Los Gatos-Saratoga School District (PERB 0742E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
ERVICE 	EMPLOYEES 	INTERNATIONAL
NION, LOCAL 715, AFL-CIO,
Charging 	Party,
v.
LOS GATOS-SARATOGA SCHOOL DISTRICT,
Respondent.
S 	)
U 	)
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) 	Case No. 	SF-CE-1274
PERB 	Decision No. 	742
June 19, 	1989
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Appearance: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Vincent A.
Harrington, 	Jr., 	Attorney, 	for Service Employees 	International
Union, Local 715, AFL-CIO.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before Public Employment
Relations 	Board 	(Board) 	on appeal 	by 	charging party of 	the 	Board
agent's partial dismissal, 	attached hereto, 	of its 	charge that
the 	respondent violated 	section 	3543.5(a) 	of 	the 	Educational
Employment Relations Act. 	We have 	reviewed the partial 	dismissal
and, 	finding it to be free of prejudicial 	error, 	adopt 	it as 	the
decision of 	the 	Board 	itself.
That portion of 	the unfair practice 	charge 	in Case No.
SF-CE-1274 	dismissed 	by 	the 	Board 	agent 	is 	hereby 	DISMISSED
WITHOUT LEAVE 	TO AMEND.
Member Porter 	joined 	in this 	Decision.
Member Craib's 	concurrence 	and dissent begins 	on page 	2.
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Member Craib, 	concurring and dissenting: 	I would affirm the
partial 	dismissal 	insofar as 	it pertains 	to 	the 	allegation that
the 	alleged discrimination 	is 	so 	inherently destructive 	to
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employee 	rights 	that 	it 	states 	an 	independent 	interference
violation irrespective of proof of unlawful motive. 	(See, 	e.g.,
Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89;
NLRB v. 	Erie Resistor Corp. 	(1963) 	373 U.S. 	221 	[53 LRRM 2121].)
However, 	the charging party's 	appeal 	addresses 	only the regional
attorney's 	refusal 	to recognize 	that 	a derivative 	interference
violation necessarily results 	from 	a 	finding of 	discrimination.
Such a violation, 	due to 	its derivative nature, 	could not be
found without 	first 	finding that 	the 	charging party has 	met 	its
burden of 	proof 	on the 	discrimination allegation.
It 	is 	axiomatic 	that discrimination against 	a union activist
not only affects 	that 	individual, 	but also has 	a 	chilling effect
upon the rights 	of all 	employees. 	Under the National 	Labor
Relations Act, 	the 	interference 	and discrimination prohibitions
are 	in separate 	subdivisions 	(section 8, 	subdivisions 	(a)(l) 	and
(a) (3), 	respectively). 	The National Labor Relations Board 	has
consistently 	held 	that a 	violation of 	subdivision 	(a)(3)
(discrimination) 	also constitutes 	a derivative violation of
subdivision (a)(l) 	(interference). 	(See, generally, Morris, 	The
Developing Labor Law (2d ed. 	1983) 	vol. 	I, 	p. 	75.)
Under the Educational Employment Relations Act 	(EERA), 	the
interference 	and 	discrimination prohibitions 	are 	contained 	in the
same subdivision 	(section 3543.5, 	subdivision 	(a)). 	This
structural difference in the two 	statutes does not, 	of course,
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affect 	the 	logic 	of 	finding 	such derivative 	interference
violations. 	If anything, 	it is more natural under EERA, 	since it
would 	not 	require a 	finding as 	to 	a 	subdivision that may not 	have
been 	formally pled.
In 	sum, 	on appeal 	the 	charging party 	simply asks 	that 	the
Board 	recognize 	that 	discrimination 	against 	even one 	individual
has 	a 	chilling effect upon the rights 	of 	all 	employees. 	In other
words, 	the Board is 	asked to recognize an elementary principle of
labor law. 	The complaint is 	sufficient, 	as drafted, 	for it
simply alleges 	a violation of 	subdivision 	(a) 	of 	section 	3543.5
based on purportedly discriminatory conduct. 	However, 	it 	is
important 	for the 	Board 	to 	expressly 	recognize 	the 	derivative
interference 	theory 	(rather 	than 	affirm 	the 	regional 	attorney's
analysis), 	so that the administrative law judge who hears the
case 	and 	renders 	a proposed decision will 	not 	feel 	constrained 	to
reject it.
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STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, CA 94108-4737
(415)557-1350
January 18, 	1989
Vincent A. 	Harrington, Jr.
