Yolo County Superintendent of Schools (PERB 0838E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	YOLO COUNTY
CHAPTER 	639,
Charging 	Party,
v.
YOLO COUNTY SUPERINTENDENT OF
SCHOOLS,
Respondent.
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) 	Case No. 	S-CE-1207
PERB 	Decision No. 	838
September 	17, 	1990
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Appearances: 	Robert J. 	Radman, 	Field Representative, 	for
California 	School 	Employees 	Association and 	its 	Yolo 	County
Chapter 639; 	Parham & Associates, 	Inc. 	by Jackson E. 	Parham,
Attorney, 	for Yolo County Superintendent of 	Schools.
Before Craib, 	Camilli and Cunningham, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case comes before the Public
Employment Relations 	Board 	(PERB or Board) 	on a motion by the
Yolo 	County 	Superintendent 	of 	Schools 	(Yolo County 	or 	County)
requesting that 	the 	record be 	reopened 	in this 	case, 	and upon
exceptions 	taken by Yolo 	County 	to 	the 	administrative 	law 	judge's
(ALJ) 	proposed decision 	(attached hereto), 	which finds that Yolo
County violated subdivisions 	(a) 	and 	(c), 	and derivatively,
subdivision 	(b), 	of 	section 3543.5 of the Educational Employment
Relations Act 	(EERA or Act)1 by engaging 	in the 	following
1EERA 	is 	codified at Government Code 	section 	354Q 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code. 	Section 3543.5 	states 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(
e

conduct: 	(1) 	On November 3, 	1987, 	demanding the removal of
California 	School 	Employees Association 	(CSEA) 	negotiating team
member Eva Prior 	(Prior) 	from a negotiating session; 	(2) 	on
February 23, 	1988, 	suspending Prior for one day with pay; 	(3) 	on
August 	10, 	1988, 	issuing a letter of reprimand to Prior; 	(4) 	on
March 	16, 	1989, 	transferring duties 	of bargaining unit member
Prior to a position outside 	of 	the 	unit without 	giving notice 	to
the Association nor 	affording 	it 	an opportunity 	to 	negotiate 	the
decision to 	implement the change or the effects 	thereof; 	and 	(5)
on May 3, 	1989, 	issuing a below-standard evaluation to Prior.
After reviewing the entire record in this 	case, 	including
Yolo 	County's 	exceptions 	to 	the proposed decision and motion
requesting the record be 	reopened, 	and CSEA's 	brief 	in response
thereto, 	the Board denies 	the motion requesting the record be
reopened, 	and adopts 	the proposed decision as 	the decision of 	the
Board 	itself 	in accordance with the discussion that 	follows.
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with an exclusive representative.
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DISCUSSION
I. 	MOTION TO REOPEN THE RECORD
Yolo County requests 	that 	the 	record be 	reopened 	to
introduce 	into 	evidence 	an expert 	opinion that 	the 	signature 	and
substance of 	a handwritten statement, 	purportedly written and
signed by Savina Murrieta-Guardado 	(Guardado), 	which was 	entered
into evidence, 	is authentic. 	In addition, 	the County wishes to
enter 	into 	evidence 	testimony regarding 	certain admissions 	made
by Guardado which tend 	to 	indicate 	that 	she was 	disgruntled
because 	of perceived unfair treatment by Yolo County. 	The motion
is 	based upon the County's 	claim that this 	evidence 	constitutes
newly-discovered 	evidence which was 	not previously 	available 	and
could not 	have been discovered with 	the 	exercise 	of 	reasonable
diligence. 	(San Mateo Community College District 	(1985) 	PERB
Decision No. 	543.) 	The declaration filed 	in support of 	this
motion states, 	in pertinent part:
Because I had no idea that Ms. 	Murrieta-
Guardado was 	going to 	either be 	available to
testify 	or 	that 	she would disavow the
authenticity of 	Respondent's 	Exhibit A, 	I
could 	not 	have prepared 	to 	impeach her 	in
advance with a 	handwriting 	expert 	or
witnesses 	to testify with respect 	to her
truthfulness.
In California State University 	(CFA) 	(1990) 	PERB Decision
Nos. 	799-H and 	799a-H, 	the Board explained that PERB 	Regulation
32320, 	subdivision 	(a)(2) 	provides that the Board may reopen the
record 	for the taking of 	further evidence, 	but does 	not provide
the 	standard 	for the determination as 	to when 	such action 	is
w3

appropriate. 	The 	Board 	cited 	San Mateo 	Community College
District; 	supra. 	PERB Decision No. 	543, 	where it adopted the
standard 	set out 	in Regulation 32410, 	which governs 	requests 	for
reconsideration. 	(In accord, 	Regents of the University of
California 	(Yeary) 	(1987) 	PERB Decision No. 	615-H.) 	Subdivision
(a) 	of that regulation provides 	that reconsideration may be
granted 	on the basis 	of:
[n]ewly discovered evidence 	. 	. 	. which was
not previously available 	and 	could 	not 	have
been discovered with the 	exercise 	of
reasonable diligence.
The 	evidence 	sought 	to be proffered herein does 	not 	fit 	the
standard enunciated by the Board in the 	above 	cases; 	it 	is 	not
new 	evidence 	which 	could 	not 	have 	been discovered with 	the
exercise of 	reasonable diligence. 	The representative 	for the
County at 	the hearing 	simply did 	not 	learn of 	the 	substance 	of
the witness' 	testimony before he questioned her at the hearing.
It was 	Respondent's 	representative who 	saw Guardado 	one day 	at
lunch during the hearing and asked her to 	come to 	the hearing to
testify; 	she was his witness. 	At the hearing, 	both parties had
2PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 	et seq. 	Regulation 32320,
subdivision 	(a)(2) 	reads as 	follows:
(a) 	The Board itself may:
(2) 	Affirm, 	modify or reverse the
proposed decision, 	order the record 	reopened
for the taking of 	further evidence, 	or take
such other action as 	it 	considers proper.
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the 	opportunity to 	question Guardado and, 	following her
testimony, 	respondent 	entered 	into 	evidence 	several 	documents
from Guardado's 	personnel 	file 	to 	show that 	the 	signature was
identical to that on the 	statement 	in question. 	The ALJ
determined 	that 	he would 	admit 	the 	documents 	into 	evidence 	as
somewhat probative, 	but 	stated 	that he had been 	involved 	in
hearings 	where 	a 	handwriting 	expert 	had testified 	and 	that 	he
understood how technical 	and 	involved the 	issue was. 	He
announced he would 	not attempt 	to make 	a 	conclusion as 	to whether
the signature was, 	in fact, 	authentic.
As 	stated above, 	the 	issue of 	the use of a handwriting
expert to 	authenticate 	a document was 	raised at 	the hearing by
the ALJ on October 	13, 	1989. 	The 	last day of hearing occurred on
October 26, 	1989 and, 	therefore, 	the respondent had the
opportunity to 	call 	an expert witness 	or to 	request 	a 	continuance
to do 	so. 	After the witness 	testified on the 	last day of
hearing, 	the ALJ 	stated on the 	record that the witness 	appeared
to have presence of mind, 	to be clear and communicative, 	and not
to 	be 	overmedicated nor disoriented 	in any way. 	When he 	asked
for any 	argument 	regarding her apparent 	credibility, 	neither
party made any argument. 	At that 	time, 	or at any time prior to
the 	close of 	the hearing or 	the 	submission of post-hearing
briefs, 	representative 	for respondent 	could have 	requested 	a
continuance, 	but did not do 	so.
Based upon the above, 	the proffered 	evidence 	is 	not of 	the
nature which 	constitutes 	newly-discovered 	evidence 	previously

unavailable 	and undiscoverable with 	the 	exercise 	of 	reasonable
diligence.
II. 	CREDIBILITY DETERMINATION
The ALJ 	made 	a 	credibility determination 	concerning
Elizabeth 	Zemmels 	(Zemmels), 	based upon testimony given with
regard 	to 	the 	authenticity of 	the 	document purportedly written by
Guardado. 	Many of the determinations 	in this 	case are based, 	at
least 	in part, 	upon this 	credibility determination. 	With regard
to 	cases of this nature, 	the Board has 	stated:
[W]e must 	emphasize that 	credibility
determinations play a vital 	role 	in the
consideration of this 	allegation. 	While we
are 	free to consider the 	entire 	record and
draw our own 	conclusions 	from 	the 	evidence
presented, 	we will 	afford deference to an
ALJ's 	findings 	of 	fact which 	incorporate
credibility determinations. 	(Santa Clara
Unified School District 	(1979) 	PERB Decision
No. 	104.) 	This appears to us to be a classic
instance where deference 	is 	appropriate.
(Los Angeles 	Unified School 	District 	(1988)
PERB Decision No. 	659, p. 	8.)
The Board, 	in Los Angeles 	Unified School District, 	goes on to
point 	out 	that 	the 	testimony 	in 	that 	case presented 	two
dramatically different versions 	of 	an incident. 	Because 	the ALJ
credited one version, 	and there was 	no basis 	in the 	transcript
for overturning that determination, 	the ALJ's 	credibility
determination, 	based in large part upon witness 	observation, 	was
adopted 	by 	the 	Board.
In the case before us, 	there 	is 	no basis 	in the record 	for
overturning the ALJ's 	credibility 	determination. 	We 	therefore
defer 	to 	the ALJ's 	findings which 	incorporate 	such determination.
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III. 	FEBRUARY 23, 	1988, 	ONE-DAY SUSPENSION WITH PAY
. . . 	We 	affirm the ALJ's 	finding 	of 	discrimination based 	upon
this 	conduct, 	in accordance with the discussion below.3
The proposed decision 	found 	that 	it was 	unnecessary 	to 	rely
upon 	circumstantial 	evidence 	to 	find 	anti-union animus 	on 	the
part 	of Yolo County as 	there was 	direct 	evidence 	of 	anti-union
animus 	in this 	case. 	The ALJ 	further 	found evidence 	of 	disparate
treatment 	of 	Prior under Novato 	Unified 	School 	District 	(1982)
PERB Decision No. 	210 	(Novato).
The 	management personnel who 	requested 	the 	suspension of
Prior were Joan Kingery 	(Kingery) 	(her immediate 	supervisor) 	and
Zemmels 	(supervisor to Kingery). 	It is 	clear from the record
that 	the 	superintendent, 	who 	actually imposed the 	suspension,
merely 	accepted 	the 	recommendation 	of 	Zemmels 	without 	performing
an independent examination. 	Zemmels' 	recommendation, 	and the
County's 	justification 	for the 	suspension, 	were based upon the
statement 	alleged 	to have 	been written and 	signed by Guardado.4
The ALJ discredits 	the 	testimony of 	Zemmels 	and, 	specifically,
her 	testimony regarding the 	statement 	in question. 	As 	there 	is
no basis 	in the 	record 	for 	overturning the ALJ's 	credibility
3 We 	note 	that 	the proposed decision 	incorrectly 	states 	this
conduct occurred on February 23, 	1989; 	it occurred on that date
in 1988.
4A written 	statement 	bearing 	employee 	Dick Slaugh's 	name was
also received by 	Zemmels. 	Slaugh was 	not called as 	a witness 	to
substantiate his 	statement and, 	accordingly, 	the ALJ gave 	it very
little weight.
7
3
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determination, 	we defer to that determination, 	and the 	finding of
discrimination based thereon. 	(See discussion, 	supra, 	at
pp. 	6-7.)
The 	Board does 	not adopt that portion of 	the proposed
decision which 	finds 	that 	the 	one-day 	suspension of 	Prior
constituted disparate 	treatment under Novato. 	The 	Board 	finds
that 	there 	is 	insufficient 	evidence on the 	record as 	to 	the
treatment of 	other 	employees 	to 	substantiate 	such 	a 	finding.
IV. 	MAY 3, 	1989, 	EVALUATION.
The proposed decision holds 	that 	an analysis 	of 	the 	specific
factors 	enumerated 	in Novato does 	not 	support 	a 	finding of
unlawful motive. 	However, 	an inference of unlawful motive may be
shown by 	circumstantial 	evidence 	involving 	factors 	other 	than
those 	specifically enumerated in Novato. 	In addition, 	motive 	can
be 	shown by direct evidence. 	In this 	case, 	there is both
circumstantial 	and direct 	evidence 	of 	Kingery's 	anti-union animus
by virtue of her comments 	to Brenda Hiatt, 	and 	superior
evaluations 	given to Prior by a 	former 	supervisor.
In the proposed decision it 	is 	stated:
[a]n employee evaluation is, 	by its very
nature, 	so 	subjective 	it does 	not 	lend itself
to 	an objective 	inquiry 	into 	the 	true
motivation behind 	each 	ranking 	and 	narrative,
(p. 42.)
As 	the Board finds 	that an employee evaluation, 	as 	a whole, 	can
be 	analyzed objectively, 	the Board does 	not adopt this 	statement.
However, 	this 	statement is nonprejudicial to Yolo County.
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V. 	ALLEGED VIOLATION OF 	EERA SECTION 	3543.5, 	SUBDIVISION
(a) 	BY UNILATERAL TRANSFER OF 	DUTIES
The ALJ 	found 	that 	the 	County 	unilaterally 	transferred
duties out of the unit 	in violation of 	section 3543.5(c), 	and
that 	the 	County discriminated against 	Prior 	in violation of
section 3543.5, 	subdivision 	(a) 	by this action. 	However, 	the
first amended complaint, 	in paragraph 	18, 	alleges:
[t]his 	conduct 	[the unilateral 	transfer of
duties] 	also 	interfered with the rights 	of
bargaining unit 	employees 	to be 	represented
by Charging Party 	in violation of 	Government
code section 3543.5(a).
Thus, 	the complaint does 	not allege that the transfer of duties
constituted 	discrimination.
The 	Board, 	adopting 	standards 	used by the National 	Labor
Relations 	Board, 	has 	held that where 	an unalleged violation 	is
intimately related to the 	subject matter of 	the complaint, 	the
conduct 	in question is part of the 	same course of 	conduct, 	the
unalleged violation has 	been 	fully 	litigated, 	and the parties
have had 	an opportunity to 	examine 	and be 	cross-examined, 	the
Board will 	entertain the violation. 	(Los Angeles 	Community
College District 	(1989) 	PERB Decision No. 	748, 	p. 	18; 	Santa Clara
Unified School District, 	supra. 	PERB Decision No. 	104.) 	In
addition, 	the Respondent must be provided adequate notice and
opportunity 	to 	defend the 	unalleged violation. 	(Tahoe-Truckee
Unified School District 	(1988) 	PERB Decision No. 	668, 	pp. 	6-10.)
In this case, 	the parties were on notice, 	by virtue of the
complaint, 	to be prepared to 	litigate and argue the 	issue of
whether the 	unilateral 	transfer 	of work violated 	the 	County's
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duty 	to 	bargain and 	also 	constituted 	interference with 	the 	rights
of unit employees. 	But, 	they were not on notice to be prepared
to 	argue 	or defend an allegation that 	such 	conduct discriminated
against Prior. 	Because, 	in this case, 	Yolo County was not put on
notice 	that 	it 	should defend the unalleged violation, 	the 	Board
finds 	the 	allegation was 	improperly 	considered 	in the proposed
decision, 	and constitutes 	a denial of due process. 	The Board,
therefore, 	does 	not adopt 	that portion of 	the proposed decision,
and 	further declines 	to 	address 	the unalleged violation.
The 	subdivision 	(a) 	allegation appearing in the 	complaint
states 	that 	the unilateral 	transfer of work 	interfered with 	the
rights 	of unit members. 	Because the Board 	finds 	there 	is
insufficient 	evidence to 	support 	an 	interference violation, 	this
claim 	is 	dismissed. 	(Tahoe-Truckee Unified School 	District.
supra. 	PERB Decision No. 	668, p. 	13.)
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VI. 	TIMING OF 	PROTECTED ACTIVITY
In 	its 	exceptions, 	the County repeatedly asserts 	that the
evidence 	fails 	to 	establish a 	link 	(nexus) 	between the 	adverse
actions 	taken against Prior and her protected activity. 	We 	do
not 	agree. 	In addition to 	the direct 	and 	circumstantial 	evidence
of 	anti-union animus 	discussed above 	or 	in the proposed decision,
the 	timing of 	the 	adverse 	actions 	is 	further evidence 	supporting
a 	finding of nexus. 	Of the factors 	enunciated in Novato. 	timing
is 	a 	crucial 	element to a determination of nexus between
protected activity and adverse 	action, 	although timing alone 	is
10

