Poway Unified School District (PERB 0303E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EDMUND L. 	CARBONEAU,
Charging 	P a r t y ,
v .
POWAY UNIFIED SCHOOL 	DISTRICT,
Respondent.
Case 	Nos. 	LA-CE-1188
LA-CE-1240
LA-CE-1335
LA-CE-1392
LA-CE-1217
LA-CE-1247
LA-CE-1371
LA-CE-1468
PERB 	Decision No. 	303
A p r i l 	14, 	1983
Appearances : 	Edmund 	L. 	Carboneau, 	in 	p r o . 	p e r . ; 	C l i f f o r d 	D.
W e i l e r , 	A t t o r n e y 	(Brown 	& Conradi) 	f o r 	Poway 	U n i f i e d 	School
District.
Before Jaeger, Morgenstern and Burt, Members.
DECISION
JAEGER, Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(Board) 	on exceptions 	filed to a 	proposed
decision 	dismissing 	Edmund 	Carboneau's 	charges 	alleging 	that
the 	Poway Unified School District 	(District) 	violated
subsection 3543. 5(a) 	of 	the Educational Employment Relations
Act 	(EERA) .1
1
EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Section 	3543.5 provides 	in 	relevant 	part:
It 	shall 	be 	unlawful 	for 	a public school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose reprisals
on 	employees, 	to 	discriminate or 	threaten to
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We 	have 	reviewed 	the 	administrative 	law 	judge's 	(ALJ's)
proposed 	decision 	in 	light 	of 	the 	entire 	record 	in 	this 	matter
and, 	finding 	it 	free 	from prejudicial error, 	affirm 	the
dismissal 	of Carboneau's 	charges 	in 	their 	totality.
FACTS
Edmund Carboneau 	was 	hired 	by 	the District 	as 	a 	bus 	driver
on September 	10, 	1979. 	He 	became 	a permanent 	employee on
March 17, 	1980. 	He was 	terminated 	from employment with 	the
District on April 13, 	1981. 	At all 	times, 	Service Employees
International Union, 	Local 	102 	(SEIU) 	was 	the exclusive
representative 	of Carboneau's 	negotiating 	unit.
The 	District 	had 	no 	substantial 	problems 	with Carboneau's
performance 	during 	most 	of 	his 	probationary period. 	On
February 	28, 	1980, 	he was 	assigned 	to a bus 	route whose 	riders
had 	a 	reputation 	for 	being 	disorderly. 	On his 	first 	and 	second
days on 	that 	route, 	Carboneau experienced 	serious problems
maintaining 	order.
In 	the 	past, 	when 	drivers 	had 	difficulty controlling
disorderly 	students 	on 	their 	buses, 	the 	existing 	practice 	was
for 	them 	to 	submit 	referral 	forms 	to 	the 	District 	concerning
their 	problems 	with 	particular 	students. 	Two 	referrals
concerning 	the 	same 	student 	could 	result 	in 	the 	termination 	of
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
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his 	or 	her 	bus 	riding privileges. 	As 	a 	result 	of Carboneau's
problem maintaining 	discipline on February 	28 	and 	29, 	1980, 	and
on 	occasions 	thereafter, 	Carboneau 	submitted 	a 	large 	number 	of
referrals 	concerning 	numerous 	students.
In 	response 	to Carboneau's 	attempt 	to maintain discipline
and 	enforce 	safety 	regulations, 	a number 	of complaints 	were
made 	by 	students 	and 	parents 	to District 	officials. 	On
March 	5, 	a meeting was 	held 	in which Carboneau, 	District
Transportation Director Everett Caudel, 	the 	dean of 	the 	school
involved 	and 	several parents 	were 	in 	attendance. 	At 	the
meeting, 	Carboneau was 	counseled 	as 	to proper 	methods 	for
maintaining 	discipline, 	and 	it was 	agreed 	to cancel all
previous 	referrals.