Law Offices 	of Van 	Bourg et 	al
875 	Battery 	Street
San Francisco, 	CA. 	94111
Re: 	PARTIAL 	DISMISSAL OF ALLEGATIONS AND PARTIAL 	REFUSAL TO
ISSUE 	COMPLAINT
SEIU, 	Local 	715, AFL-CIO v. 	Los Gatos-Saratoga School
District, 	Unfair Practice Charge No. 	SF-CE-1274
Dear Mr. 	Harrington:
I 	indicated to you 	in my attached letter, 	dated January 	13, 	1989,
that the above-referenced charge, 	in part, 	does not state a prima
facie violation of EERA section 	3543.5(a). 	You were advised that
if 	there were 	any 	factual 	inaccuracies 	or 	additional 	facts 	that
would correct 	the deficiencies 	explained 	in that 	letter, 	you
should amend 	the 	charge 	accordingly. 	You were 	further 	advised
that unless 	you amended the 	charge 	to 	state 	a prima 	facie 	case,
or withdrew it prior to January 	18, 	1989, 	the pertinent
allegations 	of 	the 	charge would be 	dismissed.
You and I 	spoke by telephone on January 	13, 	1989. 	You 	stated
during 	that 	conversation 	that 	you 	understand, 	although do not
accept, 	the reasoning underlying the 	conclusion 	that a Partial
Dismissal 	should issue 	in this 	case. 	Further, 	you 	stated that
you are 	not aware 	of 	additional 	facts 	or 	argument which could be
presented to 	cure what 	I 	claim are deficiencies 	in the 	charge.
Therefore, 	you have 	no 	intention of 	amending or withdrawing 	this
charge.
I 	have received neither a withdrawal 	nor an amended charge. 	I 	am
therefore 	dismissing the 	allegations 	described 	in 	the 	attached
Warning 	Letter 	based on 	the 	facts 	and reasons 	described 	therein.
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Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing an
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service 	of 	this 	dismissal 	(California Administrative Code, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and 	five
copies 	of 	such 	appeal 	must 	be 	actually received 	by 	the 	Board
itself before 	the 	close 	of business 	(5:00 	p.m.) 	or 	sent by
telegraph, 	certified or 	Express 	United States 	mail 	postmarked no
later 	than 	the 	last 	date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If 	you 	file a 	timely appeal 	of 	the refusal 	to 	issue a 	complaint,
any other party may 	file 	with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within 	twenty 	calendar days
following 	the 	date 	of 	service 	of 	the 	appeal 	(California
Administrative Code, 	title 8, 	section 32635(b)).
Service
All 	documents 	authorized to be 	filed herein must 	also be 	"served"
upon all 	parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany each 	copy of 	a 	document 	served upon a party 	or 	filed
with the 	Board 	itself. 	(See California Administrative Code,
title 	8, 	section 	32140 	for the required 	contents 	and a 	sample
form.) 	The document will 	be 	considered properly 	"served" 	when
personally delivered 	or 	deposited 	in 	the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
Extension of 	Time
A request 	for 	an 	extension of 	time 	in which to 	file 	a 	document
with 	the 	Board 	itself must be 	in writing and 	filed with 	the 	Board
at 	the 	previously noted 	address. 	A request 	for 	an 	extension must
be 	filed 	at 	least 	three 	calendar days 	before 	the 	expiration 	of
the 	time required 	for 	filing the document. 	The 	request must
indicate good cause 	for and, 	if known, 	the position of each other
party regarding 	the 	extension, 	and 	shall 	be 	accompanied by 	proof
of 	service 	of 	the 	request 	upon each party 	(California
Administrative Code, 	title 8, 	section 32132).
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Final 	Date
If no appeal 	is 	filed within 	the 	specified time 	limits, 	the
dismissal will 	become 	final 	when the 	time 	limits 	have 	expired,
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By
Peter 	Haberfled
Regional 	Attorney
Attachment
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STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Port Street. Suite 900
Son Francisco, CA 94108-4737
(415)557-1350
January 13, 	1989
Vincent A. 	Harrington, 	Jr.
Law Offices 	of Victor Van Bourg, 	et al
875 	Battery 	Street
San Francisco, 	CA 	94111
Re: 	WARNING LETTER
Service Employees 	International Union, 	Local 	715, 	AFL-CIO,
v. 	Los 	Gatos-Saratoga School 	District, 	Unfair Practice
Charge No. 	SF-CE-1274
Dear Mr. 	Harrington:
On September 	9, 	1988, 	you 	filed an unfair practice 	charge on
behalf of the 	Service Employees 	International 	Union, 	Local 	715,
AFL-CIO 	(Union) 	against 	the 	Los 	Gatos-Saratoga School 	District
(District) 	alleging violation of EERA section 3543.5(a). 	More
specifically, 	you 	allege 	that the District discriminated against
Ms. 	Norma Pal when it failed/refused, 	because of her union
activities, 	to offer to her, 	as an alternative to layoff, 	a
vacant position as 	a Library Technician 	. 	You also allege 	that
independent 	of 	any 	specific 	motivation or animus which the
employer may have borne 	toward Ms. 	Pal, 	its refusal 	to place Pal
in 	the 	vacant 	Library 	Technician position 	constitutes 	an 	employer
action which 	is 	inherently destructive 	of 	important 	employee
rights 	and 	interests 	and 	therefore 	constitutes 	an 	interference 	in
violation of 	EERA 	section 	3543.5(a).
