial evidence and inferred by the record as a whole. 	(Novato.)
Although relevant, the timing of the adverse action, standing alone, cannot establish the action
was taken because of the protected activities. 	(Moreland Elementary School District (1982)
When direct evidence of unlawful motive is not available, such motive can be
established through circumstantial evidence and inferred by the record as a whole. (Novato.)
Although relevant, the timing of the adverse action, standing alone, cannot establish the action
was taken because of the protected activities. (Moreland Elementary School District (1982)
9

PERB Decision No. 227.) Evidence 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; State of
California (Department of Parks and Recreation) ( 1983) PERB Decision No. 328-S (Parks and
Recreation)); (2) the employer's departure from established procedures and standards when
dealing with the employee (Los Angeles Unified School District (2001) PERB Decision
No. 1469; Alisal Union Elementary School District (2000) PERB Decision No. 1412); (3) the
employer's inconsistent, contradictory, or vague justifications for its actions (Parks and
Recreation); (4) the employer's cursory investigation of the employee's misconduct iliovato);
(5) employer animosity toward union activists (Cupertino Union Elementary School District
(1986) PERB Decision No. 572); or (6) any other facts which might demonstrate the
employer's unlawful motive (Novato).
PERB Decision No. 227.) Evidence 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; State of
California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S (Parks and
Recreation)); (2) the employer's departure from established procedures and standards when
dealing with the employee (Los Angeles Unified School District (2001) PERB Decision
No. 1469; Alisal Union Elementary School District (2000) PERB Decision No. 1412); (3) the
employer's inconsistent, contradictory, or vague justifications for its actions (Parks and
Recreation); (4) the employer's cursory investigation of the employee's misconduct (Novato);
(5) employer animosity toward union activists (Cupertino Union Elementary School District
(1986) PERB Decision No. 572); or (6) any other facts which might demonstrate the
employer's unlawful motive (Novato).
CUE argues that unlawful intent in this case was demonstrated by: 	(1) imputing the
union animus of Clark and Lebsack to Lizza; and (2) the fact that Thomas had been the top
revenue-producing telephone recruiter which indicates an unlawful motivation because there is
no economic justification for his layoff.
CUE argues that unlawful intent in this case was demonstrated by: (1) imputing the
union animus of Clark and Lebsack to Lizza; and (2) the fact that Thomas had been the top
revenue-producing telephone recruiter which indicates an unlawful motivation because there is
no economic justification for his layoff.
(1)	( 1) 	Imputing Animus	Imputing Animus
The ALJ found that CUE failed to show that Lizza's decision was motivated by union	The ALJ found that CUE failed to show that Lizza's decision was motivated by union
animus. 	On appeal CUE argues that the ALJ erred in failing to impute to Lizza the union
animus she found on the part of Clark and Lebsack.
animus. On appeal CUE argues that the ALJ erred in failing to impute to Lizza the union
animus she found on the part of Clark and Lebsack."7
"Unlawful animus may be imputed to high management officials where, even
innocently, they rely on inaccurate and biased information of lower level officials." (State of
"Unlawful animus may be imputed to high management officials where, even
innocently, they rely on inaccurate and biased information of lower level officials." (State of
7The ALJ's findings of animus on the part of Clark and Lebsack are listed at footnote 3.	he ALJ's findings of animus on the part of Clark and Lebsack are listed at footnote 3.	"T
10

California (Department of Corrections) (2001) PERB Decision No. 1435-S (emphasis added);
see e.g., Parks and Recreation.)
California (Department of Corrections) (2001) PERB Decision No. 1435-S (emphasis added);
We find no basis to impute any union animus on the part of Clark or Lebsack to Lizza.	We find no basis to impute any union animus on the part of Clark or Lebsack to Lizza. 8
Lizza testified that before making her layoff decision, she spoke to no one, including Clark or
Lebsack about what she was doing.
