Woodland Joint Unified School District (PERB 0808E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WOODLAND 	EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
WOODLAND 	JOINT 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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No 	Case 	. 	S-CE-1211
PERB Decision No. 808
May 	16, 1990
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Appearances: 	California Teachers Association by Diane Ross,
Attorney, 	for Woodland Education Association, 	CTA/NEA; 	Kronick,
Moskovitz, 	Tiedemann & Girard by Jan K. 	Damesyn, 	Attorney, 	for
Woodland 	Joint 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Woodland Joint 	Unified School 	District 	(District) 	to 	a proposed
decision 	(attached hereto) 	issued by a 	PERB 	administrative 	law
judge 	(ALJ). 	The ALJ held that the District violated 	section
3543.5(a) 	of the Educational Employment Relations Act 	(EERA)1
1EERA 	is 	codified at 	California 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3543.5(a) 	states:
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.
)
)
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______________ )

when 	it discriminated and retaliated against Carol 	Peart 	(Peart),
a 	District teacher, 	for her exercise of protected activities.
Specifically, 	the ALJ 	found the 	District violated EERA by
requiring Peart to 	obtain a doctor's 	excuse 	for four 	consecutive
days 	of 	absence, 	when such verification had not been required 	of
other bargaining unit members, 	and was 	imposed to harass 	and
intimidate 	her 	for having 	filed 	and 	appealed a 	grievance.
The 	District 	filed 	seven exceptions 	to 	the ALJ's proposed
decision, 	of which three were directed at 	legal 	conclusions,
three at 	findings 	of 	fact, 	and one at a procedural 	statement 	in
the decision.
We have 	carefully reviewed the 	entire record, 	including 	the
proposed decision, 	the transcript, 	the District's exceptions, 	and
the 	response by the Woodland Education Association, 	CTA/NEA
(Association), 	and, 	finding the ALJ's 	findings of fact and
conclusions 	of 	law to be 	free of prejudicial 	error, 	we adopt 	the
ALJ's 	proposed decision as 	the 	decision of 	the 	Board 	itself
consistent with 	the 	discussion below.2
DISCUSSION
The 	standard 	for determining whether 	a 	violation of 	section
3543.5(a) 	occurred 	is 	found 	in Novato 	Unified 	School 	District
(1982) 	PERB Decision No. 	210. 	To prove discrimination or
reprisal, 	Peart must show: 	(1) 	she engaged in protected
22
N
The ALJ 	in her 	conclusion refers 	to 	Peart being required 	to
obtain a doctor's 	excuse for her absences of 	"October 5-9, 	1989. "
(Emphasis added.) 	The rest of the decision, 	as well as 	the
transcript and the parties' 	briefs, 	make it clear the correct
dates 	should be October 6.-9, 	1987.
2

activity; 	(2) 	the District knew of this activity; 	(3) 	the
District took adverse action against her; 	and 	(4) 	the adverse
action would 	not 	have been taken but 	for 	engaging 	in the
protected 	activity.
It was 	not disputed that 	Peart was 	engaged 	in protected
activity when she 	filed and, 	later, 	appealed her grievance, 	or
that 	the 	District 	knew of 	these 	events.
The 	District's 	primary 	exception is 	to 	the ALJ's 	finding
that 	adverse 	action was 	taken against 	Peart when 	she was
requested, 	pursuant to a provision of 	the 	collective bargaining
agreement, 	to provide a medical verification of her absences.
Relying 	on the 	Board's 	decision 	in Palo Verde 	Unified 	School
District 	(1988) 	PERB Decision No. 	689, 	the District argues an
employee 	must 	suffer harm 	in his/her 	employment 	in order to 	find
"adverse action" 	under section 3543.5(a). 	The District further
argues 	that 	Peart did not 	suffer harm because 	she 	resumed her
teaching duties without any change 	in her salary, 	benefits, 	or
job assignment, 	nor did 	she 	suffer disciplinary action of 	any
kind.
The District's 	argument 	is without merit. 	Discriminatory
enforcement 	of 	a work rule 	for the purpose 	of 	harassing or
intimidating 	an 	employee 	in 	retaliation 	for having 	engaged 	in
W
	3

protected activity 	constitutes 	adverse 	action. 	(Hyat' t 	Regency
Memphis 	(1989) 	296 NLRB No. 	36 	[132 LRRM 1130], 	and 296 NLRB
No. 	37 	[132 LRRM 1158]; 	BMP Sportswear 	(1987) 	283 NLRB No. 	4;
NLRB v. 	S.E. 	Nichols 	(2d Cir. 	1988) 	862 F.2d 952 	[129 LRRM 3098],
enf. 	284 NLRB No. 	55. )4 Thus, 	Peart suffered injury in that the
medical 	verification was 	imposed 	to 	harass 	and 	intimidate 	her 	for
having 	filed 	and 	appealed a 	grievance.5"
3The 	dissent 	claims 	Peart 	did 	not prove 	discriminatory
enforcement. 	This conclusion, 	however, 	fails to recognize that
several 	teachers 	in the past requested 	substitutes 	for more 	than
three days 	at 	a 	time 	at Peart's 	school 	and that 	no verification
had been requested. 	Also, 	that on three occasions 	dating back to
1981, 	Peart was 	ill 	for more than three days at a time and no
verification had been requested. 	Finally, 	in the one 	instance
Parker 	complained 	to 	Crawford 	of 	possible 	sick 	leave 	abuse 	or
pursued a medical verification from a teacher, 	it was discovered
the 	teacher 	also 	had 	filed 	several 	grievances 	against 	the
District.
4While 	PERB 	is 	not bound by decisions 	of the National 	Labor
Relations Board 	(NLRB), 	the Board will take cognizance of them
where appropriate. 	(Carlsbad Unified School 	District 	(1979) 	PERB
Decision No. 	89; 	Los Angeles Unified School District 	(1976) 	EERB
Decision No. 	5.) 	(Prior to January 	1, 	1978, 	PERB was known as
the 	Educational 	Employment 	Relations 	Board.)
The dissent 	attempts 	to distinguish 	the NLRB 	cases 	cited by
the majority 	on the grounds 	the discharge of 	employees
constituted the adverse action. 	None of the decisions, 	however,
limited harm to discharge. 	In 	fact 	the NLRB decision underlying
NLRB v. 	S.E. 	Nichols, 	supra, 	held that verbal harassment of three
employees 	at 	an 	employee meeting 	independently 	constituted 	a
violation of the NLRA. 	(S.E. 	Nichols. 	Inc. 	(1987) 	284 NLRB No.55
[127 LRRM 1298, 	1302, 	fn. 	7].)
5Peart applied for, 	but was denied, 	a transfer from her
teaching 	assignment 	to another teaching assignment. 	She 	then
initiated a 	step 	1 	grievance with her principal, 	Mike Parker
(Parker), 	which was denied as untimely filed. 	Ten to fifteen
minutes 	after receiving the response, 	Peart went to 	Parker's
secretary and requested a 	substitute 	for the next 	four days,
stating 	she was 	having 	severe back pains 	and needed 	to 	see a
doctor. 	Parker, 	hearing only that 	she was requesting a
substitute, 	contacted Ray Crawford 	(Crawford), 	the assistant
44

