Pleasant Valley School District * * * OVERRULED IN PART by County of Santa Clara (2017) PERB Decision No. 2539-M (PERB 0708E)

OVERRULED 	IN 	PART 	by 	County 	of 	Santa 	Clara
(2017) 	PERB 	Decision 	No. 	2539-M
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	CHAPTER #504,
Charging 	Party,
v.
PLEASANT VALLEY 	SCHOOL DISTRICT,
Respondent.
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Case 	No. 	LA-CE-2224
PERB 	Decision 	No. 	708
December 	21 	1988
Appearances: 	William 	C. 	Heath 	for 	California 	School 	Employees
Association, 	Chapter 	#504; 	Liebert, 	Cassidy & Frierson by Bruce
Barsook 	for 	Pleasant 	Valley 	School 	District.
Before Hesse, 	Chairperson; 	Porter and Shank, 	Members.
DECISION
PORTER, 	Member: 	This 	case 	is before 	the Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed by 	the
respondent, 	Pleasant Valley School District 	(District), 	to the
proposed decision of 	a PERB administrative 	law 	judge 	(ALJ).
The 	ALJ held 	that 	the 	District 	violated 	section 	3543.5,
subdivision 	(a) 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA or Act) 	and, 	derivatively, 	section 3543.5, 	subdivision
(b),1
, when 	it 	reassigned 	a 	classified 	employee 	following his
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references herein 	are
to 	the 	Government 	Code.
Section 3543.5 provides, 	in pertinent part, 	as 	follows:

assertion of 	a 	safety complaint. 	We 	affirm 	the 	attached
decision 	of 	the ALJ 	to the 	extent 	that 	a 	violation 	is 	found;
however, 	we reach 	this conclusion for different 	reasons, 	as 	set
forth below.
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
FACTUAL 	SUMMARY
Vincent 	Flores 	(Flores) 	has been employed by 	the 	District
since 	1955. 	Flores 	was 	a bus 	driver/maintenance 	employee 	from
1955 	to 1972 and, 	from 1972 	to 1981, 	he was head bus driver 	for
the 	District. 	From 	1955 	to 1972, 	Flores had regularly performed
lawn mowing duties 	in his 	capacity as 	a maintenance 	employee.
When 	the 	District 	purchased 	a Jacobson 	tractor/riding mower 	at
some point during 	the period between 	1955 	and 	1972, 	Flores 	was
its 	primary operator 	until 	he became head bus 	driver.
In 	1981, 	Flores 	voluntarily demoted 	to the groundskeeper
classification. 	At 	the 	time of his 	voluntary demotion, 	there
was 	an 	opening 	within 	the 	groundskeeper 	classification 	for 	a
mower 	operator. 	Flores 	specifically 	requested 	that he be
assigned 	to mowing duties, 	and his 	request was 	approved, 	in
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writing, 	by 	the 	District. 	When 	Flores 	took 	over 	the mowing
duties 	in 	1981, 	the primary mower 	for 	the 	District was 	a Toro
Parkmaster 	(Parkmaster), 	another large 	riding mower. 	The
Jacobson, 	after 	some needed 	repairs, 	was 	also still operational •
Flores 	operated 	the 	Jacobson whenever 	the 	Parkmaster 	was 	out
of 	service 	(an average of one week's 	time per year). 	He 	also
operated 	the 	Jacobson 	every 	Friday 	to perform 	the 	mowing 	work
on 	District property within 	the 	immediate 	area 	of 	the
maintenance headquarters. 	Flores 	was 	never 	required 	to drive
the 	Jacobson 	to 	locations 	not 	adjacent 	to 	the headquarters
because he had discussed with his 	supervisor, 	Bob Humphrey,
that 	it 	was 	unsafe 	for highway 	transportation and 	they had
agreed 	that 	Flores 	would operate 	it 	only 	in 	the 	adjacent 	areas.
3
On February 15, 	1985, 	however, 	the Parkmaster was being
repaired 	and 	Humphrey 	told 	Flores 	to drive 	the 	Jacobson 	to 	a
school 	site 	which 	was 	approximately 	one 	and 	one-quarter 	miles
from headquarters. 	Humphrey warned 	Flores 	to drive 	the mower
carefully 	and 	to 	"take 	it 	easy," 	but 	Flores 	told Humphrey 	that
he 	would 	not drive 	it 	on public 	streets because 	it was 	a 	safety
hazard. 	Humphrey did 	not 	pursue 	the 	matter but 	told 	Flores
to put 	this 	in writing. 	Flores 	did document his 	complaint,
subsequent 	to 	consulting 	with his 	California 	School 	Employees
Association 	(CSEA) 	chapter president, 	Hector Dion.
Following 	the 	February 15 	incident, 	Humphrey and Mr. 	Riley,
another 	District 	supervisor, 	test drove 	the Jacobson. 	By using
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an 	automobile 	to 	check 	the 	speed 	at 	which 	the 	Jacobson became
unsafe, 	they were 	able 	to ascertain 	a maximum 	limit 	of 	10 	miles
per hour 	for 	the mower. 	The Jacobson 	itself has 	no speedometer,
The 	results 	of 	the 	test 	drive 	were 	never 	disclosed 	to
Flores. 	Humphrey, 	however, 	offered the mowing assignment 	to
Jay Hurtado, 	a groundskeeper, 	after 	explaining the 	10-m.p.h.
limitation 	to him. 	Hurtado accepted 	the 	assignment. 	On
February 	19, 	Flores 	was 	informed by Humphrey that he 	was being
assigned 	to Hurtado's 	duties, 	which 	consisted primarily of
raking, 	pruning, 	watering and 	the like, 	whereas Hurtado would
be 	operating the 	Jacobson. 	At 	that point, 	Flores 	did not
object 	to 	this 	arrangement.
When 	the 	Parkmaster 	was 	returned 	to 	service 	approximately
one 	week 	later, 	Flores went 	to Humphrey 	to 	see 	about his
assignment. 	Humphrey 	told him 	that 	he 	would be 	continuing
with Hurtado's 	duties. 	When Flores 	inquired as 	to the 	reason
for 	this, 	Humphrey 	responded 	that 	it was being done because
switching 	Flores 	and 	Hurtado back 	and 	forth between 	assignments
would 	create 	too much 	of 	a hardship. 	A written memo was 	issued
to Flores 	from Humphrey on February 28, 	wherein 	it was 	stated
that 	Flores had been 	reassigned on February 19, 	from 	the mower
to 	grounds. 	Flores 	was 	displeased with 	this 	reassignment,
despite 	there being no loss 	of wages 	or benefits, 	because he
preferred 	the mowing work which 	is 	"less physical" 	than 	the
grounds 	work. 	Further, 	Flores 	originally 	took 	the 	voluntary
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demotion 	with 	the 	understanding 	that he 	would be 	performing
mowing duties. 	Prior 	to the February 19 	reassignment, 	Flores
had 	never 	switched 	duties 	with 	anyone 	within 	the 	groundskeeper
classification. 	Thus, 	he had been assigned 	to mowing duties
exclusively 	for 	almost 	four years. 	Flores had 	always 	received
satisfactory 	evaluations 	from 	the 	District 	in 	connection 	with
his 	work 	in 	this 	capacity.
The parties 	stipulated 	that 	CSEA 	served 	on 	the 	District
a 	subpoena 	duces 	tecum 	requesting 	all 	documents 	relating 	to
involuntary 	transfers 	or 	reassignments 	of 	employees 	within 	a
classification, 	occurring between January 1, 	1980 	and January 7,
1985. 	The 	District 	investigated 	the matter, 	but was 	unable 	to
produce 	any documentation 	responsive 	to 	the 	subpoena. 	The
ALJ 	inferred 	therefrom 	that 	the 	District 	did 	not 	initiate 	any
nondisciplinary, 	involuntary transfers 	or 	reassignments 	during
the 	specified period 	of 	time.
On March 	25, 	Flores 	filed 	a grievance 	alleging 	that his
reassignment 	violated articles 	III 	and XVII 	of 	the 	collective
bargaining 	agreement 	(CBA).2 At 	the 	first 	level 	of 	the
2The 	contract 	provisions 	at 	issue 	provide:
ARTICLE 	III
NO 	DISCRIMINATION
Discrimination 	Prohibited: 	No 	employee 	in
the bargaining unit 	shall be 	discriminated
against because of his/her 	race, 	national
origin, 	religion, marital status, 	lawful
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grievance 	proceeding, 	Humphrey denied 	Flores' 	grievance
stating 	that: 	(1) 	the 	District had not 	reassigned 	Flores 	for
discriminatory reasons but, 	rather, 	because of 	Flores' 	"refusal
to perform" 	his 	"regularly assigned duties"; 	and 	(2) 	the
District 	"carefully examined 	the 	Jacobson mower 	and 	found 	it 	to
be 	in 	safe 	operating 	condition as 	long as 	it 	is 	not driven above
10 miles-per-hour."
activities under the Act, 	and, 	to the extent
prohibited by law, 	no person 	shall be
discriminated against because of age, 	sex,
or physical handicap.
ARTICLE 	XVII
SAFETY
This 	District 	shall 	attempt 	to provide
employees 	with 	safe working conditions.
The 	Board 	shall 	attempt 	to 	comply with
the provisions 	of 	the 	California 	State
Occupational 	Safety & 	Health 	Act 	regulations
as 	described 	in 	the 	general 	industry and
construction 	industry 	(where 	applicable)
standards. 	Employees 	shall 	report 	to the
immediate 	supervisor 	conditions 	of 	unsafe
or hazardous 	work.
A 	safety 	committee 	shall 	be 	formed 	composed
of not 	less 	than 	two 	(2) 	bargaining unit
members 	selected by 	the 	Association 	and 	two
(2) 	administrators. 	The purpose of the
Safety 	Committee 	shall be 	to 	review 	reports
from 	employees 	and 	management 	relative 	to
potential 	unsafe 	working 	conditions 	and 	to
make 	recommendations 	to 	the 	Superintendent
in 	terms 	of 	correcting unsafe 	or hazardous
working 	conditions. 	(Emphasis 	added.)
At 	the 	second 	level, 	the 	grievance was 	denied because:
(1) 	the 	Jacobson mower was determined 	"to be safe, 	provided 	it
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is 	driven within 	the 	explicit 	guidelines 	outlined 	to you by
Mr. Humphrey" 	(emphasis added); 	(2) Flores' discrimination
allegations 	are vague and without merit; 	and 	(3) 	Humphrey
has 	the 	"right 	to 	reassign 	employees 	within 	their 	job
classification" based upon District need and, 	in this 	case,
the 	reassignment 	was 	"reasonable" 	and 	caused no 	loss 	of 	wages
or benefits 	to Flores.
At 	the 	final 	level of 	the grievance procedure, 	the matter
was 	heard by 	the 	District's board 	of 	trustees. 	On 	June 	6,
1985, 	the board 	voted 	four 	to one 	to deny Flores 1 grievance.
Dr. 	Robert 	Formhals 	filed 	a minority report 	in 	support of
granting 	the 	grievance. 	Formhals' 	minority 	report 	concluded
that 	the 	District's 	decision 	to 	reassign 	Flores 	was 	unlawfully
motivated 	and was 	an 	abuse 	of 	discretion.
Meanwhile, 	on March 1, 	1985, 	a District safety committee"3
met 	and 	issued 	a 	report 	containing 	a 	reference 	to 	the 	loose 	gear
box 	and 	loose 	steering 	on 	the 	Jacobson mower 	and 	characterizing
the 	mower 	as 	a 	"potential hazard." 	Based on 	the 	committee's
report, 	the 	superintendent 	determined 	that 	money would be
budgeted 	for 	repairs 	to 	the 	Jacobson mower 	for 	the 	subsequent
school 	year.
In 	response 	to 	a 	complaint 	filed by 	a 	CSEA 	representative
against 	the 	District, 	the 	California 	Division of Occupational
3This 	committee, 	sanctioned by the CBA, 	consisted of 	two
bargaining 	unit 	members 	selected by 	CSEA 	and 	two 	administrators.
7

