Scotts Valley Union Elementary School District (PERB 1052E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SCOTTS VALLEY EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
SCOTTS VALLEY UNION ELEMENTARY
SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1575
PERB Decision No. 	1052
August 	24, 	1994
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Appearances; 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for Scotts Valley Education Association, 	CTA/NEA; 	Kay &
Stevens by Janae H. 	Novotny, 	Attorney, 	for Scotts Valley Union
Elementary 	School 	District.
Before Blair, 	Chair; 	Carlyle and Garcia, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the 	Scotts
Valley Education Association, 	CTA/NEA 	(SVEA) 	and the Scotts
Valley Union Elementary School 	District 	(District) 	to a 	PERB
administrative 	law judge's 	(ALJ) 	proposed decision 	(attached
hereto). 	The ALJ dismissed SVEA's 	complaint which alleged 	that
the District 	improperly transferred Marcia Allison 	(Allison) 	from
a middle 	school 	to an elementary school. 	This 	conduct was
alleged to violate 	section 3543.5(a) 	and 	(b) 	of 	the Educational
Employment 	Relations Act 	(EERA).1 Having determined 	that 	it 	has
EERA 	is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references are 	to the
Government Code. 	Section 3543.5 	states, 	in pertinent part:

jurisdiction 	over 	this 	case, 	the 	Board has 	reviewed 	the 	proposed
decision, 	SVEA's 	exceptions, 	the District's 	response thereto, 	the
District's 	statement 	of 	exceptions 	and 	the 	entire 	record 	in 	this
case. 	The 	Board 	finds 	the ALJ's 	dismissal 	to be 	free 	of
prejudicial 	error and adopts 	it 	as 	the 	decision 	of 	the 	Board
itself 	as 	supplemented 	by 	the 	discussion 	below.
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to 	do 	any 	of 	the 	following:
(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.
DISCUSSION
To 	demonstrate 	a violation 	of 	EERA section 	3543.5(a) 	the
charging party must 	allege 	facts which, 	if proven, 	would
establish that: 	(1) 	the 	employee 	exercised rights 	under 	the
EERA; 	(2) 	the 	employer had knowledge 	of 	the 	exercise 	of 	those
rights; 	and 	(3) 	the 	employer 	imposed or 	threatened 	to 	impose
reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained, 	or 	coerced 	the 	employee
because 	of 	the 	exercise 	of 	those 	rights. 	(Novato Unified School
District 	(1982) 	PERB Decision No. 	210 	(Novato U S D ) ; 	Carlsbad
Unified School 	District 	(1979) 	PERB Decision No. 	89 	(Carlsbad
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USD).) 	The employer may then show as 	a defense 	that 	it would
have 	taken the adverse action 	in the 	absence of 	the protected
conduct. 	(Novato USD.)
An 	inference 	of 	unlawful 	motive may be drawn 	from the 	record
as 	a whole, 	as 	supported by circumstantial 	evidence. 	(Carlsbad
USD.)
The 	District 	generally 	concedes 	that 	Allison 	engaged 	in
several 	protected activities 	during 	the 	1991-92 	school 	year.
This 	included 	requesting 	compensation 	for 	the 	extra 	days 	she
worked in August, 	1991 and protesting her workload. 	Further, 	the
District 	acknowledges 	that 	it had knowledge 	of 	this 	activity.
However, 	the District 	in its 	exceptions 	to the proposed decision,
claims 	no nexus 	exists 	(between 	the 	transfer and protected
activities) 	as 	the 	superintendent 	never demonstrated animus
towards Allison. 	The Board disagrees, 	and finds 	the ALJ properly
concluded 	that 	Allison's 	involvement 	with protected activities,
coupled with 	the 	timing of 	her 	transfer, 	along with other
factors, 	gives 	rise 	to an inference of unlawful motivation in her
transfer. 	(Carlsbad USD.)
Therefore, 	the defining issue of this 	case, 	as 	contained in
SVEA's 	exceptions, 	concerns whether or not Allison would have
been 	transferred 	notwithstanding 	her participation 	in protected
activities. 	SVEA claims 	that Allison had an excellent work
history 	(to offset 	the notion of poor 	relations 	with others) 	and
that 	the 	superintendent 	transferred Allison 	only because 	of 	her
exercise 	of protected activities.
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A review of 	the 	record 	indicates 	that 	in 	1991, 	relationships
between Allison and Chris McGriff 	(McGriff) 	the principal 	at 	the
middle 	school 	and Miyo Burnett 	(Burnett) 	assistant principal 	at
the middle 	school 	became 	troubled. 	Allison 	testified 	that 	other
than an 	issue 	in 	1991, 	she 	did not 	have 	any problems with Burnett
and described her 	relationship with Burnett 	as 	"cordial" 	and
"professional." 	However, 	Burnett disagreed with this assessment.
She 	testified 	that 	communication problems 	between 	the 	two
developed at 	the beginning 	of 	the 	school 	year and 	continued 	to
deteriorate 	until 	meaningful 	communication between 	them had
ceased by November, 	1991. 	The 	tension in the 	relationship 	is
apparent 	from the memos 	written between Allison and Burnett.
These memos 	demonstrate 	there 	were 	serious 	disagreements 	between
them.
Additionally, 	McGriff, 	who previously had a good working
relationship with Allison, 	began to have his 	own problems 	with
Allison. 	This 	included 	the 	scheduling of 	teacher meetings by
Allison during 	the 	time 	the 	District 	had advertised and 	set 	aside
teacher/parent 	conferences 	in addition 	to 	the 	scheduling 	of 	other
meetings 	at 	times when McGriff 	or Burnett 	could not 	attend. 	Soon
thereafter, 	all 	requests 	between McGriff 	and Allison were put 	in
writing. 	An example 	of 	how the 	relationships between Allison and
McGriff 	and Burnett 	were 	suffering 	is 	apparent 	from a memorandum
that Allison 	sent 	to McGriff 	and which was 	copied 	to 	the
superintendent 	and the District's 	governing board. 	In the memo,
Allison 	sharply 	criticized both McGriff 	and Burnett, 	questioning
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their leadership skills, 	their lack of 	inspiration, 	and lack of
acknowledgement 	of 	their employees.
The 	Board agrees 	with 	the ALJ 	that 	sufficient 	evidence
exists 	showing 	that 	communication between Allison 	and 	other
school 	employees 	also was 	causing a disruption at 	the 	school. 	We
find that 	this 	disruption was 	significant 	in having a potential
affect 	on 	the 	interpersonal 	relations 	of 	students 	and employees
of 	the middle school. 	Accordingly, 	the Board concludes 	that 	the
District 	has 	met 	its 	burden of 	demonstrating 	that 	Allison would
have 	been 	transferred notwithstanding 	her 	involvement 	in
protected 	activities.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	SF-CE-1575 	are hereby DISMISSED.
Chair Blair and Member Garcia 	joined 	in 	this Decision.
55