Peart 	also 	suffered harm when two 	letters 	were placed 	in her
personnel 	file, 	one 	formalizing the District's 	request that 	she
provide verification of 	her absences. 	Although placing
correspondence between an 	employer 	and 	employee 	in 	a 	personnel
file 	documenting their 	communication does 	not 	ordinarily
constitute adverse action, 	it did 	so 	in this 	case. 	The 	logical
and natural result of placing these 	letters 	in Peart's 	file, 	at
the very 	least, 	draws a reviewer's 	attention to the 	fact 	she
should be 	closely watched 	in the 	future 	for possible 	sick 	leave
abuse, 	or, 	more significantly, 	that she is a problem employee and
not 	to be trusted. 	Regardless 	of which message 	is 	conveyed by
the 	letters, 	the message to Peart 	is 	clear: 	appealing grievances
can result 	in the placement of 	letters 	in her personnel 	file.
Peart was 	also harmed when the request was 	made 	in the
reception area 	of 	the assistant 	superintendent's 	office 	in 	front
of 	other clerical 	employees, 	and implied misconduct on her part.6
superintendent 	of personnel, 	reported he denied Peart's 	grievance
and believed 	she intended to appeal, 	that 	she was 	requesting a
substitute, 	and 	suggested 	that 	some 	action 	should be 	taken
against her. 	While the timing of Peart's 	absence might, 	in 	some
instances, 	create a 	suspicion she was abusing 	sick leave, 	Parker
made 	no 	attempt to determine 	that 	fact. 	The credited evidence 	is
that he made 	no 	investigation as 	to the 	reason 	for Peart's
request. 	Rather, 	he reported her request and 	suggested that 	some
action be taken, 	thus indicating he, 	and later Crawford, 	was not
concerned with 	the 	reason 	for her absence, 	but 	rather 	in using
the verification process 	to harass 	her. 	The dissent's 	comments
that 	these 	facts 	are not 	supported by the 	record 	is 	simply
incorrect.
6The District, 	in its brief, 	excepted to the ALJ's 	finding
that 	the request was 	made 	in front of other employees. 	The
District 	argues 	Peart did 	not 	in 	fact 	know whether 	other
employees overheard the request. 	Peart, 	however, 	testified that
some 	clerical 	staff were present, 	although 	she 	could not
un
	5

In reaching this 	conclusion we 	are 	not 	changing 	the
objective test 	expressed by the Board 	in Palo Verde, 	supra, 	when
finding harm. 	Rather, 	we have 	applied Palo Verde 	and 	find that
Peart has 	suffered the above adverse 	consequences 	as 	a 	result 	of
the 	exercise 	of 	her protected rights. 	Nor do we hold that 	the
District, 	as a matter of course, 	is precluded from requesting
absence verifications 	from employees. 	Moreover, 	such requests
are 	not 	necessarily 	inappropriate because 	the 	District 	had 	not,
in recent times, 	exercised 	its right to request a verification.
What 	is prohibited, 	however, 	are requests 	imposed for the purpose
of 	intimidating 	and harassing 	employees 	because 	they 	engage 	in
protected 	activities.
7
8
specifically identify them. 	Thus, 	despite the District's 	attempt
to discredit Peart's testimony on this point, 	the ALJ 	found, 	and
the record 	supports, 	she was more convincing on the 	issue of
where 	the 	conversation occurred 	and whether 	anyone was 	present.
7Contrary to the dissent's 	conclusion, 	the majority did not
rely 	on Peart's 	subjective 	reactions 	to 	obtaining 	further
verification 	in 	finding harm.
8A 	similar analysis 	was 	applied by 	the 	Board 	in McFarland
Unified School District 	(1990) 	PERB Decision No. 	786. 	In
----·McFarland, 	supra---. 	the District declined to advance a probationary
- -teacher 	to permanent 	status 	shortly 	after 	she 	filed 	several
grievances, 	one disputing a change 	in class 	assignments 	for the
spring 	semester. 	The Board held, 	despite the 	fact the District
was 	exercising 	its 	statutory right 	under 	former Education Code
section 44882(b), 	such a decision may not be exercised for a
discriminatory purpose. 	(McFarland 	Unified 	School 	District
(F013404, 	pet. 	for writ of extraordinary relief by the District,
filed February 	5, 	1990).)
Similarly, 	in this case, 	although the collective bargaining
agreement permits 	the District to 	request verification of
absences, 	that right cannot be enforced 	for a retaliatory
purpose.
66

With respect 	to 	the District's 	argument that 	Peart's 	harm
must occur 	in her 	employment, 	we 	note 	such harm is 	not 	limited to
suspension or discharge 	as 	suggested by the District. 	Injury may
also 	occur by demonstrating harm to 	the 	exercise 	of 	an 	employee's
protected 	rights.9
The 	District 	also 	excepted to 	the ALJ's 	conclusions 	that 	the
verification request was 	made 	in retaliation 	for Peart's
protected activity 	(i.e., 	appeal of her grievance). 	The District
bases 	this 	argument 	on 	a 	lengthy 	restatement 	and 	characterization
of 	the testimony of 	its witnesses 	and 	in a 	few 	instances 	of
Peart's 	own testimony. 	The upshot of 	this 	recital was 	to 	show
the 	District's 	request was 	not motivated by animus 	towards 	Peart,
but 	rather 	that 	Parker and Crawford believed 	she was 	using 	the
time 	to prepare 	for the appeal of her grievance.
The Board in Novato, 	supra, 	noted that direct proof of
- -
motivation is 	rarely possible 	since 	it 	is 	a 	state of mind which
can only be known to the actor. 	As 	a result, 	it 	is 	often
necessary to 	infer the 	employer's 	motive 	from 	circumstantial
evidence. 	Such factors, 	as the timing of the employer's 	conduct
9In Novato Unified School District, 	supra. 	PERB Decision
No. 	210, 	the Board noted that:
A prima 	facie 	charge 	alleging 	interference
was 	established 	in Carlsbad by 	facts 	showing
there was 	a nexus 	(connection) 	between the
employer's 	conduct 	and the 	exercise 	of 	a
right protected by EERA. 	. 	. 	. 	(Emphasis in
original.) 	A violation was 	found because 	the
harm to 	employee 	rights 	outweighed the
employer's 	proffered business 	justification.
(Emphasis 	added.)
77

