california department of arbitration corrections - san quentin opinion ...

CALIFORNIA DEPARTMENT OF I ARBITRATION 

CORRECTIONS - SAN QUENTIN 

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and 

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I OPINION 

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CALIFORNIA CORRECTIONAL I 

I AWARD 

PEACE OFFICERS ASSOCIATION 

Grievances of Doug Hines 

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Before: 

Anita Christine Knowlton 

Arbitrator 

Appearances: For the Authority Joan Branin 

Department of Personnel Administration 

For the Association Shawn P. Cloughesy 

Supervising Legal Counsel 

Cali fomia Correctional Peace 

Officers Association 

DPA NOS. 89-06-01 88; 89-06-0215; 89-06-0249; 90-06-007 

CCPOA Nos. CDC G6-89, 910234 and 91-259; SQ 90-89 and 90-056; SQ 90-025 and 90-018; 

CDC G6-89 and 91-299; Immediate Arbitration Request of March 7, 1990 

This arbitration arises under a memorandum of understanding between the parties, 

effective May 26, 1989 through June 30, 199 1. The arbitrator was designated on June 18, 1991 

in accordance with Article VI of the MOU. The parties stipulated that this dispute was properly 

before the arbitrator. 

A hearing was held on August 30, December 11; 12, 13, 1991, and March 12, 13, 25, 

May 26, 1992 in San Quentin, California at which time each party had an opportunity to 

introduce evidence and examine and cross-examine witnesses. 

The grievant was present 

throughout the hearing. Both parties submitted written closing briefs and reply arguments.

CALIFORNIA AND CCPOA 

Grievances of Do* Hines 

ISSUES 

The parties agreed that the arbitrator would frame the issues. They are: 

'Did the Department violate §5.03(a) of the Agreement by imposing the 

February.9, 1990 two-step pay reduction for one year 

Did the Department violate $5.03(a) of the Agreement by issuing the 

November 1, 1989 letter of instruction 

Did the Department violate 810.02 of the Agreement when it 

denied the grievant sick leave credit for October 23, 1989 

Did the Department violate g9.06(b) of the Agreement when it 

issued a letter of instruction on April 25, 1990, more than thirty 

days after the close of the investigation 

Did the Department violate §5.03(a) of the Agreement when it 

issued the April 25, 1990 letter of instruction 

Did the Department violate 5.03(a) of the Agreement when it 

issued the February 22, 1990 supplemental performance appraisal 

Is the grievance about the discussion of the diversion of H-Unit 

officers mooted by the retirement of associate warden Tabash 

Did the Department violate §5.03(a) of the Agreement during the 

conversation between the grievant and associate warden Tabash 

about the diversion of H-Unit officers 

If the Department is found to have violated the contract, what is 

the appropriate remedy



FACTUAL SUMMARY 

The California Department of Corrections operates various adult penal institutions in the 

state. Its correctional peace officers are represented by the Association for collective bargaining 

purposes. The grievant, Doug Hines, has been a correctional peace officer with the Department 

at San Quentin State Prison since September 26, 1977. He is assigned to work as a housing 

officer in H-Unit, a Level 2 operation for medium custody inmates. 

The grievant has been an Association activist since 1983. He has served as a chapter 

board member, the health and safety job steward, the chapter vice president, the chief job 

steward of H-Unit and chapter president. He has represented members in interviews and 

hearings, filed OSHA complaints, organized informational pickets, lobbied state legislators, 

contacted the state attorney general and spoken to the press about Association concerns. He has 

filed over 400 grievances against management officials, including grievances against several of 

the managers involved in the claims at issue here. 

Hines contends that the Department discriminated against him for his union activities by 

issuing four personnel actions and interfering with the performance of his steward duties. The 

grieved actions are a two-step pay reduction for one year for mishandling asbestos, a letter of 

instruction for misusing sick leave and denial of sick leave credit, a letter of instruction for 

failing to wear a hat and carrying a personal weapon while on duty, a supplemental annual 

performance report containing negative comments, and the refusal of the associate warden to 

respond to inquiries about the reassignment of H-Unit officers.


Grievances of Dorig Hines 

Prior to these events Hines had no adverse actions on file and was thought to be an 

average to above average employee. In 1985 he received a letter of appreciation and a letter of 

commendation. 

1 The two-step pay reduction for mishandling asbestos. 

In the latter half of the 1980s the Grievant filed several complaints with OSHA. These 

resulted in citations noting a massive number of violations at the institution. In 1989 the 

Department began an asbestos abatement program as part of the work required by OSHA. 

According to many of the managers who testified, a memorandum from the warden on 

asbestos was posted throughout the institution and distributed with paychecks that spring. The 

notice advised employees about the abatement program and warned them not to touch or disturb 

any materials suspected of containing asbestos. The grievant was on an industrial disability 

leave at the time and did not see a notice accompanying his paycheck. He testified that when 

he returned to work he also did not see a posted copy of the notice. Other officers and a 

sergeant in H-Unit testified that they did not receive the memo in their paychecks and, although 

they regularly checked the unit's bulletin board, they did not see the memo posted. 

That fall the Education Building was closed for asbestos removal. 

It reopened on 

October 2, 1989. Teachers were told that the second floor of the building was clear and 

instructed to clean the dust and debris in their classrooms. When the officer assigned to the 

building, Vija Burton, arrived for work that morning she was told by the Education Program 

supervisor that the third or lowest floor was still closed and there would be no school on that 

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Grievances of DOG Hines 

level. Burton asked a member of the abatement crew if the building was safe and whether there 

was asbestos inside. After she was told there was still asbestos in the building, Burton contacted 

the Association's chapter president, Judy Smith. 

Smith called the employee relations officer, Bobby Hernandez, about the situation. A 

short while later Smith, Hernandez and the asbestos coordinator, Duane Honey, inspected the 

building. Honey informed the group that both floors had been tested and found to be within 

allowable limits. However, Honey noticed pipe lagging in the third floor ceiling which he 

suspected might contain asbestos. He said that further abatement would be scheduled there later 

in the day. It was also decided that the classrooms would be cleaned by an inmate crew instead 

of officers and teachers. 

That afternoon Burton contacted the grievant to complain about the asbestos and file a 

safety grievance. At the time Hines was the chapter's vice president and safety steward. He 

was involved in a bitter election campaign challenging Smith for the presidency. Smith testified 

that when she learned the grievant had been summoned, she attempted to discourage him from 

becoming involved. Hines, on the other hand, said that Smith never called him to discuss the 

situation. 

When Hines amved at the Education Building and had a chance to look around, he 

noticed white dust and construction debris in the second floor classrooms. He became concerned 

that these materials contained asbestos and called Hernandez to complain. Hernandez assured 

Hines that the problem had been taken care of and referred him to Honey. The grievant called 

Honey who explained that the situation was under control and refused to join Hines at the

CALIFORNIX A m CCPOA 


building. Honey testified that he also told Hines that the third floor still had some asbestos 

which was scheduled to be abated that evening. The grievant denies that Honey informed him 

about the remaining asbestos. 

