Trustees of the California State University (PERB 2400H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STEVEN CUL WELL,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. LA-CE-1174-H
PERR Decision No. 2400-H
November 24, 2014
Appearances: Steven Culwell, on his own behalf; Office
of
the Chancellor by Leslie
V.
Freeman, Labor Relations Manager, for Trustees
of
the California State University.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by Steven Culwell (Culwell) to the proposed decision (attached)
of
a PERB administrative law judge (ALJ). Culwell's charge and the complaint in this matter
alleged that, by suspending Culwell for
15
days as a result
of
a heated conversation he had
with a fellow employee and union steward about internal union matters, the Trustees
of
the
California State University (University) unlawfully discriminated against Culwell and
interfered with his exercise
of
protected rights, in violation
of
the Higher Education Employer-
Employee Relations Act (HEERA), section 3571, subdivision (a).1 The University denies any
wrongdoing and contends that it disciplined Culwell, not because
of
any protected conduct or
speech that took place during the conversation, but because Culwell made threatening
statements and gestures, in violation of the University's "zero-tolerance" policy against
1 HEERA is codified at Government Code section 3560 et seq.

violence in the workplace, and because Culwell had previously been disciplined for two
similar instances
of
misconduct.
The Board has reviewed the proposed decision, Culwell's exceptions and the University's
responses thereto in light
of
the record and the relevant law. Based on this review, we find that
the
AU's
findings
of
fact are adequately supported by the record and that the
AU's
conclusions
of law are well-reasoned and in accordance with applicable law.
PERB
Regulation 32300, subdivision (a),2 permits an aggrieved party to file exceptions
to a proposed decision. Pursuant to the regulation, the statement of exceptions or brief shall,
among other things, "[ s]tate the specific issues of procedure, fact, law or rationale to which each
exception is taken" and "[s]tate the grounds for each exception." Although the Board's review
of
exceptions to a proposed decision is de novo, it need not address arguments that have
already been adequately addressed in the same case or that would not affect the result
(Los Angeles Superior Court (2010) PERB Decision No. 2112-1, pp. 4-5; Morgan Hill Unified
School District (1995) PERB Decision No. 1120, p. 3), particularly where the party seeking
relief has simply reasserted its claims without identifying a specific error
of
fact, law or
procedure to justify reversal. (Los Rios College Federation
of
Teachers (Sander, et al.) (1995)
PERB Decision No. 1111, pp. 6-7; State
of
California (Department
of
Youth Authority) (1995)
PERB Decision No. 1080-S, pp. 2-3; San Bernardino City Unified School District (2012) PERB
Decision No. 2278, pp. 2-3; County
of
San Diego (2012) PERB Decision No. 2258-M, pp. 2-3.)
Aside from purely conclusory statements (i.e., that the University did retaliate against
him and that it did interfere with his protected employee rights), Culwell's exceptions assert that
the University failed to conduct a thorough investigation before deciding to discipline Culwell;
and, that the disciplinary action chosen (15-day suspension) was unduly harsh. Culwell also
2 PERB's Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

disputes various findings
of
fact from his separate disciplinary hearing before the State Personnel
Board, such as a finding that five years had passed between Culwell's involvement in protected
activity and the disciplinary action at issue. Culwell's exceptions thus address the various
elements necessary for establishing a prima facie case
of
discrimination, particularly whether
there was sufficient evidence of"nexus" or a causal relationship between Culwell's protected
activity and the University's decision to take disciplinary action.
PERB has long recognized that an employer's disparate treatment of an employee, or its
cursory investigation into alleged misconduct may serve as circumstantial evidence to show
"nexus." (;;tate
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S;
Trustees
of
the California State University (1990) PERB Decision No. 805-H.) However, the
issue
of
"nexus" was not decided against Culwell in the proposed decision. To the contrary, the
ALT
concluded, among other things, that Culwell had established a prima facie case of
discrimination, including proof of"direct nexus between the adverse action and the protected
speech," because Culwell's protected speech "was mentioned specifically in the suspension
notice itself." Thus, Culwell's exceptions only address issues that were not adverse to his
position, but do not appear to address the one issue that was decided against him, i.e.,
whether the University successfully proved its affirmative defenses that it would have imposed
the 15-day suspension
of
Culwell, even in the absence of his involvement in protected activity,
and whether its asserted business justification for imposing discipline in this case outweighed
any harm to Culwell's protected rights.
Alternatively, assuming that the alleged incompleteness
of
the University's investigation
or the severity of the discipline it imposed also bear on issues pertaining to the University's
affirmative defense, Culwell has not explained how this evidence, even if given the additional
weight urged by Culwell, would cause the Board to disturb the ALJ's findings. After
3