insufficient. 	(Charter Oak Unified School 	District 	(1984) 	PERB
Decision No. 	404.)
In this 	case, 	there are three allegations 	of 	subdivision 	(a)
violations 	which 	are properly 	addressed 	(the 	exception 	concerns
the transfer of duties, 	as discussed above). 	The dates of these
three adverse actions are: 	February 23, 	1988, August 10, 	1988,
and May 3, 	1989.
The 	negotiation session which occurred on November 	3, 	1987,
wherein 	Yolo 	County 	objected 	to 	Prior's 	participation 	on 	behalf
of CSEA, 	is protected activity, 	of which Yolo County was 	clearly
aware. 	The February 	1988 	conduct 	occurred 	three and one-half
months after the November 3, 	1987, 	meeting. 	Kingery testified
she was 	aware 	that 	Prior was 	on the CSEA 	negotiating 	team 	and
involved 	in negotiations 	in the 	summer of 	1988. 	On August 	10,
1988, 	Prior was 	issued a 	letter of 	reprimand by Kingery. 	The
negotiations 	concerning 	job 	classifications 	and 	job descriptions,
in which Prior was 	involved, 	were completed in early 	1989, 	and
the agreement was 	ratified 	in February of 	1989. 	On March 	16,
1989, 	Yolo County transferred the duties which were 	in Prior's
job description to Jon Dimiter, 	a management employee. 	On May 	3,
1989, 	four months after negotiations were completed, 	Prior was
issued 	a 	below 	standard 	evaluation.
It 	is 	clear 	from the 	chronology outlined above 	that 	the
three 	adverse 	acts 	alleged 	to 	be 	discriminatory 	each 	followed
within four months 	of protected activity 	engaged 	in by Prior, 	of
11

which Yolo County was 	aware. 	In 	sum, 	as 	the protected activity
continued, 	so did the adverse 	consequences.
ORDER
Respondent Yolo County Superintendent of 	Schools' 	motion to
reopen the 	record 	is 	DENIED.
Based upon the 	foregoing 	findings 	of 	facts, 	conclusions 	of
law and the 	entire record 	in this 	case, 	it 	is 	found that the Yolo
County Superintendent of 	Schools 	violated 	subdivisions 	(a) 	and
(c), 	and derivatively, 	subdivision 	(b), 	of section 3543.5 of the
Educational Employment Relations Act 	(Act). 	Pursuant to
Government Code section 3 541.5, subdivision 	(c), 	it is hereby
ORDERED that the Yolo County Superintendent of 	Schools, 	its
governing board 	and 	its 	representatives 	shall:
A. 	CEASE AND 	DESIST FROM:
1. 	Imposing or threatening to 	impose reprisals,
discriminating or threatening 	to discriminate 	against, 	or
otherwise 	restraining or 	coercing 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed by 	the Act.
2. 	Demanding or 	insisting that 	Eva 	Prior be 	removed
from the 	negotiating team of 	the 	California 	School 	Employees
Association and 	its 	Yolo County Chapter 	639.
3. 	Failing and refusing to meet 	and negotiate 	in good
faith with California 	School 	Employees 	Association and 	its 	Yolo
County 	Chapter 	639 	by unilaterally 	transferring work 	out 	of 	the
unit.
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4. 	Denying to 	the California 	School 	Employees
Association and its 	Yolo County Chapter 	639, 	rights 	guaranteed to
it by the 	Educational 	Employment Relations Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Rescind the one-day 	suspension with pay dated
February 23, 	1989, 	and if it has been served, 	make Eva Prior
whole 	for any losses 	she may have 	incurred as 	a result. 	Such
rescission 	shall 	include 	the 	removal 	and destruction of 	all
copies 	of 	such 	letter from all 	of Yolo County's 	files, 	including
but not limited to Ms. 	Prior's personnel file(s).
2. 	Rescind the 	letter of 	reprimand dated August 	10,
1988. 	Such rescission 	shall 	include 	the 	removal 	and destruction
of 	all 	copies 	of 	such letter from all 	of Yolo County's 	files,
including but not limited to Ms. 	Prior's personnel 	file(s).
3. 	Rescind the evaluation dated May 3, 	1989. 	Such
rescission 	shall 	include 	the 	removal 	and 	destruction of 	all
copies 	of 	such evaluation from all 	of Yolo County's 	files,
including but not limited to Ms. 	Prior's personnel 	file(s).
4. 	Assign forthwith to 	the bargaining unit 	the 	full
range 	of 	duties 	set 	forth 	in the 	job description 	for Business
Services 	Technicians 	III-B.
5. 	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 	are 	customarily
placed, 	copies 	of the Notice attached as 	an Appendix hereto,
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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, 	altered, 	defaced or covered by any
other material.
6. 	Written notification of the actions 	taken to
comply with this 	Order 	shall 	be made 	to the 	Sacramento 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance
with his 	instructions.
It 	is 	further ORDERED that all 	other aspects 	of 	the Charge
and 	Complaint 	are 	hereby 	DISMISSED.
Members 	Craib 	and Cunningham 	joined 	in this 	Decision.
14

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. 	S-CE-1207,
California 	School 	Employees 	Association and 	its 	Yolo 	County
Chapter 	63 9 v. 	Yolo County Superintendent of 	Schools, 	in which
all parties 	had the right to participate, 	it has been 	found that
the Yolo County Superintendent of 	Schools 	(Yolo County) 	violated
the Educational Employment Relations Act 	(Act), 	Government Code
section 3543.5, 	subdivisions 	(a) 	and 	(c), 	and derivatively,
subdivision (b).
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Imposing or threatening to 	impose reprisals,
discriminating or threatening to discriminate against, 	or
otherwise 	restraining or 	coercing 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed by the Act.
2. 	Demanding or 	insisting that Eva Prior be 	removed
from 	the 	negotiating team of 	the 	California 	School 	Employees
Association and its Yolo County Chapter 63 9.
3. 	Failing and refusing to meet 	and negotiate 	in good
faith with California 	School 	Employees 	Association and 	its 	Yolo
County Chapter 	639 	by unilaterally 	transferring work 	out 	of 	the
unit.
4. 	Denying to the California 	School 	Employees
Association and 	its 	Yolo County Chapter 	639, 	rights 	guaranteed to
it by the Educational 	Employment Relations Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Rescind the one-day 	suspension with pay dated
February 23, 	1989, 	and if it has been served, 	make Eva Prior
whole 	for any 	losses 	she may have 	incurred as 	a result. 	Such
rescission 	shall 	include 	the 	removal 	and destruction of 	all
copies 	of 	such letter from all 	of Yolo County's 	files, 	including
but not limited to Ms. 	Prior's personnel file(s).
2. 	Rescind the 	letter of 	reprimand dated August 	10,
1988. 	Such rescission shall 	include the removal 	and destruction

of 	all 	copies 	of 	such letter from all 	of Yolo County's 	files,
including but not limited to Ms. 	Prior's personnel 	file(s).
3. 	Rescind the evaluation dated May 	3, 	1989. 	Such
rescission 	shall 	include 	the 	removal 	and destruction of 	all
copies 	of 	such 	evaluation 	from all 	of 	Yolo County's 	files,
including but not limited to Ms. 	Prior's personnel file(s).
4. 	Assign forthwith to 	the bargaining unit 	the 	full
range 	of 	duties 	set 	forth 	in the 	job description 	for Business
Services 	Technicians 	III-B.
Dated: 	YOLO 	COUNTY 	SUPERINTENDENT
OF 	SCHOOLS
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.
22

STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION and 	its 	YOLO COUNTY
CHAPTER 63 9,
Charging 	Party,
v.
YOLO 	COUNTY 	SUPERINTENDENT 	OF
SCHOOLS,
Respondent.
)
)
)
)
) 	Unfair Practice
Case No. 	S-CE-1207	)
)
) 	PROPOSED 	DECISION
) 	(4/23/90)
)
)
)
Appearances: 	California School 	Employees Association and 	its
Yolo County Chapter 63 9 by Robert J. 	Radman, 	Field
Representative; 	Parham & Associates, 	Inc. 	by James C. 	Whitlock,
Consultant, 	for the Yolo County Superintendent of Schools.
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On March 8, 	1988, 	the California School Employees
Association and 	its 	Yolo County Chapter 	639 	(Charging 	Party, 	CSEA
or Association) 	filed an unfair practice 	charge with the 	Public
Employment 	Relations 	Board 	(PERB) 	against the Yolo County
Superintendent of 	Schools, 	also known as 	the Yolo County Office
of Education, 	(Superintendent, 	YCOE or Respondent) 	alleging
violations of subdivisions 	(a), 	(b) , 	(c) and (d) of section
3543.5 	of 	the 	Educational 	Employment 	Relations Act 	(EERA or
Act).1
1 The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	section 	references, 	unless 	otherwise 	noted, 	are 	to 	the
Government 	Code. 	Subdivisions 	( a ) , 	(b), 	(c) 	and 	(d) 	of 	Section
3543.5 	s t a t e :
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.
_____ 	)

On May 27, 	1988, 	the CSEA filed a First Amended Charge. 	On
August23, 	1988, 	it filed a Second Amended Charge. 	On March 21,
1989, 	a Notice of Partial Withdrawal was 	issued by PERB's General
Counsel. 	On that 	same date the General Counsel also 	issued a
Complaint alleging violations of subdivisions 	(a), 	(b) 	and 	(c) 	of
section 3543.5. 	On April 	3, 	1989, 	the Respondent filed its
Answer to 	the Complaint.
On May 	5, 	1989, 	an informal conference was held to explore
voluntary 	settlement possibilities. 	No 	settlement was 	reached.
On May 	17, 	1989, 	the Charging Party filed a Third Amended Charge
and on September 	13, 	1989, 	a First Amended Complaint was 	issued.
On September 	18, 	1989, 	the Respondent filed its Answer to that
amended 	Complaint.
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.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
(d) 	Dominate or interfere with the formation
or 	administration of 	any 	employee
organization, 	or contribute 	financial or
other 	support to 	it, 	or in any way encourage
employees 	to 	join any organization in
preference 	to another.
22