and the disparate treatment of 	the 	employee, 	bear on the
employer's 	motive and are present 	in this 	case.
Whether the 	District was 	motivated by the 	unique
circumstances 	of 	Peart's 	absence 	or by a desire 	to harass 	and
intimidate her 	is 	ultimately a 	question of 	credibility. 	Based
upon our review of 	the 	record 	and 	the 	credibility 	determinations
of 	the ALJ, 	we do not 	find credible the reasons 	given by the
District 	for 	its 	request. 	(Santa Clara 	Unified School 	District
(1979) 	PERB Decision No. 	104.)
Crawford's 	request 	that 	Peart 	obtain medical 	verification 	of
her absence 	came 	"on the heels" 	of her grievance hearing 	and was
motivated, 	in part, 	by Parker's belief 	she was using 	sick leave
to prepare her grievance, 	thus demonstrating their animus. 	The
request was 	also 	discriminatory 	in that 	the 	District 	treated
Peart 	differently 	than 	any 	other 	employee 	by 	requiring 	her 	to
provide 	the verification, 	without 	any credible 	reason 	for
questioning her veracity.1010 	Finally, 	Crawford's 	inquiry as 	to
whether 	Peart was 	returning to 	school 	on October 	9 was 	little
more 	than an accusation 	she was 	not 	ill, 	and 	showed that he had
already 	judged her 	guilty 	of 	sick 	leave 	abuse.
10Crawford testified that, 	aside 	from Peart, 	he had never
required a doctor's 	verification 	from any 	teachers. 	In addition,
Crawford 	and 	Parker both 	testified 	that 	Peart was 	a 	capable 	and
conscientious 	teacher, 	that her use of 	sick leave was 	not
extensive 	or beyond 	the 	ordinary use 	of 	any teacher 	in the
District, 	and that they had no 	suspicion prior to October 	5 	that
she might be malingering. 	They 	further testified 	Peart's 	use 	of
sick 	leave 	in prior years was 	consistent with the 	sick 	leave
usage 	for the 	District.
8

The 	District also 	excepts 	to 	factual 	determinations 	made by
the ALJ based on statements 	attributed to Dr. 	Wong, 	Peart's
physician, 	about her medical condition, 	and 	statements by
Crawford 	as 	to whether 	she would be 	returning 	to 	school 	at 	the
conclusion of 	the 	grievance 	appeal. 	The 	District 	further excepts
to 	the 	finding that 	Crawford requested 	Peart 	to 	obtain the
verification prior to returning to work, 	as 	not 	supported by the
weight of the 	evidence.
With respect to Dr. 	Wong's 	statements, 	the District argues
the 	findings 	relating to 	her diagnosis 	are 	hearsay 	evidence 	since
Dr. 	Wong did not testify at the hearing.11
It does not appear, 	however, 	that Dr. 	Wong's 	statements to
Peart 	and referred to by 	the ALJ 	in her decision are 	offered 	for
a hearsay purpose. 	(Evid. 	Code, 	sec. 	1200.) 	Peart's testimony
that 	she was 	having back 	spasms 	is 	based upon her personal
perception of her own physical 	condition. 	Also, 	Peart's
testimony 	concerning 	statements 	made 	by 	her 	doctor 	during 	the
appointments 	appear to be 	a 	recital 	of 	events 	and not 	necessarily
offered 	for the truth of her condition. 	Accordingly, 	the
statements were properly noted by the ALJ. 	(Also, 	see PERB
11The specific 	findings 	objected to 	are:
Dr. 	Wong confirmed Peart's 	belief 	that 	she
was 	having 	severe back 	spasms 	and prescribed
medication for anxiety, 	muscle relaxation,
and pain. 	She told Peart to go home, 	get
rest, 	and to 	'take care of yourself; 	Wong
seemed not to understand the purpose of 	the
verification and 	evidently 	confused 	it with 	a
worker's 	compensation 	claim.
99

Reg. 	32176.) 	Further, 	the veracity of those statements 	is
irrelevant to our inquiry. 	Instead, 	the 	focus 	is whether Peart,
in fact, 	saw her physician, 	and whether 	she was 	sufficiently ill
to be out all 	four days. 	The two notes 	from the clinic, 	signed
by the doctor 	and eventually accepted by the District, 	are
evidence of those facts. 	(Evid. 	Code, 	sec. 	1271.) 	Moreover,
even if 	the 	statements 	are hearsay, 	such 	findings 	constitute
harmless 	error 	since our decision does 	not turn on Peart's
diagnosis, 	but rather on whether the verification was 	imposed to
intimidate 	and harass her. 	(Regents 	of the University of
California 	(1983) 	PERB Decision No. 	267a-H; 	Code Civ. 	Proc. 	sec.
475; Witkin, California Civil Procedure. Appeal, 	sec. 	289.)
With respect to the 	statements 	attributed to 	Crawford, 	we
find the ALJ's 	determinations 	on those 	issues 	adequately
supported 	in the 	record.
The District's 	final 	exception is 	to a procedural 	statement
appearing in the ALJ's proposed decision that the parties' 	[post-
hearing] 	briefs were submitted on April 	10 and May 	15, 	1989.
It 	appears 	from the 	appellate 	record the Association's
post-hearing brief was received on April 	10, 	1989, 	and 	its 	reply
brief 	on May 	15, 	1989. 	The District 	filed 	its post-hearing brief
on May 	1, 	1989. 	Since neither party appears 	to be prejudiced by
the ALJ's procedural 	statement, 	it is harmless 	error. 	(Regents.
supra.)
- -
We affirm, 	therefore, 	the ALJ's proposed decision finding
that the 	District violated EERA 	section 	3543.5(a) 	when 	it
10

discriminated 	and retaliated against 	Peart 	for 	the 	exercise 	of
protected activities 	by 	requiring 	her 	to 	obtain a 	doctor's
excuse, 	when 	such verification had been imposed 	for 	the purpose
of 	intimidation and harassment.
ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the entire record 	in this 	case, 	and pursuant to the Educational
Employment Relations Act section 3543.5(a), 	it is hereby ORDERED
that 	the Woodland 	Joint 	Unified 	School 	District 	and 	its
representatives 	shall:
1. 	CEASE AND DESIST FROM:
Retaliating 	or 	discriminating 	against 	Carol 	Peart
because 	of 	her exercise 	of 	protected activity.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS WHICH ARE
DESIGNED 	TO EFFECTUATE 	THE 	PURPOSE OF 	THE 	EDUCATIONAL
EMPLOYMENT RELATIONS ACT:
A. 	Within thirty-five 	(35) 	days 	following the date
the 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 	the Notice 	is 	not
reduced 	in 	size, 	defaced, 	altered or covered by any material.
B. 	Written notification of 	the actions 	taken to
comply with the Order 	shall 	be made 	to 	the 	Sacramento 	Regional
11

Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with his 	instructions. 	;
Chairperson Hesse 	joined 	in this 	Decision.
Member Shank's dissent begins 	on page 	13.
12