considering evidence regarding the University's zero tolerance policy against violence in the
workplace, the
AU
found that the University had a legitimate, non-discriminatory reason for
imposing a 15-day suspension, and that, pursuant
to
that policy, it would have suspended
Culwell for 15 days for his alleged misconduct, regardless of his concurrent involvement in
protected activity. (Palo Verde Unified School District (2013) PERB Decision No. 2337,
pp. 12-13.) The ALJ also found that, under the circumstances, including Culwell's history
of
discipline for similar misconduct, the University's business justification for enforcing its policy
against workplace violence outweighed any harm caused to Culwell's protected rights. (State
of
California (Department
of
Personnel Administration) (2011) PERB Decision No. 2106a-S,
pp. 10-11.)3
Because Culwell's exceptions fail to identify any error of fact, law or procedure with
respect to the determinative issue decided against Culwell, he has provided the Board with no
basis for reversing the proposed decision. We therefore adopt the proposed decision as the
decision of the Board itself.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-1174-H are
hereby DISMISSED.
Chair Martinez and Member Hugeunin joined in this Decision.
3 The
AlJ
analyzed Culwell's interference allegation solely under the "slight harm"
test, which Culwell does not challenge. Exceptions not specifically raised are deemed waived.
(PERB Reg. 32300, subd. (c); Santa Clara Valley Water District (2013) PERB Decision
No. 2349-M, pp. 31-32.)
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
STEVEN CUL WELL,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA ST ATE
UNIVERSITY,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-1174-H
PROPOSED DECISION
(November 6, 2013)
Appearances: Steven Culwell, in propria persona; Leslie V. Freeman, Labor Relations
Manager, for Trustees of the California State University.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges that a higher education employer suspended an employee for engaging
in a discussion with a union steward. The employer denied committing any unfair practices,
and, as an affirmative defense, contended that the complaint should be deferred to arbitration
pursuant to PERB Regulation 32620(6)(6). 1 The employer also contended that res
judicata/collateral estoppel effect be given to prohibit claims/issues already determined in a
California State Personnel Board (SPB) decision.
On November 13, 2012, Steven Culwell (Culwell) filed an unfair practice charge
(charge) against San Diego State University (SDSU). On March 4, 2013, the Office of the
General Counsel of the Public Employment Relations Board (PERB) issued a complaint
alleging that SDSU interfered with and retaliated against Steven Culwell by suspending him
for engaging in a discussion with his union steward regarding changes within the "hierarchy"
1 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

of the State Employees Trade Council (SETC) and therefore violated the Higher Education
Employer-Employee Relations Act (HEERA) section 357l(a).2
On March 29, 2013, SDSU answered the complaint, denying any violation of HEERA
and including affirmative defenses. Specifically, SDSU contended that the charge and
complaint should be deferred to the grievance procedure of the applicable SETC and California
State University (CSU) Collective Bargaining Agreement (CBA). An informal conference was
held on May 31, 2013, but the matter was not resolved.
Prehearing
A prehearing conference was set for August 15, 2013, to discuss the motion to defer
and a possible motion requesting collateral estoppel effect be given to the May 16, 2013 SPB
decision. The parties agreed that the testimony in the transcripts of the SPB hearing would be
considered testimony in the PERB matter in lieu of having the same witnesses testify again.
The same exhibits in the SPB record would also be used in the PERB proceeding.
Additionally, for purposes of the deferral motion, Culwell agreed to inquire into whether SETC
would represent him in an arbitration over whether SDSU retaliated against him for his
January 10, 2012 conversation with Chris Sprofera (Sprofera).
Motion to Defer to Arbitration
On April 20, 2013, SDSU filed a motion to defer the allegations in the complaint to the
arbitration procedures set forth in the CBA. Specifically, CBA sections 7 .20 and 9 .10, for the
period of September 22, 2009 to September 30, 2011, 3 provide:
2 Unless otherwise indicated, all statutory references are to the Government Code.
HEERA is codified at section 3560 et seq.
3 The suspension action was issued on April 13, 2012. The successor CBA governing
the time period of September 19, 2012 to June 30, 2015 contains the same or similar provisions
as the previous CBA where employees would not suffer reprisals for participating in union
activities. Additionally, only SETC could request that the matter to be arbitrated.
2