Safety and 	Health 	(OSHA) 	inspected 	the 	Jacobson mower 	on
June 18, 	1985, 	and 	issued a citation with 	respect 	to the
mower's 	faulty 	steering 	mechanism.
On August 	13, 	1985, 	CSEA filed a charge 	against 	the 	District
based on 	these 	facts, 	and a complaint 	issued on August 	29. 	The
complaint, 	incorporating 	the 	charge by reference, 	alleges 	that
the 	involuntary 	reassignment 	of 	Flores 	constitutes 	a 	violation
of EERA sections 	3543.5, 	subdivision 	(a) 	and 3543 	and,
derivatively, 	3543.5, 	subdivision 	(b) 	and 3543.1, 	subdivision
(a), 	in that 	the action was 	taken 	in 	retaliation 	for Flores'
participation 	in 	protected 	activities.
ALJ'S 	PROPOSED 	DECISION
The ALJ, 	applying 	the 	test 	set 	forth 	in Novato Unified
School 	District 	(1982) 	PERB Decision No. 	210,4 ultimately
concluded 	that 	the 	District's 	action 	in 	this 	instance 	was
violative of section 3543.5, 	subdivision 	(a) 	and, 	derivatively,
3543.5, subdivision (b).
Initially, 	as 	to the 	issue of protected activity, 	the ALJ
noted 	that 	safety conditions 	of 	employment 	is 	an 	enumerated
term 	and 	condition 	of 	employment pursuant 	to 	section 	3543.2,
4 In Novato, 	the Board held that, 	in cases of 	alleged
reprisals 	against 	employees, 	the 	charging party must 	establish
that 	the 	employee 	was 	engaged 	in protected 	activity, 	that 	the
employer had 	actual 	or 	imputed knowledge 	of 	the 	employee's
protected 	activity, 	and 	that 	the 	employer's 	conduct was
motivated by 	the 	employee's 	participation 	in 	protected 	activity.
Unlawful 	motive 	may be 	established by 	circumstantial 	evidence
and 	inferred 	from 	the 	record 	as 	a whole.
8

subdivision 	(a) 	and, 	as 	such, 	clearly within the 	scope of
representation. 	Further, 	in the 	instant case, 	the parties
expressly 	addressed 	the 	issue 	of 	safe working 	conditions 	in
their CBA. 	(See 	fn. 	2.)
The ALJ 	found 	that when 	Flores 	"expressed his 	reservations"
about 	driving 	the mower, 	he was 	complying with 	the 	terms 	of 	the
CBA which 	requires 	an 	employee 	to 	report 	conditions 	of 	unsafe
or hazardous 	work 	to his/her 	immediate 	supervisor. 	Moreover,
he 	found 	that 	in 	complying with 	the 	CBA's 	safety provisions,
Flores 	was 	participating 	in protected activities. 	The ALJ
reasoned 	that 	when 	Flores 	voiced his 	legitimate 	and 	reasonable
safety concern 	and 	indicated 	an unwillingness 	to drive 	the
Jacobson mower, 	he 	was 	asserting 	rights 	guaranteed 	to him under
the 	terms 	of 	the CBA. 	Accordingly, 	under 	the Board's holding
in North 	Sacramento 	School 	District 	(1982) 	PERB Decision
No. 	264, 	the ALJ determined that Flores' 	conduct was expressly
protected by 	section 	3543 	of 	the Act.
Secondly, 	under 	an agency theory, 	the ALJ 	found 	that
Humphrey's 	undisputed 	direct 	and personal 	knowledge 	of 	Flores'
conduct was 	imputed 	to the 	District, 	citing Antelope 	Valley
Community College District 	(1979) 	PERB Decision No. 	97.
Finally, 	with 	respect 	to whether 	the 	District 	discriminated
against 	Flores 	in 	reassigning him because 	of his 	protected
conduct, 	the ALJ examined 	the 	District's 	manifested 	reasons 	for
the 	reassignment 	in 	order 	to determine 	"whether 	these 	reasons
9

reasonably 	support 	such 	District 	action 	in 	light 	of 	all 	of
the 	surrounding 	circumstances." 	Viewing 	Humphrey's 	manifested
reasons 	for 	the 	reassignment, 	the ALJ 	focused on his 	claim 	that
it 	would be unfair 	to Hurtado 	to move 	the 	two employees back
and 	forth whenever 	there was 	trouble with 	the 	Parkmaster.
This 	statement, 	along with Humphrey's 	failure 	to 	reoffer 	the
Jacobson 	to 	Flores 	after 	explaining 	the 	road 	test 	results 	to
him, 	indicated 	to the ALJ 	that, 	under 	these 	circumstances,
there 	must have been 	some 	other 	unasserted 	reason behind 	the
reassignment. 	Because 	the 	Parkmaster 	was 	out 	of 	service 	for
no more 	than one week per year on average, 	the ALJ 	found 	the
District's 	reasoning 	to be 	illogical, 	and 	this 	led him to 	infer
that 	the 	District's 	reasons were pretextual. 	Consequently, 	he
concluded 	that 	a prima 	facie 	case 	of 	discrimination was
established 	by 	CSEA.
In 	defense, 	the 	District asserted 	that 	it was 	its
prerogative 	to 	assign 	any employee 	to 	any 	task 	within 	that
employee's 	job 	classification. 	The ALJ 	noted 	that 	this
district 	right 	is 	limited 	to 	the 	extent 	that 	a district 	cannot
violate 	an 	employee's 	statutory 	rights 	in making 	a 	reassignment.
In 	the 	instant 	case, 	the ALJ concluded 	that 	the 	District
reassigned 	Flores 	either 	to punish him 	for his 	reluctance 	to
drive 	the 	Jacobson mower 	or 	to 	reward 	Hurtado 	for 	driving 	the
unsafe mower. 	The ALJ held 	that 	either 	reason violates 	the
Act. 	Moreover, 	he 	found 	that 	the 	District 	failed 	to show 	that
10

the 	reassignment 	was 	for 	a 	legitimate 	operational 	purpose.
Therefore, 	the 	District 	did not demonstrate 	that 	it would have
reassigned 	Flores 	notwithstanding his 	protected 	activity.
Finally, 	the ALJ 	relied 	on Carlsbad 	Unified 	School 	District
(1979) 	PERB Decision No. 	89 	in 	finding 	that 	the reassignment
itself, 	despite no loss of pay or benefits 	to Flores, 	consti-
tutes 	sufficient harm 	to 	support 	a 	finding 	of discrimination.
The ALJ 	reasoned 	that 	any harm, 	no matter how slight, 	resulting
from 	unlawful 	retaliation 	for 	reporting 	unsafe 	working
conditions 	will 	have 	a chilling 	effect 	on 	the 	future 	exercise
of 	the 	right.
In 	sum, 	the ALJ held 	that 	the 	reassignment 	of 	Flores
violated section 3543.5, 	subdivision 	(a) 	and, 	derivatively,
3543.5, 	subdivision 	(b). 	The ALJ noted that, 	although it was
further 	alleged 	that 	sections 	3543 	and 3543.1, 	subdivision 	(a)
were violated, 	section 3543.5 	is 	the operative 	section 	for
determining whether 	or 	not 	violations 	of 	the 	rights 	guaranteed
therein 	indeed 	occurred.
DISCUSSION
The District, 	on appeal, 	has 	raised several exceptions
to 	the ALJ's 	proposed decision. 	The 	District 	takes 	exception
to 	the ALJ's 	finding 	that 	Hurtado's 	assignment 	to 	the mower
operator position was permanent, 	but 	this 	challenge 	is without
merit 	and 	is 	not particularly 	relevant 	in 	any event. 	On
February 26, 	when 	Flores 	went 	to Humphrey about his 	assignment,
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Humphrey 	told him 	that 	Hurtado would 	remain 	on 	mowing 	duties
and 	Flores 	would 	continue 	on 	assignment 	at 	the 	school 	(in
Hurtado's previous position). 	Humphrey told Flores 	that 	it
would be 	too much 	of 	a hardship to 	switch 	the 	two 	employees
back 	and 	forth between 	these positions. 	The written memo of
February 28, 	confirmed Flores' 	reassignment. 	Moreover, 	before
he 	was 	reassigned, 	Flores had been 	in 	the mower 	operator
position 	exclusively 	for 	almost 	four 	years.
Given 	these 	facts, 	and especially 	the 	District's 	initial
proffered 	justification 	for 	the 	reassignment of 	Flores, 	it
appears 	that 	groundskeeper assignments 	are, 	indeed, 	made on a
relatively 	"permanent" basis 	in 	the 	District. 	There 	is 	nothing
in 	the 	record 	to 	indicate 	that 	the 	assignment 	of Hurtado to
mowing duties 	is 	an exception to the 	rule. 	Moreover, 	whether
or 	not 	Hurtado has been assigned 	"permanently" 	to mowing duties
is 	not 	necessarily relevant 	to the 	issue 	at hand. 	Even 	if
Hurtado were 	eventually 	taken off 	the 	mowing 	assignment by 	the
District, 	there 	is 	no guarantee 	that 	Flores 	would be 	returned
to mowing duties.
The 	District 	also 	excepts 	to 	the ALJ's 	finding 	that
Humphrey 	reassigned 	Flores because 	of 	unfairness 	to Hurtado.
The 	ALJ's 	actual 	finding was 	that 	the 	District 	offered 	several
different 	justifications 	for 	the 	reassignment, 	although he did
focus 	on Humphrey's 	"unfairness" 	justification 	in his 	analysis
of 	the 	facts. 	Flores 	testified 	that 	Humphrey 	initially 	told
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him 	that 	he 	would 	not be 	returned 	to mowing because 	it 	would
be 	too 	great 	a hardship 	to 	switch 	Flores 	and Hurtado 	around
between the 	two positions. 	In the February 28 memo, 	Humphrey
stated 	that, 	because 	Flores 	"expressed 	concern 	that 	the
Jacobson was 	unsafe," 	Flores 	would be 	reassigned 	"in order
to 	continue 	with 	our 	maintenance 	program." 	Humphrey 	stated,
in 	the 	first 	level 	grievance response, 	that 	Flores had been
reassigned 	in 	response 	to his 	refusal 	to perform his 	regularly
assigned 	duties 	and 	that 	the 	District had 	determined 	the 	mower
to be 	safe 	at 	speeds below 	10 m.p.h. 	Humphrey testified 	that,
at 	the hearing on Flores' 	grievance, 	he 	told the governing board
that he 	thought 	it 	would be 	unfair 	to Hurtado 	to move him back
and 	forth 	each 	time 	there 	was 	a problem with 	the 	Parkmaster.
Accordingly, 	the 	District's 	exception 	is 	unsupported by the
record which 	shows 	that, 	in 	fact, 	Humphrey himself 	testified
that he had 	felt 	it 	would be 	unfair 	to Hurtado 	to 	switch 	the
employees 	around between 	the 	two positions. 	Granted, 	this was
not 	the 	only 	justification asserted by Humphrey, 	but 	it was,
indeed, 	one of his 	reasons, 	as he 	freely admitted at 	the
hearing.
The 	District 	likewise 	takes 	issue 	with 	the ALJ's 	legal
conclusion 	that 	Flores 	engaged 	in protected 	activity, 	arguing
that 	the 	conclusion 	lacks both 	evidentiary and 	legal 	support.
Essentially, 	the 	District 	claims 	that 	Flores 	was 	not pursuing
a 	grievance 	or participating 	in 	activities 	of 	the 	employee
13