Lizza testified that before making her layoff decision, she spoke to no one, including Clark or
Lebsack about what she was doing.
with any supervisor or official at the UCLA campus about concerns they had regarding
Thomas or his participation in union activities, and she did not review his personnel file during
9 She further testified that she did not have conversations
with any supervisor or official at the UCLA campus about concerns they had regarding
Thomas or his participation in union activities, and she did not review his personnel file during
her decision-making process.
We defer to the ALJ's following credibility findings as to Lizza's testimony in
accordance with Woodland, and incorporate these findings into our decision:
We defer to the ALJ's following credibility findings as to Lizza's testimony in
accordance with Woodland, and incorporate these findings into our decision:
Lizza did not participate in any prior decisions regarding Thomas,
including his work assignments, and did not consult with his
supervisors or review his evaluations before making her decision.
Lizza did not participate in any prior decisions regarding Thomas,
including his work assignments, and did not consult with his
supervisors or review his evaluations before making her decision.
Thus, unless I discredit Lizza' s testimony, I cannot find that she
harbored any animus toward Thomas' union activities or that
those activities motivated her decision. An adverse credibility
finding may be made against a witness whose testimony is
evasive, exaggerated, confused, inconsistent, inherently
unbelievable, or whose demeanor suggests she is not telling the
truth. 	(Regents of the University of California (CSEA) (1984)
PERB Decision No. 449-H; Santa Clara Unified School District
(1985) PERB Decision No. 500.) Here, Lizza's testimony was
straightforward and consistent, her recollection was intact, and
she did not exhibit any suspicious demeanor. Accordingly I find
no reason to discredit her testimony. 	[it] ... there is no solid
basis upon which to conclude that her decision was unlawfully
motivated.
Thus, unless I discredit Lizza's testimony, I cannot find that she
harbored any animus toward Thomas' union activities or that
those activities motivated her decision. An adverse credibility
finding may be made against a witness whose testimony is
evasive, exaggerated, confused, inconsistent, inherently
unbelievable, or whose demeanor suggests she is not telling the
truth. (Regents of the University of California (CSEA) (1984)
PERB Decision No. 449-H; Santa Clara Unified School District
(1985) PERB Decision No. 500.) Here, Lizza's testimony was
straightforward and consistent, her recollection was intact, and
she did not exhibit any suspicious demeanor. Accordingly I find
no reason to discredit her testimony. [] . . . there is no solid
basis upon which to conclude that her decision was unlawfully
motivated.
8We do not address whether CUE proved that Clark or Lebsack had union animus
because we find that any such animus on their part would not be properly imputed to Lizza.
e do not address whether CUE proved that Clark or Lebsack had union animus
because we find that any such animus on their part would not be properly imputed to Lizza.
9
'Lizza testified that if an action were going to be taken on one of her staffing
recommendations she would then consult with her boss (Bruckner) and human resources on the
appropriate method of taking that action.
11
Lizza testified that if an action were going to be taken on one of her staffing
recommendations she would then consult with her boss (Bruckner) and human resources on the
appropriate method of taking that action.
11

CUE urges us to find that the ALJ' s failure to impute the union animus she found on
the part of Thomas' lower level supervisors to Lizza was erroneous because National Labor
Relations Board (NLRB) case law holds that a supervisor's unlawful motivation is imputable
to the employer even if the official who takes the adverse action is unaware of the supervisor's
ammus.
CUE urges us to find that the ALJ's failure to impute the union animus she found on
the part of Thomas' lower level supervisors to Lizza was erroneous because National Labor
Relations Board (NLRB) case law holds that a supervisor's unlawful motivation is imputable
to the employer even if the official who takes the adverse action is unaware of the supervisor's
animus.
In support of its argument that animus should be imputed, CUE cites Goldens Foundry	In support of its argument that animus should be imputed, CUE cites Goldens Foundry
& Machine Co. (2003) 340 NLRB 1176 [173 LRRM 1585] (Goldens Foundry) for the
proposition that a supervisor's unlawful motivation is imputable to the employer even if the
official who actually makes the adverse determination is unaware of the supervisor's animus.
& Machine Co. (2003) 340 NLRB 1176 [173 LRRM 1585] (Goldens Foundry) for the
proposition that a supervisor's unlawful motivation is imputable to the employer even if the
official who actually makes the adverse determination is unaware of the supervisor's animus.