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SCOTTS VALLEY 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
SCOTTS VALLEY UNION ELEMENTARY
SCHOOL DISTRICT,
Respondent.
)
)
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) 	Unfair 	Practice
Case No. 	SF-CE-1575
PROPOSED DECISION
(9/8/93)
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Appearances: 	Ramon Romero 	for Scotts Valley Education
Association, 	CTA/NEA; 	Kay & Stevens, 	by Janae H. 	Novotny for
Scotts 	Valley Union 	Elementary School 	District.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
The 	Scotts Valley Education Association, 	CTA/NEA 	(Union or
SVEA), 	filed a charge on June 30, 	1992, 	and an amended charge on
November 18, 	1992. 	After investigation, 	the general 	counsel of
the 	Public 	Employment Relations 	Board 	(Board or PERB) 	issued a
complaint 	on December 23, 	1992, 	against 	the Scotts Valley Union
Elementary 	School 	District 	(District).1 The 	complaint 	alleges
that Marcia Allison 	(Allison) 	exercised 	rights 	guaranteed by 	the
Educational 	Employment Relations Act 	(EERA or Act)2 by requesting
extra pay 	for extra 	days 	worked, 	protesting 	her workload and
1Allegations in 	the 	original 	and amended charges 	relating 	to
alleged discrimination against 	two 	other 	employees 	were 	dismissed
by the deputy general 	counsel. 	That 	action was 	not 	appealed by
SVEA.
2EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government 	Code.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
______________ )