On April 	25, 	1980, 	another 	incident occurred on Carboneau's
bus 	route, 	which 	resulted 	in 	additional 	referrals 	and 	parental
complaints. 	In response 	to 	this 	incident, 	Carboneau met 	again
with 	the 	transportation 	director 	and 	the 	dean 	to 	discuss 	the
problems 	he 	was 	experiencing. 	The 	transportation 	director
testified 	that, 	by April 	25, 	he 	had 	concluded 	that Carboneau
would have 	to 	"shape 	up or 	ship out."
On April 	30, 	Carboneau 	again met 	with 	the 	transportation
director, 	the dean, 	the principal of one of the 	schools, 	and 	a
teacher 	assigned 	to bus 	monitoring 	duties. 	Carboneau was
advised 	to 	have 	a 	less 	rigid 	attitude 	toward 	the 	maintenance 	of
discipline, 	not 	to back children 	into a corner, 	and 	to
discipline 	them 	in private 	if 	possible.
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On May 	1, 	Carboneau 	attended 	another 	meeting 	with 	the
transportation 	director 	and 	District 	officials. 	The
transportation director 	testified 	that, 	at 	this point, 	he 	felt
that 	Carboneau 	was 	"having 	more 	problems 	with 	student 	control
than 	anyone 	should 	have."
On May 	2, 	while 	taking 	students 	home 	after 	school,
Carboneau 	experienced 	what 	he 	termed 	a 	"riot" 	on his 	bus. 	In
order 	to restore order, 	Carboneau 	left his 	route, 	drove 	back 	to
the 	school 	and 	then 	parked 	the 	bus 	for 	one-half 	hour 	while 	he
waited 	for 	assistance. 	School officials 	arrived 	and 	helped
restore order, 	and 	the bus 	route was 	continued. 	The District
received 	a 	number 	of 	complaints 	from parents 	concerning 	the
fact 	that 	their 	children 	had 	arrived 	home 	over 	an 	hour 	late
from 	school, 	and 	that 	Carboneau was 	an 	unduly harsh
disciplinarian.
On May 	5, 	a conference 	was 	held 	in which Carboneau,
Transportation Director 	Caudel, 	the 	principal of 	the Black
Mountain 	School 	and 	approximately 	six 	parents 	participated.
Once 	again, 	Carboneau was 	counseled 	to 	be more 	"tolerant 	and
understanding 	of 	children's point 	of 	view."
That 	same 	day, 	Caudel 	informed Carboneau 	that 	he was
transferring 	him to another 	bus 	route 	because 	he was 	unable, 	in
his 	opinion, 	to handle 	the children on bus 	route 	18. 	Caudel
agreed 	with 	Carboneau 	that 	discipline 	had 	to 	be maintained 	and
rules 	enforced, 	but 	told Carboneau 	that 	he 	should 	not 	be 	so
"overbearing."

On May 	5, 	1980, 	Superintendent Robert Reeves 	first 	became
aware 	of Carboneau's problems maintaining 	discipline. 	After
reviewing Carboneau's 	letter 	describing 	the May 	2 	incident, 	the
superintendent 	concluded 	that 	steps 	should 	be 	taken 	to
terminate 	him 	from 	employment. 	The 	superintendent 	testified
that Carboneau's personnel file would not, 	at 	that 	time, 	have
justified 	termination, 	and 	he 	ordered 	that 	a case 	be 	built
against 	him.
On May 	6, 	Caudel 	again 	counseled Carboneau 	as 	to 	the 	proper
way 	of 	maintaining 	order.
On May 	15, 	Carboneau had 	a meeting with Caudel, 	Assistant
Superintendent Abbott, 	and Mrs. 	Darlene Toft, SEIU shop
steward. 	Mr. 	Carboneau objected 	to 	the 	methods 	by which 	the
District 	attempted 	to maintain 	discipline, 	which 	he 	considered
to be 	ineffective.
Parental complaints 	continued 	to 	arrive 	during May, 	and 	the
District 	held 	several 	meetings 	with Carboneau 	at 	which SEIU
Shop Steward Toft 	was 	present.