In Goldens Foundry, a manager discharged an employee as a direct result of a meeting	In Goldens Foundry, a manager discharged an employee as a direct result of a meeting
with the employee's immediate supervisor in which the supervisor presented a false report that
the employee had walked off the job without giving notification or receiving authorization.
The NLRB found that "Toland's [the supervisor's] unlawful motivation must be imputed to
Giddings [the manager] because were it not for the fact that Toland brought Jones' [the
employee] purported misconduct on February 12 to Giddings's attention, Jones would not have
been discharged." (Goldens Foundry, at p. 1177.)
with the employee's immediate supervisor in which the supervisor presented a false report that
the employee had walked off the job without giving notification or receiving authorization.
The NLRB found that "Toland's [ the supervisor's] unlawful motivation must be imputed to
Giddings [the manager] because were it not for the fact that Toland brought Jones' [the
employee] purported misconduct on February 12 to Giddings's attention, Jones would not have
been discharged." (Goldens Foundry, at p. 1177.)
CUE also cites Tracer Protection Services, Inc. (1999) 328 NLRB 734 [162 LRRM
1079] (Tracer), as authority for imputing Clark and Lebsack's animus to Lizza. In Tracer, the
critical fact in the NLRB' s decision to impute the unlawful motivation of officials from one
company, who had recommended an employee's discharge to the supervisor of another
company who thereafter discharged the employee, was that it was proved that the supervisor
who discharged the employee knew about the unlawful motivation on the part of the officials
who sought the employee's removal. However, in deciding this case, the NLRB acknowledged
"that an unlawful motive on the part of Ormet [respondent] cannot simply be attributed to
CUE also cites Tracer Protection Services, Inc. (1999) 328 NLRB 734 [162 LRRM
1079] (Tracer), as authority for imputing Clark and Lebsack's animus to Lizza. In Tracer, the
critical fact in the NLRB's decision to impute the unlawful motivation of officials from one
company, who had recommended an employee's discharge to the supervisor of another
company who thereafter discharged the employee, was that it was proved that the supervisor
who discharged the employee knew about the unlawful motivation on the part of the officials
who sought the employee's removal. However, in deciding this case, the NLRB acknowledged
"that an unlawful motive on the part of Ormet [respondent] cannot simply be attributed to
12	12

"P
B
13
Tracer [respondent] without any evidence from which Tracer's own knowledge and motive can
be inferred." (Tracer, at p. 734.)
Tracer [respondent] without any evidence from which Tracer's own knowledge and motive can
be inferred." (Tracer, at p. 734.)
The Board is not bound by NLRB precedent or analysis. (Oxnard School District
(Gorcey and Tripp) (1988) PERB Decision No. 667; Carlsbad Unified School District (1979)
PERB Decision No. 89; Los Angeles Unified School District (1976) EERB
The Board is not bound by NLRB precedent or analysis. (Oxnard School District
(Gorcey and Tripp) (1988) PERB Decision No. 667; Carlsbad Unified School District (1979)
PERB Decision No. 89; Los Angeles Unified School District (1976) EERB" Decision No. 5.)
10
Indeed, the Board has not adopted the standards regarding imputation of knowledge set forth in
either Goldens Foundry or Tracer. To the contrary, as discussed below, the Board has taken a
different approach. Therefore, we find CUE's reliance on Goldens Foundry and Tracer is
misplaced.
Decision No. 5.)
Indeed, the Board has not adopted the standards regarding imputation of knowledge set forth in
either Goldens Foundry or Tracer. To the contrary, as discussed below, the Board has taken a
different approach. Therefore, we find CUE's reliance on Goldens Foundry and Tracer is
misplaced.