filing a grievance. 	It was 	alleged that 	thereafter 	the District
took 	adverse 	action 	against 	Allison by 	transferring 	her 	from 	the
middle school 	to an elementary school. 	This action, 	it was
alleged, 	was done in violation of section 3543.5(a) 	and 	(b).3
The District's answer, 	filed on January 11, 	1993, 	admitted
jurisdictional 	allegations, 	but denied violation of 	the EERA. 	A
PERB 	conducted settlement 	conference was 	without 	success. 	Formal
hearing was held on May 11, 	12 and June 25, 	1993. 	Upon the
filing of 	final briefs on August 	13, 	1993, 	the matter was
submitted 	for 	decision.4
3Section 3543.5(a) 	and 	(b) 	collectively provide that 	it 	is
unlawful 	for the 	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. 	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.
Respondent's motion to 	correct 	the 	transcript, 	uncontested
by charging party is granted. 	Volume III, 	page 20, 	line 11, 	the
word 	"parody" 	shall read 	"parity." 	Volume III, 	page 99, 	line 27,
the word 	"instructions" 	shall 	read 	"discussions."
Charging party's 	motion 	to 	strike 	respondent's 	post-hearing
brief 	as 	untimely 	is 	denied. 	PERB Regulation section 	32130(c)
provides 	that 	the 	extension 	of 	time provided by California 	Code
of Civil Procedure section 1013, 	subdivision 	(a), 	shall apply to
any 	filing made 	in response 	to documents 	served by mail. 	Section
1013(a) 	provides that 	in case of service by mail, 	"if, 	within a
given number of days 	after such service, 	a right may be
exercised, 	or an act 	is 	to be done by the adverse party, 	the 	time
within which 	such 	right may be 	exercised 	or act 	be 	shall 	be
extended by 	five days 	if 	the address 	is within California."
Here, 	the 	transcript was 	served by mail, 	and a brief was due 	to
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be 	filed 30 	days 	following mailing of 	the 	transcript. 	The
transcript was mailed on July 9. 	Hence, 	respondent 	had until
August 	13, 	1993, 	to file its post-hearing brief. 	The brief was
hand 	filed on that 	day. 	The brief 	was 	timely 	filed.
FINDINGS 	OF 	FACT
The District 	is 	an employer, 	and SVEA is an exclusive
representative within the meaning 	of 	the Act. 	Marcia Allison 	is
an employee within the meaning of 	the Act. 	Allison has 	been
employed by 	the District 	since 	September of 	1987.
For all 	times 	relevant, 	Andre LaCouture 	(LaCouture) 	has been
District 	superintendent. 	The District 	operates 	two 	elementary
schools, 	Vine Hill and Brook Knoll, 	and one middle school. 	Chris
McGriff 	(McGriff) 	has 	served as principal 	of 	the middle 	school.
The District's 	administration, 	called the management 	team,
consists 	of 	the superintendent, 	the assistant superintendent, 	the
director of business 	services, 	the middle 	school 	principal 	and
assistant principal, 	and the 	two elementary school principals.
In January of 	1990, 	SVEA requested the Board of Trustees 	to
discipline 	LaCouture 	for his 	ordering 	a District 	employee 	to
remove 	SVEA campaign 	signs posted 	in the 	community. 	The board
did discipline 	the 	superintendent.
Allison taught 	at 	one 	of 	the 	elementary schools 	for two
years, 	beginning in 1987, 	and then transferred to the middle
school 	as 	6th grade 	teacher where 	she 	taught 	for two years. 	She
was 	meanwhile 	obtaining 	course 	credits 	and appropriate
credentials 	to become a 	counselor. 	She applied 	for and was
appointed 	counselor 	in the middle 	school 	for 	the 	1991-92 	school
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year. 	Her assignment was 	80 percent 	counseling and 20 percent
teaching an English 	class.
Miyo Burnett 	(Burnett) 	came 	to 	the District as 	assistant
principal 	that 	same year. 	In addition 	to her administrative
responsibilities 	(80 percent), 	she also taught 20 percent of 	the
same 	English 	class 	that Allison taught.5 A third teacher, 	on a
substitute assignment 	taught 	60 percent 	of 	the 	class. 	In
November of 	1992, 	that 	teacher was 	replaced by Linda Rodgers
(Rodgers), 	who had been Allison's 	student 	teacher in the prior
school year.
Allison and Burnett 	met 	during 	interviews 	for 	the 	assistant
principal position, 	and at another meeting in May 1992, 	they
discussed 	the 	eighth grade 	English 	class 	they would be 	teaching
together. 	At Allison's 	request, 	Burnett gave a list 	of books
that 	she 	thought would be appropriate 	for 	the 	class.
At McGriff's 	request, 	Allison commenced working 	in August,
before the start of 	the school 	session. 	Later, 	after receiving
her September pay check, 	Allison spoke 	to McGriff 	about
compensation 	for the 	extra days. 	Her contract 	called 	for 	190
days 	at 	80 percent 	time. 	McGriff was 	uncertain and contacted
LaCouture, 	who told him to have Allison put her request 	in
writing. 	Allison did that, 	and the next month she was paid for
the 	extra 	time worked.
5Burnett 	had taught 	in 	the 	San 	Francisco 	school 	district 	for
some 	15 years. 	Of 	late, 	she served as head of 	the English
Department.
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Allison appeared before 	the board at 	a meeting, 	as 	the
teachers' 	representative. 	She 	testified that LaCouture became
distant 	and 	cold 	to 	her 	thereafter.
LaCouture and Allison, 	at her request, 	had a meeting not
long after. 	They discussed 	the 	extra days 	of work. 	Allison's
version of 	their discussion is 	that 	LaCouture was 	upset 	that 	she
was 	not 	"task oriented" 	and 	that 	she 	should work whatever hours
were required. 	He did not 	care about 	the 	contract, 	she 	said. 	He
left 	the meeting displeased, 	she said. 	After the meeting, 	he
avoided her, 	she said.
LaCouture 	testified 	it 	was 	a 	"philosophical" 	meeting
discussing 	the 	number of 	days 	the 	counseling position 	should have
assigned 	to 	it.6 He 	caused a 	survey to be 	taken of 	other schools
in 	the 	area 	and determined 	that 	counselors 	were 	generally working
a 	longer work-year than Allison's 	schedule 	called for. 	Later, 	he
was 	successful 	in 	reaching agreement 	with SVEA to 	increase 	the
number of workdays 	of 	the 	counselor to 	195 	days, 	with no 	increase
in pay.7
The record evidence, 	respondent exhibits 1, 	2, 	3, 	4 and 5
demonstrate 	tension between Burnett 	and Allison, 	and then, 	more
significantly, 	between Allison and McGriff. 	In the 	fall 	of 	1991,
Burnett 	and Allison 	exchanged memos 	relating 	to 	serious
6LaCouture was 	a 	counselor 	for three 	or 	four years prior 	to
becoming an administrator. 	He has 	served as assistant principal,
principal, 	superintendent/principal, 	and superintendent.
7There 	is 	very 	little 	evidence 	on 	the 	negotiated 	revision of
the counselor's workyear. 	It 	is clear, 	however, 	that 	the change
came 	about with the 	agreement 	of 	SVEA.
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disagreements 	between 	them. 	The problems 	stemmed 	from their
mutual 	complaints 	about 	lack of 	communication between 	them,
requiring Allison 	to 	seek McGriff's 	facilitation 	of 	a meeting
between 	the 	two 	employees. 	They also had disagreements 	about
decision making 	regarding 	the 	English 	class 	they were 	both
teaching.
Burnett 	sensed 	trouble 	in 	their relationship when, 	in August
she 	arrived and 	found 	that 	none 	of 	the books 	she 	had 	recommended
to Allison 	for 	the 	eighth grade 	class 	had been ordered. 	Allison,
who 	testified 	that 	she 	did not 	understand 	Burnett's
recommendations 	to be 	direction 	to purchase 	the books,
nonetheless 	explained, 	without 	substance, 	why she purchased the
books 	that 	she 	did.
They had mutual 	difficulty 	regarding 	the budget 	for 	the
English 	class. 	Burnett 	had never been 	exposed 	to a 	system where
teachers 	got a budget 	for class. 	She deemed it appropriate 	for
Allison to make her own budget, 	and Burnett would attempt, 	in her
role as assistant principal, 	to secure 	funds 	for her purposes.
On the 	other hand, 	Allison thought 	Burnett was 	avoiding 	the
budget 	issue.
Of 	particular 	concern 	to Burnett 	was 	a 	field 	trip planned by
Allison and Rogers. 	This was 	to take 	students 	to San Jose 	for a
cultural 	event. 	According to Allison, 	Burnett was at a meeting
where 	the 	trip was 	discussed. 	According to Burnett, 	she 	first
learned of 	the meeting at 	a parent 	club 	conference where 	the 	trip
was 	announced. 	The president 	of 	the 	club 	inquired of 	Burnett
. . .
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about 	the 	trip, 	and she was 	embarrassed because 	she 	knew nothing
of 	the 	trip. 	She 	felt upset 	that Allison had not 	included her 	in
the planning, 	as 	she was also teaching the 	English class.
In mid-November, 	Burnett 	observed Allison and Carolyn Brook
in a 	conversation. 	She 	said the 	conversation was very negative
about 	her. 	Allison denied the 	conversation was 	about 	Burnett but
then noted 	that 	it was about 	the 	lack of 	communication between
her and 	the principal. 	"Burnett 	had been a part 	of 	that
involvement 	and we 	were 	talking about 	that."
The 	incident 	caused Burnett 	to write 	a memo 	to Allison on
November 	15. 	Allison responded 	four days 	later.
The 	two met 	in November 	in Burnett's 	office. 	Both were
tense 	and 	testified 	that 	the 	other was 	confrontational. 	Allison
become 	emotional, 	and dissatisfied with her own emotional 	display
left 	the meeting. 	Thereafter, 	their relationship was
uncomfortable 	to both.
Burnett 	shared with McGriff, 	both before 	the November 	15
memo and after, 	her difficulties with Allison. 	She also
discussed 	the problems 	with 	the management 	team at 	their weekly
meetings.
According to Burnett and McGriff, 	in December 1992 	and
January 1993, 	the management 	team discussions 	of 	staffing 	for
1992-93 	included 	the 	question 	of 	whether Allison would 	continue
as 	counselor 	for 	the 	next 	succeeding year. 	McGriff 	testified
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that 	in early March he 	recommended to LaCouture, 	that 	she 	not be
counselor at 	the middle 	school 	the 	following year.8
Burnett 	also 	described 	difficulties 	she 	had with 	regard 	to
Allison's 	failure 	on two 	occasions 	to notify her of 	students
referred 	to 	the 	Student Attendance 	Board. 	She 	further described
the 	distance 	between 	the 	two 	in working 	on a 	shared project 	for
orientation of 	fifth grade 	students 	for the middle 	school.
Communications were 	so tense 	that, 	although working 	in the 	same
office, 	they worked separately on the project. 	Allison did not
rebut 	Burnett's 	testimony on these points.
McGriff 	encountered problems, 	beyond those he witnessed
between Burnett and Allison 	(and Rogers), 	with Allison.
At 	the beginning 	of 	the year 	the 	staff 	agreed 	to hold
teacher grade 	level 	meetings 	on an alternating basis 	every Monday
afternoon. 	Allison 	changed 	the meeting 	time 	and 	frequency 	to
every week at 	noon 	time. 	This 	precluded McGriff 	and Burnett 	who
had to 	cover 	students 	during 	their breaks.
Weekly planning meetings 	of 	the 	student 	support 	group,
including 	Burnett 	and Allison became 	unproductive because 	of 	the
tension between those 	two.
In 	the 	fall 	they disputed her practice 	of 	scheduling 	grade
level meetings 	(she 	scheduled 	6th grade 	teacher meetings) 	when
the middle 	school 	had scheduled teacher-parent 	conferences. 	The
8Neither Burnett 	nor McGriff were precise 	on when the
decision to transfer Allison was made. 	This 	does not 	detract
from the 	announcement 	on March 	10 	by LaCouture 	that 	he 	elected 	to
make 	that move.
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grade 	level meetings 	were 	important 	to Allison and she protested
the 	relocation 	of 	those meetings 	as 	she 	wanted 	to avoid 	teachers
having 	to meet 	after 	school. 	He 	told Allison that 	was 	not 	the
issue. 	He 	only wanted the 	sixth grade 	level 	teachers 	available
for the parent 	conferences. 	There 	is 	no evidence 	that what
McGriff was 	attempting to do would 	result 	in after hours work by-
teachers .
Towards 	the 	end 	of 	January he 	encountered problems 	with her
performance with 	regard 	to 	remediation efforts 	and 	contracts 	for
eighth grade 	students who were 	failing. 	He 	felt 	she was 	taking
too 	long 	and 	the 	contract 	form and process 	was 	ineffective.
In 	February 	1992, 	McGriff 	and Allison 	commenced 	interchange
on 	the 	direction McGriff 	had given 	to Allison 	that 	she perform
yard supervision during break and lunch periods. 	On February 2 6
she wrote him a note asking him to 	inform teachers 	in writing, 	of
his 	request 	for her to assume 	those 	tasks.
On March 5 Allison wrote 	to McGriff, 	with copies 	to the
superintendent 	and Board of Trustees, 	complaining about 	his
nonresponse 	to her 	request 	for help. 	She needed secretarial
assistance 	and 	took umbrage 	at 	his 	notice 	that 	the 	superintendent
wanted her 	to 	assume yard duty assignments 	during break and
lunch. 	She pointed out 	that 	she 	also 	taught 	a 	class 	and usually
spent 	her break assisting 	students 	and her 	lunches 	were 	scheduled
for grade 	level meetings. 	She 	stated that 	his 	lack of 	support
led her 	to 	infer 	that 	he 	considered 	the 	counseling position and
her to be a 	"catch all" 	for miscellaneous assignments, 	he did not
9

