WIXLIB

On February 26 Calcote submitted a written request toRichardson for placement into Radillo's vacant position atSutter.He wrote that he felt his presence would bring morestability, harmony, and security to the Sutter team.Heindicated his ability to change immediately, and requested aresponse in writing.Richardson responded in writing on February 27.He stated:Due to the sudden departure of Mr. Radillo,we have on a temporary basis moved youthcounselor Mendoza into his shift for themonth of March. Your interest in the shiftwill be considered as we evaluate both unitneeds in preparation for fillingMr. Radillo's position on a more permanentbasis.Mendoza was put into the position, said Jackson, because hehad days off the same as the vacancy and there would be lessimpact on other personnel.If Calcote were placed into theposition, it would have affected another person in either unitas the Calcote position was the relief position between thesister units.Also, if Calcote had been put into the position,then a majority of the remaining positions at Sutter would have6been black.6There would then be only one white male at theSutter Unit. Mendoza did not need a 14-day notice as he wasalready on the morning shift.Thus, his placement affected noother employees and gave them an additional Hispanic.6The ethnic population is about 35 percent black and33 percent Hispanic.8

Aycock testified that Mendoza's classification was that ofa limited term employee.He did not have permanent full-timestatus and was more flexible.Because Mendoza's work schedulecoincided with Radillo's it was easier to place Mendoza intothat slot.7Also, they were attempting to meet an ethnicstandard by adding a Chicano to the unit.The schedule wasmade up the last week of February.Richardson also testified that Mendoza was placed into theRadillo position in March because his work schedule was thesame.While evidencing uncertainty about where Mendoza hadbeen in February, Richardson testified that Mendoza, who hadpreviously been an intermittent employee, was not at theinstitution for several months prior to February, but returnedthat month as a limited termemployee.8Richardson saidMendoza had worked for him before and as a limited termemployee would provide more stability to the position and wastherefore a good choice to fill in for the Radillo vacancy.Aycock testified that Mendoza had originally been scheduled(prepared in mid-February) for the limited term slot on the7Mendoza's classification is within the unit covered bythe memorandum of understanding and would be entitled to 14days notice of schedule change.8Around this time the facility commenced a classificationof limited term employees. Whereas intermittent employees andpart-time employees are limited to under 40 hours without aregular work schedule and on an as needed basis, the limitedterm employee may be hired on a regular schedule for up to sixmonths.99

March schedule.Documentation submitted by the department forthat month shows Potts in the S31 (temporary) slot having thesame shift and days off as the Radillo slot.The ElectionCalcote testified that on March 13 he was elected vicepresident of the local chapter of the CCPOA.There is noevidence of any prior employee organizational activity byCalcote.Hector Rodriquez, a youth counselor at Marshall, had servedfor some time as both president of the local chapter and aschief job steward.In March 1984, Rodriquez secured approvalof a transfer to the Washington Ridge facility in NorthernCalifornia.Rodriquez testified that the election for officerswas more a confirmation by the chapter board of directors onnominations put forth by the president.As to the timing, andthus notice to management at the facility of the new officers,his testimony differs from that of Calcote, Robert Collier andRuben Gilbert.Rodriqueztestified that the election was heldon March 8, and that the next day he went to Aguilar's officeand told him the results of that election.He told Aguilarthat Calcote was going to be vice president, Gilbert was to bepresident and that Collier was to be job steward.March 9 washis last day at the facility, he said, and on that day all hisduties passed on to others.Calcote and Gilbert testified that the election was held onMarch 13.Collier testified that it was on March 14.10