Hines then toured the third floor with Burton and two teachers who needed to get into 

the curriculum room on that level. Their access was not blocked by any warning signs or 

barricades. While they were on the third floor, Hines found a piece of pipe lagging on the floor 

which he suspected contained asbestos. Although he had no formal training about asbestos, the 

grievant had accompanied Cal/OSHA inspectors on their tours of the facility. They pointed out 

materials suspected of containing asbestos and took samples. Following the sampling procedures 

he had observed, the grievant placed the piece of pipe lagging in a clear garbage bag and rolled 

it shut, creating a sealed air pocket. This method of handling asbestos does not comply with 

federal regulations and Departmental requirements. 

Hines decided to take the pipe lagging to Hernandez to convince him that the building 

should be closed. On his way to the Administration Building the grievant saw Honey's superior, 

Dave Johns, in his truck and flagged him down. The grievant showed the bag to Johns and 

indicated that it contained asbestos from the Education Building. Johns offered to take the bag 

from Hines; but the grievant said he wanted to show it to Hernandez. 

The grievant proceeded to Hernandez's office, showed him the bag and requested the 

Education Building be closed. Hernandez directed Hines to take the bag to Honey. On the way, 

the grievant stopped and showed the bag to Smith and Officer Robert Trono. When Hines 

arrived in the Maintenance Department, Honey took the bag, taped its neck shut and placed.it



behind the office door. A decision was made about an hour later to post the hazard and erect 

plastic sheeting and other physical barriers across access points to the third floor hallway where 

the pipe lagging was found. 

The pipe lagging was subsequently tested and found to contain 30% asbestos. Pursuant 

to federal regulations the warden sent notices to the grievant and the employees who had seen 

been shown the pipe lagging informing them of a possible exposure to asbestos. They were 

given physical examinations and told that their health would be monitored for the next thirty 

years. This monitoring is a significant expense to the Department. 

John M. Charleston was worlung as the outside patrol sergeant during this period. On 

one of his evening rounds in the Administration Building, he saw Hernandez walking in the hall, 

saying to himself, "We've got him. We've got him." Charleston was concerned that there had 

been an escape he was not aware of and asked, "Who do we have" Hernandez replied, 

"Hines. " Charleston said, "If that's the case, I don't need to know anything more" and moved 

on. Charleston later reported this exchange to Hines. At the hearing, Hernandez denied making 

these remarks. 

On February 9, 1990, the Department gave Hines a notice of adverse action imposing 

a two step pay reduction for one year for inefficiency, inexcusable neglect of duty, 

insubordination and regulation violations. A State Personnel Board Administrative Law Judge 

conducted a three day hearing on the merits of the adverse action. The Department did not 

present the disputed evidence elicited here that Smith and Hernandez tried to discourage Hines 

from going to the Education Building and that Honey told him there was asbestos on the third



floor. None of this information was contained in the investigative reports developed prior to the 

issuance of the adverse action. 

The State Personnel Board reversed the discipline in a decision stating: 

No cause for adverse action was established by the evidence,. The appellant was acting In his 

capacity as a Safety Job Steward for the union responding to legitimate employee concerns 'about 

the condition of a building with a known asbestos problem. He was repeatedly assured by 

management officials that the building was asbestos free. When he came across the piece of pipe 

lagging on the floor, he picked it up not really thinking it contained asbestos, and was surprised 

and upset when he saw what it was. 

At this polnt, the ;ri;+ellant had already disturbed the asbestos, and under the circumstances, he 

did the best that he could. He placed the asbestos in a plastic bag, twisted the top to maintain an 

air seal, and took the bag to the Employee Relations Officer in an attempt to have the Education 

Building shut down. Clearly. ~t would have been better if the appellant had not picked up the 

plzce of asbestos debris. But once he did so, he had to do something with it, and placing ~t in a 

plastic bag seems as reasonable as any other course of action. The appellant was not an asbestos 

removal expert and cqot be held accountable for failing to comply with all of the procedures 

necessary for asbestos disposal. 

It probably would have been better had the appellant simply left the bag where it was or had taken 

it directly to the maintenance department. However, both the Employee Relations Officer and the 

Asbestos Coordinator had already told the appellant that they were not llrtcnsttd in conducting 

another inspection of the Education Building. Under the circumstances, the appellant's desire to 

demonstrate that there was a need for such an inspection is perhaps understandable. 

Respondent's theory that the appellant engineered the entire incident by pulling the pipe lagging 

down from the ceiling panel himself was never established by any credible evidence. It seems 

highly unlikely that the appellant would have jeopardited hs own health by exposing himself to 

asbestos simply to carry out some sinister plot to discredit San Quentin management. After all. 

the person who received the most contamination in the incident was the appellant himself. 

In light of the conclusion that there was insufficient cause for discipline, it is unnecessary to 

cons~der the appellant's contention that the adverse action was taken in retaliation for his exercise 

of protected activities. Although the State Personnel Board may be required to consider such 

issues in an appropriate case, it is unnecessary to do so where, as here, the disciplinary action is 

revoked on the merits. 

Burton was criticized for her part in the matter. Her sergeant placed a Counseling 

Record in her file for sixty days stating: 

On October 3, 1989, Officer Burton reported to me that she had been exposed to asbestos on 

October 2nd in the Education Annex. She stated that asbestos was on the floor in the building. 

It was determined, through an investigation, that Officer Burton had obsewed powdered gypsum

CALIFORNIA AM) CCPOA 


on the floor and believed this to be asbestos substance. She inadvertently passed on this 

misinformation to supervisors and union officials that caused them to react to her concerns. It was 

detenninzd that Officer Burton, out of her fear and her limited lcnowledge of asbestos. passed on 

information she believed to be true. Officer Burton, in the future, is to qualify her questions when 

seeking infonnatlon and to insure that the information received is coming from a competent 

source. 

Prior to this incident, in April, 1988, two maintenance employees removed a piece of 

floor tile from the institution because they suspected it contained asbestos. They submitted it 

to an independent laboratory without notifying their supervisor. The test indicated that the tile 

contained an insignificant amount of asbestos. The two employees subsequently received letters 

of instruction for removing state property without authorization. 

2. The letter of instruction on abuse of sick leave and the denial of sick leave. 

A few weeks after the asbestos incident, on October 23, 1989, Hines arrived at the 

institution about an.hour before the start of his shift so that he could distribute a copy of a letter 

he sent to the Attorney General regarding improper inmate access to personnel records. He 

reported for his shift at 7:00 a.m. 

About two hours later the grievant's wife called the 

institution and left a message with Officer Banks that she wanted Hines to call home because his 

dogs had escaped from the yard. 

Hines said he received this message while he was on his way to the watch commander's 

office to report that he was experiencing stomach cramps. Hines received permission from the 

Sergeant Irene Aviles go home sick. She did not ask him to provide medical verification of his 

illness. The grievant apprised his program sergeant, Robert Frye, that he was leaving for

CALIFORNIA Am CCPOA 


remainder of the day. Hines passed Banks on his way out of the H-Unit sallyport. When the 

grievant got home he went to the doctor with his son who was also ill. 