value 	her as 	a staff member, 	and that 	he 	is 	"unable 	or unwilling
to 	treat 	particular 	staff members 	in a humane and 	respectful
manner." 	The 	letter also 	expressed anticipated 	retaliatory-
action for her letter. 	'.
McGriff 	responded on March 	8 	advising her 	that 	she 	had been
assigned 	to be visible 	on 	campus 	during break and 	lunch and 	that
she 	had not 	been assigned yard duty. 	He 	stated 	"the 	counselor
should be 	circulating among 	students 	during 	these 	times 	to
prevent 	problems 	and to be available 	to 	students 	in an easy
access 	situation." 	He 	further stated, 	after 	responding 	to 	other
allegations 	she made 	in her letter,
Your antagonistic 	attitude 	towards 	the
administration and 	the 	assistant 	principal 	in
particular 	continue 	to prevent 	the
development 	of 	a 	team work approach to
problem 	solving 	and 	task 	completion at
S.V.M.S. 	. . .
. .
Among his 	expectations 	for the 	remainder of 	the 	semester were:
You will 	be 	out 	on 	campus 	meeting with
students 	during break and 	lunch. 	If 	an
emergency occurs 	where you 	need 	to meet 	with
students, 	parents, 	or staff please let me
know and 	I will make 	arrangements 	for
additional 	personnel 	to be 	outside.
He 	further 	ordered Allison 	to hold grade 	level 	meetings
before 	or after school.
Allison responded on March 	18. 	She 	took exception 	to his
assertions 	about 	comments 	she may have made 	at 	a meeting by
pointing out 	that 	she was 	not 	at 	the meeting. 	Other assertions
in his March 	8 	letter were 	responded to. 	She expressed
recognition 	that 	they held different 	perceptions 	of
10