In late May, 	Carboneau, 	in conjunction with SEIU,
complained 	that 	his 	new 	route 	reduced 	his 	hours 	by more 	than
the 	15 	minutes 	permitted 	in 	the District 	Personnel Commission
rules. 	The 	grievance 	was 	settled 	by 	the 	reinstatement 	of
Carboneau's 	hours.
On June 	26, 	1980, 	the 	transportation director 	formally
requested 	that 	Carboneau's 	personnel 	record 	be 	analyzed 	with 	a
view 	towards possible 	termination. 	It was 	determined, 	however,
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not 	to 	proceed 	immediately 	with 	the 	dismissal 	because 	Carboneau
had 	not 	received 	his 	latest 	evaluation 	in 	a 	timely 	fashion, 	nor
was 	there 	adequate 	evidence 	of 	progressive 	discipline.
On August 	6, 	the 	superintendent 	had 	a conference 	with
Carboneau, 	in which Carboneau was 	informed 	that he would
receive his evaluation when 	he 	returned 	to work 	in 	the 	fall.
On September 	3, 	1980, 	the 	first work day of 	the 	school
year, 	Carboneau 	received 	a 	largely negative 	evaluation 	of 	his
performance.
Throughout 	the 	fall, 	the District 	began 	to build a case
against Carboneau. 	The ALJ 	found 	that 	the District 	singled 	out
Carboneau 	for 	bus 	inspections, 	documentation, 	and other
"discriminatory" 	acts 	designed 	to provide 	sufficient
documentation 	to 	support 	termination.2
Meanwhile between June 4, 	198 0 and November 	10, 	1980,
Carboneau 	filed 	approximately 	50 	grievances, 	complaining of 	the
District's 	discriminatory 	conduct 	towards 	him. 	He 	also wrote
numerous letters 	to the media, 	public agencies, 	and elected
officials.
2In 	general, 	the ALJ 	characterized 	the 	District's 	conduct
with 	respect 	to Carboneau 	in 	the 	fall of 	1980 	as 	an 	attempt
"not merely 	[to] 	build Carboneau's file 	. 	. 	. 	[but to] 	generate
as much 	unfavorable 	material 	as 	possible 	by giving Carboneau
more 	difficult 	work 	orders 	than 	other 	employees 	and 	by
documenting 	all 	of 	Carboneau's 	past 	errors. 	. . . " 	We 	find
that 	the ALJ's 	finding of 	fact 	is 	supported 	by 	the 	record 	as 	a
whole. 	Santa 	Clara Unified School District 	(9/26/79) 	PERB
Decision No. 	104
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The 	only 	other 	protected 	activity 	in 	which 	Carboneau
engaged was 	his 	participation 	in 	the 	preparation 	of SEIU's
contract proposals 	in 	the 	fall of 	1979.3
DISCUSSION
In Novato 	Unified School District 	(4/30/82) 	PERB 	Decision
No. 	210, 	the Board clarified 	the 	test developed 	in Carlsbad
Unified School District 	(1/30/79) 	PERB Decision No. 	89 	for
resolving alleged violations of 	subsection 	3543.5(a). 	Under
Novato, 	where 	a party has 	alleged discrimination, 	he or 	she has
the 	initial 	burden 	of 	making 	a 	showing 	sufficient 	to 	support
the 	inference 	that 	protected 	activity was 	a motivating 	factor
in 	the 	employer's 	decision 	to 	take 	adverse 	personnel 	action.