Shank, 	Member, 	dissenting: 	I 	respectfully disagree with the
majority 	and would dismiss 	this 	case 	on the 	grounds 	that 	Carol
Peart 	(Peart) 	did not 	suffer any adverse 	consequences 	as 	a result
of 	the Woodland Unified School 	District 	(District) 	requesting
verification 	for 	four consecutive 	days 	of 	absence 	under the
objective 	test 	applied 	in Palo Verde 	Unified 	School 	District
(1988) 	PERB Decision No. 	689.
The 	majority purports 	to 	apply an objective 	test 	in
determining whether 	the 	District's 	request 	for 	absence
verification actually resulted 	in 	injury to 	Peart, 	and 	cites 	the
following reasons 	in support of 	its 	conclusion: 	(1) 	the
verification was 	required 	in order 	to 	harass 	and 	intimidate 	Peart
for having 	filed and appealed a grievance; 	(2) 	a 	letter was
placed in Peart's personnel 	file; 	and 	(3) 	the request 	for the
verification was made 	in front of 	other employees. 	The majority
cites 	National 	Labor Relations 	Board 	cases 	in 	support 	of 	its
contention that discriminatory 	enforcement 	of 	a work rule 	for 	the
purpose 	of 	harassing or 	intimidating 	an 	employee 	in retaliation
for having 	engaged 	in protected 	activity 	constitutes 	adverse
action.
The 	District's 	request 	for verification was 	reasonable 	under
the 	circumstances. 	Peart 	first 	responded by producing a 	note,
dated October 6, 	1987, 	which stated, 	"Excuse from work this day."
(Respondent's 	Exhibit A.) 	Since Peart 	requested 	four consecutive
days 	of 	sick leave, 	it was 	not unreasonable for the District to
seek 	further verification to 	cover the 	entire 	four days 	that 	she
was out.
13

The 	majority's 	reliance 	on NLRB 	law 	for the proposition 	that
discriminatory 	enforcement 	of 	a work rule 	for the purpose 	of
harassing or 	intimidating 	an employee 	in retaliation 	for having
engaged 	in protected activities 	constitutes 	adverse 	action," 	is
misplaced. 	In Hyatt Hotels, 	cited by the majority, 	an employee
-
was 	discharged 	in part 	because he 	allegedly violated 	a 	company
policy. 	Although there 	is 	no 	question that discharge 	constitutes
harm, 	the Administrative 	Law Judge 	nevertheless 	dismissed 	the 	8
(a)(3) 	(reprisal) 	allegation finding insufficient evidence as 	to
the 	apparent policy 	and 	its 	actual 	application and 	insufficient
evidence 	to demonstrate 	that the discharge was 	for the 	rule
infraction alone. 	The BMP Sportswear case 	involved a 	layoff,
clearly an adverse action. 	Finally, 	in the NLRB v. 	S.E. 	Nichols
case, 	the 	employees 	in question 	suffered not only 	enforcement of
previously unenforced rules, 	but 	also 	increased 	scrutiny and
harassment, 	intentional 	ridicule at a meeting with co-workers,
denial 	of 	a pay 	increase 	and written warnings 	placed 	in their
personnel 	files.
Our 	case 	is 	clearly distinguishable 	from the 	NLRB 	cases
cited by the majority. 	Most 	importantly, 	there 	is 	no 	showing of
harm in this 	case. 	First, 	I do not agree with the majority that
Peart 	even proved 	"discriminatory 	enforcement." 	Both 	the 	school
principal 	and the 	secretary who was 	in charge 	of 	substitute
requests 	testified that 	it 	is 	rare 	for a teacher to request 	a
substitute 	four days 	in a row. 	I 	do not 	find the 	fact that the
District 	seldom, 	if 	ever, 	requested 	sick leave verification to be
determinative 	of 	the 	issue 	of whether the 	request 	in this
14

instance was 	reasonable. 	The mere 	fact 	that an employer has
chosen not 	to 	enforce 	its 	contractual 	rights 	in the past does 	not
mean that 	it 	is 	forever precluded 	from doing 	so. 	(See Marysville
-
Joint Unified School District 	(1983) 	PERB Decision No. 	314.) 	The
contract 	gave 	the 	District discretion to 	request 	sick 	leave
verification and 	it 	is 	reasonable 	that 	it would exercise 	that
discretion 	in circumstances 	it 	considered unusual. 	Even
assuming, 	arguendo, 	Peart could prove discriminatory enforcement,
she did not, 	as a result, 	suffer any cognizable harm as did the
employees 	in the NLRB cases. 	She was merely requested, 	pursuant
to contract, 	to produce a verification of 	sick leave.
The majority 	states, 	generally, 	that the purpose of the
required verification was 	to harass 	and 	intimidate 	Peart 	for
having 	filed and appealed a grievance, 	but 	the 	record 	lacks 	any
supporting testimony. 	Peart 	herself 	testified 	she 	recognized
that 	the 	contract 	allowed the 	District to 	request 	sick 	leave
verification.
I 	agree with 	the majority that placing 	correspondence
between 	an 	employer 	and 	employee 	in the personnel 	file
documenting 	their 	communication does 	not 	ordinarily 	constitute
adverse action. 	However, 	the majority goes on to 	state that the
October 	9, 	1987 	letter 	(1) 	draws 	the reviewer's attention to the
fact 	that 	Peart 	should be watched 	closely 	for possible 	sick 	leave
abuse; 	(2) 	indicates that Peart 	is 	a problem employee and not to
be trusted; 	and 	(3) 	sends 	a clear message to Peart that appealing
grievances 	can result 	in the placement of 	letters 	in her
15

personnel 	file. 	These gratuitous 	assumptions 	are based upon the
following 	language 	in the 	letter 	itself:
As 	a 	follow-up 	to our conversation on
October 9, 	1987, 	I have requested, 	as per
contract Article X, 	A-4, 	verification from
your doctor that you were unable 	to work 	from
Tuesday, 	October 6, 	1987 through whatever
date you returned 	(Friday, 	October 9, 	1987,
or later). 	Thank you for you cooperation.
The 	letter 	simply 	requested 	verification 	for 	specific
absence dates, 	citing the applicable 	section of the contract.
-
1
Nothing 	is 	said regarding Peart's 	veracity and there 	is 	no
express 	or 	implied 	reference 	to her 	as 	being a problem 	employee
or, 	to the grievance. 	Since Peart apparently misunderstood the
first 	request 	and only provided 	a 	verification 	for 	one 	day of
absence, 	it 	is 	not 	surprising that the District 	should clarify
its 	request 	in writing.
The 	majority 	has 	determined 	that 	Peart 	suffered harm based
on the 	fact that the verification request was 	made 	in 	front 	of
other employees 	and 	implied misconduct. 	There 	is 	no evidence 	in
the 	record 	to 	substantiate 	this 	determination. 	Not 	only was
Peart unable 	to name 	a 	single 	employee present 	at 	the 	time 	the
statements were made, 	but she testified, 	"I have no idea whether
[any employee present] 	overheard it or not." 	(TR, 	Vol. 	I, 	p.
111.) 	When asked 	if 	she 	knew whether other people heard the
request, 	Peart responded, 	"No I do not know." 	(TR, 	Vol. 	I,
1Article X, 	A. 	4. 	of the contract states:
Leaves 	of 	absence 	under this 	section will 	be
automatic, 	although the District reserves 	the
right 	to 	request 	verification 	from the proper
medical 	authority.
16