acknowledgement 	and 	support. 	She 	reiterated her 	concerns 	about
the 	conflict presented by 	the yard duty assignment, 	and
difficulty 	she 	was 	having 	in getting 	teachers 	to meet 	for grade
level 	meetings 	after school. 	Allison concluded by stating:
Because 	I do not believe 	there 	is 	a safe
environment 	in which 	to 	express 	one's
opinions at SVMS, 	I will 	continue to request
that 	a 	colleague 	attend 	our meetings 	as 	an
observer. 	I honor your desire 	to have Ms.
Burnett attend on your behalf. 	. 	. 	.
An 	informal 	meeting was 	held 	on March 24 	between McGriff,
Allison, 	Breta Holgers, 	president of the union, 	Rita Prindle,
grievance 	coordinator for SVEA, 	and Susan Fong, 	District
assistant 	superintendent. 	The meeting was 	to address 	a possible
contract violation that provides 	teachers 	are 	to be 	relieved of
yard supervision 	except 	in 	"in 	the 	event 	of 	unusual
circumstances." 	From notes 	of 	the meeting 	taken by Susan Fong,
assistant 	superintendent 	for educational 	services, 	it 	is 	clear
that 	this 	was 	an 	informal 	meeting prefatory 	to 	the next 	level 	of
the 	grievance procedure.
It was 	the administration's position 	that Allison was 	not
being 	assigned yard 	supervision but 	rather 	the 	assignment 	was 	to
make her available 	to 	students 	in an 	informal manner. 	McGriff
apologized 	for 	the appearance 	of 	"yard duty" 	but 	it 	is 	clear the
administration placed high 	emphasis 	on 	school 	administrators 	and
the 	counselor to be visible during 	lunch periods 	and breaks. 	It
is 	also 	clear 	that 	through her processing 	of 	the 	grievance,
Allison never 	saw that 	need as 	a priority 	over her 	own view of
what 	she 	should be 	doing.
11

On April 	2, 	1992, 	Allison filed a grievance on the March 8
directive 	from McGriff.
Also, 	during the 	1991-92 	school year there was wide-spread
discussion and 	concern about 	the 	conditions 	prevailing 	at 	the
middle 	school. 	Various 	reports were advanced to 	the Board of
Trustees. 	In May, 	the board took formal 	action in adopting
sundry recommendations. 	During this 	time, 	LaCouture also 	took
recommendations 	to 	the board concerning 	the middle 	school. 	Among
his March 	10 	recommendations were 	to 	increase 	the vice-principal
and 	counselor positions 	to 	full-time, 	and to 	revise 	the 	counselor
and vice-principal 	job descriptions 	to provide 	for visibility on
the playground during 	student 	lunches 	and 	recesses. 	He 	further
suggested 	that 	the principal, 	vice-principal 	and 	counselor not
conduct 	staff meetings 	during 	lunch 	time 	to 	ensure 	their
availability 	to 	students.9 He 	also noted his 	intent 	to 	transfer
Allison 	to 	an 	elementary 	school.10
In May, 	Allison was 	given a 	summary evaluation 	that 	carried
two negative 	observations. 	The 	first 	had to do with asserted
belated development 	of 	remediation 	contracts 	with 	students 	who
had 	received 	failing 	grades. 	McGriff 	stated 	that 	she 	developed
them only after 	several 	requests. 	McGriff 	also 	criticized her
9The board adopted a plan 	that 	called 	for, 	among other
things, 	that 	the principal, 	assistant principal and counselor
conduct 	no 	staff 	meetings 	during 	student 	lunch 	times 	and 	to be
visible and available 	to 	students 	during 	that 	time. 	This 	was
adopted on May 19, 	1992.
10LaCouture 	testified without 	contradiction 	that 	the 	transfer
was 	within his 	authority. 	He was 	seeking board support 	by making
the 	announcement 	as 	a 	recommendation.
12

for her 	reluctance 	to perform general 	supervision of 	the 	campus
during school 	hours. 	Throughout 	the 	school year he wrote, 	she
"has 	displayed an uncooperative 	attitude 	toward 	requests 	made 	by
the 	administration which were 	designed 	to 	increase 	her visibility
on 	campus 	and 	increase her 	effectiveness 	with students."
On May 19, 	1992, 	LaCouture notified Allison in writing, 	that
she was 	to be 	transferred to one 	of 	the District's 	elementary
schools, 	yet 	to be determined, 	effective with the 	1992-93 	school
year. 	She was 	invited to meet 	with him to discuss 	the 	reasons
for the transfer, 	pursuant 	to the contract, 	and LaCouture
requested 	that 	she make 	that 	request before June 	5.
At 	the 	time he presented the notice 	to Allison, 	she
requested 	the 	reasons 	for the 	transfer. 	He 	refused 	to 	explain
the 	transfer.
The parties' 	collective bargaining agreement 	contains
provisions 	relative 	to involuntary transfers. 	Article 	11,
section 11.4.1 provides:
An employee who does 	not 	request 	a 	transfer
may not 	be 	transferred 	to 	another 	school
within 	the District 	until 	given an
opportunity 	for 	a meeting 	with 	the
Superintendent 	to discuss 	the 	reasons 	for 	the
transfer. 	The employee shall, 	upon request,
be 	considered 	for 	other vacancies 	which 	are
available 	at 	the 	time 	of 	the 	impending
transfer 	for which 	the 	employee 	is 	qualified.
Among 	the 	stated 	reasons 	allowing 	an 	involuntary 	transfer 	is
the 	"improvement 	of 	the 	educational 	program within any 	school,
including but 	not 	limited to, 	balancing 	staff background
experience, 	interests, 	and academic preparation;" 	and, 	as a
13

separate 	ground, 	"improvement 	of 	the 	staff 	interpersonal
relationships 	in any school."11
LaCouture 	interpreted 	"staff" 	to mean all 	staff 	and not 	just
teachers.
On June 	1 	Allison 	requested a written 	explanation,
complaining 	that 	the 	contract 	required a meeting before 	the
transfer, 	and 	that 	she had not 	gotten 	the 	reasons before 	the
"transfer 	notification."
Thereafter, 	the 	two exchanged communications 	concerning a
meeting for an explanation for the 	transfer. 	At 	times, 	one or
the 	other were 	not 	available 	and they did not meet 	until 	June 	19.
During the 	exchange, 	LaCouture 	objected to Allison's 	selection of
a 	representative. 	He 	later 	confirmed 	that 	she 	could have 	any 	one
she wanted to 	represent 	her.
At 	the June 	19 	meeting, 	which was 	taped by Allison,
LaCouture gave his 	reasons. 	The 	reasons were 	for 	"the
improvement 	of 	the 	educational 	program at 	the 	Scotts 	Valley
Middle 	School 	and 	for 	the 	improvement 	of 	staff 	interpersonal
relationships 	at 	that 	school."
LaCouture's 	explanation was 	several 	fold. 	Called as 	a
witness 	by SVEA he 	testified 	that 	the 	primary 	reason 	for 	the
transfer was 	the 	tension 	in 	the 	relationship 	of Allison with
McGriff 	and Burnett. 	LaCouture 	saw a 	linkage between programs 	in
uAccording 	to 	Carolyn Brook, 	a negotiator 	for SVEA in the
1970's 	when 	this 	language was proposed by the District, 	SVEA
inquired of 	the meaning of 	"staff" 	as 	SVEA did not want 	it 	to be
used 	for punitive 	transfers. 	The District 	clarified 	that 	"staff"
was meant 	to mean problems between teachers.
14