organization 	in any other broad sense. 	It 	claims 	further 	that
Flores 	was 	not 	acting as 	a CSEA 	"spokesperson" 	in 	connection
with his 	refusal 	to operate 	the mower, 	nor did he seek 	to warn
others 	of 	the 	safety hazard. 	Thus, 	the 	District asserts 	that
the 	facts 	are 	akin 	to 	those presented 	to 	the NLRB 	in Meyers
Industry II 	(1986) 	281 NLRB No. 	118 [123 LRRM 1137], 	wherein
it 	was held 	that 	an 	employee's 	complaint 	regarding his personal
safety did 	not 	constitute 	"concerted 	activity" 	within 	the
meaning of 	the NLRA and, 	therefore, 	was 	unprotected.
Additionally, 	the 	District 	argues 	that 	the ALJ's 	reliance 	on
North Sacramento School 	District, 	supra, 	PERB Decision No. 	264
was misplaced because, 	in North Sacramento, 	the Board 	found
that 	the 	charging party's 	filing of 	a 	grievance 	constituted
protected conduct. 	Here, 	there 	is 	no evidence 	that Flores
filed a grievance prior 	to his 	reassignment. 	Thus, 	according
to the District, 	North Sacramento is 	inapposite.
Regarding 	the 	issue 	of 	"protected 	activity," 	CSEA argues,
and we agree, 	that 	in dealing with Humphrey, 	Flores was
exercising his 	right 	to 	represent himself 	in his 	employment
relations 	with 	the 	District. 	The 	language of EERA, 	on 	its
face, 	clearly permits 	and protects 	conduct 	of 	the nature
involved 	in this 	case. 	Section 3543 provides, 	in relevant part:
Public 	school 	employees 	. . . 	shall 	have 	the
right 	to 	represent 	themselves 	individually
in 	their 	employment 	relations 	with 	the
public 	school 	employer, 	except 	that 	once
the 	employees 	in an appropriate 	unit have
selected 	an 	exclusive 	representative 	and
it has been 	recognized pursuant 	to 	section
14

3544.1 	or 	certified pursuant 	to 	section
3544.7, 	no employee 	in that unit may meet
and 	negotiate with 	the public 	school
employer. 	(Emphasis 	added.)
Safety matters 	are 	clearly an 	implicit part 	of 	any
employment relationship. 	Here, 	as well, 	the express 	terms
of 	the 	CBA obligated 	the 	District 	to endeavor 	to provide 	safe
working 	conditions 	and 	to 	comply with 	all 	applicable 	OSHA
provisions, 	and employees were 	to report unsafe conditions.
When 	Flores 	told Humphrey 	that 	the 	Jacobson mower 	was 	not 	safe
for 	driving on public 	streets 	and 	that he 	did not 	want 	to drive
it 	to 	the 	other 	school 	sites, 	he was 	not 	only complying with
the 	CBA, 	but he was 	also exercising his 	right 	to 	represent
himself 	individually 	in his 	employment 	relations 	regarding 	a
proposed 	working 	assignment.5 	His 	personal 	concern with
operating 	the mower 	on public 	streets 	was 	reasonable 	as
evidenced by 	the 	subsequent 	OSHA 	citation 	and 	the 	District's
determination that 	repairs were necessary. 	Accordingly, 	in
presenting his 	safety concerns 	to Humphrey, 	Flores 	was 	engaging
in 	protected 	activity.
5
0
Swe	we 	would 	note 	that 	in presenting his 	concerns 	to his
supervisors, 	Flores 	was 	not 	attempting 	to meet 	and negotiate
with his 	employer, 	but was 	simply communicating 	in a manner
consistent 	with 	the 	day-to-day 	activities 	involving 	employer/
employee 	relations. 	Further, 	Flores 1 activities did not
undermine 	the 	union's 	status 	as 	a bargaining 	representative
or 	abridge 	the 	statutory principle 	of 	exclusivity.
6Because we 	find that Flores' 	activity 	is of 	the 	type
expressly protected by statute, 	we 	do not 	adopt 	the ALJ's
holding with 	respect 	to 	the 	issue 	of protected 	activity and
it 	is 	unnecessary to address 	the 	issue of 	the applicability
of 	North 	Sacramento 	to these 	facts.
15

Finally, 	the 	District excepts 	to 	the ALJ's 	finding 	that
the District's 	reassignment of 	Flores was motivated by, 	or 	in
retaliation 	for, 	Flores' 	protected activity. 	The 	District
claims 	that 	there 	is 	insufficient 	evidence 	upon which 	to base
a 	conclusion 	that 	the 	reassignment 	was 	unlawfully motivated.
However, 	contrary to the District's 	assertions, 	we 	find ample
circumstantial 	evidence 	to 	support 	an 	inference 	of 	unlawful
motive 	under 	Novato.
It 	is 	clear 	from 	the 	timing of 	the 	District's 	action 	that
the 	reassignment 	was 	related 	to 	Flores' 	raising of his 	safety
concern 	with Humphrey. 	Flores 	was 	initially 	reassigned 	four
days 	after his 	complaint, 	which was his 	first day back 	to work
after 	a holiday weekend. 	Additionally, 	in view of 	the 	lack of
other 	involuntary 	reassignments 	during 	the 	five-year 	period
preceding Flores' 	reassignment, 	the 	reassignment 	could 	be
viewed as 	a 	form of disparate 	treatment. 	It 	is disparate 	in
the 	sense 	that, 	for 	at least 	five years, 	the District did not
see 	fit 	to 	reassign 	any employee 	other 	than 	Flores 	for 	a
nondisciplinary purpose. 	Suddenly, 	the 	District 	reassigned
Flores 	after he had performed 	the 	same 	duties 	for 	over 	four
years, 	consistently 	receiving 	satisfactory 	job performance
evaluations 	during his 	tenure.
Moreover, 	the 	shifting 	and 	vague 	justifications 	offered by
the 	District 	for 	the 	reassignment 	are 	of 	critical 	importance
here. 	Humphrey 	told 	Flores 	that 	the 	reassignment 	was 	made
16

to 	avoid hardship or 	unfairness. 	He 	also 	told him 	that 	the
reassignment 	was 	made 	"to 	continue 	with 	our 	maintenance
program." 	He 	further 	stated 	that 	Flores 	was 	reassigned because
he 	refused 	to perform his 	regularly assigned duties. 	This
statement 	alone 	could be 	construed 	to be 	an admission, 	on 	the
part of the District, 	that Flores was, 	in fact, 	reassigned
because 	of his 	presentation of 	a 	safety 	complaint. 	Howard
Hamilton 	stated 	that 	the 	District 	found 	the mower 	to be 	safe
if 	driven 	"within 	the 	explicit 	guidelines 	outlined 	to you by
Mr. 	Humphrey." 	It 	is 	clear 	from the evidence, 	however, 	that
Humphrey never 	outlined 	the 	"explicit 	guidelines" 	for 	Flores'
benefit.
In view of 	the 	foregoing, 	it 	is without question that
Flores' protected 	activity 	was 	a motivating 	factor behind his
involuntary 	reassignment. 	Thus, 	since CSEA established a prima
facie 	showing of discrimination/retaliation, 	under Novato, 	the
burden 	shifted 	to 	the 	District 	to prove 	that 	its 	actions 	would
have been 	the 	same 	notwithstanding 	Flores' 	protected 	conduct.
The 	District 	argues 	on 	appeal 	that 	the 	reassignment 	was 	within
its 	management 	prerogative 	and 	that 	Flores 	was 	reassigned 	to
avoid 	the 	hardship 	resulting 	from 	switching 	employees 	around.
Obviously, 	however, 	the 	District would not have reassigned
Flores 	had he 	not expressed his 	safety concerns 	to Humphrey. 	No
matter which of 	its purported 	justifications 	it 	relies 	on, 	the
District 	implicitly 	admits 	that 	the 	reassignment 	occurred
17