7 .20 An employee shall not suffer reprisals for participating
in
union activities.
9 .10
If
the grievance is not resolved at level II or III, whichever
is applicable, the Office
of
the Chancellor shall have up to ninety
(90) days to resolve or issue a Level IV response.
If
the
grievance has not been resolved within
th•is
period, then the
parties may mutually agree to schedule a "Med-Arb" as per
provisions 9.9.d. above and 9.17 - 9.19 below•or the Union alone
may, no later than fifteen (15) days after receipt
of
the Level
IV
response, file a request for arbitration bv giving notice to that
effect by certified mail, return receipt requested, directed to the
Office
of
the Chancellor.
(Emphasis added.)
On August 19, 2013, Culwell notified the Administrative Law Judge (ALJ) and CSU
that SETC was not interested in pursuing his reprisal matter
to
arbitration.
PERB Regulation 32620(b)(6) requires the Board agent to:
Place the charge in abeyance
if
the dispute arises under MMBA,
HEERA, TEERA, Trial Court Act or Court Interpreter Act and is
subject to deferral to final and binding arbitration pursuant to a
collective bargaining agreement, and dismiss the charge at the
conclusion
of
the arbitration process unless the charging party
demonstrates that the settlement or arbitration award
is
repugnant
to the purposes
of
MMBA, HEERA, TEERA, Trial Court Act or
Court Interpreter Act, as provided in section 32661.
(Emphasis added.)
In Trustees
of
the California State University (1997) PERB Decision No. 1231-H
(Trustees), PERB explicitly found that an arbitration clause in a grievance process does not
continue in effect after the expiration
of
the contract, except for disputes that:
(I) involve facts and occurrences that arose before expiration;
(2) involve post-expiration conduct that infringes on rights
accrued or vested under the agreement; or (3) under normal
principles
of
contract interpretation, survive expiration
of
the
agreement.
The suspension concerns an incident which occurred on January 10, 2012, which was
investigated between January 10 and 25, 2012. A notice
of
suspension was issued on April 13,
3

2012. All
of
the incidents took place when a CBA had expired and a successor CBA had not
yet been effected. Therefore, the case cannot be arbitrated. Additionally, SETC, who had the
sole right to request arbitration, decided not to represent Culwell on these matters. For these
reasons, the motion to defer to arbitration
is
denied.
Formal Hearing
A formal hearing was held on September 3, 2013. The matter was submitted upon the
receipt
of
the last closing argument on October 11, 2013.
FINDINGS OF FACT
The Trustees
of
the CSU are a higher education employer under section 3562(g),
SDSU is a university within the CSU system. SETC is the exclusive representative
of
an
appropriate bargaining unit
of
employees under HEERA section 3562(i). Culwell was a higher
education employee under HEERA section 3562(e) represented by SETC.
John Ferris (Ferris) is the SDSU Director
of
the Facility Services and Glenn Vorraro
(Vorraro) is .the Assistant Director
of
Facility Services. Herb Dickerson (Dickerson) was the
SETC Business Agent and Larry Tilton (Tilton) and Sprofera were SETC co-chief job stewards
at the SDSU campus appointed by Dickerson. Culwell has been employed with SDSU since
1997.
Violence-Free Work;place Policy
The SDSU Violence-Free Workplace Policy provides in pertinent part:
The safety and security
of
San Diego State University faculty,
staff, and students are very important. Threats, threatening
behavior, acts
of
violence, or any related conduct which disrupts
another's work performance or the organization's ability to
execute its mission will not be tolerated.
Violations of this zero-tolerance policy by employees will lead to
disciplinary action up to and including dismissal.
...
4