You allege 	that Norma Pal has been an active, 	visible, 	outspoken
union 	adherent who 	engaged 	in 	activities 	that 	involved 	serving 	as
Union steward 	for 	several 	years up through October 	1, 	1988, 	the
date 	on which 	she was 	laid off, 	and negotiator 	for 	the 	Union's
local 	Chapter 	organization during 	1985 	and 	1986. 	The 	Union had
informed the 	District that Ms. 	Pal was 	elected to 	serve on the
Union negotiating 	committee 	during 	1987 	but 	she was 	unable 	to do
so because 	of 	a medical 	condition. 	Similarly, 	the 	Union notified
the 	District 	that 	she had been elected 	to 	serve 	in 	the 	same
capacity during 	1988, 	but 	she was unable 	to do 	so after having
been 	laid 	off.

The 	District 	is 	small, 	consisting of 	two high 	schools 	and
approximately ninety unit members. 	Allegedly, 	Ms. 	Pal
represented 	other 	classified 	unit 	members 	informally 	and 	formally
in a 	variety of different 	contexts. 	Although 	she was 	employed 	at
Saratoga 	High 	School, 	she was known to 	the 	Principal 	of 	the 	Los
Altos 	High 	School 	because 	he 	served 	on 	the 	District's 	negotiating
team.
The District informed the Union, 	as early as June 	1988, 	that Ms.
Pal was 	slated for layoff. 	In response, 	the Union made a formal
presentation 	to 	the 	Board of 	Education 	in which 	it 	urged 	that
rather than laying off Ms. 	Pal, 	a union activist, 	the District,
instead, 	should 	solve budget problems 	by not 	filling vacancies
which 	come 	about 	through natural 	attrition. 	The 	Board took
formal 	action to lay off Ms. 	Pal on August 	15, 	1988. 	The notice
to lay off Ms. 	Pal, 	to take effect on October 	1, 	1988, 	was issued
to her on August 	17, 	1988.
Between 	the 	date 	on which Ms. 	Pal 	learned of 	the 	impending 	layoff
and the 	date 	she received formal 	notice, 	she applied for a
Library 	Technician 	II 	position which was 	vacant 	at Los Altos 	High
School. 	The 	District denied her 	the 	requested 	transfer on August
5, 	1988. 	She met many of the published requirements 	for the
position 	and offered to enroll 	in 	school 	to 	fulfill 	the 	few
remaining specifications. 	However, 	the District 	interviewers,
Los Altos 	Principal Simonsen and Ms. 	Ropshan, 	the Librarian,
hired another 	individual who did not possess 	Ms. 	Pal's 	seniority,
background or experience with the 	District. 	The 	Union 	states
that Ms. 	Ropshan was 	a teacher at Los Gatos 	High School during
the 	time 	Ms. 	Pal was 	active there 	on behalf of classified
employees. 	Both 	she and Principal 	Simonsen were 	aware of Ms.
Pal's 	protected 	activities.
The 	Union 	contends 	that 	the District has 	a policy of awarding
vacant 	positions 	to qualified persons 	within 	the 	District rather
than hiring 	a non-District employee. 	The 	Union complains 	that,
despite 	the 	policy and Ms. 	Pal's 	being qualified to perform the
duties 	of 	the 	job, 	an outsider was 	chosen to 	fill 	the vacancy.
The 	Union 	alleges 	that 	the 	District 	applied 	its 	policy 	two 	years
ago to hire Ms. 	Jean Ridley, 	Ms. 	Pal's co-worker. 	Ms Ridley, 	a
Clerk-Typist at 	Saratoga High School 	was 	slated 	for layoff. 	She
applied 	for 	and was 	transferred to 	fill 	a 	vacant 	Library
Technician position at Saratoga High School. 	Like Ms. 	Pal, 	Ms.
Ridley did not meet all 	the qualifications, 	yet 	the 	District
agreed 	to place Ms. 	Ridley in the 	Library Technician position and
allow her to pursue 	further training on the 	job. 	Ms. 	Ridley was
not 	a 	Union 	activist.