Aguilar said that Rodriquez did tell him that Collier wouldbe taking Rodriquez1 place as job steward when he came in tosay goodbye around March 9, but denied that Calcote's name wasmentioned in that conversation.The first time he knew ofCalcote's position with CCPOA was at the March 26 meeting whichis described later.Further confusion on the issue is presented by CCPOA'snotice regarding the election.By memo on the chapterletterhead, dated March 16, 1984, Gilbert notified CCPOAmembers that he had taken over as president, Calcote had beenconfirmed as vice president and Collier would handle employeegrievances.Despite the date typed, Gilbert testified that thememo had been typed on March 14 and that he delivered it to thesuperintendent's office on March 14.error, he said.The March 16 date was anThe superintendent's secretary placed thedocument in her in-coming mail when he delivered it to her, hesaid.Emma Moretz, secretary to the superintendent, testifiedthat the March 16 letter from Gilbert was date stamped onApril 4, 1984, in the lower right hand corner, and that herpractice was to date stamp any document coming into thesuperintendent's office on the day she received it.Thus, herrecords indicate that the superintendent's office received thedocument on April 4, 1984, (indeed the copy provided bycharging party's counsel had the date stamp in that place.)11

Finally, by memo dated March 15, 1984, Arthur Nettles, theDepartment of Youth Authority's Equal Employment OpportunitiesDivision Manager, wrote to Collier regarding Collier's statusas EEO Counselor.Nettles' office is in Sacramento.BecauseNettles had learned on March 14, 1984, that Collier had becomejob steward for CCPOA, Nettles advised Collier that he couldnot hold both positions.The document indicated a copy was togo to Aguilar.The inconsistency of charging party's evidence on theprecise date of the election undermines the credibility of bothRodriquez and Calcote.Rodriquez on the one hand testifiedthat that election took place on March 8.he told Aguilar of Calcote's election.that he was elected on March 13.On March 9, he saidCalcote, however, saidOn March 14 Calcote said hetold Jackson of his election because he thought she would be,proud of him.He thought she would be surprised as he "wasn'trunning for anything."Had Calcote been in the running on the8th, and elected then, why would he wait until March 14, fivedays later, to relate his election to Jackson?Rodriquez, who was brought in from his assignment inNorthern California, appeared later at the hearing and thus didnot hear the testimony of his fellow employees.He knew theissue in this case, however, and related on the stand, thatfirst he told Aguilar of Calcote's election.This isquestionable since Calcote was only to serve as vice president12

while others, Gilbert and Collier, were to serve in more directfunctioningroles as president and job steward.Thus, I donot credit Rodriquez over Aguilar regarding what was said onMarch 9.Therefore it is found that Rodriquez did tell Aguilarthat Collier was going to be job steward, but made no mentionof Calcote's position.As to the March 16 letter, I credit Moretz over Gilbert.In the face of a typed letter dated March 16 and date stampedas received April 4 in a manner consistent with businesspractice and contemporaneous with the event as to whenreceived, charging party would have a finding drawn that theletter was delivered on March 14.This contention is more inkeeping with a contrived design to place knowledge on the partof management of an event that coincides with the March 14scheduling regarding the April schedule.Because of thisinherent inconsistency in the testimonial and documentaryevidence, I find that charging party has failed to establishknowledge by a preponderance of the evidence as it wasobligated to do.PERB Regulation section 32178.Insofar as the Nettles' letter is concerned, theacknowledgement on March 15 by a Sacramento based employee ofthe department that Collier was elected to serve as job stewardis consistent with Aguilar's acknowledgement of receiving thatinformation on March 9 from Rodriquez.13It serves no basis for

finding that Calcote's election was likewise known to Aguilar,Richardson or Aycock.Calcote testified that on the morning of March 14 Jacksontold him he had gotten the position.Later he testified thatthose were not her exact words but he did have thatimpression.He told her about being elected to the vicepresidency of the CCPOA.Calcote thought that she would besurprised as "he really wasn't running for anything".They arefriends, he said, and he thought she would be "proud of him".At 11:00, he said, Jackson said she was meeting with Richardsonand Aycock.That afternoon Aycock told him that he did not getthe position he had requested, but gave no reason for thedenial.Calcote further testified that Mr. Martinez, another youthcounselor, told him that same day that Richardson stopped himon the way in and told him that he, in fact, was going to getthe shift.Martinez had told Calcote previously that he wasgoing to get the position.(Martinez was working the 2 p.m. -10 p.m. shift at Drake in March.)Jackson testified that she thought she learned of Calcote'selection as vice president sometime in February.First,Collier told her he was going to take over as job steward andlater Calcote told her that he was going to be vice president.However, she said, the fact of his election was not known whileshe was involved in scheduling.Nor was the fact that the14