solely as 	a 	result 	of 	Flores' 	challenge 	to the 	District
concerning 	the 	unsafe 	condition of 	the 	Jacobson.
Accordingly, 	the 	District's 	exceptions 	are 	without merit
and 	are hereby rejected. 	The 	District's 	conduct herein 	clearly
constitutes 	a violation of section 3543.5, 	subdivision 	(a).
There 	is no evidence, 	however, 	that the District's 	actions also
violated CSEA's 	rights under EERA and, 	therefore, 	we do not
find a derivative section 3543.5, 	subdivision 	(b), 	violation.
(Tahoe-Truckee USD 	(1988) 	PERB Decision No. 	668, 	p. 	13.)
ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the entire 	record 	in this 	case, 	and pursuant 	to section 3541.5,
subdivision 	(c) 	of 	the Educational 	Employment Relations Act, 	it
is 	hereby ORDERED that 	the 	Pleasant 	Valley School 	District 	and
its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Imposing 	reprisals 	on, 	discriminating against
or 	otherwise 	interfering with 	Vincent 	Flores because 	of 	the
exercise 	of his 	right 	to 	represent himself 	in his 	employment
relations 	with his 	public 	school 	employer.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE EDUCATIONAL EMPLOYMENT 	RELATIONS
ACT:
1. 	Rescind 	the 	action of Mr. 	Humphrey which 	effected
the change 	in Mr. 	Flores' 	work assignment and return Mr. 	Flores
18

to his 	prior 	duties 	operating 	the 	District's primary riding
mower.
2. 	Within 	thirty-five 	(35) 	days 	following the date
this 	Decision 	is 	no 	longer 	subject 	to reconsideration, 	post 	at
all 	work 	locations 	where 	notices 	to 	employees 	customarily are
placed, 	copies 	of 	the 	Notice attached as 	an Appendix hereto,
signed by an 	authorized 	agent 	of 	the 	employer. 	Such posting
shall be maintained 	for 	a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken 	to 	insure 	that 	this
Notice 	is 	not 	reduced 	in size, 	defaced, 	altered or 	covered by
any material.
3. 	Written notification of 	the 	actions 	taken 	to comply
with 	this 	Order 	shall be made 	to 	the 	regional director 	of 	the
Public 	Employment 	Relations 	Board 	in 	accordance 	with his/her
instructions.
Chairperson Hesse 	and Member 	Shank 	joined 	in 	this 	Decision.
19

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair Practice Case No. 	LA-CE-2224,
California 	School 	Employees 	Association, 	Chapter 	#504 v.
Pleasant Valley School 	District, 	in which 	all parties had
the 	right 	to participate, 	it has been 	found 	that 	the 	District
violated Government Code section 3543.5, 	subdivision 	(a), 	by
imposing 	reprisals 	on, 	discriminating against 	or 	otherwise
interfering with Vincent 	Flores because 	of his 	exercise 	of his
right 	to 	represent himself 	in his 	employment 	relations 	with
his 	public 	school 	employer.
As 	a 	result 	of 	this 	conduct, 	we have been ordered 	to post
this 	Notice 	and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Imposing 	reprisals 	on, 	discriminating against
or 	otherwise 	interfering with Vincent 	Flores 	because 	of 	the
exercise 	of his 	right 	to represent himself 	in his 	employment
relations 	with his 	public 	school 	employer.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED
TO EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. 	Rescind 	the 	action of Mr. 	Humphrey which 	effected
the 	change 	in Mr. 	Flores' 	work 	assignment 	and return Mr. 	Flores
to his 	prior 	duties 	operating 	the 	District's 	primary 	riding
mower.
2. 	Within 	thirty-five 	(35) 	days 	following the date
this 	Decision 	is 	no longer 	subject 	to 	reconsideration, 	post 	at
all 	work 	locations 	where 	notices 	to employees 	customarily are
placed, 	copies 	of 	this 	Notice, 	signed by an authorized agent
of 	the 	employer. 	Such posting 	shall be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall be 	taken 	to 	insure 	that 	this 	Notice 	is 	not 	reduced 	in
size, 	defaced, 	altered or covered by any material.

3. 	Written 	notification of 	the 	actions 	taken 	to
comply with 	this 	Order 	shall be made 	to 	the 	regional 	director
of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance 	with
his/her 	instructions.
Dated: 	PLEASANT 	VALLEY SCHOOL 	DISTRICT
By: Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT
LEAST 	THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF
POSTING AND MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR
COVERED 	BY ANY MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES ASSOCIATION,
CHAPTER 	#504,
Charging 	Party,
v.
PLEASANT VALLEY 	SCHOOL 	DISTRICT,
Respondent.
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Unfair Practice
Case No.
LA-CE-2224
PROPOSED 	DECISION
(11/24/86)
Appearances: 	William C. 	Heath, 	for California 	School Employees
Association, 	Chapter #504; 	Liebert, 	Cassidy & Frierson by Bruce
Barsook 	for 	Pleasant Valley 	School 	District.
Before: 	Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On August 	13, 	1985, 	the California School Employees
Association, 	Chapter #504 	(hereafter Charging 	Party, 	CSEA or
Association) 	filed 	an unfair 	practice 	charge with 	the 	Public
Employment 	Relations 	Board 	(hereafter 	PERB 	or 	Board) 	against
the 	Pleasant Valley 	School 	District 	(hereafter 	Respondent 	or
District) 	alleging 	violations 	of 	Government Code 	sections 	3543,
and 	3543.l(a) 	and 	3543.5(a) 	and 	(b).1 All 	of 	these 	sections
1Sections 	3543, 	3543.l(a), 	and 3543.5(a) 	and 	(b) 	provide
as follows:
3543. 	RIGHTS OF EMPLOYEES
Public 	school 	employees 	shall 	have 	the 	right
to 	form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own choosing 	for 	the 	purpose of
representation on 	all 	matters 	of
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
,

are 	contained 	in 	the 	Education Employment 	Relations 	Act
(hereafter 	EERA or Act) 	(commencing with 	section 	3540 	et 	seq,
employer-employee 	relations. 	Public 	school
employees 	shall 	also have 	the 	right 	to
refuse 	to 	join or 	participate 	in 	the
activities 	of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with the 	public 	school 	employer, 	except 	that
once 	the 	employees 	in 	an 	appropriate unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized pursuant 	to
Section 	3544.1 	or 	certified 	pursuant 	to
Section 3544.7, 	no employee 	in that unit may
meet 	and 	negotiate with 	the 	public 	school
employer.
Any employee may 	at 	any time 	present
grievances 	to 	his 	employer, 	and have 	such
grievances 	adjusted, 	without 	the
intervention 	of 	the 	exclusive
representative, 	as 	long 	as 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
Sections 3548.5, 	3548.6, 	3548.7, 	and 3548.8
and 	the 	adjustment 	is 	not 	inconsistent with
the 	terms 	of 	a written 	agreement 	then 	in
effect; 	provided 	that 	the public 	school
employer 	shall 	not 	agree 	to 	a 	resolution of
the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been given the opportunity to 	file 	a
response.
3543.1. 	RIGHTS OF EMPLOYEE ORGANIZATIONS
(a) 	Employee 	organizations 	shall 	have 	the
right 	to 	represent 	their members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except that once 	an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative of 	an
appropriate unit 	pursuant 	to 	Section 	3544.1
or 3544.7, 	respectively, 	only that employee
organization may 	represent 	that 	unit 	in
N
	2

of 	the Government Code).2
their 	employment 	relations 	with 	the 	public
school 	employer. 	Employee 	organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join 	and may make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from membership.
3543.5. 	UNLAWFUL PRACTICES: 	EMPLOYER
It 	shall 	be unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against employees, 	or otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
On August 29, 	1985, 	the general 	counsel of 	the PERB 	issued
a 	complaint 	against 	the District.
On September 	18, 	1985, 	the District 	filed 	its 	answer 	to 	the
unfair 	practice 	charge 	and 	complaint.
On October 4, 	1985, 	the parties met 	in an 	informal
conference 	in 	an 	attempt 	to 	settle 	the matter. 	The 	case was
not 	settled.
On January 7, 	1986, 	a 	formal 	evidentiary hearing was 	held
at 	the Los Angeles 	office of 	the 	PERB. 	The parties 	briefed
their 	respective 	positions 	and 	the 	case was 	submitted 	on
April 9, 	1986.
W
2All 	section 	references, 	unless 	otherwis. . .	
e 	indicated, 	are
to the Government Code.	
-
3

JURISDICTION
The 	parties 	stipulated 	to 	the 	Charging 	Party being 	an
exclusive 	representative 	and 	the 	Respondent 	being 	a 	public
school 	employer within 	the meaning 	of 	section 	3540.1 	of 	the Act,
INTRODUCTION
Vincent Flores, 	a 	long-time employee of the District, 	held
a 	position 	in 	the classification of 	groundskeeper. 	His
assignment, 	for 	the four years previous 	to this charge, 	was 	to
operate 	the 	District's 	large 	riding 	grass 	mower. 	When 	the
primary grass 	mower was 	temporarily 	inoperative, 	he was 	asked
to drive 	a 	substitute 	riding mower 	to 	a 	nearby school. 	He 	told
his 	immediate supervisor, 	Bob Humphrey, 	that, 	in his
estimation, 	the vehicle was 	not 	safe on the public 	streets.
Humphrey 	ostensibly 	accepted 	his 	reason 	for 	declining 	to 	carry
out 	his 	instruction 	and 	assigned 	him 	temporary duties
elsewhere. 	He 	asked Mr. 	Flores 	to put his concerns 	in a
written memo. 	Mr. 	Flores did so.
Humphrey, 	accompanied 	by the 	busing 	and 	garage 	supervisor,
Mr. 	Riley, 	tested 	the mower 	in a 	large unused parking 	lot 	and
determined 	that 	it was 	safe to drive, 	provided 	it was 	not
driven over 	10 miles per hour. 	He then went 	to 	a 	second
groundskeeper, 	Jay Hurtado, 	and described 	(1) 	Flores 1
reluctance to drive the machine, 	(2) 	the 	road test 	and 	(3) 	his
10-mph-limit 	conclusions 	and 	asked 	him 	to 	drive 	the 	vehicle 	to
the 	nearby 	school 	and mow 	the 	lawn. 	Hurtado 	agreed 	to 	use 	the
A	
4