p. 	111.) 	Furthermore, Article X, 	A. 	4. 	of the contract gives the
District the right to request verification for absence. 	I 	am
unable 	to determine how a 	request made pursuant 	to 	the 	contract,
in 	front 	of 	unknown 	employees who may not have heard 	the request,
can rise 	to 	the 	level 	of harm as 	stated by the Board 	in Palo
Verde Unified School District, 	supra. 	PERB Decision No. 	689.
The 	majority has 	now replaced 	the 	objective 	test 	applied 	in
Palo Verde with a 	test based upon the 	subjective reactions 	of 	the
employee 	to 	actions 	taken by 	the 	employer which would 	otherwise
be within the 	employer's 	contractual 	rights. 	I 	cannot agree 	that
the Palo Verde case is precedent for 	such a test. 	Furthermore, 	I
would hold 	in this 	case that 	the record does 	not 	support 	the
majority's 	position that 	Peart's 	subjective 	reactions 	to
obtaining 	further verification of 	her 	sick 	leave 	usage
constituted 	harm 	sufficient 	to 	establish 	a 	violation under 	the
Educational 	Employment 	Relations Act.
17

APPENDIX
An Agenc
D	POSTE
NOTICE
T	PUBLIC 	EMPLOYMEN
y 	of 	th
B
e
Y
T
Stat
ORDE
O
e
RELATION
R
o
O
f
F
EMPLOYEE
Californi
S
TH
S
BOAR
E
D
a
I)
After a hearing 	in Unfair Practice Case No. 	S-CE-1211,
Woodland Education Association. 	CTA/NEA v. 	Woodland Joint 	Unified
School 	District, 	in which all parties 	had the right 	to
participate, 	it has 	been 	found that 	the Woodland Joint 	Unified
School 	District 	(District) 	violated 	section 	3543.5(a) 	of 	the
Educational Employment Relations Act 	(Act). 	The District
violated 	the Act when 	it 	required Carol 	Peart 	to 	obtain 	a
doctor's 	excuse 	for her absence of October 6-9, 	1987.
As 	a 	result 	of 	this 	conduct, 	we have been ordered 	to post
this 	notice 	and will:
1. 	CEASE AND DESIST FROM:
Retaliating 	or 	discriminating 	against 	Carol 	Peart
because 	of 	her 	exercise 	of protected 	activity.
Dated: 	WOODLAND 	JOINT 	UNIFIED
SCHOOL 	DISTRICT
By:.
Authorized 	Agent
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
WOODLAND EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
WOODLAND UNIFIED SCHOOL DISTRICT,
R e s p o n d e n t .
)
)
)
) 	Unfair 	Practice
Case No. 	S-CE-1211
PROPOSED DECISION
( 1 0 / 1 2 / 8 9 )
)
)
)
)
)
)
Appearances; 	Diane Ross, 	Attorney, 	California Teachers
Association, 	for Woodland Education Association, 	CTA/NEA; 	and
Kronick, 	Moskovitz, 	Tiedemann and Girard by Jan Damesyn for
Woodland 	Unified 	School 	District.
Before Martha Geiger, 	Administrative Law Judge.
I. 	INTRODUCTION
The Woodland 	Education Association, 	CTA/NEA 	(Association or
Charging Party) 	brought 	this 	charge against 	the Woodland Joint
Unified School District 	(District or Respondent), 	alleging that
the District violated EERA section 	3543.S(a)1 when it required
bargaining unit 	employee Carol 	Peart 	to 	obtain a 	doctor's
verification of 	a 	four-day 	illness 	from October 	6 	through October
9, 	1987. 	Following that charge, 	the formal hearing leading to
1 EERA 	is 	codified at California Government 	code 	section
3540 et. 	seq. 	3543.5(a) 	states specifically:
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.
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
__ )

this decision was held on February 	7 	and 8, 	1989, 	and testimony
was 	taken upon which this 	decision 	is 	based.
II. 	PROCEDURAL HISTORY
An unfair practice 	charge was 	filed 	in this 	case March 	15,
1988, 	and was 	amended by Charging Party on September 	1, 	1988. 	A
complaint was 	issued by the Office 	of 	the General Counsel 	of 	the
Public 	Employment Relations Board 	(PERB or Board) 	on October 	12,
1988. 	The formal hearing was held on February 7 and 8, 	1989, 	and
the briefs were 	submitted on April 	10 and May 	15, 	1989.
III. 	FINDINGS OF FACT
The District 	is 	a public 	school 	employer and the Association
is 	the 	exclusive 	representative of 	the District's 	certificated
employee unit. 	Carol Peart 	is 	a 	special 	class 	teacher at Douglas
Junior High School 	in Woodland, 	California. 	She has been
employed by the District 	since 	1981, 	spending most of 	that time
at Douglas 	Junior High. 	She 	is 	currently department 	chairperson,
and has 	served on a 	number 	of 	district-wide 	committees 	including
the 	Principal's Advisory Committee, 	the Mentor Teacher 	Selection
Committee, 	and various district committees 	responsible 	for
implementing AB 	551 	and AB 	501.
At the time this dispute 	arose, 	the principal 	at Douglas
Junior High School was 	Mike Parker. 	Ray Crawford was 	the
Assistant 	Superintendent 	for Personnel. 	Sometime during 	the
summer of 	1987, 	Peart became aware 	that there was 	an opening 	for
a 	resource 	specialist 	in 	special 	education at 	Douglas 	Junior
High. 	Peart applied 	for the position, 	but was 	not hired 	for the
2

job. 	Peart believed that 	there were 	several 	irregularities 	in
the manner 	in which her application was 	handled. 	As 	a result,
she 	inquired of her principal on August 	21, 	1987, 	as to why 	she
did not 	receive the appointment. 	In Peart's view, 	her objections
to the hiring process, 	and her belief 	that the 	contract
procedures 	had not 	been 	followed 	in the 	selection of 	the 	new
•	teacher were 	not 	resolved by 	this 	meeting with 	Parker.
Pursuant to the 	collective bargaining agreement, 	Peart held
an informal 	conference on August 28, 	1987, 	with Parker. 	There
was 	no response or resolution of her grievance at that 	level, 	so
Peart filed a formal grievance, 	Step 	1, 	on September 29 or 30,
leading directly to the 	events 	at 	issue 	in this 	unfair practice
charge.
On Monday, 	October 	52, 	Parker came to Peart's 	classroom to
give her his 	response to the Step 	1 	grievance. 	He 	indicated he
wanted to discuss his response to the Step 	1 	grievance, 	and Peart
replied 	that 	she would 	like 	to have her Association
representative present. 	Parker 	indicated he 	felt 	that was 	not
necessary as 	he merely wanted to give her his written response.
He 	then handed her a piece 	of paper that 	told Peart her grievance
had been denied as 	being untimely 	filed. 	Parker then 	left 	the
classroom 	and went 	immediately 	back 	to 	the 	front 	office 	because
he was 	intending to 	leave 	the 	campus 	shortly thereafter. 	Within
approximately 	five minutes, 	Peart went to the main office and
spoke with Oleta Richardson, 	Parker's 	secretary and the person
2 All dates 	are 	1987 	unless 	otherwise 	indicated.
3