CCPOA elections had taken place discussed at the meetings withAycock and Richardson when scheduling was being done.She wasnot cross-examined on the scheduling meetings.While Jackson was wrong about learning of Calcote'selection as early as February, I found her to be credible inher testimony generally.Obviously a friend of Calcote's, andsupportive of his role as a youth counselor, her denial of anydiscussions of Calcote's election at the scheduling meetingappeared truthful.It is found that Jackson did not carry thefact of Calcote's election into the meeting on March 14regarding scheduling.Both Richardson and Aycock testifiedthat the meeting did not involve a discussion of CCPOAelections.Calcote was left on the same relief schedule for April thathe had occupied for February and March.This time, however,Mendoza was returned to the S31 (temporary) slot and Martinez,who had been at the Drake Unit, was moved into the Radilloslot.Thus the Sutter Unit had two Hispanic employees, workingthe same shift and with the same days off.The next day, (after the election) Calcote testified,Jackson told him she did not know why he did not get the9position.He spoke to Richardson and was told thatRichardson wanted a Chicano in the position.9day.The March schedule shows that Calcote was off on that15

On March 21 Calcote wrote to Richardson asking for ananswer in writing as to why he did not get the position.Thisfollowed a meeting with Assistant Superintendent Pack atCalcote's request.Calcote thought the reasons were other thanhaving Chicanos on the unit.Pack called Richardson in andasked why the request was not granted.Richardson told themboth that he wanted a Chicano in the position and Pack saidthat was the way it was going to be.By way of showing disparate treatment, Calcote testifiedthat John Grijalva was given a shift change because his wifewas having a baby.Calcote told Jackson that he wanted theshift change to spend evenings with his son as he was a singleparent, but he did not convey that fact to Richardson in hiswritten February 26 request for shift change.Calcote did notknow any other employees who were single parents.Aycock testified that at a March 14 meeting it was decidedto place Martinez in the Radillo slot because he was afull-time budgeted employee.S31 slot.Mendoza was placed back into theThe reason, said Aycock, was Mendoza was a limitedterm employee and as such did not lend the desired permanency.As a limited term employee, he could be terminated if the headcount of wards dropped.By placing Mendoza in the S31 slotthey maintained the flexibility of his classification andMartinez then gave them the desired permanency.16

Aycock was not aware of the election outcome and there wasno discussion ofCCPOA.The final decision was made to causethe least amount of impact on employees.In fact, Martinez didhave a shift change as he had worked the 2:00 - 10:00 p.m.shift at Drake the month of March (and February).As a result of the new schedule, the permanent staff atSutter consisted of three black males, a black female, aChicano, and a white male.They also had Mendoza at the SutterUnit in the limited term position.At the Drake unit they hadfour blacks, a white male and a white female.Also at Drake aSpanish case worker, who served as translator, worked from anoffice at the unit.She was visibly present and met with thewards, said Aycock, and did contribute to the ethnic needs.In May Mendoza was assigned to the Drake Unit.The schedule for May was prepared within the first twoweeks of April and was posted by the middle of that month.Martinez was scheduled for the S2 (Radillo) slot.Aycock saidthey found out in the last week of March that Martinez was tobe promoted and was to go to the YTS effective May 1.Jacksonwas promoted to treatment team supervisor and Grijalva hadrequested a change in classification from regular tointermittent employee.Richardson said he approached theadministration because of the large number of personnel changesthat occurred.King, a black limited term employee, was placed17