machine 	as 	directed. 	Once 	the primary machine was 	returned 	to
service, 	the 	supervisor 	switched 	the 	regular 	assignments 	of 	the
two 	subject 	employees 	and 	the 	second 	driver was 	given 	the more
desirable 	assignment on a permanent basis. 	Flores, 	the
original 	driver, 	filed 	a 	grievance over 	the 	reassignment,
citing 	violations 	of 	the Anti-Discrimination 	and 	Safety
Articles 	of 	the collective bargaining 	agreement 	(CBA). 	The
grievance was 	denied.
FINDINGS OF 	FACT
Vincent 	Flores 	has 	been 	a District 	employee 	since 	1955.
From 1955 	to 	1972 	he held 	a 	dual 	appointment 	as 	a 	bus 	driver
and 	a maintenance employee. 	In 	1972 	he 	took over 	as 	the head
bus 	driver. 	He 	remained 	in 	that 	classification until 	he
voluntarily demoted 	to 	a 	position 	in 	the 	groundskeeper
classification on June 9, 	1981.
From 	1955 	to 	his 	full-time 	assignment 	as 	the 	head 	bus
driver 	in 	1972, 	Flores 	had been 	assigned mowing duties 	using 	a
number 	of machines. 	When the District 	purchased 	a 	Jacobson
seven-reel, 	tractor/riding mower with hydraulic 	lifts, 	he
became 	its 	primary operator. 	While he was 	the 	head bus 	driver,
the District 	purchased 	a 	large 	riding mower, 	a Toro 	Parkmaster,
to 	replace 	the 	Jacobson which 	remained 	inoperative for 	a
considerable 	period 	of 	time. 	When 	it was 	subsequently 	repaired
it was 	used 	exclusively 	at 	the District 	headquarters 	and 	an
adjacent 	location. 	Although 	it was 	possible 	to use 	the
Jacobson 	there was 	no 	dispute 	that 	it was 	not 	fully operational.
5

A 	few weeks 	before 	Flores 	demoted, 	the 	groundskeeper whose
primary 	assignment 	was 	the 	operation 	of 	the Toro 	Parkmaster
left 	the District's 	employ and Jay Hurtado, 	a custodian, 	was
temporarily 	assigned 	to 	replace 	him in 	that 	assignment. 	CSEA
was 	concerned 	that 	this 	reassignment 	violated 	the 	CBA, 	in 	that
the 	duties 	of 	groundskeeper 	and 	custodian were 	sufficiently
dissimilar 	so 	as 	to prohibit 	such a 	lateral 	transfer. 	A
grievance was 	filed 	and 	it was 	ultimately determined, 	by 	the
Personnel 	Commission, 	that 	such 	a 	lateral 	transfer violated 	the
internal 	personnel 	rules. 	Hurtado was 	taken off 	the Toro
Parkmaster. 	Once 	the 	position 	riding 	the 	Parkmaster 	became
vacant, 	Flores 	asked 	for 	and was 	given 	the 	assignment.
Flores 	continued 	in 	that 	assignment 	until 	February 	1985.
During 	the period 	from 1981 	to 	1985, 	whenever 	the Toro
Parkmaster was 	temporarily 	inoperative, 	Flores would use 	the
Jacobson mower, 	which was 	stored 	in the headquarters 	area, 	at
the 	two 	District 	sites 	immediately 	adjacent 	to 	the 	District
headquarters. 	He was 	never 	asked 	to drive 	the machine 	to 	any
of 	the 	other 	District 	locations. 	Each 	time 	the Toro 	Parkmaster
returned to 	service, 	Flores would 	resume his duties 	as 	its
primary 	operator. 	The 	Toro 	Parkmaster 	averaged 	one week-long
breakdown 	per 	year.
On Friday, 	February 15, 	1985, 	after the Toro Parkmaster was
determined to be 	in need of 	repairs, 	Flores 1 immediate
supervisor, 	Robert Humphrey, 	told him to drive the Jacobson to
66

Los Nogales 	school, 	a distance of 	one to 	one 	and one-quarter
miles, 	and mow the 	lawns. 	Flores 	told Humphrey that 	he
believed 	that 	the 	Jacobson was 	unsafe 	to 	drive 	on 	the 	city
streets 	and 	he 	expressed 	reservations 	about using 	it 	in 	such 	a
manner. 	His 	concerns were 	related 	to 	the vehicle's 	steering
apparatus. 	The 	two men had 	discussed 	the 	Jacobson's 	safety
deficiencies 	in 	the 	past. 	Flores 	admits 	Humphrey may have 	told
him to 	"take 	it 	easy" 	when directing 	him to drive 	to 	Los
Nogales. 	Flores 	did not 	absolutely 	refuse 	to 	drive 	the mower,
he 	just 	nodded 	his 	head 	in 	a 	negative manner 	and voiced 	his
safety concerns. 	Humphrey did 	not 	press 	Flores 	to 	drive 	the
mower 	but 	asked him to 	put 	his 	concerns 	in 	a written memo 	and
to 	temporarily take over other, 	nonmowing duties. 	Flores 	first
consulted with 	his 	CSEA president 	and 	then wrote 	the memo 	and
embarked 	upon 	his 	temporary duties.
Humphrey 	and 	Riley 	took 	the 	Jacobson mower 	to 	a 	parking 	lot
to 	test 	drive 	the vehicle. 	Riley drove 	the Jacobson 	and
Humphrey 	followed 	in 	a 	passenger 	car. 	Whenever 	Riley would
reach 	a 	speed 	at which 	the mower would become, 	in his
estimation, 	unsafe, 	he would signal Humphrey. 	Humphrey
determined 	that 	the mower was 	safe 	at 	speeds 	up 	to 	10 	mph.
However, 	it would not be possible 	for 	the driver 	to 	determine
when 	10 	mph had been reached, 	as 	the Jacobson mower did not
have 	a 	speedometer.
Humphrey 	told 	Jay Hurtado 	of 	Flores 1 concerns. 	Hurtado
had, 	subsequent 	to 	the 	improper 	lateral 	transfer 	previously
7
7

described, 	been given a new assignment 	as 	a groundskeeper.
Humphrey 	also 	told 	him 	that 	the 	vehicle 	had 	been 	test 	driven
and 	that 	it 	had 	been determined 	that 	the mower was 	safe 	at
speeds 	up 	to 	10 mph. 	He offered 	the machine 	to Hurtado. 	He
did 	not 	describe 	the 	road 	test 	to 	Flores 	and 	offer 	the 	Jacobson
to 	him with 	the maximum 	10 	mph condition. 	Hurtado 	accepted 	the
machine 	and went 	to 	Los 	Nogales 	to 	start 	the mowing
assignment. 	During 	the time he drove 	it, 	the only time he had
any trouble was when he 	exceeded 	the 	10 	mph prohibition.
On February 19, 	the 	following Tuesday - Monday was 	a
holiday 	- 	Humphrey told 	Flores 	he was 	being 	assigned 	to
Hurtado's 	duties 	and 	that 	Hurtado was 	being 	assigned 	to 	drive
the Jacobson. 	Flores did not 	object.
Mr. 	Hurtado's duties had consisted of 	raking, 	pruning,
watering, 	etc. 	Mr. 	Flores preferred the mowing 	job for 	a
number 	of 	reasons, 	one of which was 	that 	it was 	a cleaner
assignment. 	On February 25 	Humphrey 	learned 	that 	the Toro
Parkmaster 	was 	repaired 	and 	ready 	to 	be 	put 	into 	operation
again. 	On February 26 	Flores was 	told 	that 	he would 	not 	return
to 	the Toro 	Parkmaster, 	that Hurtado would be 	its 	primary
driver 	from 	that 	day 	forward.
There was 	no 	question 	regarding 	the 	level 	of 	competence 	of
either 	Hurtado 	or 	Flores, 	both had excellent work 	records.
The District 	has 	approximately 	12 	individual 	school 	sites,
the 	farthest 	being 	approximately 	four 	miles 	away 	from 	the
8

District 	headquarters. 	Neither 	the Toro 	Parkmaster 	nor 	the
Jacobson are trailerable. 	If 	either one 	is 	to 	be used 	at
locations 	other 	than 	those 	immediately 	adjacent 	to 	the
District's 	headquarters 	it has 	to 	be driven on city 	streets.
Flores 	discussed 	the matter with 	his 	CSEA chapter
president, 	Hector Dion, 	and then filed 	a grievance over 	his
reassignment, 	citing 	the CBA sections 	on discrimination 	and
safety. 	These 	sections 	are 	as 	follows:
ARTICLE 	III
NO 	DISCRIMINATION
Discrimination Prohibited: 	No 	employee 	in
the 	bargaining 	unit 	shall 	be 	discriminated
against because of his/her 	race, 	national
origin, 	religion, marital status, 	lawful
activities under the Act, 	and, 	to the extent
prohibited by 	law, 	no person 	shall 	be
discriminated 	against because of 	age, 	sex,
or 	physical 	handicap.
ARTICLE XVII
SAFETY
This 	District 	shall 	attempt 	to 	provide
employees 	with 	safe working 	conditions. 	The
Board 	shall 	attempt 	to 	comply with 	the
provisions 	of 	the California 	State
Occupational 	Safety 	& Health Act 	regulations
as 	described 	in 	the 	general 	industry 	and
construction 	industry 	(where 	applicable)
standards. 	Employees 	shall 	report to 	the
immediate 	supervisor 	conditions 	of 	unsafe 	or
hazardous 	work.
A 	safety 	committee 	shall 	be 	formed 	composed
of 	not 	less 	than two 	(2) 	bargaining unit
members 	selected 	by 	the Association 	and 	two
(2) 	administrators. 	The purpose of the
Safety Committee 	shall 	be 	to 	review 	reports
from employees 	and management 	relative 	to
9