the 	first 	criteria and staff 	relationships 	in the 	second. 	When
the 	latter was adverse, 	then programs 	suffered.
At 	the meeting 	he 	stated 	that 	on 	improvement 	of 	the
educational 	program, 	consistent 	with 	the 	spring 	report 	referred
to above, 	the 	import 	of academic quality. 	In this 	regard,
Allison had a 	high number 	of 	D's 	and 	F's 	in 	the 	first 	semester.
With regard to her 	counseling, 	he 	cited 	two 	instances 	of 	what 	he
called 	"serious 	breaches 	of 	confidentiality." 	Because Allison
was 	taping the 	conversation, 	he 	refused to reveal 	the names 	of
the students.12
Allison was aware of 	one problem, 	and at his 	request 	had
contacted a parent. 	Allison 	thought 	that 	problem had been
resolved.
As 	for 	improvement 	of 	staff 	interpersonal 	relationships
LaCouture 	cited Allison's 	conflicts 	with 	the 	site 	administration
and 	other 	staff. 	He 	refused to name 	the 	staff persons 	who
expressed observations about Allison. 	Evaluations 	of Allison's
counseling 	or 	teaching did not 	enter 	into 	the 	decision 	to
transfer her, 	he 	said, 	but was based solely on the year she
served as 	counselor.
. . .
12Although 	LaCouture 	said he 	did 	a 	little 	investigation 	into
the problems, 	he did not ask Allison 	for her version of what
transpired. 	He relegated these matters, 	to more of 	"concerns"
rather than 	complaints.
15

ISSUE
The 	issue 	in this 	case 	is whether 	the District 	transferred
Marcia Allison 	from her 	counseling position at 	the middle 	school
in 	retaliation 	for her engagement 	of 	protected activity.
CONCLUSIONS 	OF 	LAW
In order to prevail 	on a 	retaliatory adverse 	action 	charge,
the 	charging party must 	establish 	that 	the 	employee 	was 	engaged
in protected activity, 	the activities were known to 	the 	employer,
and 	that 	the 	employer 	took adverse 	action because 	of 	such
activity. 	(Novato Unified School District 	(1982) 	PERB Decision
No. 	210.) 	Unlawful motivation is 	essential 	to charging party's
case. 	In the absence of direct 	evidence, 	an inference of
unlawful 	motivation may be 	drawn 	from the 	record as 	a whole, 	as
supported by 	circumstantial 	evidence. 	(Carlsbad Unified 	School
District 	(1979) 	PERB Decision No. 	89.) 	From Novato. 	supra. 	and a
number of 	cases 	following 	it, 	any of a host 	of 	circumstances may
justify an 	inference 	of 	unlawful 	motivation on 	the 	part 	of 	the
employer. 	Such circumstances 	include: 	the 	timing of 	the adverse
action 	in 	relation 	to 	the 	exercise 	of 	the protected activity
(North Sacramento School District 	(1982) 	PERB Decision No. 	264);
the 	employer's 	disparate 	treatment 	of 	the 	employee 	(State 	of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S); 	departure from established procedures or standards
(Santa Clara Unified School District 	(1979) 	PERB Decision No.
104); 	inconsistent 	or contradictory justification for its actions
(State 	of 	California 	(Department 	of 	Parks 	and Recreation) 	(1983)
16

PERB Decision No. 	328-S); 	or employer animosity towards union
activists 	(Cupertino Union Elementary School 	District 	(1986) 	PERB
Decision No. 572).
Once an 	inference 	is made, 	the burden of proof 	shifts 	to 	the
employer 	to 	establish 	that 	it 	would have 	taken 	the 	action
complained of, 	regardless of the employees' 	protected activities.
(Novato, 	supra. 	PERB Decision No. 	210; Martori Brothers
Distributors v. 	Agricultural 	Labor Relations 	Board 	(1981)
29 	Cal.3d 721 	[175 	Cal. 	Rptr. 	626].) 	Once employer misconduct 	is
demonstrated, 	the employer's action,
. 	. 	. 	should not be deemed an unfair labor
practice unless 	the board determines 	that 	the
employee would have been 	retained 	"but 	for"
his 	union membership or his 	performance 	to
other protected activities. 	(Ibid.)
Allison's protected activity, 	contends 	SVEA, 	is 	found in her
protest 	of payment 	for the 	five days worked in August, 	when she
objected 	to 	teachers being required 	to hold meetings 	after hours,
and when 	she 	filed a grievance 	protesting 	her assignment 	to yard
duty. 	Also, 	her appearance before 	the board as 	SVEA
representative 	constituted 	protected 	activity.
It 	is 	found 	that Allison did 	engage 	in protected activity
when 	she 	insisted 	on adherence 	to 	the 	contract 	with 	respect 	to
the workdays 	required of 	the 	counselor. 	Requesting payment 	for
the 	five 	days 	she worked 	in August was protected activity. 	As 	a
representative 	of 	SVEA, 	appearing before 	the board, 	she also was
engaged 	in protected activity. 	Allison's 	efforts 	to avoid
17