Later that day Associate Warden Tabash had a conversation with Banks in which Banks 

mentioned that Hines had gone home to take care of his dogs. At the hearing, Banks explained 

that this was an assumption he had drawn from the fact that Hines left a short time after his wife 

called about the dogs escaping. He testified his conclusion was not based on anything Hines 

said. 

Tabash learned that Hines had reported sick for the time off and ordered Frye to write 

a letter of instruction. Frye did not want to write the letter because it was his impression that . 

Hines was sick when he went home. He added that if the grievant needed to leave to take care 

his dogs he could have said so as he had left work a few months earlier to rescue his own dogs. 

Frye felt that the matter should have been dealt with in an informal discussion rather than a 

letter of instruction but wrote the letter at his supervisor's insistence. 

The letter was issued on November 1, 1989 and said: 

On Monday, 10-23-89 at approximately 0930 hours. you stated to me that you had the flu and had 

called the Watch Commander to make a sick call and were leaving for the day. 

On Tuesday, 10-24-89, 1 was approached by associate warden H. Tabash informing me that he 

had received information from another officer that your sick call was not as stated that, in fact, 

just pnor to your sick call, you received an outside call informing you that your dogs had escaped 

your yard and were roaming your neighborhood. 

It 1s apparent that you have been less than truthful in the reason for leaving your work position 

and that you abused the sick leave privilege in violation of Director's Rule 13391. 

The grievant's request for sick leave for the day was disallowed because he was "less than 

truthful with [his] supervisor when [he] requested to go home due to illness."



3. Letter of instruction about wearing hat and carrying gun to ovenime assignment. 

About a month after the issuance of the letter of instruction, on December 12, 1989, 

Hernandez asked Hines to drop by his office at the conclusion of his shift to discuss a newspaper 

article which quoted remarks critical of management made by the grievant. Hines asked another 

union officer, D.D. Taylor, to accompany him to the meeting. As Hines and Taylor were 

exiting the Administration Building after the meeting, they saw the personnel director, Lt. E. 

Glaster. Glaster told Hines he was out of uniform because he was not wearing his hat. The 

grievant's hat was in his car and he replied that he was "off duty". Glaster said, "I don't care" 

and continued up the steps. 

Hines explained that he had been involved in two earlier occasions when the issue of 

where and when an officer may be out of uniform was raised, once arising when he was not 

wearing a uniform shirt outside the Count Gate and the other when he represented a fellow 

officer who did not have a tie when he was off-duty. In both instances Hernandez confirmed 

that an officer may be out of uniform when he is off duty in the area of the Administration 

Building. The grievant was working two shifts the day he encountered Glaster. He presumed 

he was off duty at the time he was leaving the Administration Building because he had signed 

out from H-Unit at the conclusion of the second watch and expected to be docked for being late 

because of the meeting to his overtime shift at Marin General Hospital. 

Hines left for his overtime shift while Taylor remained and engaged the lieutenant in a 

heated colloquy about uniforms which covered situations like wearing a hat to and from work, 

at the 7-1 1, and in bed at night. Taylor took off his own hat and told Glaster "where he could 

- 11 -

CALIFORNIA ANP CCPOA 


put it". 

Taylor later received a letter of instruction telling him to wear his hat outside. He 

testified that he deserved this action and did not believe it was issued in response to his union 

activities. 

When Hines reported at the hospital, the officer he relieved refused the overtime he was 

entitled to by virtue of the grievant's tardiness. Hines claimed the time on his travel voucher 

and was paid for two consecutive shifts, from 0700 to 2300 hours. 

Glaster wrote the grievant up for failing to wear his hat later that day. He said: 

...[Hines] was reminded by th~s wnter that.. .he should be in full uniform. which includes wearing 

a hat when outside. Officer Hines stated, "I am off duty and do not have to wear a hat." ... I 

responded "yes you do. " Officer Hines continued exiting the Administration Building, obviously 

in defiance of my instructions. Officer Hines' actions will not be tolerated and are a clear act of 

insubordination. 

Lieutenant John Stokes was assigned to investigate the incident. At the January 3, 1990 

fact finding meeting Hines objected to Stokes serving as the investigator because he had recentiy 

filed a grievance challenging Stokes' qualifications for promotion. Hines had called Stokes at 

home to find out about the promotion, but the Stokes refused to discuss it and hung up. The 

lieutenant denied the objection to his investigation. Ultimately, Stokes concluded that the 

grievant had lied in speaking to Glaster because his pay records indicated he was on duty during 

the period between the time he left H-Unit and arrived at the hospital. 

On January 16, 1990, after Stokes submitted his fact finding report, the grievant 

approached him to explain why he had left through the East Gate for his overtime assignment. 

During their discussions Hines revealed that he had stopped at the armory located at that gate 

to pick up his personal weapon so that he would not have to return to the institution at the



conclusion of his overtime shift. Stokes reported this conversation in a memorandum, which 

stated: 

... Officer Hines stated he wanted to clarify the record as to why he left the East Gate rather than 

the West Gate when he travelled to his overtime position at Marin General Hospital on December 

12. 1989. Officer Hines stated that he left the East Gate because he first stopped ''Llke he always 

does" in order to first pick up his personal weapon prior to going to Marin General for overtime.. . 

... It is further noted for the record that the statement offered voluntarily by Officer Hines is a 

further example of his blatant violations of Department Rules. The California Department of 

Corrections Administrative Manual Chapter 4800, Section 4808 specifically prohibits the carrying 

of a concealed weapon by on-duty employees except as delineated by deportmental procedures or 

as authorized by a deputy or assistant director. The carrying of a concealed weapon by an on-duty 

employee enroute to an overtime position in an outside hospital has never been authonzed. 

Officer Hines' statement that he always does such is one further example of his contemptuous 

disregard for departmental rules and regulations. 

Section 4808(a) of the Department's Administrative Manual states: 

Carrying of a concealed weapon by on-duty employees is expressly prohibited except as delineated 

by departmental procedures or authonzed by a deputy or assistant director. Employees shall not 

carry any concealed weapon into an institution or other departmental facility where 

inmates/parolees are housed, except as noted in departmental approved procedures. 

The gun issue was assigned to Lieutenant John Pierce for investigation. He concluded 

that Hines misunderstood the rules and did not intentionally violate them. He also found that 

the grievant had taken safeguards with the weapon and was straightforward in discussing his 

actions. During the fact finding meeting Pierce learned that, in all likelihood, other officers 

camed their personal weapon to outside overtime assignments. 

Adverse action was originally recommended for these two incidents. But, the matter was 

reduced to a letter of instruction by the warden who felt the grievant deserved the "benefit of 

the doubt." As one reason for leniency, the warden pointed out that there was a question about 

the grievant's status when he had his hat off.