whom teachers 	at Douglas 	Junior High were to tell 	if 	they needed
a 	substitute 	teacher to 	take 	their 	classes 	because 	of 	absence.
Peart 	told 	Richardson 	she would need 	a 	substitute 	for 	the 	rest 	of
the week, 	and then Peart 	immediately 	left the office. 	She went
to the -teachers' 	lounge, 	and from there 	she made a doctor's
appointment 	for the 	earliest 	available time, 	which happened 	to be
1:30 p.m. 	on Tuesday, 	October 6.
While 	both 	Charging 	Party 	and 	Respondent 	concur 	that 	Peart
asked for a 	substitute 	for the next 	four days, 	a dispute has
arisen as 	to what 	exactly was 	said by Peart. 	Parker, 	who was
nearby, 	testified he heard Peart 	say 	"Oleta, 	get me a 	sub, 	I'll
be out the rest of the week." 	According to Parker, 	Peart did not
appear to be 	ill 	or 	in any pain and 	she moved very quickly.
Peart's 	testimony, 	supported by that of Oleta Richardson, 	is
that Peart 	said 	"My back is 	killing me, 	I 	need a 	sub for the rest
of 	the week." 	Peart agrees 	that 	she was 	moving very quickly, 	but
Peart 	states 	that 	she was 	in 	severe pain because of 	a back 	spasm,
and 	that 	she did not 	engage 	in any 	social pleasantries with
Richardson, 	or anyone else, 	because she was anxious to leave
school 	and have her medical 	condition attended 	to.
In resolving this dispute, 	Peart's 	testimony is 	credited.
She and Richardson, 	the two participants 	to this 	conversation,
give identical accounts 	as 	to what was 	stated. 	Parker, 	on the
other hand, 	was merely a bystander, 	and thus he may not have
heard 	the 	entire 	conversation between Richardson and 	Peart.
Indeed, 	except for the 	statement 	"My back is killing me," 	the two
4

versions of this conversation are almost identical. 	Thus, 	while
Parker may not have heard that 	statement, 	I 	find that the
statement was 	actually made to Richardson.
Parker 	telephoned 	Crawford 	on 	either October 	5th 	or 	6th 	and
told him about 	Peart's 	reaction to 	the denial 	of 	the grievance.
Parker 	indicated 	to 	Crawford 	he 	did 	not 	understand why 	Peart
needed to be out 	for the 	remainder of 	the week. 	Both Crawford
and 	Parker 	felt 	the 	request 	for a 	substitute 	for 	4 	days was
unusual, 	as most teachers 	request a 	sub on a day-by-day basis,
even when an 	illness 	may 	last more 	than one day.
Peart 	saw the doctor on the 	6th. 	Dr. 	Wong confirmed Peart's
belief that 	she was having 	severe back spasms, 	and prescribed
medication for anxiety, 	muscle relaxation, 	and pain. 	She told
Peart to go home, 	get rest, 	and 	"to take care of herself." 	While
Peart did this 	for the most part, 	she did attend a department
chairpersons' 	meeting between 	3:00 	and 	3:45 	on the 	6th. 	Peart
testified 	she did 	so because 	she was 	unable 	to 	cancel 	the meeting
on 	such 	short notice. 	With that 	exception and the 	one 	noted
below, 	Peart 	stayed home from work on October 	6th, 	7th, 	8th and
9th.
During the 	same week, 	Association president John Pasanen
arranged a 	level 	2 	grievance meeting for Peart. 	The meeting took
place on Friday the 	9th at Dr. 	Crawford's 	office with Crawford,
Parker, 	Pasanen and Peart 	in attendance.
In the 	course of the meeting, 	Crawford conceded that the
grievance had been timely 	filed, 	but 	the 	substance 	of 	the
55

grievance was 	still denied by the District. 	At the 	conclusion of
the meeting, 	Crawford 	inquired of 	Peart whether 	she would be
returning to 	school that day. 	Peart 	said 	"No," 	that 	she was
"home 	ill under a doctor's 	care". 	Crawford then told Peart 	that
he would 	like 	a doctor's 	verification for the time 	she had been
out 	ill. 	Crawford did not ask Peart why 	she had been out, 	but
Peart volunteered the 	information that 	she was 	having back
problems. 	Peart 	inquired as 	to why 	she 	needed the doctor's
verification when 	she had 	not 	exceeded her 	sick 	leave 	for 	the
year. 	Crawford did 	not 	specifically 	indicate 	to 	her why he
wanted the verification, 	but merely 	indicated that prior 	to her
return to work, 	she would need to provide him with the
verification. 	Peart agreed to do 	so.
After the meeting, 	Peart proceeded directly to the Woodland
Medical 	Clinic 	where 	she 	attempted to 	obtain the 	required
doctor's 	verification. 	The doctor was 	out of town, 	and would not
be available until Monday, 	October 	12. 	Peart then went home and
telephoned Crawford's 	office 	to 	tell 	him that 	the 	required
verification could not be 	obtained before Monday, 	but 	that 	she
would bring 	it to Crawford as 	soon as possible.
Peart returned to work on Monday the 	12th. 	During her 	lunch
break, 	she again went to the doctor's 	office and picked up the
verification that had been 	left by the doctor 	for Peart. 	The
verification was dated October 	6, 	the day that Dr. 	Wong had 	seen
Peart, 	and 	stated 	"Excused from this day." 	Peart, 	who had not
communicated 	directly with 	the 	doctor 	but 	had 	merely 	left
6
6

messages 	concerning her need 	for the verification, 	took this
statement to Crawford's 	office on the 	12th. 	Crawford, 	when he
read the verification, 	stated that 	it was 	insufficient because 	it
did not 	cover all 	of the days 	that Peart was out 	ill. 	Peart
then returned to the medical 	clinic 	a third time, 	on either the
12th or the 	13th, 	and actually spoke with Dr. 	Wong. 	Peart
explained to 	Dr. 	Wong that 	she needed a verification that 	she had
been 	ill 	for 	four days. 	Wong 	seemed not 	to understand the
purpose 	of 	the verification, 	and evidently 	confused 	it with 	a
workers' 	compensation claim3. 	Wong was 	reluctant to 	sign the
verification because Wong 	felt 	that 	she was 	being 	required 	to
state 	that 	she had 	seen Peart 	every day 	from the 	6th 	through 	the
9th. 	As 	that was 	her understanding of what 	the verification was
to be used 	for, 	Wong was 	reluctant to give 	such a 	statement
because 	it was 	untrue. 	Peart 	successfully convinced Wong,
however, 	that the verification was 	merely that Peart had 	seen
Wong on the 	6th, 	and that Peart was 	home 	ill 	for the remainder of
the week. 	Wong then drafted a 	2nd verification, 	which Peart then
returned to Crawford's 	office. 	Crawford accepted this
verification.
The parties 	have 	stipulated that the 	contract permits 	for
the District to require a doctor's verification of 	illness, 	but
the parties 	also 	stipulated that the District had never done 	so
for 	certificated personnel with the 	sole 	exception of 	requiring 	a
verification 	from a 	teacher who 	claimed 	to be 	ill while 	he was
3 Peart had no workers' 	compensation claim.
77