The formal hearing was held on September 20, 	21, 	October 	13
and 	26, 	1989. 	The parties briefed their respective positions.
The 	case was 	submitted 	for decision on January 26, 	1990.
INTRODUCTION
Charging 	Party 	alleges 	that 	Respondent 	demanded 	the 	removal
of 	CSEA team member Eva 	Prior 	from a 	negotiating 	session on
November 	3, 	1987. 	It is 	also charged that Prior received a one-
day 	suspension with pay 	(February 23, 	1988) 	and a 	letter of
reprimand 	(August 	10, 	1988) 	because of her protected activities.
In addition, 	the Respondent was 	alleged to have 	issued a below
standard evaluation on May 3, 	1989, 	to Prior because of her
protected activities. 	Lastly, 	the Charging Party insists 	that
the 	Respondent unilaterally 	transferred 	a portion of 	Prior's
duties 	to a position outside of 	the bargaining unit, 	thereby
discriminating 	against 	Prior 	and 	improperly depriving 	the 	unit 	of
some of its duties.
The 	Respondent admits 	its 	representative was 	upset with
Prior's 	actions 	and 	attendance 	at 	the 	subject 	negotiating 	session
but 	asserts 	that the 	incident had no 	impact on 	future
negotiations. 	Respondent 	states 	that all of 	its 	other actions
were 	based 	on Prior's 	conduct 	and 	job performance 	and 	are 	the
result 	of 	appropriate 	investigation and documentation. 	It denies
any of 	its 	actions 	violated 	section 	3543.5.
JURISDICTION
The parties 	stipulated, 	and it is therefore found, 	that the
Charging 	Party 	is 	an 	employee 	organization and 	an exclusive
w
3

representative 	and the Respondent 	is 	a public 	school 	employer
within the meaning of section 3540. 1.
FINDINGS 	OF 	FACT
1. 	Eva Prior - 	Background
Eva 	Prior has 	a position 	in the 	classification of 	a 	Business
Services 	Technician III-B 	for the YCOE. 	She has worked there
since 	1984. 	Prior to that time 	she was 	employed by the Winters
School 	District as 	an assistant bookkeeper 	for 	six months. 	Her
supervisor 	at Winters 	recommended her 	to 	the 	YCOE's 	Business
Office. 	While working at the YCOE, 	she completed an eighteen-
month college course in general 	accounting on August 	15, 	1986.
As 	a part of her duties, 	she balances 	the cash flow accounts 	of
the various 	school districts 	in the county. 	She has been, 	for at
least the past two years, 	an alternate member of CSEA's
negotiating team. 	She attends 	all 	negotiating 	sessions 	that
concern the Business Office employees. 	In January 	1988, 	she
became the vice-president of the 	local CSEA chapter.
As 	vice-president 	she was 	only 	involved 	in grievances when-
ever 	it was 	necessary to act as 	the president's 	substitute. 	How-
ever, 	she did represent a bus aide 	in July of 	1988.
2. 	Negotiating Session Confrontation
On November 3, 	1987, 	Respondent's Personnel Director and
negotiator, 	Gerald Burns, 	objected to Prior's participation in a
negotiating 	session. 	He 	interrupted Prior's presentation,
pounded on the 	table 	and pointed at Nadine 	Krug, 	CSEA's 	chapter
president, 	telling her that 	she had to 	immediately go 	outside 	to
A	4

talk to him. 	Once they were outside, 	he demanded that Prior be
removed 	from CSEA's 	team. 	He 	said 	that her participation was
self-serving and that 	it was 	making resolution of 	the 	issues 	more
difficult. 	His 	shouted demands 	could be 	clearly heard 	inside 	the
negotiation room by 	the 	remaining members 	of 	CSEA's 	team.
The 	issue under discussion that day 	concerned a
reclassification of 	the 	YCOE's 	business 	service 	technician
classifications. 	Much of 	the 	controversy between the parties
concerned 	the 	reclassification of 	Prior's 	personal 	position.
Shortly before Burns 	stared 	shouting, 	Prior was 	asking him what
criteria he was 	using to 	justify his 	reclassification argument.
Her 	manner was 	neither 	loud nor 	argumentative.
After a 	short 	caucus, 	the CSEA negotiating team returned and
rejected Burns' 	demand that Prior be 	removed 	from the 	table.
That day's 	session resumed but only 	for a brief time. 	However,
when future 	sessions 	on this 	subject were held, 	Prior continued
to 	serve 	on the CSEA team. 	Burns 	did not repeat his protests.
Resolution of 	the 	reclassification 	issue was 	achieved 	in February
of 	1989.
3. 	Assistant Superintendent Elizabeth 	Zemmels' 	Background
Elizabeth C. 	Zemmels, 	was appointed YCOE's Assistant
Superintendent 	of 	Business 	and 	Instructional 	Services 	in July
1988. 	She had been the Director of Curriculum and Instruction
starting in August of 	1984. 	On October 22, 	1987, 	she assumed the
additional duties 	of 	Interim Director of Business 	Services. 	Once
she assumed both duties on a permanent basis, 	the combined
55

position was 	upgraded to 	that 	of 	an Assistant Superintendent.
Her background 	in accounting and business, 	until 	she was placed
in charge of 	the business department, 	was very limited, 	although
she has been working on her doctorate 	in management. 	In her new
position 	she had the assistance of Carlene Naylor, 	who was
retained as 	a consultant 	in the Spring of 	1988. 	Naylor has 	a
Masters degree 	in Business Administration, 	is a Certified Public
Accountant 	(CPA) 	and has 	spent thirteen years 	total 	as 	either a
school 	district business 	manager or a director of 	business 	for a
county office of 	education. 	She 	is presently a principal 	in a
CPA 	firm. 	Naylor was 	available both by phone and 	in person to
help with various 	aspects 	of 	the new position. 	She personally
came 	to 	the 	office 	four times 	a month until 	approximately
December 	1988. 	Since that time 	she has 	only visited the business
office twice.
4. 	Director of 	Business 	Services 	Joan Kingery's 	Background
Joan E. 	Kingery, 	recently promoted to the position of
Director of Business 	Services, 	was 	for the two previous years,
the 	Supervisor of Business 	Services 	for the YCOE. 	Her
professional 	background consists 	of 	12 	years 	of governmental
accounting experience with the 	counties 	of Yolo and Marin. 	While
employed by Yolo County, 	she was 	the 	supervisor of 	four 	employees
for the 	Food 	Stamp 	Issuance program. 	She 	left that position in
1975, 	twelve years before 	she began her duties with the YCOE
Business 	Office. 	For the 	immediate two plus 	years prior to her
business 	office 	appointment 	she was 	a 	secretary 	in the YCOE
66

personnel 	department with no accounting responsibilities. 	While
assigned 	to 	the business 	office 	she 	enrolled 	in, 	and 	successfully
completed, 	a nine-month, 	165 class hours course in school
business 	management 	through 	the 	California 	State 	University,
Sacramento. 	Carlene Naylor 	testified 	favorably regarding
Kingery's 	general 	accounting abilities.
Mary Washburn, 	presently Director of 	Business 	Services 	for
the El 	Dorado County Superintendent of 	Schools, 	was previously
the Business 	Services 	Supervisor for the YCOE. 	Her title was
different but her duties were 	comparable 	to the position
presently 	held 	by 	Kingery.
When Washburn left, 	she did not recommend Kingery as 	her
replacement 	because 	she did 	not believe 	she had 	an adequate
background 	for 	the position.
5. 	YCOE's 	Business 	Office Background
There 	is 	no doubt that there were 	serious problems 	in the
business 	office when 	Zemmels 	and Kingery began their 	supervisory
duties. 	The county's 	school 	districts were 	extremely angry with
the 	quality of 	services 	coming 	from the 	office. 	General
information was 	not 	being provided 	in a 	timely manner and 	the
State 	Department 	of 	Education deadlines were 	not being met.
Once 	Zemmels 	and Kingery 	assumed 	control 	of 	the 	business
office, 	the 	situation did not appreciably 	improve. 	Despite
assistance 	from several 	sources, 	the two women did not have
sufficient 	technical 	knowledge 	to provide 	any appreciable
assistance to 	the business 	service 	technicians.
77

For an extended period of 	time, 	Kingery was 	unable to answer
routine 	questions 	without 	checking with 	either 	Isabella 	Lunsford2
or Eva Prior, 	Business 	Services Technicians 	III. 	Kingery and
Prior had 	competed 	for the position of 	supervisor of 	the business
office. 	Zemmels 	chose Kingery. 	Kingery believed that Prior
resented 	her 	authority. 	Kingery resented 	Prior's 	greater
knowledge and was 	very 	sensitive 	to Prior's 	assistance 	to 	the
other business 	office 	employees. 	When the 	other 	employees went
directly to Prior for answers, 	Kingery was 	incensed. 	She
believed her 	authority was 	being undermined. 	She was 	also 	upset
with Prior because 	she would not 	come 	to her 	for aid 	in her 	job
or with 	job-related problems. 	If the two of them had a
disagreement, 	Prior would go to 	Zemmels 	or to the Personnel
Office 	in an attempt to get help, 	rather than discussing the
matter with 	Kingery.
. . " AN
6. 	Document 	Discrepancy 	Incident 	Involving 	Dick Slaugh
In the morning of January 25, 	1988, 	while performing her
routine duties, 	Prior found a discrepancy 	in a 	financial
document. 	When attempting to resolve the discrepancy, 	she
learned 	that 	three warrants 	had been altered by 	figures 	having
been whited-out 	and replaced. 	This was 	an 	improper procedure.
She went 	to the employee who had altered the document, 	Dick
Slaugh, 	and discussed the matter with him. 	She told him this 	was
22 Lunsford has 	an Associates 	in Arts 	degree 	in accounting
from Solano College, 	has 	taken the 	school business 	manager's
course at Sacramento State University, 	and was 	the Business
Manager 	for the Winters 	School 	District 	for 	six years 	prior to
working 	for the YCOE.
8

an unacceptable procedure 	and he 	admitted his 	error. 	The
evidence 	characterizing 	the 	confrontational 	level 	of 	this
discussion is 	in conflict 	and will 	be 	examined more 	fully below.
After lunch, 	Prior brought the matter up to her 	supervisor.
Kingery 	told 	her 	that 	Slaugh 	had 	already 	complained 	about 	her
hollering and 	screaming at him with regard 	to the matter. 	Prior
denied hollering or 	screamin. . . .
g at Slaugh. 	Prior was 	told that 	she
was 	not Slaugh's 	supervisor and that 	she was 	not to 	engage 	in
this 	type 	of behavior again.
Prior was 	upset 	about what 	she 	felt were 	lies 	told by 	Slaugh
about 	their morning discussion. 	She went to him that afternoon
and 	this 	time 	she did berate him in no uncertain terms. 	She 	told
him 	if 	he 	ever 	lied about her again, 	she would 	"kick his 	skinny
ass." 	She had 	no 	further 	contact with him that day.
" !
Two days later, 	on the 2 7th of January 	1988, 	Zemmels was
investigating the 	matter 	and did not want 	Prior 	there while 	she
was 	doing 	it. 	She told Prior to go home, 	with pay, 	for the day.
Prior told her that 	she 	could not 	leave 	as 	there was 	a
negotiating 	session 	scheduled 	for that day and 	she 	(Prior) 	was 	to
be 	on the 	CSEA team. 	Zemmels 	told her that 	if 	she did not 	"go
home and go home right now, 	I will write you up 	for
insubordination. 	I want you out of here now."3 Zemmels 	insists
she 	had no prior knowledge 	that 	Prior was 	on CSEA's 	negotiating
3 In 	a meeting with 	Superintendent 	Graf 	shortly before 	the
formal hearing 	in this 	case began, 	CSEA representatives 	told Graf
that 	CSEA would 	actively 	campaign against 	Elizabeth 	Zemmels 	if
she 	chose 	to 	run 	for Yolo County Superintendent of 	Schools.
10	9

team. 	Nor did she know, 	she insists, 	that Prior was vice-
president of 	the CSEA chapter. 	This 	statement 	is 	not 	credited,
as 	more 	fully 	explained below.
Prior, 	knowing that there was 	no point 	in arguing with
Zemmels, 	left the area and went to the board room where the CSEA
team was 	assembling. 	She 	stayed 	in negotiations 	the 	rest of 	the
day.
On that same day, 	January 27, 	1988, 	Zemmels 	sent identical
notes 	to 	Joan Kingery, 	Savina Murrieta, 	Judy Shockey and Dick
Slaugh, 	all business office employees, 	asking each of them to
"put 	into writing a description of any unusual 	incidents, 	of
which you may have 	firsthand 	knowledge, 	taking place during work
hours 	last Monday."
Zemmels 	received written 	statements 	from Kingery 	and
Slaugh.4 Shockey told her that 	she was 	not present when the
subject 	events 	occurred. 	Zemmels 	testified as 	follows 	regarding
a handwritten 	statement 	she 	insisted 	she 	received 	from Savina
Murrieta:
Q. 	Elizabeth, 	can you identify that
document?
A. 	Yes, 	this 	is the handwritten statement
that was 	given to me by Savina.
Q. 	And how did that document 	come 	to you?
A. 	In an envelope. 	It was 	just 	sitting on
my desk.
4 Slaugh was 	not 	called as 	a witness 	to 	substantiate his
written 	statement.
10