teachers 	having 	to meet 	after 	school 	likewise 	constitutes
protected 	activity.13
The 	filing of 	the grievance, 	however, 	followed the official
announcement 	of 	intent 	to 	transfer Allison 	from the 	counselor
position by 14 	days, 	so 	it 	could not have played a 	role 	in the
employer's decision. 	Hence, 	while 	it does 	constitute protected
activity, 	it had no consequence 	in this 	case.14
The District was 	aware 	of 	the 	request 	for payment 	of 	five
days 	extra work. 	LaCouture was 	directly 	involved 	in processing
the 	request. 	Both McGriff 	and LaCouture were aware 	of Allison's
role 	representing 	SVEA before 	the 	Board 	of 	Trustees.
Pursuant 	to Novato, 	supra, 	SVEA must now make a connection
between Allison's 	protected 	activity and 	the 	decision 	to 	transfer
her. 	It 	asserts 	the 	following 	indicia gives 	rise 	to an inference
of unlawful motivation for the 	transfer, 	and hence a violation of
EERA.
SVEA first 	relies 	on the 	timing of Allison's 	request 	for 	the
extra days 	work pay, 	and the meeting with LaCouture 	regarding 	the
number of 	days a 	counselor should work. 	Then, 	in November she
13The 	District 	generally 	concedes 	a 	finding 	that 	Allison was
engaged 	in protected activity, 	and 	that 	LaCouture 	and McGriff
were aware of 	such activity. 	On this ground, 	however, 	it 	takes
issue 	that 	she was 	engaged 	in protected activity. 	In as much as
other 	contemporary actions 	by Allison meet 	her 	first 	obligation
under Novato. 	this 	issue is not critical.
14SVEA takes 	the 	position 	that 	since 	she was 	notified 	on May
19 	of 	her 	transfer, 	any activity antecedent 	thereto should be
considered. 	As 	noted, 	the District 	announced its 	intent 	on March
10 	to 	transfer Allison from the 	counselor position, 	hence 	the
March 	24 	grievance 	process 	did not 	influence 	the 	earlier decision
of 	the District.
18

asserted 	contract 	rights 	by 	insisting 	that 	teachers 	not 	have 	to
meet after school hours. 	Then, 	by December, 	Allison's 	future
service 	as 	a 	counselor was 	being discussed.15
Timing 	is 	a 	factor 	that may suggest 	unlawful 	motivation,
but 	standing alone 	is 	not 	sufficient 	to 	justify an 	inference.
(Moreland Elementary School 	District 	(1982) 	PERB Decision
No. 22 7.)
SVEA 	contends 	that 	LaCouture 	evidenced 	anti-union 	sentiment
at 	the October meeting with Allison, 	when he 	told her that 	the
contract 	was 	not 	important 	and 	that 	she 	should work as many hours
as 	it 	took to 	complete the 	task.
While 	it 	is 	clear the 	fact 	that Allison 	requested
compensation 	for 	the 	five 	extra 	days 	worked 	initiated 	the
discussion, 	it 	is also clear that LaCouture was aware of his
obligations under 	the 	contract. 	Prior to 	the meeting he 	directed
her request 	for compensation be granted. 	At 	the meeting, 	she was
not 	interested 	in discussing a 	longer work-year 	(and 	indeed, 	had
no 	obligation to) 	because 	the 	contract 	called for 190 	days.
LaCouture 	felt 	that perhaps 	the 	190 	days was not 	enough, 	because
McGriff 	had asked Allison 	to work the 	extra days. 	LaCouture
undertook 	a 	survey about 	the 	counselor work-year 	in 	comparable
schools, 	approached SVEA and obtained a negotiated 	longer work-
15SVEA also 	contends 	filing 	the 	grievance was 	followed
closely by 	the 	announced 	transfer, 	and 	that 	this 	should be
considered evidence giving 	rise 	to an 	inference. 	While 	there 	is
no 	consistency among Burnett, 	McGriff 	or LaCouture about when the
decision was made 	to 	transfer Allison, 	it 	is 	clear that 	decision
preceded March 	10. 	Thus, 	the 	filing of 	the grievance on March 24
had no bearing 	on 	that 	decision.
19

year. 	Even 	though the 	longer work-year was without 	an 	increase
in salary, 	none-the-less, 	SVEA, 	for whatever reason, 	entered into
the agreement 	to modify the work year. 	I don't 	see anti-union
animus 	in LaCouture's 	statement 	about 	the 	contract.16
SVEA 	further 	contends 	that 	Article 	11.4 	requires 	the
decision 	to 	transfer 	to 	take 	into 	consideration 	length of 	service
in the District, 	education and experience, 	and interests and
competence.
There 	is 	no 	evidence 	that 	LaCouture 	did not 	include 	these
factors 	in his 	determination 	to 	transfer Allison 	from the
counselor position.
SVEA complains 	that 	the 	superintendent's 	failure 	to 	offer
justification 	for the 	transfer to Allison at 	the 	time 	it 	took
action 	is 	further evidence 	of 	unlawful motivation.
. .
The 	parties 	had already agreed 	to 	a process 	by which 	the
obligation of 	the District 	to 	relate 	reasons 	was 	triggered.
Section 11.4.1 	covers 	the matter. 	It provides 	that 	the employee
may not 	be 	transferred 	"until 	given 	an 	opportunity 	for 	a meeting
with the 	Superintendent 	to discuss 	the 	reasons 	for 	the 	transfer."
There 	is 	no other requirement 	that at 	the 	time 	of notice 	of
transfer 	the District 	was 	under an 	obligation to provide
justification 	for 	the 	transfer. 
. .
16SVEA argues 	LaCouture's 	credibility 	should be 	undermined by
the 	reprimand he 	received 	from the 	Board of 	Trustees 	in 	1990. 	No
specific 	information 	on 	that 	reprimand was 	introduced 	into
evidence. 	All 	that 	was 	introduced was 	SVEA's 	letter and 	its 	own
views as 	to 	the matter. 	I 	decline 	to draw any inference 	from the
incident.
20
,-