potential 	unsafe working 	conditions 	and 	to
make 	recommendations 	to 	the 	Superintendent
in 	terms 	of 	correcting 	unsafe 	or 	hazardous
working 	conditions.
Humphrey, 	in his 	first 	level 	grievance 	response, 	denied 	the
grievance 	because 	(1) 	the District 	had 	not 	discriminated
against 	Flores 	in 	any of 	the ways 	prohibited by the CBA, 	i.e.,
race, 	age, 	sex, 	religion, 	etc., 	and that he had been reassigned
"in 	response 	to 	your 	refusal 	to 	perform your 	regularly 	assigned
duties" 	and 	(2) 	the District 	"carefully examined 	the Jacobson
mower 	and 	found 	it 	to 	be 	in 	safe 	operating 	condition 	as 	long 	as
it was 	not driven 	above 	10 mph."
Dr. 	Howard Hamilton, 	previously an 	intermediate 	school
principal 	and 	presently 	the 	administrative 	assistant 	to 	the
superintendent, 	in his 	second 	level 	grievance 	response,
rejected 	the grievance 	for 	the 	following 	reasons: 	(1) 	the
Jacobson mower Was 	found 	"to be safe, 	provided 	it 	is driven
within 	the 	explicit 	guidelines 	outlined 	to 	you 	by Mr.
Humphrey," 	(2) 	the discrimination 	allegations 	are 	"vague 	and
without verifiable substance," 	and 	(3) 	Mr. 	Humphrey has 	a
"right 	to 	reassign 	employees within 	their 	job classification"
based upon the 	"needs 	of 	the District" 	and 	that 	such
reassignment 	"was 	reasonable" 	and 	did 	not 	cause 	Flores 	"to
suffer 	any 	loss 	in wages 	or 	benefits".
The 	grievance procedure's 	last 	appeal 	level 	is 	the
District's 	Board of 	Trustees. 	At 	the 	Board of 	Trustee's
10

meeting on June 	6, 	1985, 	during 	its 	deliberations on the
grievance, 	a 	question 	arose 	as 	to why Humphrey did not 	return
Flores 	to 	his 	Parkmaster mowing 	duties 	after 	the machine was
repaired. 	Both sides 	agree that Dr. 	Robert W. 	Formhals, 	a
board member, 	raised this 	question. 	Humphrey's 	answer was 	the
subject 	of 	considerable 	testimony 	at 	the 	hearing 	and 	in 	both
parties' briefs.
Hector 	Dion, 	CSEA president 	and 	a 	building 	and 	equipment
service worker 	for 	the District, 	testified, 	when questioned on
direct 	examination by the Association's 	attorney, 	as 	follows:
Q. 	Was he 	(Dr. 	Formhals) 	asking that
question 	to 	any one 	in particular?
A. 	I 	think he was 	questioning, 	if 	I 	recall
correctly, 	he was questioning Mr. 	Humphrey,
he was 	questioning Bob Humphrey, 	yes.
Q. 	What did Mr. 	Humphrey reply?
A. 	Something, 	if 	I 	recall, 	something to
the effect 	that 	it was 	a hardship 	to
transfer 	people back and 	forth, 	and 	it would
be 	a 	hardship on 	a man 	if 	he were willing 	to
drive 	an unsafe piece of 	equipment 	to
transfer him back, 	such short notice, 	short
span of 	time, 	or 	something to that effect.
Q. 	After he 	said 	that, 	or words 	to 	that
effect, 	what happened next?
A. 	Well, 	the 	superintendent 	corrected 	him
that 	it was not 	an unsafe mower, 	that 	it was
an alleged piece of 	equipment, 	unsafe mower,
or something . 	. 	.
Q. 	Did 	he 	say 	anything 	else?
A. 	Well, 	he 	appeared to 	jump 	in a 	little
quick and a 	little, 	you might 	say, 	slightly
11

upset, 	that he, 	you know, 	wanted to correct
the records somehow, 	that 	. 	. 	.
ALJ: 	He 	being 	the 	superintendent?
WITNESS: 	Yes. 	Yes, 	the superintendent.
Q. 	(By Mr. 	Heath) 	How do you know he was
upset?
A. 	Oh, 	tone of voice and gestures, 	you
know. 	His 	face 	reddened 	a 	little bit 	at 	the
time, and . 	. 	.
Ann Finan, 	a CSEA field 	representative with 	responsibility
for 	the 	classified employees 	at 	the District, 	duplicated
Mr. 	Dion's 	testimony 	regarding 	Humphrey's 	reply.
Dr. 	Hamilton, 	however, 	recalled Humphrey's answer
differently. 	In 	response 	to 	questioning 	by Respondent's
attorney, 	he testified as 	follows:
Q. 	Do you 	recall Mr. 	Formhals 	asking 	a
question 	to 	that 	effect?
A. 	I 	can't be 	sure 	as 	to who 	asked 	the
question, 	as 	a number of questions were
being 	asked. 	I 	can't pinpoint 	as 	to who
asked which 	question.
Q. 	But you do 	recall 	that 	the 	question was
asked?
A. 	Oh, 	yes.
Q. 	Okay, 	and do you 	recall Mr. 	Humphrey's
response 	to 	the 	question?
A. 	To the best of my recollection, 	he >
responded 	something 	about 	it 	being 	unfair 	to
be 	removing 	one 	person 	and 	putting 	someone
else 	back. 	It 	revolved 	around unfairness.
Q. 	Did Mr. 	Humphrey state that Mr. 	Hurtado
had 	been willing 	to work on 	an unsafe
machine, and that . 	. 	.
12

A. 	I 	don't 	recall 	the 	term unsafe 	being
used, 	but my memory 	is very vague on that
issue.
Q. 	Do you 	recall 	the 	issue 	of whether
Mr. 	Humphrey made 	the 	statement 	that
Mr. 	Hurtado 	had been willing 	to work on 	an
unsafe machine, 	do you 	recall whether 	that
issue 	arose 	after 	the conclusion of 	the
grievance hearing on June 	6, 	1986?
A. 	The 	issue 	arose, 	and 	I wish 	I 	could
pinpoint 	as to why or how, 	but 	I 	know it
arose because 	I 	asked 	the board members 	if
they 	recall 	the 	term 	"unsafe" 	being 	used
specifically by Mr. 	Humphrey, 	and two of
them 	said 	they 	had 	taken minutes 	and 	that
they would 	immediately 	check 	their 	minutes.
That was Mrs. 	Rains and Dr. 	Formhals, 	both
checked their minutes, 	had had 	(sic) 	nothing
in 	their minutes 	indicating 	"unsafe". 	The
other three board members, 	or the other, 	I
can't 	recall 	if 	all 	five were there, 	but 	the
other 	board members 	indicated 	that 	they did
not 	recall 	the term specifically, 	"unsafe"
being used by Mr. 	Humphrey.
When Mr. 	Humphrey was 	asked, 	in the formal hearing, 	if he
made such a 	statement 	at 	the 	subject board meeting, 	he 	said:
A. 	I don't believe that 	is what 	I 	said, 	no.
Q. 	What 	did you 	say 	in 	response 	to 	that?
A. 	I 	said 	I 	did not 	feel 	that 	it would be
fair 	to Mr. 	Hurtado 	to move him back and
forth 	each 	time we 	had 	trouble with 	the
Toro, 	or the large Toro. 	That 	I 	felt that
once 	it was on, 	might 	as well 	stay rather
than, 	I 	felt that possibly the next week he
would 	have 	another breakdown, 	the next
thing, 	we're shifting again, 	so, 	that was my
thought 	on that.
Q. 	And 	it's 	your 	testimony 	that 	you 	didn't
say that 	it would 	be unfair 	to 	him because
of 	his willingness 	to 	operate 	the Jacobson?
A. 	No, 	I don't 	recall 	anything 	like that.
13

To 	the 	extent 	that 	these various 	pieces 	of 	testimony 	raise
the 	issue of whether Humphrey admitted, 	at 	the Board of
Trustees meeting on the grievance, 	that 	the mower was unsafe,
they are 	relevant, 	but not dispositive of 	the 	issue.
On June 	6, 	1985 	the 	Board of 	Trustees voted 	in closed
session, 	4 to 1, 	to deny Mr. Flores' grievance. 	Dr. 	Formhals
voted 	to 	grant 	the grievance's 	requested 	action 	and, 	in
addition, 	filed 	an extensive, 	well 	reasoned minority report.
That 	report 	closely parallels, 	in both content 	and conclusion,
this 	proposed 	decision.
The 	Safety 	Committee
The District 	has 	a 	Safety Committee, 	sanctioned by the CBA,
and 	composed 	of 	two 	bargaining unit members 	selected 	by CSEA
and 	two 	administrators. 	The purpose of 	the Safety Committee,
according 	to 	the CBA, 	"shall 	be 	to 	review 	reports 	from
employees 	and 	management 	relative 	to 	potential 	unsafe working
conditions 	and 	to make 	recommendations 	to 	the 	Superintendent 	in
terms 	of 	correcting unsafe 	or 	hazardous 	working 	conditions."
On March 	1, 	1985, 	the Safety Committee met 	and 	issued 	a
report which 	contained 	the 	following 	item: 	3. 	The 	Jacobson
mower 	has 	a 	loose 	gear 	box 	and 	loose 	steering 	— 	it 	is 	a
potential 	hazard.
On March 18, 	1985, 	the Superintendent sent 	a memo to
Eric C. 	Anders, 	Director of Special Services, 	regarding the
14

Safety Committee's March 	1 	report, 	which stated, 	in pertinent
part:
Item 3: 	An 	amount will 	be 	budgeted 	for
1985-86 	for 	repairs 	on the Jacobson mower.
In early June, 	1985, 	Ann Finan, 	CSEA field representative,
communicated 	a 	complaint 	regarding 	the 	Jacobson mower 	to 	the
state Division of Occupational 	Safety and Health 	(OSHA). 	On
July 17, 	1985 	she 	received a 	reply which stated, 	in pertinent
part:
On June 	12, 	1985 we 	received your 	complaint
against 	Pleasant Valley School 	District 	at
600 Temple Ave., 	Camarillo concerning 	the
following 	conditions:
1. 	Unsafe 	steering 	on mower
2. 	Loose 	concrete block on mower
3. 	No rear view mirror
4. 	No 	headlights
5. 	Rear 	light 	cover 	broken
6. 	Bad brakes
On June 	18, 	1985 	the Division was 	able to
make 	a 	partial 	inspection of 	this 	operation,
with 	the 	following 	results:
1. 	A citation was 	issued
2. 	2, 	3, 	4, 	5, 	6, 	NO citation was 	issued
on these 	items; 	however, 	you may want
to contact the 	local police, 	Sheriff,
or 	California 	Highway Patrol 	about
these 	problems when 	the 	equipment 	is
operated 	on 	the 	street.
Other 	violations 	of 	safety orders were 	noted
and 	the 	employer was 	cited 	accordingly.
The 	parties 	stipulated 	that 	the 	District 	had 	received 	a
subpoena 	duces 	tecum, 	which 	requested documents 	related 	to 	any
transfer 	or 	reassignment 	of 	employees 	to 	different 	duties 	or
15

responsibilities 	within 	a 	classification where 	such 	transfer
was 	not 	requested by the employees, 	did not 	result 	from a
disciplinary 	action, 	and occurred between January 1, 	1980 	and
January 7, 	1985. 	In response to that subpoena, 	the stipulation
continues, 	the District 	investigated 	and was 	not 	able 	to 	find
any documents 	that 	related 	to 	that 	request.
It 	is 	to 	be 	inferred 	from this 	stipulation 	that 	the
District, 	during 	the 	specified 	time period, 	did not 	force 	any
employee, 	other than as 	a 	result of 	a disciplinary action, 	to
accept 	a 	transfer 	or different duties 	or 	responsibilities.
ISSUES
1. 	Was 	Vincent 	Flores 	engaging 	in 	protected 	activities
when 	he 	expressed 	reservations 	about 	operating 	the 	Jacobson
mower 	on February 15, 	1985?
2. 	If 	this 	activity was 	protected, 	was 	the employer 	aware
of 	such 	acts?
3. 	Did 	the District 	discriminate 	against 	Flores 	when 	it
reassigned 	him because 	of 	these 	protected 	activities?
CONCLUSIONS 	OF LAW
Precedent 	and 	Test
The Board, 	in Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89, 	set 	forth the 	following 	test 	for the
disposition of 	charges 	alleging violations 	of 	section 3543.5(a):
(1) 	A single 	test 	shall 	be 	applicable 	in
all 	instances 	in which violations 	of 	section
3543.5 	(a) 	are alleged;
16