actually 	in Europe. 	This 	last 	incident was 	so remote 	in time
that 	even Crawford was 	unaware of 	this 	instance, 	and he has 	been
with 	the District 	for several 	years. 	Crawford testified that,
aside 	from Peart, 	he has 	never required a doctor's 	verification
from 	a 	certificated teacher. 	Crawford 	and 	Parker both 	testified
that Peart was 	a 	capable and conscientious 	teacher. 	The
District's 	witnesses 	admitted that 	they had no 	suspicion prior 	to
October 	5 	that Peart was malingering, 	nor was Peart's use of 	sick
leave 	extensive 	or 	even beyond the 	ordinary use by 	any 	teacher 	in
the District. 	Further, 	in prior years her use of 	sick leave was
with 	the 	norm 	for the District.
While 	Parker 	and Crawford both 	testified 	it was 	"unusual"
for a 	teacher to 	take more than one day at a time 	for 	sick 	leave
use, 	Peart's 	own attendance records 	since 	1981 	indicate that 	she
has, 	on occasion, 	taken more than one day at a time 	for a given
illness. 	Indeed, 	all the witnesses agree that while teachers
make 	an 	effort 	to 	return to 	the 	classroom after only one 	day's
absence, 	it 	is not unheard of 	for a teacher to take more than one
day of absence at a given time, 	and to ask specifically 	for a
substitute 	in advance 	for more than one day of 	illness.
Parker 	and Crawford both testified that, 	at the time 	these
events 	occurred, 	they felt Peart might be abusing her 	sick leave.
This 	belief was 	based on Crawford's 	and Parker's 	perception 	that
Peart did not appear to be 	ill on October 	9, 	and Parker's 	belief
that Peart 	asked 	for a 	substitute on October 	5 	for the 	remainder
of 	the week not because 	she was 	in pain but because 	she was 	angry
8