Employees are responsible for immediately notifying their
appropriate administrator and University Police
of
violence on
University owned or leased property.
Prior Disciplinary Record
On June 19, 2007, Vorraro issued Culwell a Letter
of
Reprimand for speaking in a loud,
disruptive, and confrontational manner to another employee. Culwell was warned that the
matter should not be repeated or further disciplinary action would be taken against him, up to
and including dismissal.
On October 7, 2010, Vorraro issued Culwell a Memorandum
of
Reprimand for kicking
chairs, using profanity toward his supervisor, and telling him to "grow some balls." Vorraro
was referred to the Employee Assistance Program and warned that he was expected to treat all
employees with dignity and respect, and to ·refrain from using profanity or offensive language
and displaying hostility or aggression. Culwell was warned that failure to meet these
expectations may result in further disciplinary action up to and including dismissal.
January 10, 2012 Comments to Sprofera
After Dickerson appointed Sprofera and Tilton as SETC co-chief stewards, Culwell
became concerned as to the manner in which co-chief stewards were being placed into their
positions (appointment versus election) and that the appointment
of
Tilton would pave the way
for SDSU Facilities Services management to further contract out bargaining unit work.
On January 10, 2012, at §.pproximately 10:00 a.m. in the SDSU Facilities Services
parking lot, Culwell saw Sprofera and wanted to discuss Sprofera's and Tilton's appointments
as co-chief stewards. Culwell approached within a couple
of
feet
of
Sprofera and expressed
his dismay over the direction
of
the union in appointing Sprofera and Tilton as co-chief
stewards, instead
of
them being voted in by the membership. Culwell protested that he did not
want to support the union with his dues and that the last person who put his hand in his
"pocket" to steal money from him pulled out "a bloody stump." Culwell was loud and used
5

profanity. Sprofera felt threatened and tried to deescalate the situation, but eventually ended
up walking away. Sprofera later told Tilton and another steward of the incident and Tilton told
Vorraro. Vorraro then discussed the matter in his office with Sprofera and three other
witnesses of the event: Jamie Baro (Baro), Scott Guymon (Guymon), and Robert Lastinger
(Lastinger). 4
SDSU Investigations of the Incident
After speaking with the witnesses that day, Vorraro immediately reported the incident
to the University Police Department (UPD) and later to Thomas Harpole (Harpole), SDSU
Director of the Office of Employee Relations and Compliance.
1. 	University Police Investigation
UPD assigned Police Corporal Jennifer Hart to investigate the matter; she arrived at the
Facilities Services building at 10:50 a.m. and interviewed both Sprofera and Culwell. Corporal
Hart recorded the following statement from Sprofera in pertinent part:
Culwell was complaining to Sprofera about union matters,
specifically stating he did not agree with the way the stewards
had recently been selected to represent the local union. Culwell
told Sprofera he want.ed his $65.00 union dues back because he
did not think the money was being spent wisely. Culwell was not
happy with his union representation and demanded Sprofera give
him his dues back, telling him, "If I have to take it out of you, I
will take it out of you!" Culwell was very heated and got within
one foot [of] Sprofera' s face. He was raising his voice and
yelling at him. Culwell told Sprofera they had "unfinished
business" he intended to take care of "after work." He told
Sprofera the last person who stole from him they "pulled back a
bloody stump." Sprofera told Culwell to stop and stated it was
not going to work out well for either of them if they continued
their banter.
4 At the administrative hearing, only Culwell, Sprofera, Guymon and Baro testified.
Lastinger did not testify and was no longer working for CSU. None of the witnesses testified
to Culwell stating to Sprofera that he would "take it [the union dues] out of' Sprofera or take
the money "out of[Sprofera's] ass." Sprofera did not remember Culwell stating to Sprofera
that Culwell had "unfinished business" with Sprofera "after work," unless he had stated it
before to an investigator.
6

Sprofera stated he felt threatened by Culwell and believed he had
the ability to carry out his threats. He stated Culwell never raised
a hand to him or made any motion as
if
he was going to hurt him
physically.
(Emphasis added.)
Corporal Hart also interviewed Culwell that day. The interview stated
in
part:
He thought he was not raising his voice and believed he was
"well under control." Culwell stated the was yelling at Sprofera
because he felt there was a "hostile takeover" with the union. He
feels like he should have a say in what happens within [the] union
because he pays $65.00 each month. I asked Culwell
ifhe
had
stated he would "take
it
out" on Sprofera as he had stated.
Culwell told me he did not say that, instead stating he would
"fight him every step
of
the way." Culwell stated he did not
threaten Sprofera and
just
wanted him to know that he was
not
done arguing his point and still had issues he wanted addressed.
Culwell admitted he made a comment about a "bloody stump"
and stated he did not mean it in a threatening manner. He stated
he wanted to tell Sprofera to not steal from him
....
I advised Culwell the statements he made were perceived as
threats by Sprofera and three other people who were present
during the altercation. He explained that was not his intent and
stated he would not have any contact with Sprofera
....
Just as I
was about to leave Vorraro's office, Culwell looked at Vorraro
and stated, "My schedule's about once a year, rightT', insinuating
he gets into trouble that often.
2. 	Harpole Investigation
Harpole conducted interviews on January
10
(Vorraro),
11
(Corporal Hart), 12
(Guymon, Baro, and Lastinger), 18 (Corporal Hart again), 24 (Sprofera), and 25 (Culwell).
Harpole interviewed Sprofera who reiterated the "bloody stump" comment and how Culwell
stated he would take the money out
of
Sprofera' s "ass" and they had "unfinished business" to
attend to "after work." When Lastinger was interviewed he stated that he heard Culwell
talking about $65 in union dues and "kicking" Sprofera's "ass" and that Culwell and Sprofera
were not done and would address the matter ' 1 after work." In Culwell's interview, he admitted
7