(2) 	Where 	the 	charging 	party establishes
that 	the employer's 	conduct 	tends 	to 	or does
result 	in 	some 	harm to 	employee 	rights
granted under 	the EERA, 	a 	prima 	facie case
shall 	be deemed 	to 	exist;
(3) 	Where the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification 	based 	on 	operational
necessity, 	the competing 	interest 	of 	the
employer 	and 	the 	rights 	of 	the employees
will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
(4) 	Where 	the harm is 	inherently
destructive of employee 	rights, 	the
employer's 	conduct 	will 	be 	excused 	only on
proof 	that 	it was 	occasioned 	by
circumstances 	beyond 	the 	employer's 	control
and 	that 	no 	alternative 	course 	of 	action was
available;
(5) 	Irrespective of 	the foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown that 	the
employer would 	not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an unlawful
motivation, 	purpose or 	intent. 	(Emphasis
added.)
to e. . . Proof 	of 	Unlawful 	Intent Where Offered 	or
Required
Unlawful motivation, 	purpose or 	intent 	is
essentially a 	state of mind, 	a 	subjective
condition 	generally known 	only 	to 	the
charged 	party. 	Direct 	and 	affirmative 	proof
is 	not 	always 	available or 	possible.
However, 	following 	generally 	accepted 	legal
principles 	the 	presence 	of 	such unlawful
motivation, 	purpose or 	intent may be
established 	by 	inference 	from 	the 	entire
record.
In Novato Unified 	School 	District 	(1982) 	PERB Decision No.
210, 	the 	Board 	clarified 	the Carlsbad 	test 	for 	cases 	involving
retaliation or 	discrimination 	in 	light 	of 	the 	NLRB decision 	in
17

Wright 	line 	(1980) 	105 LRRM 1169. 	In Novato, 	unlawful motive
must 	be 	proven 	in order 	to 	find 	a 	violation.
Under Novato, 	in order 	to establish a prima 	facie case,
charging 	party must 	first 	prove 	the 	subject 	employee 	engaged 	in
protected 	activity. 	Next, 	it must 	establish that 	the employer
had 	knowledge of 	such protected 	activity. 	Lastly, 	it must
prove 	that 	the 	employer 	took 	the 	subject 	adverse 	personnel
action, 	in whole or 	in part due to 	the employee's 	protected
activities.
Under 	both 	the 	interference 	and 	the 	discrimination
concepts, 	a 	nexus 	or 	connection must 	be demonstrated between
the 	employer's 	conduct 	and 	the 	exercise 	of 	a 	protected 	right
resulting 	in harm or 	potential 	harm to 	that 	right.
ISSUE NO. 	1. 	Was Vincent Flores 	engaging 	in protected
activities 	when 	he 	expressed 	reservations 	about 	operating 	the
Jacobson mower 	on 	February 	15, 	1985?
In 	enacting 	the EERA, 	the Legislature determined 	that
safety was 	of 	sufficient 	importance 	to 	be made 	a 	condition of
employment within the 	scope of 	representation and, 	therefore, 	a
mandatory 	subject 	of 	negotiations 	(See 	section 	3543.2) 	In
Jefferson School District 	(1980) 	PERB Decision No. 	133, 	the
Board 	stated 	that 	employees' 	interests 	in 	safety 	are equal 	to
the District's 	right 	to make 	pertinent 	educational 	policy
decisions 	to 	the 	extent 	that 	rules 	governing 	such matters
should 	be made on 	a 	bilateral 	basis.
18

The 	parties, 	acknowledging 	such provisions 	of 	the 	law,
negotiated 	and 	agreed upon 	specific 	language 	on 	this 	subject.
The pertinent CBA section, 	Article XVII, 	requires 	the employer
to 	"attempt" 	to 	(1) 	"provide employees with safe working
conditions" 	and 	(2) 	"comply with the provisions 	of 	the
California 	State 	Occupational 	Safety 	and 	Health Act
regulations 	. . . . 	Employees 	shall", 	the Article 	continues,
"report 	to 	the 	immediate 	supervisor 	conditions 	of 	unsafe 	or
hazardous 	work."
Mr. 	Flores 	did 	exactly this when he 	expressed 	his
reservations 	about 	driving 	the 	Jacobson mower 	on 	city 	streets.
Flores 	insists 	he 	never 	refused 	to 	drive 	the mower. 	Humphrey
states 	only 	that 	Flores 	shook his 	head when 	asked 	to 	drive 	the
mower. 	There 	is 	no 	specific charge 	of 	insubordination,
although Humphrey 	suggests 	this was 	an underlying 	cause 	for 	his
decision 	to 	reassign Flores when he 	stated, 	in his 	first 	level
grievance denial, 	that:
3. 	Your 	transfer of 	February 19, 	1985 was
based 	on your 	refusal 	to 	operate 	the
Jacobson mower 	that you believe 	is unsafe.
However, 	as 	Humphrey did not 	insist upon Flores 1 compliance
with his 	directive, 	and because 	the District does 	not 	base 	its
defense 	on 	any 	alleged 	insubordination, 	the degree 	to which
Flores 	declined 	to 	operate 	the 	Jacobson 	is 	not 	directly 	at
issue.
19

The 	question 	remains, 	was 	Flores 	engaging 	in protected
activities 	by merely 	reporting 	the unsafe 	condition 	and
manifesting 	reservations 	about 	driving 	the 	mower 	in 	that
condition 	on 	city 	streets?
Whether 	or 	not 	the mower was 	actually unsafe 	is 	not
dispositive of 	the matter. 	Given 	the eventual 	acts 	of 	the
safety committee, 	the OSHA representative, 	the District's 	own
budgetary determinations 	and 	the 	unrebutted 	testimony of
witnesses 	called by both parties 	in this 	case, 	Mr. 	Flores 	had 	a
legitimate 	and 	reasonable 	concern 	over 	the 	safety of 	the
equipment 	and his 	own personal 	safety 	if 	he were 	to 	use 	it 	in
the manner 	originally directed 	by Mr. 	Humphrey. 	The
"reasonableness" 	of 	this 	concern underscores 	any determination
he was 	engaged 	in 	protected 	activities.
As 	Article XVII 	of 	the CBA grants 	employees 	not 	only 	an
implied 	right, 	but even an obligation, 	to make such reports, 	it
would 	seem that 	such 	action was 	protected 	by 	the 	contract 	and
therefore by the EERA. 	See NLRB v. 	City 	Disposal 	Systems,
Inc.. 	(1984) 	465 U.S. 	822, L.Ed.2d 839.
This 	conclusion 	is 	supported 	by Article 	III 	which 	prohibits
discrimination 	of 	any employee 	because 	of 	his/her 	"lawful
activities 	under 	the Act."
The 	Board 	stated, 	in North Sacramento 	School 	District,
(1982) 	PERB Decision No. 	264, 	that 	"An employee's 	attempt to
assert 	rights 	established 	by the 	terms 	of 	a 	negotiated
20

agreement 	clearly constitutes 	'participation1 in 	the 	activities
of 	an employee organization and 	is, 	therefore, 	expressly
protected 	by 	section 3543 	of 	the Act." 	See City Disposal
Systems, 	Inc.. 	supra, 	compare Meyers Industry (1984) 	268
NLRB 493.
-
Therefore 	it 	is 	determined 	that when Flores 	voiced his
concerns 	about 	the 	safety of 	the Jacobson mowers 	and manifested
a 	reluctance 	to drive 	it 	in the city streets 	he was 	engaging 	in
protected 	activity.
ISSUE NO. 	2. 	If this 	activity was protected, 	was 	the
employer 	aware 	of 	such 	acts?
Due 	to 	all 	of 	the 	circumstances 	set 	forth 	in 	the 	Findings
of Fact, 	supra, 	it 	is undisputed that the District was 	aware of
- -
Flores 1 acts 	in this 	regard. 	Humphrey^ 	direct 	and personal
knowledge was 	imputed 	to 	the District under 	the. most 	basic
tenets 	of 	agency. 	See Antelope Valley Community College
District 	(1979) 	PERB Decision No. 	97.
. . .
ISSUE NO. 	3. 	Did 	the District discriminate 	against 	Flores
when 	it 	reassigned 	him because 	of 	those 	protected 	activities?
When PERB 	exercises 	its 	statutory 	authority to 	determine
whether 	or 	not 	an employee 	is 	reassigned due 	to 	activities
protected by the EERA, 	it 	is 	necessary to 	examine 	the
manifested 	reasons 	for 	the 	reassignment 	in 	order 	to 	determine
whether 	these 	reasons 	reasonably 	support 	such 	District 	action
in 	light 	of 	all 	of 	the 	surrounding 	circumstances. 	A
21