You, 	on behalf of the Union, 	have responded in writing to the
District's 	contention that the 	job required that Ms. 	Pal 	be 	able
to type more than nine 	(9) 	words per minute. 	You explain that
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Ms. 	Pal 	states 	that 	she was 	not asked whether her typing 	speed
had 	changed over 	the years 	since 	it was measured at 	9 wpm; 	she,
assured 	the 	interviewers 	that 	she 	had been 	typing 	cards 	and
writing 	to 	publishers 	in 	her 	present 	position 	and 	had 	a
basic 	facility 	in 	typing;
the 	two 	interviewers 	(Ted Simonsen, 	Assistant Principal, 	and
Linda Ropshan, 	the Librarian) 	told her that the main
responsibilities 	of 	the 	job would be 	to,
man 	(sic) 	the 	counter, 	help 	students 	find books 	and check
things 	in and out using the 	computer;
two 	library 	technicians 	at 	Los 	Gatos 	High 	School 	said 	they 	did
some 	typing—book requisitions, 	lists, 	card catalogue entries--
but 	the main 	job of 	the half-time worker is 	to be 	in charge 	of
the 	periodicals; 	the half-time worker 	claimed that 	she 	spent
between 	one-half 	hour 	and 	one 	hour 	per 	day 	performing 	typing
duties; 	and, 	the 	full-time 	librarian 	said she 	spends 	between one
and 	two 	hours 	per 	day. 	The 	job description provided by 	the
District does 	not 	list 	as 	a 	job qualification that 	the 	applicant
type 	a 	required number of words-per-minute. 	The 	Union urges 	that
this 	information indicates 	that the 	typing requirement 	is 	not 	a
bona 	fide disqualifying factor in Ms. 	Pal's 	case..
Based on the 	facts 	described above, 	the 	allegation that 	the
District's refusal to hire Ms. 	Pal 	interfered with employee
rights 	does 	not 	state a prima 	facie violation of 	EERA 	for 	the
reasons 	which 	follow.
In Novato Unified School 	District 	(1982) 	PERB Decision No. 	210,
the 	Board described 	two 	types 	of 	violation which may be 	alleged
under EERA Section 3543.5(a). 	First, 	facts which 	suggest that
the 	employer's 	conduct 	injured 	or 	tended 	to 	injure 	the 	exercise
of 	employee 	rights 	under 	EERA, 	akin to 	those 	alleged and reviewed
in Carlsbad Unified School 	District 	(1979) 	PERB Decision No. 	89,
set 	forth an 	"interference" 	violation. 	Second, 	facts which
suggest 	that 	an 	employer 	subjected 	an 	employee 	to 	adverse
treatment 	because 	s/he 	engaged 	in protected activity, 	similar 	to
those analyzed in Wriqhtline, 	a division of Wriqhtline, 	Inc.
(1980) 	251 NLRB No. 	150 	[105 LRRM 1169], 	set forth a
"discrimination" 	violation. 	In Novato, 	supra, 	the PERB found a
discrimination 	violation.
The 	facts 	alleged here 	are 	similar 	to 	those 	alleged 	in Novato,
supra. 	Therefore, 	a complaint will 	issue 	alleging a
discrimination 	violation.
In 	neither 	Novato nor other 	Board decisions which 	involve
violations 	of 	section 	3543.5(a) 	has 	the 	Board 	found that 	the
facts 	on which 	the 	discrimination 	violation 	is 	based
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automatically 	give 	rise 	to 	a 	derivative 	or 	independent
interference 	violation. 	The 	allegations 	of 	this 	charge 	are 	not
distinguishable 	from Novato and 	its 	progeny. 	Accordingly, 	the
allegations 	that 	the 	District 	also 	violated 	EERA 	section
3543.5(a) 	on an 	"interference" 	theory 	shall be dismissed.
If 	there 	are 	any 	factual 	inaccuracies 	in 	this 	letter 	or 	any
additional 	facts 	that would 	correct 	the 	deficiencies 	explained
above, 	please 	amend the 	charge 	accordingly. 	The 	amended charge
should 	be 	prepared on 	a 	standard 	PERB 	unfair 	practice 	charge 	form
clearly 	labeled 	First Amended Charge, 	contain all 	the 	facts 	and
allegations 	you wish to make, 	and must be 	signed 	under penalty 	of
perjury by the 	charging party. 	The 	amended charge 	must 	be 	served
on 	the 	respondent 	and the 	original 	proof 	of 	service must be 	filed
with PERB. 	For the reasons 	set 	forth above, 	unless 	the
allegations 	that the 	District's 	conduct gives 	rise, 	on an
"interference 	theory, 	to 	an 	independent 	and/or derivative
violation of 	section 	3543.5(a) 	are withdrawn or 	amended before
January 	18, 	1988, 	they will be dismissed.
Sincerely,
Peter 	Haberfeld
Regional 	Attorney
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