In San Bernardino City Unified School District (2004) PERB Decision No. 1602
(San Bernardino), a director of classified personnel removed a substitute teacher from a phone
calling system's bank of substitute teachers based on the recommendation of an assistant
affirmative action officer, whose investigation revealed that the teacher used physical force on
a student. 	The ALJ's proposed decision in San Bernardino would have imputed the director's
knowledge of the substitute teacher's union activities to the affirmative action officer in the
absence of any evidence that the officer was aware of the teacher's protected activity. The
Board did not affirm that portion of the proposed decision and specifically found that the
imputation of knowledge under those circumstances was not warranted. 	(San Bernardino, at
p. 25, fn. 22.) Therefore, under PERB precedent, one individual's experience will not be
imputed to another unless it is warranted under the circumstances.
In San Bernardino City Unified School District (2004) PERB Decision No. 1602
(San Bernardino), a director of classified personnel removed a substitute teacher from a phone
calling system's bank of substitute teachers based on the recommendation of an assistant
affirmative action officer, whose investigation revealed that the teacher used physical force on
a student. The ALJ's proposed decision in San Bernardino would have imputed the director's
knowledge of the substitute teacher's union activities to the affirmative action officer in the
absence of any evidence that the officer was aware of the teacher's protected activity. The
Board did not affirm that portion of the proposed decision and specifically found that the
imputation of knowledge under those circumstances was not warranted. (San Bernardino, at
p. 25, fn. 22.) Therefore, under PERB precedent, one individual's experience will not be
imputed to another unless it is warranted under the circumstances.
In this case, Lizza was unaware of any unlawful motivation towards Thomas on the part
of Clark or Lebsack and never consulted with them regarding her layoff decision. Under these
In this case, Lizza was unaware of any unlawful motivation towards Thomas on the part
of Clark or Lebsack and never consulted with them regarding her layoff decision. Under these
10Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
rior to January 1978, PERB was known as the Educational Employment Relations
oard or EERB.
13

facts, the evidence does not justify imputing any animus on the part of Clark and Lebsack to
Lizza.
facts, the evidence does not justify imputing any animus on the part of Clark and Lebsack to
Lizza.
Lack of Economic Justification for Layoff as Alleged Indicia of Unlawful Motivation	Lack of Economic Justification for Layoff as Alleged Indicia of Unlawful Motivation
CUE argues that because Thomas' s donor recruitment generated many times more
money for UCLA than he received in salary, any decision to lay him off cannot be justified
from an economic standpoint and therefore must have been a product of unlawful motivation.
In support of this argument, CUE alleges that the ALJ's conclusion that UCLA increased
donor productivity due to the mobile units after Thomas was laid off was erroneous. We find
there is no factual basis for this argument and reject it for that reason alone.
CUE argues that because Thomas's donor recruitment generated many times more
money for UCLA than he received in salary, any decision to lay him off cannot be justified
from an economic standpoint and therefore must have been a product of unlawful motivation.
In support of this argument, CUE alleges that the ALJ's conclusion that UCLA increased
donor productivity due to the mobile units after Thomas was laid off was erroneous. We find
there is no factual basis for this argument and reject it for that reason alone.
While it is true that Thomas' efforts brought substantial revenue to UCLA, it does not	While it is true that Thomas' efforts brought substantial revenue to UCLA, it does not
automatically follow that UCLA lost revenue when it laid him off. 	The fact that the revenue
generated by the mobile units exceeded that generated by telephone recruiting is confirmed by
the evidence in the record. Lebsack gave the following testimony as to the increased
efficiency of the mobile blood units compared to telephonic recruiting:
automatically follow that UCLA lost revenue when it laid him off. The fact that the revenue
generated by the mobile units exceeded that generated by telephone recruiting is confirmed by
the evidence in the record. Lebsack gave the following testimony as to the increased
But really, our focus is the mobile operation. Just because for
the time involved, if we go to a mobile, we can draw out a
hundred units in one day, whereas, if we have someone that's
tele-recruiting and they're at the top of their game, they'll be
pulling in 20 units max, 20 appointments for a day. 	Well, that's
five days of somebody sitting eight hours at a telephone to get us
a hundred units for the week. Or I can send out one mobile crew,
one day, and bring in more than a hundred units ....