determination 	that 	the 	reasons 	given 	by 	the 	employer 	are 	not
sufficiently plausible 	to 	support 	the 	reassignment 	will 	give
rise 	to 	an 	inference 	that 	these 	reasons 	are pretextual 	and 	that
there must 	be 	some other 	reason(s) 	for 	the employer's 	action.
This 	inference can 	lead 	to 	a 	determination, 	if 	supported by
sufficient 	evidence, 	that 	the employee 	is 	correct when he/she
insists 	that 	the 	action was 	due 	to 	protected 	activities.
Much 	testimony was 	proffered 	by 	both 	sides 	regarding
whether 	Humphrey admitted, 	at 	the 	"hearing" 	before 	the
District's 	Board 	of 	Trustees, 	that 	the Jacobson mower was
unsafe. 	Although the question 	is 	not 	totally irrelevant, 	a
determination 	is 	not 	necessary 	as 	to whether 	such 	admission was
made. 	Humphrey's 	manifested 	reasons 	for 	the 	reassignment,
irrespective 	of 	a 	conclusionary 	statement 	that 	the vehicle was
unsafe, 	are 	sufficient to 	support 	an inference that there, must
be 	some 	other 	reason 	for 	his 	actions. 	This determination 	is
reinforced 	by Humphrey's 	failure 	to 	reoffer 	the 	Jacobson mower
to 	Flores 	after 	it 	had been 	road 	tested. 	Had 	he 	been 	truly
interested 	in 	avoiding 	future 	reassignments, 	he would 	have
discussed 	the 	road 	test 	results 	with 	Flores 	and 	reoffered 	the
mower 	to 	him before 	offering 	it 	to 	Hurtado.
Humphrey 	supported 	the 	continuing 	reassignment 	by 	stating
he 	"did 	not 	feel 	that 	it would be 	fair 	to Mr. 	Hurtado 	to
move 	him back 	and 	forth 	each 	time we 	had 	trouble with 	the
Toro 	. . . " 	This 	reasoning 	is 	spurious 	and 	illogical 	and 	is
22

insufficient 	to deprive 	a 	long-term, 	valued employee of 	a
preferred 	assignment 	because 	he 	had 	reservations 	about 	driving
an 	admittedly unsafe vehicle. 	The 	unrebutted 	testimony 	showed
that 	the 	Toro 	Parkmaster 	averaged 	no 	more 	than one week-long
breakdown each year. 	This 	is 	hardly cause 	for 	a major 	concern
over 	the 	inconvenience 	to 	either 	of 	the 	employees.
A determination 	that 	the 	reasons 	given 	for 	the 	District's
actions 	are not 	logical 	gives 	rise 	to 	an 	inference 	that 	they
are pretextual. 	This 	inference 	supports 	a conclusion that 	a
prima 	facie 	case 	of 	discrimination has 	been proven.
District's 	Defense
The District, 	in its defense, 	cited 	its 	right to 	assign any
employee 	to 	any 	task 	it wished within 	such 	employee's 	job
classification. 	This 	right 	is 	acknowledged 	as 	a 	fundamental
District 	right. 	However, 	such 	right 	is 	conditional 	on the
reasons 	for 	such 	assignment 	not 	being 	violative 	of 	some 	other
right 	of 	the 	involved employee. 	As 	has 	been pointed 	out 	above,
the 	reasons 	for 	such 	assignment violated Mr. 	Flores' 	right 	to
report 	the unsafe 	condition of 	the mower.
The circumstances 	set 	forth 	above 	show, 	rather 	clearly,
that 	the 	reassignment was 	not 	based 	on 	some 	confused 	sense 	of
fairness 	to 	Hurtado 	but was 	rather 	to 	either 	punish Mr. 	Flores
for 	his 	reluctance 	to 	drive 	the mower 	or 	to 	reward Hurtado 	for
driving 	the mower 	despite 	its 	acknowledged 	safety
deficiencies. 	Both of 	these 	reasons 	are violative of 	the Act.
23

It 	is 	found 	that 	the District 	has 	failed 	to 	demonstrate
that 	its motive 	in 	reassigning 	Flores was 	due 	to 	a 	legitimate
operational 	purpose. 	Therefore, 	the District has 	failed to
show 	that 	its 	actions would 	have 	been 	the 	same despite 	the
protected 	activity.
Although 	the 	reassignment 	did 	not 	involve 	loss 	of 	pay or
benefits, 	it can be 	the basis 	for 	a 	finding 	that discrimination
exists 	if 	such 	action 	is 	taken 	in 	retaliation 	for 	protected
activity. 	Carlsbad Unified 	School 	District 	(1979) 	PERB
Decision No. 	89. 	No matter how slight 	the harm, 	any unlawful
retaliation 	for 	reporting 	unsafe working 	conditions 	will 	have 	a
chilling 	effect 	on 	the 	future 	exercise 	of 	that 	right.
Due 	to 	the circumstances 	set 	forth above, 	as well 	as 	the
record 	as 	a whole, 	it 	is determined that 	the District, 	when it
reassigned Vincent Flores, 	violated Section 3543.5(a).
Under 	all 	of 	the circumstances 	set 	forth 	in the 	record, 	it
is 	determined that 	the violation of 	section 3543.5(a) 	in 	this
case 	also 	constitutes 	a 	derivative violation of 	section
3543.5(b) 	in that 	the District's 	action concurrently violated
the Charging 	Party's 	right 	to 	represent 	its members.
Violations of 	sections 3543 	and 3543.l(a), 	which describe
specific 	rights 	of 	employees 	and 	employee 	organizations,
respectively were 	alleged 	in the 	charge 	and 	incorporated, 	by
reference, 	in the Complaint, 	as 	issued. 	Section 3543.5,
however, 	is 	the operative 	section 	for determining 	the existence
24

of 	unfair practices 	under 	these 	two 	sections. 	It 	has 	been held
that 	section 	3543.5 was 	violated.
REMEDY
The 	District 	has 	been 	found 	to 	have 	violated 	section
3543.5(a) 	and 	(b) 	of 	the EERA by discriminating 	against
Vincent 	Flores 	because 	of 	the 	exercise 	of 	rights 	guaranteed 	to
him by 	the Act.
The PERB in section 3541.5(c) 	is 	given:
. 	. 	. 	the power to issue a decision and
order 	directing 	an 	offending 	party to 	cease
and 	desist 	from the 	unfair 	practice 	and 	to
take 	such 	affirmative 	action 	. . . 	as 	will
effectuate the policies 	of 	this 	chapter.
Therefore, 	it 	is 	appropriate to order 	the District 	to 	cease
and desist, 	in general, 	from conduct 	found 	to be 	in violation
of 	the Act 	and, 	more 	specifically, 	to 	cease 	and desist 	from 	(1)
discriminating 	against, 	and 	interfering with, 	employees 	because
of 	their 	exercise of 	rights 	guaranteed by the Act, 	and 	(2)
denying 	to 	the 	California 	School 	Employees 	Association,
Chapter #504, 	rights guaranteed to 	it by the Act.
The District 	shall 	also 	be 	required 	to 	rescind 	the 	action
of Mr. 	Humphrey which effected 	the change 	in Mr. 	Flores' 	work
assignment 	and 	return Mr. 	Flores 	to 	his 	prior 	duties 	operating
the 	District's 	primary 	riding 	mower.
In 	addition, 	the District 	shall 	be 	required to 	post 	a
notice 	incorporating 	the 	terms 	of 	the order. 	Posting 	of 	such 	a
notice will 	provide 	employees 	with 	notice 	that 	the 	District 	has
25

. . 	acted 	in 	an unlawful manner, 	and 	it 	is 	being 	required 	to 	cease
and desist 	from this 	activity. 	It 	effectuates 	the purposes 	of
the EERA that 	employees 	be 	informed 	of 	the 	resolution of 	the
controversy 	and will 	announce 	the 	District's 	readiness 	to
comply with 	the 	ordered 	remedy. 	Placerville 	Union 	School
District 	(1978) 	PERB Decision No. 	69. 	In Pandol 	and Sons v.
Aqricultural 	Labor 	Relations 	Board 	and UFW 	(1979) 	90 	Cal.App.3d
580, 	587, 	the California District Court of Appeal 	approved 	a
posting 	requirement. 	See 	also U.S. 	Supreme Court decision 	in
NLRB v. 	Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415]
PROPOSED 	ORDER
,
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the 	entire 	record 	in this 	case, 	and pursuant 	to 	Government
Code section 3541.5(c), 	it 	is hereby ordered that the Pleasant
Valley School 	District, 	its 	governing 	board 	and 	its
representative(s) shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating 	against, 	and 	interfering with,
Vincent 	Flores 	because 	of 	his 	exercise 	of 	rights 	guaranteed 	by
the Educational 	Employment Relations Act;
2. 	Denying 	to 	the 	California 	School 	Employees
Association, 	Chapter #504, 	rights 	guaranteed to 	it by the Act.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Rescind 	the 	action of Mr. 	Humphrey which effected 	the
26

change 	in Mr. 	Flores' 	work assignment 	and 	return Mr. 	Flores 	to
his 	prior 	duties 	operating 	the 	District's 	primary 	riding 	mower.
2. 	Within ten 	(10) 	workdays 	of 	service of 	a 	final
decision 	in this matter, 	post 	at 	all 	school 	sites 	and 	all 	other
work 	locations 	where 	notices 	to 	classified 	employees 	are
customarily placed, 	copies 	of 	the Notice 	attached 	hereto 	as 	an
Appendix. 	The Notice must 	be 	signed 	by 	an 	authorized 	agent 	of
the District, 	indicating 	that 	the District will 	comply with 	the
terms 	of 	this Order. 	Such posting 	shall 	be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken to 	insure 	that 	the notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or covered by any other material.
3. 	Upon 	issuance of 	a 	final decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	the Order 	to
the Los Angeles 	Regional 	Director 	of 	the 	Public Employment
Relations 	board 	in 	accordance with his 	instructions.
Pursuant 	to California Administrative Code, 	title 	8,
page 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become 	final 	unless 	a party files 	a 	statement 	of 	exceptions
with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento
within 20 	days 	of 	service of 	this 	Decision. 	In 	accordance with
PERB Regulations, 	the 	statement 	of 	exceptions 	should 	identify,
by page citation or exhibit number, 	the portions 	of 	the 	record,
if 	any, 	relied upon for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part 	III, 	section 32300. 	A
27

document 	is 	considered 	"filed" 	when 	actually 	received 	before
the 	close of 	business 	(5:00 	p.m.) 	on 	the 	last day set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express 	United 	States mail, 	postmarked not 	later 	than the 	last
day 	for 	filing 	. . . " 	See 	California 	Administrative 	Code,
title 	8, 	part 	III, 	section 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply. 	Any 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany each 	copy 	served 	on 	a 	party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 	8, 	part 	III,
section 32300, 	32305 and 32140.
Dated: 	November 24, 	1986
Allen 	Allen R. Link
Administrative Law Judge
28