Q. 	Okay, 	and did you 	subsequently talk to
Savina 	about 	it?
A. 	The only 	statement 	I 	had was 	that 	I went
to her and 	said 	Savina you didn't 	sign this,
and 	she 	said, 	okay, 	and she took a pen off
her desk and 	signed 	it and 	then 	I 	put 	it 	in
the file.
Savina Murrieta, 	at the time of 	the 	formal hearing 	in this
case, was 	on medical 	leave. 	She 	lives' in Woodland but was 	not
expected to testify due to a very 	serious 	illness 	that, 	according
to Zemmels, 	her doctors have not been able to diagnose. 	The
Respondent 	asked 	that 	the 	statement 	be 	admitted 	into 	evidence.
The document 	that 	Zemmels 	said was 	given to her and 	signed
in her presence by 	Savina Murrieta was written in pencil 	in
cursive, 	and is, 	in its entirety, 	as follows:
Monday 	1-25-88
About 	9 	a.m. 	overheard Joan and Eva
discussing an error 	that had been made 	in
keying in a date. 	My name was mentioned, 	so
figured that 	the 	error that had been made was
on my part, 	but yet nothing was 	ever
mentioned to me. 	About an hour 	later I 	heard
Eva 	telling Joan that 	Dick had 	changed 	a 	date
on a 	report after 	I 	had keyed 	it 	into the
computer 	- 	she was 	very angry and was 	calling
Dick names. 	Throughout most of 	the day 	she
(Eva) 	remained 	angry 	and 	continued harassing
Dick about what he had done 	(changing a
date).
/s/ Savina Mureta
The 	document was 	not admitted 	into 	evidence 	at 	that 	time
pending 	further 	verification.
On February 23, 	1988, 	Prior was 	given a Notice of
Disciplinary Action which was 	based 	on 	"offensive 	and 	abusive
Language 	against 	another 	staff 	member when you disagreed 	about 	an
11
'

office procedure." 	As a result of this Notice, 	she was 	to 	serve
a one-day 	suspension with pay, 	which was 	to occur on March 	2,
1988. 	The 	suspension was put 	in abeyance pending the outcome of
this 	case.
On the 	last day of 	the 	formal hearing 	in this 	case 	the
Charging 	Party 	offered 	the 	following 	rebuttal 	document 	into
evidence:
The 	letter dated 	1/2 5/88 	was 	not written by
me. 	I had never 	seen this 	statement before,
it was 	showed 	[sic] 	to me on 	10/25/89. 	The
signature is not mine, 	the 	[sic] 	is
misspelled.
/s/ Savina Guardado
/s/ Savina Murrieta
Under this 	statement 	appeared 	the 	following:
I 	requested 	this 	statement 	from 	Savina
following a 	telephone 	conversation on
10/25/89 	and a personal 	follow-up visit 	to
her home 	that 	same evening. 	I 	did 	show her
what has 	been marked as 	exhibit A, 	and this
is 	the 	statement that 	she gave. 	Savina 	is
ill 	and on 	extended 	leave 	and unable 	to
appear.
/s/ Eva Prior 	10/25/89
The 	Charging Party asked 	that 	this 	document be 	admitted 	into
evidence. 	Before 	this 	evidentiary 	conflict 	could be 	resolved,
Savina Murrieta Guardado, 	despite her illness, 	came to the
hearing room and testified. 	I 	conducted the 	questioning and
after 	showing her both documents 	and 	telling her to 	take her
time, 	I 	asked her which one bore her 	signature. 	She 	said 	she did
not 	need time. 	She knew that 	she had 	signed the document 	the
previous 	evening 	for Eva 	Prior but 	she was puzzled about 	the
12
.

other document, 	the one 	Zemmels 	said 	she 	saw her sign. 	The
questioning with regard to 	the 	Zemmels' 	offered document
continued:
Q. 	(By the ALJ) 	Okay. 	Have you seen that
piece of paper before? 	Is 	that your
signature?
A. 	Well, 	that's what's puzzling to me is
that I 	saw this 	last night, 	in all honesty
it's 	hard for me to 	say yes 	or 	it's 	not. 	It
is, 	but it is and it isn't. 	But this 	isn't
the 	letter 	I produced.
Q. 	It 	isn't the 	letter you produced?
A. 	Huh-uh. 	I 	didn't make this 	letter.
Q. 	Okay. 	Let's divide the question.
A. 	I was 	Murrieta then and Murrieta 	is
misspelled.
Q. 	Okay.
A. 	Or there's 	not enough 	letters.
Q. 	Okay. 	And the 	signature you 	-- you're
not 	sure but you don't think it 	is 	because 	it
doesn't have 	enough 	letters?
A. 	Right.
Q. 	Does 	that 	look 	like your handwriting?
A. 	It does.
Q. 	Okay.
A. 	But, 	I mean
Q. 	Those--
A. 	I would have 	known if 	I'd 	signed
something 	like this.
Q. 	Okay. 	So it's your testimony, 	and your,
remembering 	- 	it's 	your--you had no
recollection of 	ever 	signing 	it?
13

A. 	I 	did not do this 	letter.
Q. 	Okay. 	Do you have any recollection of
ever having read that 	letter or those words,
or 	are 	those your words? 	Could you have
dictated 	it to 	someone?
A. 	The 	first time 	I 	saw this 	letter was
last night.
The Respondent's 	representative asked Mrs. 	Guardado 	if 	she
remembered 	Zemmels 	asking her what 	had gone 	on between Prior 	and
Slaugh on the 	2 5th of January. 	Guardado 	said that 	she told
Zemmels
. 	. 	. 	that Dick had altered some figures on a
document after 	I 	had keyed them 	into the
system. 	And it was 	brought to his 	attention
by 	Eva because by that time 	it hit Eva's
desk. 	She balances 	cash. 	And it was brought
to his -- attention, 	so big deal what was
done was done.
So then 	she'd asked me 	if 	I put that 	in
writing, 	everything I heard. 	And I told her
no, 	I wouldn't. 	And at the end of that day -
- what I don't recall 	is 	I 	don't remember if
I 	set up an appointment with Jack 	(YCOE
Superintendent Jack Graf) 	or Jack called me
or 	if 	he was 	calling 	everyone by the 	end of
the day.
But 	anyhow 	I 	remember having a meeting with
Jack. 	He called me 	in and asking me 	sort of
the 	same 	thing that Elizabeth had asked me.
And 	I 	told him that 	it was 	kind of blown out
of 	proportion because 	nothing 	really happened
or went on and 	I 	had nothing 	-- 	I 	didn't want
to get 	involved.
(Emphasis 	added.)
After Mrs. 	Guardado 	left the hearing room I 	made a 	statement
characterizing her demeanor on the 	stand as being clean, 	well-
groomed, 	alert, 	quiet and passive. 	I 	stated that she responded
well 	to 	questions, 	and did not 	seem befuddled and appeared to
14

testify 	in a 	credible manner. 	Both 	counsel were given an
opportunity to disagree with my characterizations. 	They
responded as 	follows:
RADMAN: 	I have none.
WHITLOCK: 	Respondent has none either. 	She
was 	obviously cogent.
7. 	Credibility Determination
Elizabeth Zemmels is a well-educated, 	intelligent, 	sincere-
appearing, 	seemingly forthright young woman. 	She has 	a
responsible 	and respected position 	in the 	educational 	community.
If 	the document 	in question had appeared mysteriously 	on her desk
with a 	signature 	and 	she had passively relied on 	it, 	the 	impact
of 	Savina 	Murrieta 	Guardado's 	testimony 	could be mitigated.
However, 	when a direct and total 	evidentiary conflict 	is
presented in the manner that this 	one was, 	there 	is 	no
alternative but to determine 	that 	the 	evidence 	supports 	a
conclusion that Ms. 	Zemmels' 	testimony is not to be credited.
The 	impact 	of 	the 	admission or rejection of 	the 	subject document
is 	not 	important. 	Nor is 	the degree of negativism in the
document of primary 	importance. 	What 	is 	important 	is 	the 	fact
that 	an unauthentic 	document was 	used to 	support the 	Respondent's
position. 	It 	is 	the use of 	this document to 	suspend Prior that
is 	most demonstrative of the Respondent's 	improper motivation.5
55 Savina 	Murrieta 	Guardado's 	testimony was 	given on the 	last
day of 	the 	formal hearing. 	Zemmels was 	reportedly out of the
country 	and did not 	retake 	the 	stand to 	testify regarding
Murrieta's 	testimony. 	The Respondent's 	representative did 	not
request a 	continuance.
15

Due to Mrs. 	Guardado's 	illness, 	I very closely observed her
demeanor 	and 	manifested 	attitude 	toward 	the 	parties 	and 	the
issues, 	I 	have no doubt about the truthfulness of her statements.
Savina Murrieta 	(Guardado) 	had only been working for the
Respondent 	for a 	little 	over one month at 	the time of 	the
incident. 	There was 	absolutely no evidence that 	she had any
bias, 	for or against, 	either side. 	She had no reason to do
anything but tell 	the truth. 	She told both 	Zemmels 	and
Superintendent 	Graf 	that 	there 	had been no 	major 	confrontation.
She 	also 	determined, 	after having had only a 	short 	employment
period 	in the business 	office, 	that 	she did not want to get
involved 	in the 	Business 	Office's 	attempt 	to 	escalate 	the
incident. 	Therefore, 	she declined to put her comments 	in
writing. 	Shortly thereafter, 	Zemmels had a 	"signed handwritten"
document 	in her possession.
8. 	Examples 	of Union Animus
a. 	Dimiter's 	Comments 	re: 	the CSEA.
At one point, 	Business 	Office 	Secretary Brenda Hiatt
observed Budget Manager Jon Dimiter come out 	of his 	office and
discuss 	a work-related 	issue with Savina 	Murrieta.6 Savina
mentioned 	that 	she 	had previously discussed 	the 	proper procedure
with Eva, 	and Jon responded,
I 	do 	not want you to 	talk to Eva 	any more
about your work. 	I want you to go to your
supervisor and 	I 	do 	not want 	Eva helping
6 Although there was 	no date given for this 	incident, 	Hiatt
was 	only an employee of the YCOE 	from August of 	1988, 	to June of
1989.
16

everybody; 	that is not her responsibility. 	I
want you 	to 	just do 	your own work with your
supervisor 	and don't 	involve her.
He 	continued:
I'm, 	you know, 	sick of this union business.
I'm 	sick of 	this 	problem 	she 	is
causing. . . .
Joan Kingery 	came out 	of 	her office 	and 	interrupted him by
saying:
. 	. 	. i t was a loaded issue, 	Jon. 	Just don't
say anything more. 	I will handle what 	I want
Savina to do in regards to Eva. 	That is 	the
end of 	it.
b. 	July 	1988 	YCOE 	Business 	Office Users 	Meeting.
Carolyn Souza, 	Accounts 	Payable Clerk 	from the Winters
School 	District office, 	attended a monthly 	"users" 	meeting with
the managers 	of 	the YCOE business office 	in July 	1988. 	At that
meeting, 	she heard Joan Kingery and Elizabeth 	Zemmels 	ask the
various 	county 	school 	district personnel 	to 	let 	them know if 	they
were having any problems with Eva Prior. 	They told the 	assembled
group 	that 	Prior was 	on vacation and that was why 	some 	of 	the
things 	that the 	districts 	had 	expected to be done had not been
completed. 	Souza 	thought 	it 	strange 	that 	they would 	single 	out
one 	employee 	in the office 	in this 	manner.
c. 	Zemmels' 	December 	15, 	1988, 	draft memo.
On December 	15, 	1988, 	a draft memo was 	sent by Zemmels to
Superintendent 	Graf 	that 	concerned 	the 	Business 	Services
Technician 	III 	position. 	It discussed the difficulty the
Business 	Office was 	having 	retaining 	employees 	and discussed 	the
potential 	fiscal 	impact of Eva Prior's workers' 	compensation
17

stress 	claim. 	The 	three-page memo 	concluded with a 	request that
a 	ne	L 	w permanent 	staff 	member be 	hired 	regardless 	of 	the 	outcome. . .
of 	Prior's 	claim. 	In support of that request, 	the 	following
sentence appears:
We do 	not have any 	control 	over the outcome
of the claims 	filed by Eva at this point, 	but
we do 	control what happens 	in this 	office 	and
the attitudes 	of 	staff towards 	her.
(Emphasis 	added.)
As 	the 	evidence dictates 	a 	conclusion that 	Zemmels' 	and
Kingery's 	attitudes were 	consistently negative towards 	Prior, 	it
is 	unlikely 	that 	this 	statement was 	suggesting 	they would 	foster
a positive attitude of 	the 	staff 	towards 	her.
On December 	19, 	1988, 	when the final 	form of the memo was
sent, 	the words 	"and the attitudes 	of 	staff towards her" 	were
deleted.
d. 	Phone call 	inquiring re: 	union business.
On March 9, 	1988, 	at approximately 8:30 	a.m., 	Prior received
a business phone call. 	After completing the call 	she was 	jotting
down 	some 	information about the 	call when Kingery came to her
desk and asked her 	if 	she was 	doing union business. 	Prior
thought this was 	odd as the rest of the 	staff was 	in the other
end of 	the office 	celebrating a birthday and no one 	else 	in the
business 	office was working at the time.
,
e. 	Dimiter's 	comment 	regarding management 	rights 	vis-
a-vis 	the 	CSEA.
At one point, 	the Business 	Office was 	reassigning
responsibilities 	among the 	clerical 	employees. 	Some of Business
Office 	Secretary 	Hiatt's 	responsibilities 	regarding 	document
18

filing were going to be assigned to 	someone else. 	She had a
conversation with Jon Dimiter 	in which 	she 	told him that 	she 	had
a 	job description that 	contained very 	specific 	duties 	and 	that
those 	responsibilities were protected by the 	union. 	Her
recollection of his 	response was 	as 	follows:
He was 	most vocal 	and most 	adamant 	about the
whole business 	of 	the union being 	involved.
He was 	not at all discreet 	in his 	comments,
at which time he said, 	for example, 	Eva is
like a dog with a 	bone with this whole 	issue
that 	she's working with and 	I 	don't
understand why we have to have the union. 	I
don't 	understand why 	they have 	any 	rights
here. 	We are management. 	It is our right to
do what we want to do with these 	employees.
We 	can do whatever we want 	to with the
workload.
9. 	Employee 	Stress 	Caused by Management/CSEA Confrontation
In July of 	1989, 	the YCOE business office was 	in difficult
straits. 	It had two employees 	on extended sick leave, 	one
employee 	who 	had 	recently 	left 	and 	one 	newly 	hired 	untrained
employee. 	It was 	approaching the end of 	the 	fiscal year. 	The
employees 	needed help. 	Kingery and 	Zemmels 	responded to 	the
situation by 	obtaining authority to hire 	an additional 	employee,
but 	only on a 	temporary basis.
Nadine Krug, 	the local CSEA chapter president, 	was upset
over the 	decision to only 	seek a temporary position. 	She 	felt 	it
was 	one more 	stop 	gap band-aid approach to a major 	staffing
problem. 	She believed a 	new permanent 	employee 	should be 	added
to 	the business 	office 	staff. 	She 	communicated this position to
Zemmels.
19