in the Radillo slot.Calcote was not considered becauseeffective April 16 he was transferred to the Marshall Unit.King filled the S2 slot for one month.In June Fernando Juarez came to the Sutter Unit and filledthe slot held by King.Stiggers, a black female, came from thePico Unit and helped fill the ethnic needs.Juarez had beenselected in early April or May but it took some time beforethey could get him to the Sutter Unit.Juarez was desiredbecause of his good history in working with gang problems as hehad experience as the institutional game coordinator and hadextensive knowledge of the ward population.The Cole TransferTim Cole is a youth counselor who for the last five yearsworked at the Marshall program.For two years prior to that hewas at the Ventura facility, where for six months he worked inthe receiving side and the remainder in the intensive treatmentprogram.Cole, who is white, was transferred to the SutterUnit in April 1984.Cole said that about a month before he wastransferred, his caseload was reduced and he suspectedsomething was happening.Aguilar told him that he was to betransferred to the diagnostic side.Cole filed a grievance onthe transfer as he disagreed with the explanation.The reasonsgiven were that it would enhance his education at the facility,and that it was consistent with Aguilar's goal to move staffmembers from the Marshall side to the diagnostic side.18Cole

believed that his six months experience in the receiving unitat Ventura was sufficient education.There were othercounselors at the Marshall site with more seniority, said Cole,including Delbert Jackson, Larry Floris and Bill Lewis.Colealso testified that two other people were transferred from theMarshall Unit to the diagnostic side, and he was under theimpression that the same number of people transferred to theMarshall Unit from the diagnostic unit.Cole said he was theonly white counselor at Marshall when he was transferred andthere were other white counselors at Sutter, the unit to whichhe transferred.Aguilar said the decision to transfer Cole to thediagnostic side was made in the first week of March before hehad any knowledge of Calcote's election.Cole had been at theMarshall program for over three years and it was in keepingwith Aguilar's goal that the transfer was made.Jackson andFloris "will be transferred," said Aguilar, and "seniority hasno input on the policy."All of the counselors will be rotatedout of the Marshall program.Cole coming to Sutter, saidAguilar, would lend ethnic balance to that program, although hedid not know the ethnic balance at Sutter at the time of thetransfer.Richardson did not know that Cole was coming to theSutter Unit until the middle of March.Ed Fox, senior youthcounselor at Marshall, said that the three individuals who wereat the top19

of the program, recommended Cole's transfer.Those three wereOwens, Atesalp and Fox.Calcote TransferCalcote said he learned from Tim Cole that he was going tobe transferred to Marshall.The next day Jackson called him upto Richardson's office and they gave him a memo indicating histransfer to Marshall.The memo, dated March 28, stated histransfer to Marshall effective April 16.Richardson noted inthe memo that the assignment would provide Calcote with anopportunity to use his treatment and recreational skills in along-term setting.Calcote was unhappy with the reassignment.He wasconcerned that it would be more stressful as he was unsure ofhis ability to work in an unfamiliar setting.He felt that hewas being set up by the administration to fail because of thetype of wards and the duties the job entails.Aguilar testified that the decision to assign Calcote toMarshall was made in the week before March 26.(His basis ofrecall was that he was able to tell Collier that Collier wouldnot be transferred to Marshall.)Aguilar testified that thedecision to transfer Calcote to Marshall was that, of the namespresented to him, the only one that he could recall,Rudy Hernandes had already been at Marshall and did not fillthe needs of the program.The Marshall program had beenlooking for someone who could program and organize wards; sowhen Calcote's name20

appeared, Aguilar knew he was a person who was involved inprogramming and handling athletic activities.Calcote was anathlete and knew about officiating at games.These were someof the main factors in the decision.The date set for histransfer was April 16 because management had to give two weeksnotice of the transfer and could not do that by the end ofMarch.Calcote's blood pressure was not taken into account in thedecision to transfer Calcote, said Aguilar, because he did notknow of the fact.Calcote's transfer was consistent with the administration'spolicy of transfer, said Aguilar.That policy is set fort

PUBLIC EMPLOYMENT RELATIONS BOARD . ANTHONY J. CALCOTE, Charging Party, v. STATE OF CALIFORNIA (DEPARTMENT OF THE YOUTH AUTHORITY), Respondent. Case No. LA-CE-144-S PERB Decision No. 535-S November 4, 1985 Appearances; California Correctional Peace Officers Association by Lawrence J. Friedman, Attorney, for Anthony J. Calcote;