to making a comment about a "bloody stump," but it was only in reference to raising union
dues.
On February 28, 2012, Harpole issued his investigation findings to SDSU Associate
Vice President of Administration Jessica Rentto (Rerttto), which concluded that Culwell
"engaged in unprofessional and threatening behavior that included a veiled threat of physical
violence targeted at a colleague." Harpole recommended that Culwell be issued a three-day
suspension. Rentto, as the appointing authority of SDSU staff, is the individual vested with the
authority to issue disciplinary actions.
After Rentto reviewed the investigation report and recommendation, she discussed with
Harpole the level of penalty to be issued to Culwell. Rentto was aware of a previous
disciplinary action taken against another SETC member for similar conduct for which SDSU
issued the employee a 15-working day suspension and another employee who was terminated.
Harpole was unaware of these other disciplinary actions. 5 Rentto believed that Culwell's
conduct was more inappropriate than the other SETC member who received a 15-working day
suspension. Rentto was also concerned that Culwell had two prior reprimands previous to the
January 10, 2012 incident. Rentto stated that the topic of conversation between Culwell and
Sprofera (SETC appointment of co-chief stewards) played no role in the decision to take the
suspension action against Culwell.
Advance Notice of Suspension
On April 13, 2012, Rentto issued Culwell an advance notice of suspension (suspension
notice) stating that SDSU proposed to suspend him for 15 working days for violating
Education Code section 89535(b) [u]nprofessional conduct and (d) [f]ailure and refusal to
5 Rentto held Harpole's position before she was promoted to Associate Vice-President
of Administration.
8

perform the normal and reasonable duties of the position. Specifically, the suspension notice
provided:
The events upon which the foregoing causes for discipline are
based occurred on January 10 and 25, 2012.
1. 	On January 10, 2012 [,] at approximately l1 :00 a.m., you
engaged in hostile interpersonal behavior with Department of
Physical Plant coworker, Christopher Sprofera. You were
upset that the State Employee Trades Council had designated
Mr. Sprofera as a Chief Steward. You requested to speak
with Mr. Sprofera and raised your voice, yelled and used
profanity with him while in close physical proximity. During
this confrontation with Mr. Sprofera, you made a veiled threat
of physical violence that included a statement regarding a
"bloody stump." Specifically, you told him that you wanted
your $65 in union dues back and that if Mr. Sprofera
attempted to stick his hand in your "pocket," he would come
back with "a bloody stump" and that you would "take the
money out of his ass." Additionally, you stated that you and
Mr. Sprofera had unfinished business to attend to "after
work," which was deemed to be a threat of violence that
would occur at a later date.
2. 	On January 10, 2012, during a meeting with Mr. [Vorraro]
and SDSU Police Corporal Jennifer Hart, in which your
behavior with Mr. Sprofera was discussed, you said
something to the effect that you do this once a year, so "give
me my piece of paper." You made this statement in
connection with a prior reprimand for similar interpersonal
misconduct. It demonstrates a knowing and willful disregard
for the prior direction University management provided you.
The notice of suspension attached the Harpole investigation report and the
Memorandum of Reprimand. Culwell served his suspension from June 25 through
July 13, 2012.
SPB Appeal and Decision
Culwell appealed his suspension to the SPB pursuant to Education Code section 89539
and it was assigned as SPB Case No. 12-0657. A hearing was held on November 8 and
December 18, 2012 before SPB ALJ James M. Sobolewski. On April 16, 2013, the SPB ALJ
issued his decision sustaining the 15 working days suspension. The proposed decision was
9