Each 	side was 	trying to 	convince the business 	office
employees that 	its 	approach 	to 	obtaining 	additional 	help was 	the
correct one. 	Lunsford, 	Shockey and Dawn Wunder, 	all business
office technicians 	of 	the business 	office, 	talked about the
matter among themselves. 	They knew they needed the 	extra 	help
but did not want to get 	in the middle of 	a battle between CSEA
and management. 	They prepared, 	signed and 	submitted a memo 	to
Krug, 	with a copy to Zemmels, 	which stated, 	among other things:
1. 	There is a need in our department for
extra help.
2. 	This 	is a management decision and we
should 	have 	no 	further 	involvement 	in
this matter.
3. 	We do not want to be the voice 	for
others who are 	involved 	in this 	matter.
10. 	Extended Lunch Period 	Incident
On February 	5, 	1988, 	Kingery 	saw Prior and Shockey 	in the
hallway a 	few minutes 	after 	1:00 	p.m. 	She 	asked them 	if 	they had
taken a 	late 	lunch period. 	The answers were mumbled and non-
committal. 	When Kingery returned to the business office, 	she
overheard Prior talking to 	Slaugh. 	Prior 	insists 	that 	she was
just warning both Slaugh and another 	employee, 	after 	seeing them
return more than ten minutes 	late from lunch, 	that they had
better watch out because 	Kingery 	"was 	on the warpath" 	and 	that
she had 	just made a 	comment 	to 	Prior and Shockey about being 	two
or three minutes 	late. 	Both Prior and Shockey, 	who was present
when the 	statements 	to Slaugh were made, 	characterized Prior's
statements 	as 	being 	in a 	joking manner between two 	co-workers 	and
20

not made 	as 	if 	she was 	trying to assume a 	supervisory role over
him.
Three days 	later, 	Kingery gave Prior a memorandum which
stated 	that 	this 	event 	caused her 	to 	"formally advise 	you 	of
unacceptable conduct, 	on your part, 	with respect to a co-worker."
Kingery accused her 	of 	encroaching upon her position as 	a
supervisor and 	told 	Prior 	that 	she did 	not 	"have 	the 	authority 	to
enforce 	office policy 	or to 	question office 	staff with 	regard 	to
their 	conduct." 	She 	concluded with the 	statement 	that 	"further
action on your part with regard 	to usurpation of 	supervisory
duties 	will 	be 	considered 	insubordination."
11. 	Disciplinary Warning Regarding Prior's 	Failure 	to Work
on Cash Balances on August 	10. 	1988
In early August 	1988, 	Prior attended the annual CSEA
convention in Las Vegas. 	She requested and obtained the
necessary prior approvals. 	The day before her return on August
10, 	1988, 	Kingery left a note directing Prior to 	start
reconciling 	cash 	balances 	immediately upon 	starting work 	the 	next
morning 	at 	7:00 	a.m. 	When Kingery 	came 	to work 	the 	next morning
at 	8:00 	a.m., 	she 	saw Prior was working on 	something 	else.
Earlier that morning, 	sometime before 	8:00 	a.m., 	Prior had
received 	a phone 	call 	from the 	Davis 	Joint 	Unified 	School
District. 	It was 	an inquiry as 	to whether certain monetary
apportionments 	(income) 	had been posted. 	As 	Prior had been out
of 	the office 	for a week, 	she had to research the matter 	in order
to determine what had occurred 	in her absence. 	It 	is 	commonplace
for districts 	to 	call with questions 	that 	require business 	office
21

technicians 	to drop whatever 	they 	are doing 	and 	obtain 	immediate
answers. 	She was doing this when Kingery came 	in.
Kingery went 	to 	Prior and 	asked why 	she was 	not 	doing what
she had been told to do. 	Prior tried to explain that 	she had
received 	a 	call 	from a 	school 	district 	requesting 	information but
Kingery was 	not 	interested. 	She went 	to her office 	to prepare
and issue, 	a 	few hours later, 	a 	"Disciplinary Warning". 	This
warning 	stated 	that 	Prior had 	serious 	deficiencies 	in her
performance 	in that 	she 	(1) 	did not notify anyone that 	she did
not have the June 30, 	1988, 	cash balances prepared and 	(2) 	had
failed to 	reconcil
1 . .
e 	taxes 	received 	for 	fiscal 	87/88 	so 	that 	the
auditor could 	finalize his 	year-end reports. 	Kingery had
originally wanted 	a 	higher quantum of 	discipline 	for what 	she
perceived as 	direct 	and willful 	insubordination on Prior's 	part.
Zemmels 	told her a warning would be 	sufficient.
Prior 	insisted 	that 	as 	the 	auditors 	had been asked by
Kingery to hold their books 	open until 	July 	15 	for the business
office to process 	transfers, 	the general 	ledgers would not have
been available until 	July 28, 	the day before Prior left 	for her
seven workday vacation. 	This would not have given her 	sufficient
time 	to 	complete the 	task referenced 	in Kingery's 	"warning." 	In
addition, 	Prior cites 	the 	fact that neither Kingery nor 	Zemmels
asked about 	the 	status 	of 	the year-end 	"close out" 	when her
request for time off was 	approved. 	Therefore, 	it could not have
been that 	important 	to them. 	She 	cited 	these 	same 	reasons 	in a
22

contemporaneously written 	rebuttal 	to 	the 	"Disciplinary Warning"
letter.
A 	few minutes 	after 	she 	received 	the 	Disciplinary Warning
from Kingery, 	she 	called her doctor and 	eventually 	left that 	day
on a 	stress-induced 	leave 	of 	absence. 	She did not return until
January 17, 	1989.
12. 	Transferring of Bargaining Unit Work
In early 	1989, 	the parties 	completed negotiations 	regarding
job descriptions 	for all 	of 	the 	Business 	Services 	Technician
classifications. 	The 	changes were ratified by the parties 	and
went 	into effect on February 	9, 	1989.
Eva 	Prior's 	classification 	job description 	lists 	twenty-one
separate 	and distinct 	responsibilities. 	In September of 	1989
five 	of 	these 	duties 	were 	taken away 	from her and were 	assigned
to Jon Dimiter, 	the Budget Manager, 	a non-bargaining unit
employee. 	These duties are:
1. 	Establishes 	and maintains 	accounting records
for a variety of programs 	for the County
office and/or school districts.
2. 	Under direction, 	prepares required budget
estimates 	for 	income 	and 	expenditures.
3. 	Adjusts program budget 	for 	income and
expenditures 	as 	necessary.
6. 	Communicates with program directors 	regarding
changes in budget, problems, etc., as
appropriate.
20. 	Prepares 	journal 	entries 	and budget transfers
as 	necessary.
The person that 	had 	the position before 	Prior had 	a 	lengthy
service tenure with the YCOE Business 	office. 	Prior was 	in the
23

process 	of 	learning her 	job. 	The 	lack of 	supervisory personnel
hampered this 	training. 	The Respondent 	insisted that her 	lengthy
leave 	of 	absence 	delayed her 	ability 	to understand and 	fulfill
all 	of 	the duties 	contractually assigned to her position.
Kingery 	insists 	that 	there 	is 	no plan to permanently
transfer 	any of 	the 	responsibilities 	listed on the 	Business
Services 	Technician 	III-B 	job description to 	anyone 	out 	of 	the
bargaining unit. 	Despite her 	short tenure in the position, 	and
despite Kingery's 	assurances, 	Prior was very 	interested in the
return of the 	full 	range of her duties. 	She brought up the
subject up with 	Zemmels 	on 	several 	occasions.
On one 	such occasion, 	Zemmels 	told her that 	if 	she would
just 	"shut your damn mouth and 	just do what you're told, 	you
might get your 	job back within a year's 	time; 	just 	shut your damn
mouth." 	Zemmels 	admits 	telling Prior that 	she 	"was 	damn tired of
talking about this 	issue" 	and that 	"it was 	a closed topic 	in the
future." 	She 	admits 	being angry and using hand gestures 	to
emphasize the points 	she was making when she 	spoke to Prior. 	She
also 	admits 	Prior accused her 	of 	swearing 	and pounding 	on the
table. 	Zemmels 	insists 	she apologized 	for the word 	"damn."
Superintendent 	Graf 	spoke 	to both parties 	and 	issued 	a 	general
exoneration of 	Zemmels' 	behavior in the matter.
13. 	Below Standard Evaluations
In July of 	1986, 	the then-Business Office Supervisor, 	Mary
Washburn, 	completed Prior's 	annual 	evaluation. 	There were three
"exceeds 	standards" 	ratings, 	eleven 	"meets 	standards" 	ratings and
24
i . ...

no 	"below standards" 	ratings. 	The narrative portions of the
evaluation; were consistent with these rankings. 	The only 	less
than positive 	statement was: 	"Eva needs 	to be more 	considerate of
others in the office, 	in that she tends to 	"barge" 	in, 	often
interrupting others' 	work, 	leaving the impression that 	she
considers whatever 	she's 	doing as 	more 	important."
At about the 	same time, 	Washburn, 	prior to leaving YCOE's
employment, 	wrote a glowing recommendation of Eva Prior. 	She
concluded the 	letter with the 	statement 	"I 	would not hesitate 	to
recommend Eva 	for any position in a business 	office."
There was 	no evaluation prepared in 	1987. 	In March of 	1988,
Prior 	received 	an 	annual 	evaluation 	from 	Kingery 	that 	included
seven 	"meets 	standards" 	rankings, 	three 	"below standard" 	rankings
and three on the 	line between the 	two 	standards.7
Although 	the 	accompanying narratives were 	not 	universally
negative, 	they did include the 	following:
During the past 	year Eva 	has 	resisted 	taking
direction or change 	in office procedures. 	It
is 	important that Eva realize that 	she does
not have authority to 	assign work to her co-
workers 	but must work as 	a team member.
Eva needs 	to be more 	sensitive to the needs
of her co-workers, 	frequently she interrupts
the work of 	others 	and/or tries 	to 	control
various 	situations 	that 	crop up 	in the
business office.
7 Carlene 	Naylor 	testified 	that 	she believed 	that 	Kingery
would have the 	skills 	to adequately 	evaluate an employee 	in the
Business 	Services 	Technician 	III 	classification.
25

Prior prepared 	an 	itemized 	rebuttal 	to 	the 	negative
comments. 	It was 	attached to the evaluation form in her
personnel 	folder.
In May of 	1989, 	Prior received an annual 	evaluation from
Kingery that 	included eight 	"meets 	standards" 	rankings, 	two
"below 	standard" 	rankings 	and three 	on the 	line between the 	two
standards. 	The accompanying narrative, 	in its entirety, 	reads as
follows:
During the past 	3 weeks there has been a
noted attempt 	from Eva 	to meet 	standards 	in
the areas of 8, 	11 and 	12. 	If these areas
continue to 	show improvement 	I will agree to
re-evaluate these areas 	in 6 months.
Eva 	is 	improving 	in terms 	of 	accuracy and
thoroughness, 	but is 	still not as accurate
and 	thorough as 	the 	Tech 	III 	position
requires.
Prior had been on a medical 	stress 	leave 	from August 	10,
1988, 	to January 	17, 	1989. 	In order not to create more stress
she 	just 	accepted 	the 	evaluation and neither prepared 	nor
submitted 	any written rebuttal 	of 	this 	evaluation. 	She had 	a
pending workers' 	compensation case 	for employment-related 	stress.
14. 	Business Office 	Secretary Brenda Hiatt's 	Relationship
with 	Zemmels 	and 	Kingery vis-a-vis 	the 	CSEA
Brenda 	Hiatt was 	employed by the YCOE 	Business 	Office 	from
August 8, 	1988, 	to June 16, 	1989, 	as a secretary. 	Her first
employment 	interview was with 	Zemmels, 	Kingery and Phyllis 	Bailey
from the personnel department. 	Among other things, 	they asked
her how she 	felt 	about being 	in a 	job where 	the union was
actively 	involved.
26