over the rejection of her grievance. 	Furthermore, 	Parker
testified 	that when Peart asked 	for a 	substitute 	on October 	5,
Parker believed her real 	reason 	for her 	absence was 	"to prepare
for 	some rebuttal to the denial of 	[the] 	grievance" 	and believed
Peart was 	taking the 	rest 	of 	the week off 	to 	"prepare 	for a
response to that grievance".
In addition to Parker's 	perception of 	Peart's 	medical
condition on October 	5, 	Crawford observed Peart on October 	9. 	He
also 	commented that 	she did not appear to be 	ill, 	nor did 	she
move as 	if 	she were in pain. 	Because of this, 	and because of
Parker's 	statements 	concerning Peart's 	appearance 	on the 	5th,
Crawford stated he 	felt 	sick 	leave was 	being abused, 	and thus 	he
requested verification 	from her 	former doctor.
IV. 	ISSUES
In this 	case, 	the major issue to be decided, 	is whether the
request 	for a doctor's 	verification was 	a violation of 	EERA
section 	3543.5(a) 	because 	such a request constituted
discrimination or 	reprisal 	against 	Carol 	Peart 	for her
participation 	in the 	grievance procedure. 	The District has
raised as 	a 	specific 	sub-issue the 	question of whether the
request 	for 	the 	verification was 	an adverse 	action 	in the 	meaning
of Palo Verde Unified School District 	(1988) 	PERB Case No. 	689.
V. 	CONCLUSIONS OF LAW
The 	standard 	for determining whether 	a violation of 	section
3543.5(a) 	occurred 	is 	found 	in Novato Unified School 	District
(1982) 	PERB Decision No. 	210. 	To prove discrimination or
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reprisal, 	the Charging Party must 	show 	(1) 	Peart engaged in
protected activity; 	(2) 	the District knew of this 	activity; 	(3)
the District took adverse action against Peart; 	and 	(4) 	the
adverse 	action would 	not have 	been taken but 	for Peart's 	engaging
in protected activity.
In this 	specific 	case, 	that Peart engaged 	in protected
activity 	is 	not 	in dispute. 	She 	filed a grievance under the
collective bargaining agreement 	(CBA), 	an action that is
protected. 	North Sacramento School 	District 	(1982) 	PERB Decision
No. 	264. 	The District's knowledge of Peart's protected activity
is 	also not disputed, 	as 	she 	spoke directly to Parker and
Crawford 	concerning her 	grievance.
A question has 	arisen, 	however, 	as to whether the District's
action 	in asking 	for the doctor's 	verification was 	"adverse
action." 	Here, 	the contract 	specifically permitted the 	District
to request a doctor's 	excuse, 	but that clause of 	the contract had
never been invoked 	in recent 	times.•
The 	imposition of the doctor's 	excuse requirement 	is
discriminatory when 	it 	is 	not 	requested of 	all 	similarly 	situated
employees, 	or when the reason for requiring it 	is 	a 	sham.
• The District, 	in a separately filed Motion, 	sought to
correct alleged omissions 	in the transcript. 	The undersigned
rejected the Motion as untimely, 	but 	seeks 	here to 	clarify that
any alleged omission 	is 	harmless 	error.
The 	evidence 	relied upon 	in reaching this 	decision 	is 	the
testimony of Crawford, 	Parker, 	Richardson and Peart. 	The
evidence of Peart's 	attendance 	in past years 	is 	relevant only
insofar as 	it 	supports 	or rebuts 	the District's 	suspicion that
she was 	abusing 	sick leave 	in this 	instance. 	Here, 	the evidence
is 	that Peart did not abuse 	sick leave 	in past years, 	nor does
the District 	so 	claim.
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The National 	Labor Relations 	Board 	(NLRB) 	has 	held 	it
unlawful 	to 	enforce work rules previously unenforced, 	when the
purpose was 	to 	intimidate 	or discriminate 	in retaliation 	for an
employee's 	protected activity. 	See Hyatt Regency Memphis 	(1989)
296 NLRB No. 	36 and 296 NLRB No. 	37, 	[ 	LRRM 	.] 	This 	case
resembles 	the 	situation where 	an employer 	increases 	supervision
(a 	task normally performed by management without objection) 	but
does 	so 	for purposes 	of harassment. 	The NLRB has 	held 	such close
scrutiny or 	increased 	supervision to be unlawful, 	when the
employer's 	actions 	are designed to hold 	the 	employee up 	to
ridicule or to discredit a union advocate. 	See BMP Sportswear
(1987) 	283 NLRB No. 	4; 	NLRB v. 	S.E. 	Nichols 862 F.2d 952 	(2d Cir.
1988), 	129 LRRM 3098, 	enf. 	284 NLRB No. 	55. 	In the latter case,
the 	enforcement of previously unenforced 	rules, 	accompanied by
increased 	supervision, 	occurred within earshot 	of 	other
employees.
Applying these cases to the facts here, 	the verification
request was 	both discriminating 	(no 	other 	employees 	similarly
situated were 	so treated) 	and retaliatory, 	and the District's
alleged 	suspicion of 	abuse merely a 	sham 	for its 	true purpose,
harassment.
The 	effect of 	asking Peart 	for the verification was 	to, 	in
essence, 	call 	into question her veracity in 	stating that 	she was
ill. 	Yet there was 	no 	legitimate reason to question her
veracity. 	Peart's use of 	sick leave was 	not excessive. 	Nor is
the 	fact 	that 	she did not 	appear to be 	ill 	enough to 	justify the
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alleged 	suspicion that 	she was 	abusing the 	sick 	leave. 	Parker
admitted he 	believed on October 	5 	that 	Peart was 	using 	sick 	leave
to prepare 	for her grievance. 	The District, 	by questioning Peart
when 	it had no reason to 	and by requiring her to obtain a
doctor's 	verification, 	treated her differently than any 	other
employee. 	Further, 	this treatment in effect, 	acted to intimidate
Peart.5
The 	District's 	argument 	that 	the 	request 	for verification
was 	not 	adverse 	is 	rejected.
The 	request 	for the doctor's 	excuse was made 	in the
reception area of Crawford's 	office, 	in front of other District
employees, 	and implied misconduct. 	Further, 	even after Peart
obtained the doctor's excuse, 	it was rejected as 	"inadequate."
The 	rejection necessitated 	another trip 	to 	the medical 	clinic 	for
the 	sole purpose of obtaining a doctor's 	excuse. 	Certainly the
request 	for the excuse, 	while normally not adverse action, 	became
so 	in this 	case because of 	its discriminatory imposition, 	and
because 	of 	the 	lack of 	any reason 	for 	its 	imposition other 	than
harassment 	or 	intimidation.
Finally, 	the 	evidence 	shows 	that the adverse action was
taken 	in retaliation 	for Peart's protected activity. 	The request
for the doctor's 	verification, 	coming on the heels 	of Peart's
grievance, 	was 	not required of any other employee 	in recent
memory. 	Further, 	Parker's 	statement that he believed Peart was
5 Indeed, 	this 	case might have been tried as 	an interference
case 	instead of a reprisal 	case.
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using her 	sick 	leave 	to prepare 	her grievance 	response 	indicates
animus 	on his part. 	The disparate treatment of Peart, 	combined
with the timing, 	are certain indicators 	that the adverse action
occurred 	solely because 	of 	the 	exercise 	of protected 	activity.
In defending a charge of discrimination, 	an employer can
argue that 	it would have 	taken the 	same 	action regardless 	of
whether 	the 	employee had 	engaged 	in protected 	activity. 	In other
words, 	can the District 	show it would have asked 	for the doctor's
verification 	even 	if 	Peart had 	not 	filed 	the grievance? 	The
District 	attempted to prove 	so by noting the unusual 	nature 	of
Peart's 	request 	for a 	substitute 	for four consecutive days, 	along
with 	its 	ignorance 	of her pre-existing back 	condition.
The problem with this 	argument, 	however, 	is 	that the request
for a 	substitute 	for 	four days was perhaps 	out of 	the 	norm but
not unknown at all. 	All of the witnesses were aware of
instances, 	other than this 	case, 	when employees needed
substitutes 	for more than one day. 	Hence, 	Peart's 	request was
not all 	that unusual.
Further, 	the District's 	ignorance about Peart's back
condition is 	irrelevant. 	The District 	argued that their 	lack of
knowledge 	about 	Peart's 	back 	condition was 	understandable 	because
nothing 	in her attendance records 	indicate 	such a 	chronic
condition. 	This argument, 	however, 	misses the point. 	Past
attendance records 	are 	indicative 	of 	the past 	only and are 	of
limited value 	in assessing Peart's 	current medical 	status. 	If
the 	District 	truly wanted 	to 	ascertain Peart's 	condition on
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October 	5 	(when Parker 	says 	he 	first 	suspected Peart's 	abuse 	of
sick leave), 	the most 	logical 	thing 	to do was 	to 	ask her what was
wrong. 	At the very least he 	could have asked Richardson, 	his
secretary, 	what Peart had 	said about why 	she needed a 	substitute.
He did 	neither. 	Nor did Crawford 	ask Peart 	(although 	she
volunteered the 	information). 	His 	question about whether 	she was
returning to 	school 	on the 	9th was 	little more 	than an accusation
that 	she was 	not 	ill, 	and 	showed how he had already 	judged her
guilty of 	sick leave abuse. 	Since 	simple, 	logical 	steps to
investigate Peart's 	absence were not 	followed, 	the 	conclusion is
drawn that 	the District was 	not 	interested 	in Peart's 	use of 	sick
leave. 	It was 	instead 	interested 	in harassing her because 	she
had 	filed a 	grievance. 	Thus 	the District 	failed to 	show it would
have 	treated Peart the 	same 	in the 	absence of 	her protected
activity.
VI. 	CONCLUSION and REMEDY
Based on the entire record in this 	case, 	it 	is 	hereby found
that 	the 	Woodland 	Unified 	School 	District 	violated 	EERA 	section
3543.5(a) 	when it required Carol Peart to obtain a doctor's
excuse 	for her absence of 	October 	5 - 9 , 	1989.
With the 	finding of a violation, 	the Respondent 	is 	ordered
to cease-and-desist its behavior, 	post a notice to employees, 	and
to make the Charging Party whole. 	Here, 	since Peart complied
with the 	request 	for verification, 	thus 	avoiding any disciplinary
action, 	there 	is no need for a make-whole order. 	A cease-and-
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desist order and the requirement of 	a posting are, 	however,
appropriate.
VII. 	PROPOSED ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the 	entire record 	in this 	case, 	and pursuant to Government Code
section 3543.5(a), 	it is hereby ORDERED that the Woodland Unified
School 	District and 	its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
Retaliating 	or discriminating 	against 	Carol 	Peart
because 	of 	her 	exercise 	of 	protected 	activity.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION WHICH 	IS 	DESIGNED
TO EFFECTUATE 	THE 	PURPOSE 	OF 	THE 	EDUCATIONAL EMPLOYMENT RELATIONS
ACT:
A. 	Within ten 	(10) 	workdays 	of 	service of a 	final
decision in this matter, 	post at all work locations where notices
to 	certificated employees 	customarily are posted, 	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.
B. 	Upon issuance of a final decision, 	make written
notice of 	the actions 	taken to 	comply with the Order to the
Sacramento 	Regional 	Director 	of 	the 	Public 	Employment 	Relations
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Board 	in accord with the director's 	instructions. 	Pursuant 	to
California Administrative Code, 	title 8, 	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, 	section 32300. 	A 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 set for filing. 	. 	..." 	See California
Administrative Code, 	title 8, 	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,
sections 32300, 	32305 and 32140.
Dated: 	October 12, 	1989
MARTHA 	GEIGER
Administrative 	Law Judge
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