adopted by the SPB
on
May 16, 2013. Culwell never filed a further appeal from the adopted
decision and it became final
on
May 16, 2013 pursuant to California Code
of
Regulations,
title 2, section 51.2.
The SPB decision found that Culwell yelled at Sprofera, used profanity and made a
hostile remark about a bloody stump. However, it found that the evidence did not establish
that Culwell threatened to take the money out
of
his [Sprofera's] ass or that Culwell had
unfinished business with Sprofera after work. Culwell was found to have violated Education
Code section 89535(b) [u]nprofessional conduct and (d) [f]ailure and refusal to perform the
normal and reasonable duties
of
the position. The penalty
of
a
15
working days suspension
was upheld as "just and proper"(§ 19582(a)) as Culwell's conduct could have quickly
escalated into a physical altercation, he had two prior reprimands for aggressive and
disrespectful behavior, he refused to acknowledge his misconduct and sought to excuse his
actions.
During the SPB administrative hearing, Culwell raised the affirmative defense that he
was retaliated against because
of
his protected activities against Facilities Services manager(s)
and because
of
his protected speech on January 10, 2012. The SPB found that Culwell failed
to demonstrate that he was retaliated against because
of
his protected activities against
Facilities Services manager(s), but did not make a finding on the issue
of
protected speech.
ISSUES
1) 	Does the SPB Decision have res judicata and/or collateral estoppel effect over
the instant proceeding.
2) 	Did SDSU retaliate against Culwell by suspending him because
of
protected
speech?
3) 	Did SDSU interfere with Culwell's protected speech by suspending him?
CONCLUSIONS OF LAW

Res Judicata and Collateral Estoppel
In the instant case, CSU alleges that PERB is bound by the prior adjudication of
Culwell's SPB proceeding as to the claims and issues finally adjudicated in those proceedings.
As summarized recently by the California Supreme Court:
As generally understood, '[t]he doctrine ofresjudicata gives
certain conclusive effect to a former judgment in subsequent
litigation involving the same controversy.' [Citation.] The
doctrine 'has a double aspect.' [Citation.] 	'In its primary
aspect,' commonly known as claim preclusion, it 'operates as a
bar to the maintenance of a second suit between the same parties
on the same cause of action. [Citation.]' [Citation.] 'In its
secondary aspect,' commonly known as collateral estoppel, '[t]he
prior judgment ... "operates" ' in 'a second suit ... based on a
different cause of action ... "as an estoppel or conclusive
adjudication as to such issues in the second action as were
actually litigated and determined in the first action." [Citation.]'
[Citation.] 	'The prerequisite elements for applying the doctrine
to either an entire cause of action or one or more issues are the
same: (1) A claim or issue raised in the present action is identical
to a claim or issue litigated in a prior proceeding; (2) the prior
proceeding resulted in a final judgment on the merits; and (3) the
party against whom the doctrine is being asserted was a party or
in privity with a party to the prior proceeding. [Citations.]'
(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797, italics in original.)
1. 	Res Judicata-Claim Preclusion
In the instant case, CSU contends that the "primary right"6 of both the SPB and PERB
proceedings are identical: specifically the wrongful suspension of Culwell. However, in
George v. California Unemployment Insurance Appeals Board (2009) 179 Cal.App.4th 14 75,
the Court of Appeal decided that the adjudication of a disciplinary appeal before the SPB and
6 To determine whether two proceedings involve identical claims or causes of actions
for applying claim preclusion, California courts have applied the "primary rights" theory. The
most salient characteristic of a primary right is that it is indivisible or that the violation of a
single primary right gives right to a single cause of action or the right to redress for a harm
suffered. (Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th 788, 797-798; Mycogen
Corporation, et al. v. Monsanto Corporation (2002) 28 Cal.4th 888, 904.)
11