In 	recognition 	of 	the 	fact 	that 	direct 	evidence 	of motivation
is 	seldom available, 	we 	have 	held 	that 	it may be demonstrated
circumstantially. 	Accord, Republic Aviation Corp. 	v. 	NLRB
(1945) 	324 U.S. 	793 	[16 LRRM 620]. 	If 	the charging party 	is
able, 	by direct or circumstantial evidence, 	to raise 	the
inference 	that 	the 	employer 	was 	in 	any way motivated 	to 	take
adverse 	personnel 	action 	by 	its 	knowledge 	of 	the 	employee's
protected 	activity, 	the 	burden 	shifts 	to 	the 	employer 	to
3There 	is 	disputed 	evidence 	as 	to whether 	the 	District
was 	aware 	of Carboneau's 	participation 	in 	the 	formulation 	of
contract proposals. 	We need 	not 	resolve 	this dispute, 	since,
as 	is discussed 	infra, 	even if 	the District was aware of
Carboneau's participation 	in protected 	activities, 	there 	is 	no
evidence 	that 	such 	conduct was 	a motivating 	factor 	in 	the
decision 	to 	terminate 	him.
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demonstrate 	that 	it 	would 	have 	acted 	as 	it 	did 	regardless 	of
the 	employee's participation 	in protected 	activity. 	Novato,
supra; Wright Line, A Division of Wright Line, 	Inc. 	(1980) 	251
NLRB 1083 	[105 LRRM 1169].
The ALJ 	found 	that 	the 	District 	reached 	a 	firm 	decision 	to
terminate Carboneau on May 	5, 	1980. 	Applying 	the 	first prong
of 	the Novato 	test, 	he 	found 	that Carboneau's minimal protected
activity prior 	to May 	5 	was 	not 	a motivating 	factor 	in 	the
decision 	to 	terminate 	him.
Whether 	or 	not 	the District 	reached 	the 	decision 	to
terminate Carboneau on May 5, 	1980 	is not, 	in our 	opinion,
determinative of 	the 	issues 	in 	this 	case. 	When 	the 	record 	is
viewed 	in 	its 	totality, 	including Carboneau's protected
activities 	between May 	5, 	1980 	and 	his 	termination 	in April of
1981,4 there 	is 	insufficient 	evidence 	to 	support 	the
conclusion 	that 	Carboneau's 	protected 	activities 	were 	a
motivating 	factor 	in 	the 	decision 	to 	terminate 	him. 	While 	it
is 	clear 	that 	the District 	made 	every 	effort 	to 	build 	a 	case
against 	Carboneau, 	and may 	perhaps 	have 	treated 	him more
harshly 	than other 	employees, 	the 	evidence 	will 	not 	support 	a
finding 	that 	this 	disparate 	treatment 	was 	in 	any 	way motivated
by 	Carboneau's 	protected 	activities.
4After 	May 	5, 	Carboneau 	engaged 	in 	the 	following
protected 	activities: 	(1) 	he 	sought 	representation by SEIU Shop
Steward Toft; 	and 	(2) 	he 	filed numerous grievances. 	See North
Sacramento School District 	(12/20/8 2) 	PERB Decision No. 	264.
Co
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We 	deny 	the 	charging 	party's 	motion 	to 	reopen 	the 	record,
as 	there 	is 	no 	basis 	upon which 	the Board 	can 	conclude 	that 	the
charging 	party 	was 	deprived 	of 	the 	opportunity 	to make 	a 	full
presentation 	of 	his 	case. 	See San Joaquin Delta Community
College District 	(3/16/83) 	PERB Decision No. 	261b. 	We 	further
deny 	the 	respondent's request 	for 	attorney's fees, 	since 	the
record 	does 	not 	support 	a 	finding 	that 	the 	unfair 	practice
charges 	brought 	by Mr. 	Carboneau were 	frivolous. 	King City
Joint Union High School District 	(3/3/8 2) 	PERB Decision
No. 	197. 	Finally, 	we deny 	the 	respondent's request 	to present
oral 	argument 	before 	the Board.
ORDER
Upon 	review of 	the entire 	record 	in 	this case, 	the Public
Employment 	Relations Board 	ORDERS 	that 	the 	charges 	filed 	in
Case Nos. LA-CE-1188, 1240, 1335, 1392, 1217, 1247, 1371, and
1468 	are 	DISMISSED.
Members Morgenstern 	and Burt 	joined 	in 	this 	Decision.
99