But really, our focus is the mobile operation. Just because for
the time involved, if we go to a mobile, we can draw out a
hundred units in one day, whereas, if we have someone that's
tele-recruiting and they're at the top of their game, they'll be
pulling in 20 units max, 20 appointments for a day. Well, that's
five days of somebody sitting eight hours at a telephone to get us
a hundred units for the week. Or I can send out one mobile crew,
one day, and bring in more than a hundred units . . . .
The evidence establishes that not only did donations increase after Thomas' layoff, but
UCLA's decision to select the lowest clerical position for layoff was also consistent with its
shift from telephonic donor recruiting to mobile unit recruiting as discussed above.
The evidence establishes that not only did donations increase after Thomas' layoff, but
shift from telephonic donor recruiting to mobile unit recruiting as discussed above.11
"Even Thomas admitted that the mobile units were "very successful."
14	14
Even Thomas admitted that the mobile units were "very successful."

THE WITNESS [Lizza]: There has not been -- There has been an	THE WITNESS [Lizza]: There has not been -- There has been an
increase in donors to the Center since he has been laid off so it
has been effective. There has not been a drop in donors.
increase in donors to the Center since he has been laid off so it
has been effective. There has not been a drop in donors.
[ALJ]: There's been an overall increase in donors?	[ALJ]: There's been an overall increase in donors?
THE WITNESS: Absolutely. And a lot of that has to do with the	THE WITNESS: Absolutely. And a lot of that has to do with the
fact that we're booking larger mobiles. I told you about the other
direction we're going into.
fact that we're booking larger mobiles. I told you about the other
direction we're going into.
[ALJ]: Well, if he had stayed, isn't it possible that he would	[ALJ]: Well, ifhe had stayed, isn't it possible that he would
[have] made an even larger increase?	[have] made an even larger increase?
THE WITNESS: We had to layoff somebody and I don't -- and	THE WITNESS: 	We had to layoff somebody and I don't -- and
we were able to absorb it and to also do his function with other
people to the same amount of time. 	So, I had to choose, and
again, it was based on cross functioning and keeping those donors
coming in and operate in getting them processed all through the
whole system. He was very focused on one little part of the piece
in order to get that blood available.
we were able to absorb it and to also do his function with other
people to the same amount of time. So, I had to choose, and
again, it was based on cross functioning and keeping those donors
coming in and operate in getting them processed all through the
whole system. He was very focused on one little part of the piece
in order to get that blood available.
[ALJ]: Okay.	[ALJ]: Okay.
Accordingly, we conclude that the ALJ's finding that UCLA's mobile blood units	Accordingly, we conclude that the ALJ's finding that UCLA's mobile blood units
resulted in the collection of more blood donations as compared with its prior telephone
recruiting process was supported by the evidence and is not erroneous.
resulted in the collection of more blood donations as compared with its prior telephone
recruiting process was supported by the evidence and is not erroneous.
The Board finds that CUE failed to prove that UCLA retaliated against Thomas by
selecting him for layoff because of his union activity, and affirms the ALJ' s dismissal of the
charge.
The Board finds that CUE failed to prove that UCLA retaliated against Thomas by
selecting him for layoff because of his union activity, and affirms the ALJ's dismissal of the
We agree with CUE that it demonstrated Lizza possessed sufficient knowledge of
Thomas' union activities.
We agree with CUE that it demonstrated Lizza possessed sufficient knowledge of
Thomas' union activities.
However, we find that CUE's contentions that nexus is established by imputing Clark	However, we find that CUE's contentions that nexus is established by imputing Clark
and Lebsack's union animus to Lizza and that the decision to lay off Thomas was so
economically indefensible that it must have been the product of unlawful motivation, are
without merit.
and Lebsack's union animus to Lizza and that the decision to lay off Thomas was so
economically indefensible that it must have been the product of unlawful motivation, are
without merit.
15

ORDER	ORDER
The unfair practice charge and complaint in Case No. SF-CE-753-H are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
The unfair practice charge and complaint in Case No. SF-CE-753-H are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chair Neuwald and Member McKeag joined in this Decision.	Chair Neuwald and Member McKeag joined in this Decision.
16	16