Hernandez informed Hines on March 28, 1990 the Department was closing its 

investigation with a letter of instruction. The warden signed and issued the letter of instruction 

on May 4, 1990. It said: 

On December 12, 1489, you were observed and ordered by Correctional Lieutenant E. Glaster 

to conform to uniform regulations by wearing your hat as you exited the Administration Building. 

You did not comply with the Lieutenant's order and continued on your way. 

On January 16. 1990, you informed a Correctional Lieutenant of your direct violation of piclung 

your personal weapon up from the institutional gun locker while enroute to an overtime assignment 

at an outside hospital. 

Subsequently, on May 16, 1990, the warden clarified the institution's policy on hats with 

a memorandum stating: 

All uniform perso~el are to be In complete and appropriate uniform when onduty and accessing 

the institution at the following locations: 1) Inspectoscope Gate; 2) H-Unit Pedestrian Sallyport. 

This includes the wearing of the appropriate uniform bat. 

This memo indicates that a hat is not required when an officer is outside the Administration 

Building, the location where Hines encountered Glaster. 

4. The associate warden's refisal to discuss the diversion of oficers with the 

grievant. 

On January 23, 1990 the grievant learned that two H-Unit officers were being reassigned 

to the main institution. Because he was concerned about the safety implications of reducing H- 

Unit staff, Hines contacted the administration to complain. He was referred to Associate 

Warden Tabash. The grievant said the associate warden refused to explain why the officers 

were being diverted and merely told him to take the matter up with Hernandez. Tabash, on the 

other hand, maintained that he told Hines the officers were diverted for a search following a 

stabbing in the main facility. The grievant replied there was no emergency and Tabash was



required to meet and confer with the Association before taking this action. Tabash responded 

that he was authorized to issue such orders and that he was not required to negotiate over this 

type of management decision. He concluded by referring the grievant to Hernandez if he had 

any questions. 

5. The supplemental perfiormance evaluation. 

On February 26, 1990 Anthony D. Lee, the program sergeant who replaced Frye as the 

grievant's immediate supervisor, wrote an annual performance evaluation of Hines for the period 

from January, 1989 through January, 1990. The evaluation rated Hines as outstanding in quality 

of work, work habits, relationships with people, and taking action independently. He received 

standard marks in other areas, his sick leave was rated at the minimum level, and his appearance 

was described as "neat and clean". Sergeant Lee concluded his evaluation by commending the 

grievant "on a job well done." At that time Lee had supervised Hines for five months. 

At the hearing Lee acknowledged that there were problems with the evaluation as he 

failed to consult with the grievant's previous supervisor, review his personnel and supervisory 

files, and run a sick leave profile. The record reveals that had he done this research he would 

have discovered the following information: Frye considered Hines' performance to be 

"excellent" during the seven months of his supervision. The only negative material in the 

grievant's file was the letter of instruction on sick leave abuse. His 1989 and 1990 Employee 

Attendance Summary and Employee Absence Requests for the period show that he was on an

CALIFORNIA AND CCP.0A 


extended disability leave until May 22, 1989. His absence record through the end of January 

is as follows: 

DATE 

Friday June 9 

Tuesday, June 27 

Monday, Aug. 28 

Wednesday, Sept. 27 

Monday, Oct. 9 


Thursday, Oct. 26 

Friday. Oct. 27 


Tuesday. Oct. 31 

Tuesday, Nov. 7 

Tuesday, Nov. 14 

Friday, Jan. 5 

Monday, Jan. 29 

HOURS 

8 

8 

1.5 

1 

8 

5.5 

3 

8 

8 

8 

2 

.5 

8 

4 

REASON & TIME LEFT 

knee Injury (job-related) 

doctor's appointment for knee injury (job related) 

dental appointment - left at 1:00 p.m. 

medical appointment 

ear ache & sinus infection 

stomach cramps - leH at 9:30 a.m. 

back injury (job-reiated) - left at 12: 15 p.m. 

back injury - continued 





wife sick 

back problems (job related) - made sick call at 10:50 

On February 22, 1990 Program Administrator Everly issued a supplemental performance 

appraisal criticizing Hines for extraordinary use of sick leave, unkempt appearance, nonuniform 

cap and unproductive and unauthorized activities. The appraisal said: 

Officer Hines, I have reviewed the Performance Report prepared by Correctional Sergeant A.D. 

Lee regarding your work performance during the 1st performance year and take exception to th~s 

report. Sergeant Lee informed me that he did not review your supervisory file, did not review 

your personnel file, nor did he seek input from other Supervisors who observed and supervised 

your performance during the past year, nor discussed your perforrsce with the Unit V Program 

Lieutenant. It is apparent your appraisal repofl under those circumstances is not a true 

representation of your performance. Regrettably, while the appraisal on its own is very positive 

in its presentation, it does not present a balanced evaluation. 

I take exception to the fact that Sergeant Lee failed to take note of the Letter of Instruction, dated 

November 1, 1989, where you were reprinunded regarding your willful deceptiveness and 

untruthfulness in reporting an illness to avo~d work in order to attend to personal busmess. 

Sergeant Lee states that your sick leave usage IS at a rmnimum level. However, when I directed 

him to prepare a sick leave profile regarding your sick leave usage, which he admits he did not 

do previously, it revealed that you have used a total of 73.5 hours of sick leave, with usage of sick 

leave on eight (8) separate occasions in conjunct~on with your RDO's [regular days off). This is 

excessive and unacceptable. 

Sergeant Lee states that your appearance IS always neat and clean. However, on several 

occasions, two of which I have personally counseled you about your attire during the past two


Grievances of Doug Hinei 

months, you have come to work at the start of your shift in a dirty, food and grease-stained 

uniform, with unshined shoes. I have observed you war non-authorized headgear which you 

infirm4 me you were given personal permission by the warden to wear. Whon I investigatad 

this, I again found this not to be true and your statements to be less than truthful and deceptive. 

On several occasions I have observed you away from your work area without authorization and 

~nvolved in non-productive activity. 

It 1s clear to me, Officer Hines, that this report is not balanced, and that you have not met the 

standards Sergeant Lee purports. I would counsel you that this report 1s certainly one you should 

asplre to, but one you have not met. 

It is improper for a performance appraisal to make a direct reference to a letter of 

instruction and, at the hearing, the Department promised to remove this reference from the 

disputed letter. 

In discussing the supplemental evaluation at the hearing, Everly said he counseled the 

grievant twice at the outset of his shift about his disheveled uniform. He could not remember 

the dates of these discussions and did not document them at the time. The grievant denied that 

Everly had counseled him about his uniform. Several officers who worked with Hines and his 

two immediate supervisors during the evaluation period disagreed with Everly's assessment of 

the grievant's appearance. 

They never observed Hines in a stained, dirty or substandard 

uniform. 

According to the grievant the only uniform item of concern to Everly was his trooper 

cap. He acknowledged that Everly counseled him not to wear it. But, he told Everly that he 

had permission to wear the cap from the warden. At the hearing Hines explained that he 

presented the warden with weather station statistics for the area and received approval to wear 

the warmer trooper cap. But, Everly said that, when he checked, the warden denied approving 

the hat.