A 	second 	interview was 	with Kingery 	alone. 	At 	that meeting
Kingery 	told 	her 	that 	she wanted her 	to 	clearly understand 	that
she would be walking 	into 	an environment 	that was 	rather hostile.
Kingery 	told her 	that 	there was 	a 	fellow employee who had been
causing 	some 	dissension 	among 	the 	other 	employees 	and 	the 	office
in general. 	Kingery asked her 	if 	she would be 	loyal 	to both her
and 	Zemmels 	and 	their authority 	structure 	under 	these
circumstances. 	Hiatt agreed. 	Kingery does 	not recall making any
of these 	statements.
Once Hiatt 	started working there, 	she did encounter a 	lot of
hostility 	from the rest of the 	clerical 	staff. 	She was 	very
loyal 	to 	Kingery and 	Zemmels. 	Although 	she did not 	generally
socialize with the other 	clerical 	staff 	from the Business 	Office,
she would 	occasionally go 	on breaks 	with 	Isabella 	Lunsford. 	When
she returned from these breaks, 	she noticed a distinct negative
and 	critical 	attitude 	from Kingery 	even though 	she 	had been told
by 	both 	Kingery 	and 	Zemmels 	that 	they 	encouraged 	intra-office
cooperation and 	collaboration. 	Even Lunsford noticed 	it 	and
suggested that they no 	longer go on breaks 	together. 	Hiatt 	asked
Kingery why 	she was 	getting 	this 	hostility. 	Kingery denied 	that
her attitude 	changed due to the breaks. 	Hiatt asked her if
Lunsford was 	the person that 	Kingery had 	told her was 	creating
dissention. 	Kingery said, 	"no", 	that it was 	someone who was on
leave, 	her name was 	Eva Prior. 	Kingery does not recall making
these 	statements 	either.
27

When Prior came back to work in January, 	it was 	very obvious
to 	Hiatt that 	the Business 	Office technician 	staff was 	delighted
to 	see her 	and 	that 	they had 	a 	very 	close 	relationship with her.
Hiatt 	did 	notice 	that 	Kingery 	felt 	threatened by what 	she 	(Hiatt)
felt were commonplace actions 	of 	Prior, 	such as 	talking to the
other 	employees 	about 	their work and 	helping 	them with work-
related problems.
In late January, 	Hiatt began to realize that 	she was working
out 	of 	class 	as 	she was 	the 	sole clerical 	support 	for three
supervisors/managers 	- 	Zemmels, 	Kingery and Dimiter. 	She
originally was 	hired as 	support 	for Kingery alone. 	Nadine 	Krug,
the 	CSEA chapter president, 	approached her and asked her 	if 	she
wanted to 	request a 	reclassification of her position. 	Such
reclassification would result 	in a 	salary 	increase. 	She 	told
Krug that 	if her supervisors, 	Kingery and Zemmels, 	believed 	she
deserved 	a 	salary 	increase 	they would 	take 	the 	initiative 	and
promote her. 	Krug told her that 	the 	reclassification 	system did
not work that way.
Hiatt discussed 	the 	matter with Kingery 	and was 	told 	that 	if
she wanted 	to be 	considered 	for a 	reclassification 	she would have
to 	submit a request. 	Hiatt did 	so. 	For two weeks 	Zemmels 	told
Hiatt 	that 	she 	and 	the 	Superintendent were 	trying 	to 	decide what
to do with her position. 	Later 	Zemmels 	told Hiatt 	she would make
her 	final 	decision 	in conjunction with the 	submission of 	the
annual budget 	in June, 	four or five months 	later. 	Even later
Zemmels 	told her that 	they were 	thinking 	about 	splitting her
28

position. 	One position would act as 	a 	Secretary 	I 	and provide
clerical 	support 	for 	Zemmels 	and the other would act 	as 	the
secretary 	for the Business 	Office. 	After discussing 	it with her
husband, 	Hiatt 	told Kingery that 	she would prefer the 	lower-
paying position 	in the Business 	Office.
When the 	reclassification process 	began to 	be mired down 	in
logistical 	details, 	Hiatt met with Kingery and 	Zemmels 	and 	asked
if 	there would be 	any problem 	if 	she 	asked the CSEA 	for
assistance. 	Hiatt was 	very 	fearful 	that her position would be
used exclusively as 	clerical 	support 	for 	Zemmels. 	If that
happened 	she would have to 	leave as 	she did not want 	to work
exclusively 	for 	Zemmels. 	She described this meeting as 	follows:
A. 	And 	I 	said, 	if 	I 	— 	if 	I 	— 	if 	I 	took 	it
to 	the union and we worked this 	out with the
union and you guys 	as 	to whatever this
position is 	supposed to be, 	am I going to be
classified 	as 	being 	anti-management? 	Am 	I
going to 	fall out of your graces? 	Am I 	going
to be the 	enemy? 	Am I 	going to be 	-- 	are you
going to view this 	as 	disloyalty to them
[sic]?
And Elizabeth 	(Zemmels) 	didn't 	look at me,
but 	she 	just 	said you 	just do whatever you
want to do. 	And I was crying. 	I was totally
confused between 	--
Q. 	Did you 	feel 	caught 	in the middle?
A. 	My whole 	job was 	on the 	line.
About a week later, 	she 	submitted a memo to Superintendent
Graf 	explaining 	that 	she 	had 	no 	confrontational 	or hostile 	intent
but 	that 	she wanted the CSEA to be 	involved 	in her reclassifi-
cation because 	she 	felt the 	negotiations 	on the 	subject had gone
past her 	level 	of understanding. 	Another reason 	she took this
29

action was 	that 	she did not believe 	Kingery and 	Zemmels were
being 	honest with her 	anymore.8
Once 	she turned the matter over to the CSEA, 	the rest of 	the
clerical 	staff 	in the office 	immediately began to 	accept her.
Conversely, 	once the other employees began to accept her, 	Kingery
and 	Zemmels 	no 	longer trusted her. 	Their negative 	attitudes
became 	even more 	obvious. 	She 	asked Kingery why there was 	such a
change 	in their attitudes 	as 	she had always 	been, 	and continued
to be, 	loyal 	to them. 	Kingery told her that 	loyalty was 	just
doing her 	job and that 	she had been doing that but 	trust was 	a
completely different 	matter 	and 	that 	they 	(Kingery 	and 	Zemmels)
could 	not 	trust her anymore.
She 	asked CSEA president 	Krug 	to 	set up 	a 	meeting with
Superintendent Graf 	to discuss 	the negative 	attitudes 	she was
getting 	from 	Zemmels 	and 	Kingery. 	Before 	that 	scheduled meeting,
however, 	Hiatt 	lost her resolve and did not attend. 	However,
Krug did meet with Graf, 	but the problem was 	neither 	solved nor
88 Hiatt 	eventually 	received 	her 	reclassification/salary
increase.
30

alleviated. 	Hiatt resigned her position effective June 	16, 	1989.
She was under the care of three doctors 	for 	stress 	at the time.9
ISSUES
1. 	Did the Respondent, 	when it demanded the removal 	of 	an
individual member of 	the CSEA's 	negotiating team, 	violate
subdivision 	(c) 	of 	section 3543.5?
2. 	Did Eva Prior receive a one-day 	suspension with pay 	on
February 23, 	1989, 	because of her protected activities and
therefore 	in violation of 	subdivision 	(a) 	of 	section 	3543.5?
3. 	Did Eva Prior receive a 	letter of 	reprimand on August
10, 	1988, 	because of her protected activities and therefore in
violation of 	subdivision 	(a) 	of 	section 	3543.5?
4. 	Did Eva 	Prior receive a below standard 	evaluation on
May 	3, 	1989, 	because of her protected activities and therefore in
violation of 	subdivision 	(a) 	of 	section 3543.5?
5. 	Did the Respondent unilaterally transfer a portion of
the bargaining unit work assigned to 	Eva 	Prior to 	a 	non-
9 Originally 	Hiatt 	refused 	to 	accept 	service 	of 	the 	Charging
Party's 	subpoena. 	Her chiropractor 	sent the 	following note 	to
the 	CSEA representative:
In regard to allowing Mrs. 	Hiatt to
participate 	in any 	stressful 	situation, 	i.e.,
testifying or witnessing, 	it would, 	in my
opinion, 	create the 	same circumstance that
she 	is 	trying to 	avoid by not working 	in an
environment of 	stressful demands. 	It has
already been established 	that 	this 	type 	of
exposure 	for Mrs. 	Hiatt is 	considered to be
detrimental 	to her recovery 	from 	stress-
induced back problems.
31

bargaining unit 	employee 	thereby violating 	subdivisions 	(b) 	or
(c) 	of section 3543.5?
6. 	Did the Respondent 	reassign part of 	Eva 	Prior's 	duties
to 	Budget 	Manager Dimiter due 	to 	discriminatory 	reasons 	and
therefore violate 	subdivisions 	(a) 	or 	(b)?
CONCLUSIONS 	OF 	LAW
ISSUE NO. 	1; 	Did the Respondent, when it demanded the
removal 	of 	an 	individual member of 	the CSEA's 	negotiating
team, 	violate subdivision 	(c) 	of 	section 3543.5?
A unilateral 	change 	in terms 	and 	conditions 	of 	employment
within the 	scope of 	employment 	is 	a per 	se refusal to negotiate.
NLRB v. 	Katz 	(1962) 	369 U.S/ 736 	[50 LRRM 2177]. 	PERB has 	long
recognized 	this 	principle. 	Pajaro Valley 	Unified 	School 	District
(1978) 	PERB Decision No. 	51; 	San Mateo County Community College
District 	(1979) 	PERB Decision No. 	94.
Under section 3543.5(c), 	an employer is obligated to meet
and 	negotiate 	in good 	faith with 	an exclusive 	representative
about matters within the 	scope 	of 	representation. 	Both parties
agree 	that 	they were 	in actual 	negotiations 	at 	the time 	and 	that
the 	subject under discussion was within the 	scope 	of
representation.
Unlike most 	"failure to negotiate" 	charges, 	this 	case does
not 	concern prospective 	contractual provisions 	but 	rather 	the
negotiations process 	itself. 	Personnel 	Director Burns 	shouted at
CSEA 	chapter president 	Krug 	and demanded 	that 	Eva 	Prior 	be
removed 	from the CSEA negotiating team as 	she, 	according to
Burns, 	was 	self-serving and making resolution of the matter at
32

issue more difficult. 	The 	collective 	negotiations process
established by the EERA gives 	the parties 	the right to 	appoint
their 	own negotiators 	and 	forbids 	either 	side 	from dictating who
their opposing representatives 	may be. 	San Ramon Valley Unified
School District 	(1982) 	PERB Decision No. 	230; 	Booth Broadcasting
Co. 	(1976) 	223 NLRB 867 	[92 LRRM 1335]; 	Retail Clerks. 	Local 770
(Fine Foods Co.) 	(1977) 	228 NLRB 	1166 	[95 LRRM 1062].
Neither the 	fact 	that CSEA did not agree to 	remove 	Prior
from 	their 	team nor 	the 	fact 	that 	subsequent 	negotiating 	sessions
were 	held with 	Prior 	in attendance 	and without 	objection 	from
Burns 	obviates 	the 	existence of 	an unfair practice 	charge.
It 	is 	determined 	from all 	of 	the 	above 	that when Burns
demanded 	the 	removal 	of 	Prior 	from CSEA's 	negotiating 	team that
subdivision 	(c) 	of 	section 3543.5 was violated. 	As 	this action
concurrently denied 	to 	the 	CSEA rights 	guaranteed to 	it 	by 	the
Act, 	it 	is 	also found that the YCOE violated subdivision 	(b) 	of
section 3543.5.
ISSUE NO. 	2: 	Did Eva 	Prior receive a one-day 	suspension with
pay on February 23, 	1989, 	because of her protected
activities 	and therefore 	in violation of 	subdivision 	(a) 	of
section 	3543.5?
In Novato Unified School 	District 	(1982) 	PERB Decision No.
210, 	the Board 	set 	forth the test 	for retaliation or
discrimination in light of 	the NLRB decision in Wright Line. 	Inc.
(1980) 	251 NLRB 	1083 	[105 LRRM 1169] 	enf. 	in part 	(1st Cir. 	1981)
662 	F.2d 899 	[108 LRRM 2513], 	Under Novato. 	unlawful motivation
must 	be proven 	in order to 	find a violation.
33