the statutory claim
of
retaliation
in
the Fair Employment and Housing Act7 (FEHA) did not
involve the same primary right. The SPB's responsibilities were to ensure state employment
was based upon merit while FEHA was enacted to eliminate discrimination and to vindicate
civil rights. (Id. at
p.
1483.) Similarly, SPB and PERB proceedings do not involve the same
primary right(s). SPB adjudicates the violation
of
Education Code section 89535 and
determines whether the disciplinary action was based upon merit (Ed. Code, § 89539(a)(2)(A
through E), where HEERA was enacted to eliminate unfair practices including retaliation and
interference(§ 3571(a)) and to:
provide the means by which relations between each higher
education employer and its employees may assure that the
responsibilities and authorities granted to the separate institutions
...
are carried out in an atmosphere which permits the fullest
participation by employees in the determination
of
conditions
of
employment which affect them.
(§
357l(a).)
Because these two proceedings do not involve the same primary right(s), CSU has not
satisfied the first element to establish res judicata.
The second element that CSU must demonstrate to establish res judicata is that SPB's
decision resulted in a final judgment on the merits. The SPB decision was issued on
May 16, 2013. As
of
the date
of
formal hearing on September 3, 2013, Culwell had not
appealed the SPB decision on a writ
of
administrative mandamus. (Code Civ. Proc., I 094.5 .)
CSU did not provide any citation as to when the statute
of
limitations expired for Culwell to
advance such an appeal. 8 As it has not been established that the time for appealing to Superior
Court has expired, CSU has not established that there is a final judgment on the merits.
7 Section 12900, et seq.
8 Section 19630 provides the statute
of
limitations for a state civil servant to appeal a
SPB decision as being one year from a final SPB decision. No similar statute of limitations
section could be found regarding a CSU employee appealing a SPB decision.
12

As two
of
the three elements to establish res judicata has not been demonstrated> it will
not be applied to the PERB proceeding.
2. 	Collateral
Estoppel-Issue
Preclusion
Collateral estoppel requires an "identity
of
issues>' to exist between the two
proceedings. While the SPB decision decided whether Culwell was issued the suspension
because
of
his past protected activities against Facilities Services manager(s), it did not decide
whether his January 10, 2012 speech was protected and whether SDSU interfered with
Culwell' s speech or took the suspension action against him because
of
his speech. Collateral
estoppel is not applicable
in
this case because SPB did not consider the identical issue
(protected speech) now before PERB. (State
of
California (Department
of
Developmental
Services) (1987) PERB Decision No. 619-S.) Additionally, CSU did not establish that the
SPB's
decision resulted in a final judgment on the merits. Thus, collateral estoppel effect
cannot be attributed to the SPB decision.
Retaliation
Higher education employees have the right to "form, join and participate in the
activities
of
employee organizations
of
their own choosing." (§ 3565.) A higher education
employer violates this right when it imposes reprisals on employees because
of
their
participation in protected activities. (§ 3571(a).) To demonstrate that an employer
discriminated or retaliated against an employee 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; (3) the employer took adverse action
against the employee; and (4) the employer took the action because
of
the exercise
of
those
rights. (Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
1. 	Protected Activity and Knowledge
of
Protected Activity
13

In Rancho Santiago Community College District (1986) PERB Decision No. 602,
pp. 12-13, PERB applied Educational Employment Relations Act (EERA) 9 section 3543(a) 10 to
employee speech, and determined:
In considering the limits of employee speech protected by EERA,
PERB has adopted the standard applied by the National Labor
Relations Board, consistent with that articulated by both the
California and United States Supreme Courts in First Amendment
cases. [Footnote omitted.] Preliminarily, the speech must be
related to matters of legitimate concern to the employees as
employees so as to come within the right to participate in the
activities of an employee organization for the purpose of
representation on matters of employer-employee relations.
(Section 3543.) [Citations omitted.]
Here, Mc Kim's writings are related to matters of legitimate
concern to employees as employees, including such subjects as
teacher safety, negotiations, leaves, the autonomy and
effectiveness of the exclusive representative and other employee
organizations, educational policy and academic freedom.
Speech which is related to employer-employee relations may
nonetheless lose its statutory protection where it is found to be so
"opprobrious, flagrant, insulting, defamatory, insubordinate, or
fraught with malice" [citations omitted] as to cause "substantial
disruption of or material interference with school activities"
[Citations omitted].
(Emphasis added.)
Additionally, an employee's speech may lose its protected status if it "is so
disrespectful of the employer as seriously to impair the maintenance of discipline." (Rio
Hondo Community College District (1982) PERB Decision No. 260, p. 12, citing NLRB v. Blue
Bell, Inc. (1955) 219 F.2d 796, 797.)
The focus of Culwell' s comments were his protest over the recent appointments of the
new co-chief stewards and that he did not want to support SETC because of it. He was
concerned that SETC was not going to effectively represent the SETC SDSU membership in
9 EERA is codified at section 3540 et seq.
10 EERA section 3543 is similar to HEERA section 3565.
14