With great distaste, Frye recalled Hines wearing the trooper cap while the grievant was 

under his supervision. According to Frye, when he checked on the grievant's authorization for 

the hat, Hernandez verified that the warden had approved the trooper cap. 

The warden testified that he had not given the grievant verbal permission to wear the cap. 

He said it was not his practice to make informal deals granting one person an exception to the 

rules. After the issue came up with Everly, Hines said approached the warden again with his 

weather statistics. When the warden approved the cap, the grievant asked for something in 

writing. On January 10, 1990 the Department issued Uniform Grooming StandardsIDAM 2700 

authorizing a dark green trooper cap as optional headgear at the facility. 

Initially, when he was questioned by the Association, Everly gave only one example of 

the grievant being away from his work area without authorization. On January 25, 1990 he 

observed Hines in the West Gate area. The next day, when he asked the control sergeant, 

Robert Reynolds, about this, Reynolds said he understood the grievant had gone to the main 

facility on union business. Everly ordered Reynolds to write the grievant up. 

Reynolds 

investigated the incident and discovered that when Hines returned to H-Unit from his union 

business the sallyport officer, Joseph Gee, asked him to escort inmates and deliver passes to the 

West Gate. Because of a shortage of personnel, Officer Gee often grabbed officers to run 

errands for him without first obtaining a supervisor's approval. Reynolds concluded that the 

grievant had done nothing wrong and reported his findings to Everly. Reynolds never wrote 

Hines up. Reynolds subsequently received a job change out of H-Unit.

CALIFORNIA ANP CCPOA 


Hines filed two grievances. The first was filed on February 7, 1990 before the issuance 

of the supplemental evaluation. It peremptorily demanded that the grievant not be disciplined, 

for going to the West Gate and that Lee's evaluation not be downgraded. The second, filed on 

March 8, 1990, demanded that the supplemental evaluation be rescinded. 

In the step two 

response to the first grievance, the warden denied the grievance, but wrote with respect to the 

West Gate incident: 

You must understand that the Program Administrator had charged responsibility to look into any 

situat~on where it appears that an on duty staff member has left hislher assigned area or post. 

This type of behavior is viewed as a very serious matter and has a direct effect on the safety and 

security of the inst~tution. As it turned out. you were found to have ban legitimately away from 

your Duty Post, and once this was communicated to all concerned there was no disciplinary action 

taken. 

A week later, in the second step response to the second grievance, the warden wrote that 

Everly's comments on the grievant's involvement in non-productive activity and lacking 

authority to be away from his post were "totally appropriate." 

When he was questioned by the Department at the hearing, Everly elaborated on the basis 

for his comment about the grievant being away from his work area and unproductive. He 

mentioned several other examples of the grievant being away from his work area without 

authorization. He said that he saw Hines several times at the Count Gate, once in the hospital 

area, and once in the Four Post area conversing and laughing. Everly did not investigate these 

instances to determine whether Hines had authorization to be away from his assignment. 

Instead, he assumed, that since the grievant was laughing and joking he was not involved in a 

specific duty.



Two H-Unit officers, as well as Sergeant Reynolds, testified that they received what they 

considered to be punitive job changes for associating with Hines. One of the officers, Frank M. 

McNeal, testified that in March, 1991 Everly called him into his office and warned him not to 

associate with the grievant because he had a "different agenda." Everly went on to say that he 

saw no job changes at that time, but left the issue open. McNeal took the remark about the 

possibility of a job change following the warning about Hines to be a threat and filed a 

grievance. Everly denied malung these remarks and said his conversation with McNeal focused 

on the need for regular verbal reports on the dorm renovation. He said McNeal's subsequent 

job change was made for career development reasons. McNeal filed another grievance, with 

Hines' assistance, when he received an assignment which he felt required him to work out of 

class. The assignment was rescinded and he was told the situation would be taken care of 

another way. He received a second job change.


Grievances of Doug Hin* 

DISCUSSION 

1. The Reprisal Claims. 

A. THE LEGAL STANDARD. 

Section 5.03(a) of the contract says: 

The State and the Union shall not impose or threaten to impose kprisals on employees, to 

discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain 

or coerce employees because of their exercise of the rights gunr~ntad by the Ralph C. Dills Act. 

The Ralph C. Dills Act prohibits discrimination for union activities and states: 

... State employees shall have the right to form, join. and participate in activities of employee 

organizations of their own choosing for the purpose of representation of all matters of employeremployee 

relations.. .[Government Code 935 151. 

To establish a prima facie case of reprisal, a union must show that the employee's 

protected activity was a motivating factor for management's unfavorable decision. 

Management's improper motive can be inferred from the fact that the employee engaged in 

protected activity, the employer knew of his actions, an adverse action was taken against the 

employee and there was a relationship or nexus between the protected activity and the adverse 

action. Novato Federation of Teachers v. Novato Unified, PERB Decision No. 

210, 6 PERC 131 14 (1982). If a union establishes there was an improper motive for the 

employer's decision, the employer has the burden of showing that it would have taken the same 

action despite the protected activity.



B. THE ASSOCIATION HAS SHOWN THAT REPRISAL FOR PROTECTED 

ACTIVITY WAS A MOTIVE FOR THE FOUR ACTIONS DISCIPLINING OR 

CRITICIZING THE GRIEVANT. 

It is undisputed that the Association has met the first three elements of the Novato test. 

The grievant was a vigorous union advocate and regularly engaged in protected activity. His 

endeavors were well known at the institution generally and to the particular managers involved 

in the actions. 

A disciplinary reduction in pay, an unfavorable evaluation, and letters of 

instruction are all "adverse actions" within the meaning of the Dills Act as they can be 

considered in promotions, transfers and future disciplinary actions. 

The Association has also met the fourth element of NOV~~Q and shown there was a 

relationship between protected activity and the adverse actions. It has presented sufficient 

evidence to demonstrate that the Department's decisions were motivated by Hines' union 

activities. This is manifest in the timing of the Department's actions in relation to the grievant's 

protected activities, the existence of disparate treatment in the pay reduction, critical actions 

taken against a coworker who called upon the Grievant for assistance, the exaggerated 

characterizations of the grievant's conduct in the letters, and the arbitrariness in investigating 

charges against the gri~~ant. Additionally, management officials involved in all aspects of the 

challenged actions displayed animosity toward the grievant because of his aggressive activism. 

The grievant is a zealous union official who has clearly been a thorn in the Department's 

side for a number of years. 

Whenever he perceives a problem, he doggedly pursues the 

Association's cause. 

His approach is often antagonistic, rather than cooperative and not 

necessarily effective. Prior to the incidents at issue, the grievant had a clean record with


Criev;lnces of Do@ Hinei 

generally positive performance evaluations. Just prior to the issuance of the disputed actions, 

Hines had returned to work from an extended disability. During the time he was off work, the 

grievant vigorously lobbied legislators against the Department's decision to cut staff. Also, 

within this period, Hines filed over four hundred separate grievances raising identical claims. 