In both cases, 	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.
In order to establish a prima 	facie 	case, 	charging party
must 	first prove 	that 	the 	subject 	employee 	engaged 	in protected
activity.10 Then it must prove that the person(s) 	who made the
decision 	that 	resulted 	in the 	harm were 	aware 	of 	such 	activity.
Lastly, 	it must prove that the 	subject adverse action was 	taken
in whole or in part, 	as a result of 	such protected activity.
,
Proving 	the 	existence 	of 	unlawful 	motivation 	can be
difficult. 	The 	PERB acknowledged that when it 	stated the
following 	in Carlsbad Unified 	School 	District 	(1979) 	PERB
Decision No. 	89, at p.11:
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 	principals
the presence of 	such unlawful motivation,
purpose or 	intent may be 	established by
inference 	from the 	entire 	record.
In addition, 	the Board, 	in Novato, 	supra. 	set forth examples
of 	the 	types 	of 	circumstances 	to be 	examined 	in a determination
10 Section 3543 	states, 	in pertinent part, 	that public
school employees:
. 	. 	. 	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 employer-employee relations. 	. 	. 	.
34

of whether union animus 	is 	present 	and a motivating 	factor 	in the
employer's 	action(s) 	These circumstances are 	(1) 	disparate
treatment of 	charging party, 	(2) 	proximity of time between the
participation in protected activity and the 	adverse action, 	(3)
inconsistent explanations of the employer's action(s), 	(4)
departure 	from established procedures 	or 	standards, 	and 	(5) 	an
inadequate 	investigation. 	See 	also 	Baldwin Park Unified 	School
District 	(1982) 	PERB Decision No. 	221.
There 	is 	little doubt that 	Eva 	Prior 	engaged 	in protected
activity when 	she 	assumed 	the 	duties 	of 	CSEA 	chapter vice
president 	and when 	she 	served on the 	CSEA negotiating 	team.
The 	second 	element, 	awareness 	of 	such protected activity by
the decision-maker, 	was met as Personnel Director Burns,
Supervisor 	Kingery 	and Assistant 	Superintendent 	Zemmels 	were 	all
aware of 	some or all 	of Prior's protected activities.
The Charging Party must, 	in order to prevail, 	next provide
evidence proving that 	the 	one-day 	suspension was 	motivated, 	at
least 	in part, 	by 	such protected activity.
Prior to 	an 	examination of 	the 	alleged 	existence 	of 	unlawful
motivation, 	it must be 	stressed that PERB does 	not have the
authority 	to determine whether or not 	the 	District's 	reasons 	for
its 	actions with regard to Prior were 	justified. 	It 	is 	only
concerned with 	such 	reasons 	to 	the 	extent 	that 	they 	create 	or
support 	an 	inference 	that 	the 	true 	motivation for 	such 	actions
was 	the 	employee's 	protected activities.
35

In this 	case 	it 	is 	not 	necessary to 	rely on circumstantial
evidence 	to prove unlawful 	motivation as we have direct 	evidence
of 	such animus. 	The District 	insists 	it was 	justified 	in issuing
the one-day 	suspension. 	It bases 	its 	action on, 	among other
things, 	Zemmels' 	testimony that Savina Murrieta 	submitted and
signed a 	statement regarding the 	incident. 	As 	stated above, 	this
testimony was 	not 	credited and this 	defense 	is 	therefore
rejected. 	The manufacturing of 	evidence with regard to 	this
particular 	incident 	manifests 	an unlawful 	motivation with 	regard
to this 	issue. 	It is also illuminative 	in our examination of
YCOE's 	actions with regard to the other issues 	as well. 	It must
also be 	noted that this 	is 	not 	an 	isolated 	incident of 	union
animus. 	The evidence shows that the YCOE, 	in general, 	and the
Business Office, 	in particular, 	has manifested a 	strong negative
attitude 	toward unions 	and any 	sort 	of vocal dissent. 	This
attitude was apparent in 	(1) 	Burns' 	comments 	in the negotiations
session in November 	1987; 	(2) 	Dimiter's various 	intemperate
comments regarding CSEA; 	(3) 	Kingery's and Zemmels' 	comments at
the July 	1988 users' 	meeting; 	(5) 	Kingery's hypersensitivity
towards 	what 	she 	thought was 	Prior 	conducting union business
during an office birthday celebration; 	and, 	(6) 	Zemmels' 	and
Kingery's 	attitudes 	toward Hiatt when 	she 	asked 	the 	CSEA 	for
assistance 	in her 	reclassification.
Even 	if 	there were no direct 	evidence 	of 	unlawful
motivation, 	an examination of the five 	circumstances 	set 	forth by
36

the Board in Novato and Baldwin Park, 	supra. 	reveal the-
following:
With 	regard to disparate 	treatment, 	Eva 	Prior had been
working 	in the YCOE's Business 	Office 	since 	1984. 	She had been
promoted 	into a position 	in the 	Business 	Services 	Technician 	III-
B 	classification. 	She was 	very 	familiar with not only her own
duties 	but those of the other employees 	in the Business 	Office.
Kingery had been a 	secretary 	in the 	personnel 	department 	during
the 	time 	that 	Prior was 	gaining experience 	in the 	financial
intricacies 	of 	the YCOE Business Office. 	When Kingery was 	given
supervision of 	the Business 	Office by 	Zemmels, 	she and Prior
clashed. 	Kingery was well aware of 	Prior's wide range of
experience 	regarding 	Business 	Office procedures 	and 	the 	fact 	that
the 	other 	employees 	naturally turned 	to 	Prior 	for knowledgeable
advice 	on their task-related problems. 	She 	resented Prior's
greater 	knowledge 	and 	characterized 	her 	assistance 	to 	fellow
employees 	as 	a usurpation of her 	(Kingery's) 	supervisory
authority. 	If 	two other employees 	spoke of a business 	office
matter, 	it was 	intra-office 	cooperation and 	collaboration and was
encouraged. 	If Prior was 	involved, 	it was 	supervisory usurpation
and had to be discouraged 	and 	suppressed. 	This 	is 	disparate
treatment 	in 	its purest 	form.
Another potential 	instance 	of 	disparate 	treatment was
Zemmels' 	insistence that Prior 	leave the Business 	Office while
she 	"investigated" 	the 	Slaugh 	incident. 	Her 	investigation was
comprised 	of 	nothing 	more 	than asking 	four people 	to 	submit 	their
37

written version of what had occurred. 	Two of these people,
*Kingery 	and 	Shockey, 	had 	not 	been present when the 	incident
occurred. 	One, 	Slaugh, 	was a participant and the fourth refused
to 	put 	anything 	in writing 	and 	insisted 	that 	nothing untoward 	had
occurred.
There is 	no evidence 	setting forth Zemmels' 	usual pattern
regarding an investigation of a personnel 	incident, 	so 	it is
difficult 	to 	label 	her insistence 	that 	Prior 	leave 	the building
as 	disparate treatment. 	But 	it 	certainly does 	not 	seem to be
justified by the 	evidence presented. 	This 	is 	especially true
given the 	vehemence with which 	she 	ordered 	Prior out 	of 	the
Business 	Office. 	There were no allegations 	that Prior was
potentially 	out of 	control 	to 	the 	extent 	that an 	investigation
could 	not 	be 	conducted with her on the premises.
With 	regard to 	timing of 	the 	suspension vis-a-vis 	the
protected activities, 	there was 	no doubt that Kingery was 	very
sensitive 	about 	Prior 	advising or 	supervising any of 	the 	other
business 	technicians. 	Although her anger with Prior's 	activities
were 	not 	chronologically 	correlative 	to 	specific 	instances 	of
Prior's 	protected activities, 	they did occur over the 	same 	span
of time.
Ordinarily, 	inconsistent 	explanations 	of 	employer's 	actions
have 	to do with the presence or absence of 	the employer overtly
setting forth 	inconsistent 	explanations 	for its 	actions. 	In the
case of the 	suspension, 	however, 	the employer relied on, 	among
other things, 	the written 	statement of 	Savina Murrieta Guardado.
38

This 	reliance was 	misplaced 	and was 	inconsistent with what
Zemmels 	knew to be the truth. 	The 	statement was 	not written or
signed by 	Savina Murrieta 	Guardado.
Zemmels' 	letter to the 	employees asking 	for any 	first-hand
knowledge 	they may have 	regarding 	the 	Prior-Slaugh 	incident was,
on its 	face, 	a reasonable 	start for an investigation. 	However,
after 	Savina 	Murrieta 	declined 	to provide 	a written 	statement,
Zemmels' 	manufacturing of 	such a 	statement manifested not only an
inadequate 	investigation, 	but an extremely improper one.
Granted, 	Prior did 	confront and berate 	Slaugh 	in the
afternoon after having been told by 	Kingery 	that 	he had
complained about her harassing him. 	As 	Slaugh did 	not 	testify,
there 	is 	no direct 	independent evidence as 	to the truthfulness 	of
Kingery's 	comments 	regarding Prior's 	comments 	to 	Slaugh 	in the
morning. 	His written statement, 	given the above credibility
findings with regard to 	Zemmels' 	actions vis-a-vis 	Savina
Murrieta's 	"written statement", 	was 	given very 	little weight.
These 	actions 	on the part of 	an agent of 	the 	Respondent
support 	an inference 	of unlawful motivation.
Respondent's 	Defense
Once 	an 	inference of 	unlawful 	motivation has 	been
established, 	the burden shifts 	to the respondent to 	show that 	its
actions were 	justified and that 	the 	negative personnel 	action
would have been taken regardless 	of 	the presence 	of unlawful
motivation.
39

As 	more 	fully 	set 	forth above, 	the YCOE's 	defense to this
charge hinged.. . on the 	statements 	of 	Murrieta 	and 	Slaugh.
Murrieta's 	statement was 	found 	not 	to be 	authentic 	and 	Slaugh's
was 	unsubstantiated. 	Given the 	evidence 	regarding Murrieta's
statement, 	such 	substantiation was 	necessary. 	It is 	therefore
concluded that 	the Respondent was 	unable to 	show that 	it would
have 	taken this 	action but 	for Prior's protected activities.
Therefore, 	the Respondent's 	defense 	is deemed to be pretextual
and 	is 	therefore rejected.
After an examination of all of the evidence, 	it 	is
determined that the YCOE, 	when it gave Prior a one-day 	suspension
with pay 	in February of 	1989, 	violated 	subdivision 	(a) 	of 	section
3543.5. 	As 	this 	action concurrently denied to 	the CSEA rights
guaranteed to it by the Act, 	it 	is also found that the YCOE
violated 	subdivision 	(b) 	of 	section 3543.5.
ISSUE NO. 	3: 	Did Eva Prior receive a 	letter of 	reprimand on
August 	10, 	1988, 	because of her protected activities and
therefore 	in violation of 	subdivision 	(a) 	of 	section 	3543.5?
The 	legal analysis 	set 	forth in Issue No. 	2 with regard to
the 	first 	two 	elements 	of 	a discrimination charge 	(section
3543.5(a), 	protected activity and knowledge, 	are applicable to
this 	issue as well. 	The 	evaluation of the evidence with regard
to 	this 	issue must 	then move 	towards 	an examination of 	the 	five
indicia 	of unlawful motivation as 	set 	forth 	in Novato and Baldwin
Park, 	supra. 	The timing of the negative personnel action was 	co-
terminus with Prior's protected activities, 	as was 	the case 	in
the previous 	issue. 	However, 	the concepts of disparate
40

treatment, 	inconsistent explanations 	of 	employer's 	actions 	and
departure. .- from 	established procedures 	do 	not 	seem 	applicable 	to
this issue.
It 	is 	in the 	examination of 	the 	existence of 	an 	inadequate
investigation that 	the YCOE's 	unlawful 	motivation becomes
apparent. 	Prior asked for and obtained approval 	to 	leave on a
week's 	vacation 	in order to 	attend the CSEA annual 	convention.
There was 	no 	evidence that 	either Kingery or 	Zemmels 	inquired 	as
to 	the 	status 	of 	the work on her desk prior to her 	leaving 	for
these vacation days. 11 While 	she was gone, 	both Kingery and
Zemmels 	were 	soliciting 	complaints 	about 	her 	from the 	school
district 	employees 	that used the Business 	Office's 	services.
When Prior 	first 	returned, 	she 	saw Kingery's note and 	started to
comply. 	In the meantime, 	she got an inquiry 	from the Davis 	Joint
Unified 	School 	District. 	She 	then 	started to do what 	all
Business 	Office 	employees were 	required to do 	- 	respond to 	a
school district's 	inquiries. 	When Kingery came to work 	she 	saw
Prior, 	and after only a cursory 	inquiry as 	to why 	she was 	not
conforming to the written instructions, 	she 	immediately wrote 	and
issued a 	letter of 	reprimand. 	These actions 	are 	not 	consistent
with 	a 	supervisor 	attempting to 	conduct 	a 	fair and 	impartial
investigation. 	They are, 	however, 	consistent with an employer
11 It 	is 	noted that 	she was 	going to be absent the 	last 	few
days 	of July and the 	first 	few days 	of August, 	a most 	crucial
time of 	the year for a business 	office on a 	fiscal year of 	July 	1
to June 30.
41

that 	manufactures 	evidence 	and 	engages 	in the 	other 	anti-union
behavior 	discussed 	above.
For the 	reasons 	noted above, 	the YCOE's defense to this
charge 	is 	also 	considered pretextual 	and 	is 	therefore rejected.
It 	is 	therefore determined that 	this 	behavior violated
subdivision 	(a) 	of 	section 3543.5. 	As this action concurrently
denied to the CSEA rights 	guaranteed to 	it by the Act, 	it 	is 	also
found that the YCOE violated 	subdivision 	(b) 	of 	section 	3543.5.
ISSUE NO. 	4: 	Did Eva Prior receive a below standard
evaluation on May 3, 	1989, 	because of her protected
activities 	and therefore 	in violation of 	subdivision 	(a) 	of
section 	3543.5?
The 	legal analysis 	set 	forth in Issue No. 	2 with regard to
the 	first two elements of a discrimination charge, 	protected
activity and knowledge, 	are applicable to this 	issue as well.
The 	evidence with regard to 	the 	five 	circumstances 	cited 	in
Novato and Baldwin Park, 	supra. 	do not support an inference of
unlawful motivation. 	However, 	an employee evaluation is, 	by its
very nature, 	so 	subjective 	it does 	not 	lend 	itself 	to an
objective 	inquiry into 	the 	true 	motivation behind 	each 	ranking
and narrative. 	In addition, 	a pattern of 	antagonism toward the
union can be persuasive evidence of an unlawful 	intent. 	SEIU v.
Cupertino 	Union Elementary 	School 	District 	(1986) 	PERB 	Decision
No. 572.
In this 	case, 	given both the YCOE's manifested union animus
and 	Prior's 	earlier positive 	evaluations 	by 	a 	supervisor who 	had
a much greater range 	of 	experience 	than Kingery, 	the 	conclusion
is 	inescapable that the evaluation in question was, 	at 	least 	in
42