the contracting out
of
bargaining unit work. The comments that Culwell was going to "take
the money out
of
[Spofera's] ass" and that he had "unfinished business" with him "after work"
infers the threat
of
violent acts which constitute speech which is so opprobrious, flagrant and
fraught with malice
as
to fall outside the ambit
of
statutory protections. However, those
comments were only supported by hearsay evidence based upon the witnesses' testimony.
Culwell' s January 10, 2012 speech therefore
is
protected by HEERA. It also became readily
known to SDSU managers. As such, Culwell has established the first two elements
of
a prima
facie case
of
retaliation.
2. 	Adverse Action
It
is
uncontested that a
15
working days suspension constitutes an adverse action.
(Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 18.)
3. 	Nexus
In this case, there is a direct nexus between the adverse action and the protected speech.
The speech is mentioned specifically in the suspension notice itself. ·Culwell has established
all
of
the elements
of
a prim a facie case for retaliation.
4. 	SDSU's Burden
Once the charging party establishes a prima facie case
of
retaliation, the burden shifts to
the employer to show it would have imposed the adverse action even
if
the employee had not
engaged in protected activity. (Novato, supra, PERB Decision No. 210; Martori Brothers
Distributors
v.
Agricultural Labor Relations Bd. (l 981) 29 Cal.3d 721, 729-730; Wright Line
(1980) 251 NLRB 1083.) Thus, "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 preponderance
of
the evidence."
(McPherson
v.
Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
15

At the time that Rentto issued the suspension notice, two investigators who were
independent from Culwell's chain
of
command, Corporal Hart and Harpole, obtained
interviews from Sprofera which stated that Culwell would be taking money out
of
Sprofera or
out
of
Sprofera's "ass." Additionally, Lastinger's interview supported Sprofera when
Lastinger recalled that Culwell spoke
of
"kicking" Sprofera's "ass" and that Culwell would
address the matter "after work." Based upon these two witnesses interview statements, Rentto
would have no choice but to proceed with disciplinary action based upon the Violence-Free
Workplace Policy and the prior 15-working days suspension issued to another SETC
employee.
11
SDSU has met its burden that it would have issued the suspension action even
if
the contents
of
the conversation was connected to an internal union issue. As a result, the
allegation
of
retaliation because
of
protected speech must be dismissed.
Interference
The test for whether CSU has interfered with the rights
of
employees under HEERA does
not require that unlawful motive be established, only that at least slight harm to employee rights
results from the conduct. In State
of
California (Department
of
Developmental Services) (1983)
PERB Decision No. 344-S, citing Carlsbad Unified School District (1979) PERB Decision
No. 89 (Carlsbad) and Service Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106, the Board described the standard as follows:
[I]n order to establish a prima facie case
of
unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result
in
some harm to employee rights granted
underEERA.
If
the harm to employee rights is slight and the employer offers justification based on
operational necessity, the competing interests are balanced. (Carlsbad, supra, PERB Decision
11
Although witness testimony at the hearing, which occurred many months after the
investigation, did not establish the most flagrant and opprobrious statements, Rentto only
needed to rely on the statements in the investigative report(s), which were supported by two of
the witnesses, to decide to issue the suspension notice.
16

No. 89; State of California (Department of Personnel Administration) (2011) PERB Decision
No. 2106a-S.) Only when the interference with employee rights outweighs the business
justification for the respondent's conduct will a violation be found. (Carlsbad.)
As explained earlier in this proposed decision, Rentto' s decision to issue a disciplinary
action was based upon the interviews in which Culwell stated he would take the union dues out
-of Sprofera's "ass" or address it after work, and a similar disciplinary action taken against
another SETC employee. Additionally, SDSU has a zero tolerance policy for threats and
violence. These reasons create a sufficient businessjustification to overcome any interference
to employee's protected rights. As such, the interference allegation is also dismissed.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No.
LA-CE-1174-H, Steven Culwell v. Trustees of the California State University, are hereby
DISMISSED.
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:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca. gov
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, § 32300.)
17

A document is considered "filed" when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the close of
business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirements of PERB Regulation 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, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090, 32091 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, §§ 32300, 32305, 32140, and
32135, subd. (c).)
18