He delivered these grievances to the employee relations officer's home early in the morning on 

his day off. He filed other grievances against the administration, including some challenging 

Everly, Stokes and Tabash, three of the officers involved this case. 

Hines criticized 

management in the press and wrote the Attorney General about the institution's unresponsiveness 

to his complaints. 

During this time the grievant was transferred to H-Unit, a more remote work site than 

his previous post. There, his union activities were scrutinized and he was forced to strictly 

adhere to Departmental regulations on performing union business when he wanted to use an 

office or a telephone, or to draft a grievance. He filed a grievance about the rigor with which 

the Department was enforcing steward release procedures. Coworkers and supervisors who were 

friendly to the grievant or participated in union activities with him during this period were job 

changed away from his area. 

Another indication of administrative animosity toward the grievant is the Department's 

use of a penalty which was significantly more severe than the one imposed in a similar case. 

The year-long, two-step pay reduction is inconsistent with the letters of instruction given in an 

earlier case which did not involve union activities. There, two employees violated an established 

institutional procedure by removing a tile which they believed contained asbestos. While the



amount of asbestos contained in the grievant's pipe lagging was significantly more than that 

detected in the tile, the maintenance worker's conduct was no less serious. The two employees 

did not apprise the administration of their concerns or try to get assistance before talung matters 

into their own hands. There is also no evidence that the maintenance workers took precautions 

to protect themselves and others from exposure in carrying the tile from their job site to a testing 

facility off the premises. 

Hostility toward the grievant for his intervention in the Education Building situation is 

also apparent in the Department's treatment of the officer who called upon Hines to register a 

safety grievance. 

The Department claims Burton was chastised for not following the 

management chain of command to express her concerns about the asbestos. This assertion is 

belied by the Counseling Record itself. In that document Burton was admonished because she 

contacted "supervisors md union offia [and] caused them to react to her concerns." Thus, 

it appears that management's action was explicitly designed to discourage Burton from exercising 

her statutory right to invoke the Association's assistance with safety problems. 

Although the administration was often fair-minded and professional about the grievant's 

activities, its comments and actions at other times revealed ill feeling and a closed mind. The 

warden and the employee relations officer made several magnanimous statements about Hines. 

For example, the former said the grievant had done him "a favor" by filing the OSHA 

complaints because the citations brought several million dollars to the institution's renovation 

budget. Hernandez testified tHat dealing with Hines' contentiousness "came with the territory." 

Notwithstanding these remarks, there is evidence that Hernandez was motivated to



retaliate against the grievant. In this regard, the "We got him" comment which was overheard 

by Charleston cannot be ignored. This statement was made soon after the asbestos incident and 

reflects a retaliatory attitude. The sergeant's testimony about what he heard was persuasive. 

He was visibly reluctant to testify and had more to lose than gain by coming forward. He was 

seeking a promotion within management and showed no predisposition or bias in this dispute or 

in union-management affairs generally. 

Indeed, he deplored fractious labor relations and 

"loggerhead type people [who] couldn't come to agreement and...a lot of ill feeling." 

The warden's two responses to the grievances about the West Gate incident highlight the 

fact that the administration sometimes dealt with the grievant in an arbitrary manner. The 

second step responsc to the preemptory grievance about the West Gate incident stated that the 

grievant's actions had been investigated and found to be legitimate. A week later, in response 

to the second grievance, the administration changed its mind and approved of Everlyls 

criticisms. 

Other managers involved in the actions harbored animosity toward the grievant because 

of his work for the Association. For example, several witnesses noticed that the relationship 

between Associate Warden Tabash and Hines changed from friendly to strained when Tabash 

became the target of grievances filed by Hines. 

Tabash told two lieutenants, Brown and 

Hernandez, that he was upset about the number of grievances Hines filed. 

Tabash was 

responsible for the strict insistence on procedures to be. followed when the grievant performed 

Association business. 

As a result of a grievance challenging these restrictions, the parties



entered into a formal procedure on October 4, 1989 spelling out when Hines could use an office, 

desk and telephone and the approval necessary for him to be relieved from duty. 

Tabash's animosity is also evidenced by his failure to fairly investigate the incident in 

which the grievant went home early. Tabash disregarded the recommendation of the sergeant 

who had an opportunity to observe Hines' condition that day and, instead, adopted an assumption 

based totally on circumstance as a basis for accusing the grievant of dishonesty. 

Everly also displayed an improper bias against the grievant and others because of their 

union activities and affiliation. He warned another officer against associating with Hines because 

of his union agenda and intimated that the officer could be punished with a job change for not 

following this advice. The officer maintained his relationship with Hines and was shortly 

thereafter given a job change. 

Everly's hostility is also shown by his inclusion of a comment about Hines being away 

from work without authorization on his supplemental evaluation even though this charge had 

been investigated by his sergeant and found to be meritless. Everly's other examples of the 

grievant being away from work and unproductive were never investigated. Everly merely 

assumed that, when he saw Hines away from his post, he was goldbricking. 

Stokes' bias is apparent in the inflammatory language he used to describe the grievant's 

conduct in the hat and gun incident. 

His characterization of the grievant's behavior as 

"contemptuous disregard" for weapons rules contrasts markedly with Lieutenant Pierce's 

conclusion, that there were significant mitigating factors in the grievant's favor, including his


Grievances of Dorig Hines 

candor about his conduct, the care he took to safeguard his weapon, and the indications that 

other officers were engaging in the same practice. 

Similarly, Glaster's characterization of Hines' attitude in the companion hat incident as 

"obviously in defiance" is so exaggerated that it reveals hostility toward the Grievant. Less than 

twenty words were exchanged by the two men when they passed ont the steps. Glaster never 

gave the grievant a direct order or clearly stated what he was expected to do, yet he wrote that 

Hines was clearly insubordinate. 

All of these facts indicate that there was a relationship between the grievant's protected 

activities and the actions which are the subject of these grievances. Therefore, the Association 

has met its burden of establishing there was an improper motive for the Department's actions. 

C. THERE WAS NO CAUSE FOR THE TWO-STEP PAY REDUCTION AND IT 

WAS TAKEN IN REPRISAL FOR THE GRIEVANT'S PROTECTED 

ACTIVITIES. 

The Department violated Section 5.03(a) of the contract when it disciplined the grievant 

for pursuing his concerns about asbestos in the Education Building. It had an improper motive 

for talung this action and there was no justification for the adverse action. The State Personnel 

Board concluded that the Department had no cause to discipline the grievant and there are sound 

reasons for adopting that decision on the merits here. 

The administrative law judge conducted a three day hearing at which both parties had an 

adequate opportunity to litigate the same issue on the merits which is presented in this case. 

While some of the evidence offered in the arbitration was different from that presented at the

CALIFORNIA AN CCPOA 


administrative hearing, this is not a sufficient basis for reconsidering the Board's ruling. The 

same witnesses and evidence were available during the investigation and at the time of the 

administrative hearing. There was nothing to prevent the Department from developing this 

information at those earlier times. 