part, 	tainted by such unlawful motivation. 	It 	is not plausible
to expect 	that 	Kingery> 	after having warned 	a 	new employee 	of 	the
disruptive 	nature 	of 	Prior 	and while 	harboring 	the 	union 	animus
described 	above, 	can 	impartially and objectively 	evaluate 	that
same activist.
For the reasons 	noted above, 	YCOE's defense to this 	charge,
i.e., 	that Eva Prior was, 	at best a marginal employee, 	is
rejected. 	Therefore, 	it 	is determined that with regard to
Prior's 	evaluations 	the YCOE violated 	subdivision 	(a) 	of 	section
3543.5 	when 	it prepared 	and 	issued 	Eva 	Prior's 	evaluation on May
3, 	1989. 	As 	this 	action concurrently denied to the CSEA rights
guaranteed to 	it by the Act, 	it 	is 	also found that the YCOE
violated subdivision 	(b) 	of 	section 3543.5.
ISSUE NO. 	5: 	Did the YCOE unilaterally transfer a portion
of 	the bargaining unit work assigned to Eva 	Prior to 	a 	non-
bargaining 	unit 	employee 	thereby 	violating 	subdivision 	(b)
or 	(c) 	of 	section 3543.5?
With 	regard 	to 	the alleged unilateral 	transfer 	of 	bargaining
unit work 	(subdivision 	(c) 	of 	section 3543.5) 	see the legal
analysis 	in the discussion under Issue No. 	1.
In Eureka City School District 	(1985) 	PERB Decision No. 	481,
the 	Board held that 	in order to prevail 	on a unilateral 	transfer
of work charge, 	the 	charging party must 	show that duties were
transferred 	out 	of 	the unit 	by 	showing that 	either 	the unit
employees 	ceased 	to 	perform work which 	they previously performed,
or 	that 	non-unit 	employees 	began to perform duties 	previously
performed 	exclusively by unit 	employees. 	In this 	case 	there was
no 	doubt 	that 	Dimiter was 	performing duties 	assigned to 	Prior by
43

her 	job description. 	This 	job description had recently 	(February
1989) 	been bilaterally 	agreed 	upon.
It 	is well 	established that the decision to 	transfer work
out of the bargaining unit 	is 	negotiable 	if 	it 	impacts 	upon a
subject within the 	scope of 	representation. 	Solano County
Community College District 	(1982) 	PERB Decision No. 	219. 	The
Board has 	long held that the 	classification of 	a position 	is
related to the wages 	and hours 	of the 	employee(s) 	occupying that
position and therefore, 	within the 	scope of negotiations.
Healdsburg Union High School District, 	et al. 	(1984) 	PERB
Decision No. 	375) 	Alum Rock Union Elementary School 	District
(1983) 	PERB Decision No. 	322.
Before 	an employer can make a 	lawful 	unilateral 	change
affecting a matter within 	scope, 	it must give notice of an
opportunity 	to 	negotiate to 	the 	exclusive 	representative. 	Delano
Union Elementary School District 	(1982) 	PERB Decision No. 	213.
In this 	case there was no prior notice and no offer to negotiate.
When Prior complained, 	the District's representative, 	Zemmels,
told her to 	"keep her damn mouth 	shut 	and do what you're 	told."12
The 	fact 	that 	the transfer of 	the duties was 	designed to be 	only
temporary 	is 	not a valid defense to the charge.
As 	this 	unilateral 	transfer 	concurrently denied 	to 	the 	CSEA
rights guaranteed to 	it by the Act, 	it is 	also found that the
YCOE derivatively violated 	subdivision 	(b) 	of 	section 	3543.5.
12 The words 	chosen by 	Zemmels were 	illuminative of her
subjective motivation. 	She did not admonish Prior for not
knowing how to do her 	job but 	for opening her mouth.
44

ISSUE NO. 	6: 	Did the Respondent reassign part of Prior's
duties 	to 	Budget Manager Dimiter due 	to discriminatory
reasons 	and therefore violate 	subdivisions 	(a) 	or 	(b)?	. .
With regard to the alleged violation of 	subdivision 	(a) 	of
section 3543.5 	the 	legal analysis 	set forth in Issue No. 	2 with
regard to the 	first 	two 	elements 	of 	a discrimination charge,
protected activity and knowledge, 	are 	applicable to 	this 	issue 	as
well.
The 	evidence with regard to 	the 	five 	circumstances 	cited 	in
Novato and Baldwin Park, 	supra. 	do not support an inference of
unlawful motivation. 	However, 	the assignment of duties, 	like an
employee 	evaluation, 	is very 	subjective and does 	not 	lend 	itself
to 	an objective 	inquiry 	into 	the 	true 	motivation behind 	each
decision. 	Prior believed that 	she had the 	skills 	to perform all
of 	her assigned duties. 	Kingery 	insisted that 	she did not have
such 	skills. 	Once again, 	absent any other determinative criteria
we 	must 	return to the manifested biases 	of 	the 	three Business
Office 	supervisors 	- 	Zemmels, 	Kingery and Dimiter. 	As 	they have
individually 	and 	collectively 	shown 	themselves 	to 	harbor 	union
animus 	all 	close questions 	regarding 	internal motivations 	must be
decided 	against 	them.
In addition, 	we have two other incidents that assist 	in
making this determination. 	First, 	we have 	Zemmels' 	reliance on
Prior's 	"mouth" 	and not a 	lack of 	skills 	as 	a reason for the
reassignment.
Secondly, 	there 	is an absence of any evidence that the
Business 	Office had any plans 	to give 	Prior the training 	it
45

insisted 	she 	lacked 	in order to 	return the 	subject duties 	to her.
There was 	a passing reference 	to Prior receiving 	some 	training
but 	it was 	insufficient 	to 	support a business 	necessity defense.
For the reasons 	set 	forth above, 	the YCOE's defense to this
charge 	is 	also considered pretextual 	and 	is 	rejected. 	Therefore,
it 	is 	determined that when the YCOE 	reassigned 	some 	of 	Eva
Prior's duties 	to Budget Manager Dimiter, 	it violated 	section
3543.5(a). 	As 	this 	discriminatory act concurrently denied to the
CSEA representational 	rights 	guaranteed by the Act, 	it 	is 	also
found that the YCOE violated 	subdivision 	(b) 	of 	section 3543.5.
SUMMARY
Based on the 	foregoing 	Findings 	of 	Fact 	and Conclusions 	of
Law, 	and the entire record in this 	case, 	it 	is determined that
when the 	Respondent 	served 	two 	negative personnel 	actions 	on Eva
Prior, 	issued a below standard evaluation to her, 	transferred a
portion of 	her work to 	a 	non-bargaining unit 	employee 	and
demanded 	she 	be 	removed 	from her position as 	a member of 	CSEA's
negotiating team, 	it violated subdivisions 	(a), 	(b) 	and 	(c) 	of
section 3543.5.
REMEDY
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, 	including but not
limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies 	of this 	chapter.
46

In order to remedy the unfair practice 	of 	the Respondent 	and
to 	prevent 	it 	from benefitting 	from 	its 	unfair 	labor practice,
and to effectuate the purposes 	of the EERA, 	it 	is 	appropriate to
order 	the 	District 	to 	cease 	and desist 	from discriminating
against 	Eva 	Prior because of 	her exercise 	of 	rights 	guaranteed by
the Educational 	Employment Relations Act. 	It is 	also appropriate
to 	order 	the 	Respondent 	to 	cease 	and desist 	from 	failing 	to
negotiate 	in good faith with the Charging Party, 	the California
School 	Employees Association and 	its 	Yolo County Chapter 	639, 	in
the 	matter 	of 	the membership 	of 	Charging 	Party's 	negotiating 	team
and the assignment of Ms. 	Prior's duties.
It 	is 	also 	appropriate that 	the 	Respondent be 	required to
post 	a notice 	incorporating the terms 	of 	this order. 	The notice
should be 	subscribed by 	an authorized 	agent 	of 	the 	Yolo County
Superintendent of 	Schools, 	indicating that 	it will 	comply with
the 	terms 	thereof. 	The notice 	shall 	not be reduced 	in 	size,
defaced, 	altered or 	covered by any other material. 	Posting 	such
a 	notice will 	provide 	employees with 	notice 	that 	the 	Respondent
has 	acted 	in an unlawful 	manner and 	is 	being required to 	cease
and desist 	from this 	activity. 	It effectuates 	the purposes 	of
the Act 	that 	employees be 	informed of 	the resolution of 	the
controversy 	and will 	announce 	the 	Respondent's 	readiness 	to
comply with 	the 	ordered remedy. 	See 	Placerville 	Union School
District 	(1978) 	PERB Decision No. 	69. 	In Pandol and Sons v.
Agricultural Labor Relations Board 	(1979) 	98 Cal.App.3d 580, 	587
[159 Cal.Rptr. 	584], 	the California District Court of Appeals
47

approved a 	similar posting requirement. 	See also NLRB v. 	Express
Publishing Co. 	f1941) 	312 U.S. 	426 	[8 LRRM 415].
-
PROPOSED 	ORDER
Based upon the 	foregoing Findings 	of 	Fact, 	Conclusions 	of
Law and the 	entire record of 	this 	case 	it 	is 	found that 	the Yolo
County Superintendent of 	Schools violated 	subdivisions 	(a) 	and
(c), 	and derivatively, 	subdivision (b), of section 3543.5 of the
Educational 	Employment Relations Act. 	Pursuant 	to Government
Code 	section 3541.5(c) 	it 	is hereby ORDERED that the Yolo County
Superintendent of 	Schools, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Imposing or threatening to 	impose reprisals,
discriminating or threatening to discriminate against, 	or
otherwise 	restraining or 	coercing 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed by the Act.
2. 	Demanding or insisting that Eva 	Prior be 	removed 	from
the 	negotiating 	team of 	the 	California 	School 	Employees
Association and 	its 	Yolo County Chapter 	639.
3. 	Refusing to assign the entire range of duties 	assigned
to 	the position Eva 	Prior holds within the 	classification of
Business 	Services 	Technician 	III-B.
4. 	Denying to the California 	School 	Employees Association
and 	its 	Yolo County Chapter 	639, 	rights 	guaranteed to 	it by the
Educational 	Employment Relations Act.
48

B, 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Rescind the 	one-day 	suspension with pay dated 	February
23, 	1989, 	and if it has been served, 	make Eva Prior whole for any
losses 	she may have 	incurred as 	a result. 	Such rescission shall
include 	the 	removal 	and destruction of 	all 	copies 	of 	such 	letter
from all 	of Respondent's 	files, 	including but not 	limited to Ms.
Prior's personnel file(s).
2. 	Rescind the 	letter of reprimand dated August 	10, 	1988.
Such 	rescission 	shall 	include 	the 	removal 	and destruction of 	all
copies 	of 	such 	letter 	from all of Respondent's 	files, 	including
but not limited to Ms. 	Prior's personnel file(s).
3. 	Rescind the evaluation dated May 3, 	1989. 	Such
rescission 	shall 	include 	the 	removal 	and destruction of 	all
copies 	of 	such 	evaluation 	from all 	of 	Respondent's 	files,
including but not limited to Ms. 	Prior's personnel 	file(s).
4. 	Assign 	forthwith to the bargaining unit 	the 	full 	range
of 	duties 	set 	forth 	in the 	job description for Business 	Services
Technicians 	III-B.
5. 	Within ten 	(10) 	workdays of 	service of a 	final decision
in this matter, 	post at all Yolo County Superintendent of
Schools' 	sites 	and all other work locations where notices 	are
customarily placed, 	copies 	of the Notice attached hereto as 	an
Appendix. 	The Notice must be 	signed by an authorized agent 	of
the 	Superintendent, 	indicating that the Superintendent 	shall
comply with the terms 	of 	this Order. 	Such posting 	shall 	be
49

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.
6. 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken to 	comply with this 	Order to
the 	Sacramento 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with his 	instructions. 	Continue 	to
report 	in writing 	to 	the 	Regional 	Director 	thereafter 	as
directed. 	All 	reports 	to the Regional Director 	shall be
concurrently 	served 	on the 	Charging 	Party 	herein.
It 	is 	further ORDERED that all 	other aspects 	of 	the Charge
and 	Complaint 	are 	hereby 	DISMISSED.
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
50

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, 	sections
32300, 	32305 and 32140.
Dated: 	April 23, 	1990
ALLEN 	ALLEN R. LINK
Administrative 	Law 	Judge
51
ALi.l'N .... -,