The parties have a right to expect finality in the absence of unusual circumstances. If 

they are given a full and fair opportunity to litigate the merits of an adverse action, a decision 

is issued, and no appeal is taken, they have no reason to believe they will have another 

opportunity to litigate the matter. For these reasons, there is no justification for permitting the 

Department, which is dissatisfied with the Board's decision but failed to file an appeal, to be 

able to relitigate the merits of the grievant's actions in the asbestos incident. 

As there was no cause to discipline the grievant and the Department had an improper 

motive for talung the adverse action, the Department has violated Section 5.03(a) of the MOU. 

To the extent that it has not already been done, the two step pay reduction should be rescinded. 

D. THE SICK LEAVE LETTER OF INSTRUCTION AND THE DENIAL OF 

SICK LEAVE ARE UNWARRANTED AND A REPRISAL FOR THE 

GRIEVANT'S UNION ACTIVITIES. 

1. The letter of instruct ion for abuse of sick lea ve, 

The letter of instruction was not justified and, therefore, was a reprisal for the grievant's 

union activities. The Department's assumption that the grievant lied about being sick and went 

home to catch his dogs was based solely on circumstantial evidence. Officer Banks knew there 

was a problem with Hines' dogs and that he went home a short while later. 

From this

CALIFORNIA AM) CCPOA 


information he conjectured that Hines left to catch his dogs. This conclusion was adopted by 

Tabash without any direct evidence to support it and over the objection of Hines' immediate 

supervisor, the sergeant who had observed him that day. Frye testified, "my thought was that 

Officer Hines was sick, because I had noticed the days prior that he was ill and I thought he was 

sick." While Frye hedged his testimony on cross-examination saying, "maybe he did tell a 

fallacy about the dogs," the sergeant went on to clarify, "I also believed that he was sick" and 

"He made what I knew was a valid sick call and then went home." 

The Department's conclusion that the grievant was lying about the reason for going home 

is further undermined by the fact that, if Hines needed to leave work to tend his dogs, he had 

absolutely no reason to lie about it. He knew Frye considered rescuing his dogs an acceptable 

ground for leaving work as the sergeant had gone home for the same reason. 

Because the letter of instruction was unwarranted and motivated by anti-union animosity, 

the Department violated Section 5.03(a) of the MOU. The letter of instruction is to be 

rescinded. 

2. The den ial of sick leave. 

Section 10.02 (f)(l) of the Agreement states: 

The department head or designee shall approve use of sick lave credits only after having 

ascertained that the absence is for an authonzcd reason. 

As the grievant went home on a legitimate sick call, the Department was not justified in refusing 

to approve sick leave for October 23, 1989. The grievant is to be restored his sick leave credit 

for October 29, 1989.



E. THE LETTER OF INSTRUCTION ON THE HAT AND GUN IS PROPER, 

BUT UNTIMELY. 

Timeliness of a letter of instruction. 

The Association claims that the letter of instruction about the hat and gun is untimely. 

In this regard it relies on Section 9.06(b) of the MOU which states: 

Letters of InstructionlWIDs shall be written in a timely fashion; generally with thlny (30) days 

from when the incident occurred or from date of discover of the incident that forms the basis for 

the LO1 or WID. Unless special circumstances exist, LOIS or WIDs should not be written if the 

knowledge of the incident is more than thirty (30) days old. 

Negotiators for both parties agreed that the thirty day period for issuing a letter of 

instruction is tolled during the time the charges are under investigation, when a letter of 

instruction is issued as part of a negotiated settlement of severer discipline, and when an officer 

is absent on vacation, extended sick time or disability leave. 

In this case the letter of instruction is untimely. The Department closed its investigation 

on March 28 and issued the letter on May.4, over thirty days later. There were no intervening 

events which excused the Department from complying with the contractual time limit. 

Management's negotiator, Robert Bark, testified that the usual remedy for an untimely 

letter of instruction is to back date it. However, the Association has demonstrated, through the 

production of a number of grievance settlements from the institution, that the policy there is to 

rescind untimely letters. Although some of the grievance documents in the Association's exhibit 

had first level settlements which are non-precedential, other documents show that the warden 

agreed to rescission at the second level and the Department's labor relations branch chief



achieved a similar result at the third level. 

In conformity with the practice and policy 

demonstrated by these materials, the untimely letter about the hat and gun is to be rescinded. 

2. The Department was justified in & Hines a Letter of instruction fo r the hat 

. . 

u ~ u inc~dent. n 

The purpose of a letter of instruction is to educate officers about Departmental 

policy. According to the Association's Chief Legal Counsel letters of instruction "get the 

employee's attention and put them on notice that certain behaviors are not proper." In this 

instance the administration used the hat and gun incident to put Hines on notice of its 

understanding of the rules and its expectations for officers. The grievant is not immune from 

criticism and cannot violate the Department's regulations with impunity merely because he is an 

activist. 

There were sound reasons for issuing a letter of instruction here. In the gun investigation 

it was learned that a number of employees might have unknowingly violating the Department's 

rule and the letter of instruction served to clarify this situation. Because of the unclarity about 

the grievant's duty status at the time he encountered Glaster, it was appropriate for the 

Department to clarify its expectations for this type of situation. Although the greivant expected 

to be reported as off duty, he was actually on duty because he claimed the time made available 

to him by the officer he relieved at the hospital. For this reason, the Grievant was technically 

in violation of the uniform policy when he met Glaster. He was on duty and not wearing his 

hat.



The Department considered the grievant's explanations that the hat rule and his duty 

status were unclear and that he had no intention of violating the rules. In light of these facts, 

it reduced the recommended adverse action to a letter of instruction. A letter is consistent with 

the action taken against'Taylor, who was openly defiant and .challenging to Glaster and received 

a letter for his conduct. 

As the Department would have taken this action even in the absence of an anti-union 

motive, the Department has not violated Section 5.03(a) of the MOU. 

F. THE SUPPLEMENTAL PERFORMANCE APPRAISAL WAS INACCURATE 

AND ITS ISSUANCE VIOLATED SECTION 5.03(a). 

The supplemental evaluation was inaccurate and would not have been issued in the 

absence of an improper motive. First, Everly relied on an incorrect sick leave record in 

concluding that the grievant abused his leave. Hernandez said that absences stemming from an 

on the job injury are not counted for purposes of determining whether an officer has an 

extraordinary use of sick leave. He said: 

Q 

... Is there also a policy concerning which types of absences are countd against an 

employee in determining extraordinary use of sick leave 

Q 

... Is there a policy concerning whether an employee is off on an industrial injury 

A. Yes. We wouldn't use that against an employee if it was an on-the-job injury. 

While the Department argued that "industrial disability leave" is distinct from sick leave 

taken due to an on-the-job injury it offered no evidence to substantiate this claim. In each case 

where the reason for the Grievant's sick time was noted in the discussion section of this award



as being connected to an industrial injury the information was taken from official Departmental 

records which list the reason for the absence. 

If Everly had excluded the leave Hines took for injuries incurred on the job, as is the 

institution's policy, the grievant had only 24 hours of sick leave, with four occasions occurring 

on days adjacent with his regular day off. Of the latter, two leaves were not in "conjunction" 

with the regular days off because the grievant worked the portion of the day following the 

weekend and left work toward the end of the shift. He cannot be deemed to have extended his 

weekend with sick time because he returned to work between the weekend and his next sick 

leave. 

The parties have negotiated a standard for when sick leave usage may be questioned. 

Under subsection (2) of the Addendum to 510.02, medical verification may be required if the 

employee has three sick days in conjunction with regular days off with in a year and, under 

subsection (6), verification can be required for nine or more days of absence within twelve 

months. The grievant's record did not exceed these limits and thus the negative comment about 

his use of sick leave was unwarranted. 

Everly's testimony that he spoke to the grievant about an unsatisfactory uniform on two 

occasions is not supported by any notes or counseling records. It is also belied by the testimony 

of several officers who worked along side the grievant and by both of his immediate supervisors. 

For these reasons, the remarks about Hines' uniform are improper. The notation that the 

grievant was "less than truthful and deceptive about his authorization to wear the trooper cap" 

is incorrect. Frye hated the grievant's trooper cap and would have been content to forbid him



from wearing it. However, he testified that he understood from a conversation with Hernandez 

that the Grievant had permission to wear the hat. The sergeant's testimony confirmed that the 

Grievant had some basis for believing that his trooper cap had been approved and was not 

dishonest in his discussion about it with Everly. 

Finally, Everly incorrectly accused the grievant of wasting time and being away from his 

work location without authorization. In the instance in which the grievant ran an errand for the 

sally port officer, the grievant's immediate supervisor investigated the matter and determined 

that he had not engaged in any wrong doing. Everly did not take this into account in criticizing 

the grievant. He also utterly failed to investigate any of the other examples he mentioned at the 

hearing as a basis for this comment. 

The supplemental performance evaluation was issued as a result of the Department's 

improper animus toward the grievant and was not an accurate review of his conduct. The 

Department violated Section 5.03(a) of the MOU and must rescind the evaluation. 

3. Interference claim. 

A. MOOTNESS. 

The grievance claiming that associate warden refused to recognize the grievant is not 

mooted by the retirement of Tabash. While the grievance mentions Tabash by name in its 

remedy request, the dispute is with the Department and actions taken by Tabash on its behalf. 

The grievance is not moot because, although there may be no ability to frame a remedy specific

CALIFORNIA Al+@ CCPOA 

Grievances of Doug Hine 

to Tabash because of his retirement, a finding can be made and a remedy fashioned with respect 

to the institution. 

B. TABASH'S RESPONSE TO THE GRIEVANT'S INQUIRY DID NOT 

INTERFERE WITH HINES' ORGANIZATIONAL ACTIVITIES. 

The associate warden's actions did not interfere with Hines' organizational activities. 

Even if the grievant's account is correct that the associate warden did not give him any 

explanation for the reassignment, there has been no interference with the grievant's right to 

investigate a safety complaint and receive an explanation from the administration. The grievant 

was referred to Hernandez so that he could pursue the matter if he was dissatisfied with Tabash's 

response. 

Management never prohibited the grievant from asking questions; nor did it 

categorically refuse to answer them. At no time did the administration black the grievant from 

investigating the reassignment or from filing a grievance. 

As Hernandez said, the grievant has a right to an answer from management about safety 

* 

complaints. In this instance, the grievant was never foreclosed from getting an answer; he was 

merely referred to Hernandez. The Association has not pointed to anything in the contract or 

in the Dills Act which requires the Department to argue or negotiate decisions such as this with 

the Grievant. Therefore, the Department did not violate the MOU when Tabash refused to 

elaborate on the decision to reassign H-Unit officers.



AWARD 

The Department has violated Section 5.03(a) of the MOU by imposing the February 9, 

1990 two-step pay reduction for one year, issuing the November 1, 1989 letter of instruction on 

sick leave use, and the February 22, 1990 supplemental performance evaluation. 

The 

Department violated Section 10.02 of the MOU when it denied the grievant sick leave credit for 

October 23, 1989. The Department violated Section 9.06(b) of the MOU when it issued the 

April 25, 1990 letter of instruction. The grievances raising these issues are granted. The 

grievances raising all other issues are denied. 

The Department is ordered to post the attached cease and desist order, signed by an 

authorized agent. The notice shall be posted in all work locations at San Quentin where bulletins 

to employees are customarily placed. The posting shall be maintained for a period of thirty 

consecutive days. Reasonable steps shall be taken to insure that the notice is not reduced in size, 

defaced, altered or covered by any material. The Department shall send written notifications 

of the actions taken to comply with this order to the arbitrator within fourteen days of the date 

of this award, with a copy sent to the Association. 

The Department is ordered to rescind the two-step pay reduction, the letters of instruction 

and the supplemental performance evaluation. All references to these actions shall be removed 

from the grievant's personnel and supervisory files. 

The grievant's sick leave credit is to be restored and all reference to the denial of sick 

leave credit shall be removed from his personnel and supervisory files and any other attendance 

records.



With the permission of the parties, I am retaining jurisdiction over the implementation 

of this decision for sixty days. 

Dated: 

Berkeley, California 

October 20, 1992 

ANITA CHRISTINE KNOWLTON 

Arbitrator 

archive 15: 7-55

NOTICE TO EMPLOYEES 

After a hearing in the arbitration entitled, California D-nt of Corrections - San 

. . 

Quent in and California Correctional Peace Officers -on (nnevances of.Do 

9 

Case Nos. DPA Nos. 89-06-0188; 89-06-0215; 89-06-0249; 90-06-007; CCPOA NOS=- 

89,910234 and 91-259; SQ 90-89 and 90-056; SQ 90-025 and 90-018; CDC (36-89 and 91-299; 

Immediate Arbitration Request of March 7, 1990, it was found that the Department of 

Corrections violated Section 5.03(a) of the memorandum of'understanding. 

As a result of this conduct, we have been ordered to post this notice and we will: 

A. CEASE AND DESIST FROM: 

Imposing or threatening to impose reprisals against Doug Hines because of his exercise 

of his rights to form, join, and participate in the activities of employee organizations of his own 

choosing for the purpose of representation in all matters of employer-employee relations, 

including the right to file grievances and otherwise serve as an officer and steward of CCPOA. 

B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO 

REMEDY THIS VIOLATION OF THE CONTRACT: 

1. Rescind and destroy the February 9, 1990 two step pay reduction for one year, the 

November I, 1989 letter of instruction, and the February 22, 1990 supplemental performance 

evaluation. 

2. Remove from Doug Hines' personnel and supervisory files any material relating 

to these actions. 

CALIFORNIA DEPARTMENT OF CORRECTIONS 

Dated 

Authorized Representative 

THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR 30 CONSECUTIVE 

DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, REDUCED IN 

SIZE, DEFACED OR COVERED WITH ANY OTHER MATERIAL.

california department of arbitration corrections - san quentin opinion ...

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