SVEA 	contends 	the District 	departed 	from established
procedures 	and 	standards 	in 	transferring Allison. 	It 	contends
the 	transfer was 	inconsistent 	with Article 	11.4.2.6 	of 	the
agreement 	as 	that 	provision provides 	that 	an 	involuntary 	transfer
may be made 	for the 	improvement 	of 	staff 	relationships 	at 	a
school. 	This means, 	however, 	according to SVEA, 	"problems
arising between teachers, 	not between teachers 	and
administrators."
Brooks 	testimony about 	the meaning 	of 	the 	contract 	term
"staff" 	was not challenged by the District. 	Hence, 	if 	"staff"
means 	just teachers, 	and does not 	include administrators, 	then,
to 	the 	extent 	LaCouture 	considered 	conflicts 	between Allison and
McGriff 	as 	justification 	for the 	transfer, 	the District did vary
from the 	agreed upon grounds 	for transfer. 	McGriff 	was 	an
administrator and not, 	if SVEA is 	correct, 	to be considered in
the 	improvement 	of 	staff 	relationships. 	Burnett, 	also an
administrator, 	was however, 	also a teacher for 20 percent 	time.
The 	need 	for 	improvement 	of 	staff 	relationships 	could 	certainly
include her 	to 	the 	extent 	of 	their 	co-teaching 	the 	English 	class.
There 	was 	evidence 	about 	the 	difficulties 	they had 	in 	that
endeavor. 	Also, 	LaCouture 	referred to other staff who had
complained about 	Allison.
While not 	free 	from doubt, 	the precise definition of 	"staff"
asserted by SVEA and not 	rebutted by 	the District, 	must 	suggest
some variation 	from the 	agreed-upon grounds 	for 	transfer. 	An
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inference 	of 	unlawful 	motivation may be 	drawn 	from this
variation.
SVEA contends 	further 	evidence 	of 	an 	inference 	of 	unlawful
motivation comes 	from the District's vague, 	ambiguous 	or shifting
reasons 	as 	justification 	for the 	transfer.
In addition to 	the 	conflicts between McGriff, 	Burnett and
Allison, 	LaCouture 	offered that Allison had a high number of
"D's" 	and 	"F's" 	in the first semester. 	He also mentioned
"serious breaches 	of 	confidentiality" 	in her role as 	counselor.
Finally, 	he 	offered that 	he had."concerns" 	expressed by other
members 	of 	the 	staff. 	While 	LaCouture 	stated that 	these were not
the 	reasons 	for the 	transfer, 	they were 	offered by him as
justification 	for his 	decision. 	Yet 	none 	of 	this 	information had
been imparted to Allison before, 	save 	for one 	issue 	of
confidentiality. 	At no time did the District, 	McGriff 	or
LaCouture 	relate 	to Allison 	concern about 	a 	high number 	of 	low
grades. 	Nor was 	there any concern about 	conflicts 	with other
staff. 	Finally, 	nothing 	in writing was 	ever stated about
problems 	with her grading practices 	or maintenance 	of
confidentiality 	in her role as 	counselor. 	McGriff's 	summary
evaluation issued on May 11, 	1992, 	did not 	refer to low grades,
problems with other staff members, 	or express 	concern of
Allison's 	observation of 	confidentiality.
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Finally, 	SVEA asserts 	that 	the 	reasons 	given by 	the District
were pretextual, 	and the 	real 	reason was 	her protected
activity.17
From the 	foregoing discussion, 	Allison's 	claim for extra
pay, 	protesting of 	teachers working after hours, 	and her
appearance before 	the Board of 	Trustees 	as 	representative,
coupled with 	the 	timing, 	sometime 	in December and January of 	the
consideration of 	whether Allison would 	continue 	on as 	counselor
at 	Scotts Valley Middle 	School, 	along with other factors 	gives
rise 	to an inference 	of unlawful motivation in her transfer. 	The
other factors are: 	(1) 	LaCouture's application of 	the term
"staff" 	to administrators when the 	term was meant 	only to be
teachers, 	thus 	a possible variation 	from procedures 	and 	standards
of the District; 	(2) 	LaCouture's explanation for the transfer,
predicated upon 	factors 	that 	had not 	been 	imparted 	to Allison 	or
which 	the District 	had not 	previously 	complained 	(the 	number 	of
low grades 	in 	the 	first 	semester and breaches 	of 	confidentiality
in her role as counselor); 	and 	(3) 	the superintendent was
inconsistent 	when he 	testified 	that 	her performance 	as 	a 	teacher
and 	counselor were not 	factors 	in the decision to 	transfer.
These 	factors 	combined persuade me 	to 	find 	that 	SVEA has
satisfied its burden to raise an inference of. unlawful motivation
17SVEA further 	finds 	an 	inference 	of 	unlawful 	motivation 	in
the 	District's 	alleged 	cursory 	investigation 	of 	alleged
misconduct. 	Because 	of 	the 	conclusions drawn here 	that an
inference 	of unlawful motivation has been raised, 	this 	contention
is 	not addressed.
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for 	the 	transfer 	of Allison 	from the 	counselor position at 	Scotts
Valley Middle 	School.
The 	District's 	reasons 	for 	transferring Allison was 	the
level 	of 	tension 	that 	emerged 	in her 	relationship with 	the
principal 	and 	the assistant principal. 	The middle 	school 	was
under 	scrutiny by 	the 	Board of 	Trustees 	to 	improve 	its 	programs
and 	campus 	safety. 	Contrary 	to 	its 	stated objectives 	of 	having
more 	staff visible 	to 	students 	during 	their breaks, 	Allison was
insisting 	on holding meetings 	with 	teachers 	that 	precluded 	her
being visible 	to 	students during their breaks. 	This was not
directed 	to Allison but 	rather 	to all 	the 	administrators 	and 	to
the 	counselor position.
Allison 	did not 	contest 	the 	exacerbated 	situation between
her 	and Burnett 	and 	indeed admitted 	they had 	little 	communication
between 	them. 	Nor did she 	disaffirm the 	tension between herself
and McGriff. 	Indeed, 	she 	expressed her views 	in the 	letter to
the board, 	indicating McGriff viewed the 	counselor position as 	a
"catchall"; 	he did not value her as 	a staff member; 	and he was
"unable 	or unwilling 	to 	treat particular 	staff members 	in a
humane 	and 	respectful 	manner."
The 	counselor 	role was 	part 	of 	the management 	team within
the middle 	school. 	The principal's 	frustration with the 	lack of
communication prevailing between his 	assistant, 	Burnett 	and
Allison, 	as well 	as 	his 	own relationship with Allison was 	evident
in the description, 	not 	rebutted by SVEA, 	that 	the 	team did not
meet weekly as 	had been the plan at 	the beginning 	of 	the 	school
24

year. 	Allison 	continued 	to assert 	her own priorities 	as 	to 	time
available 	to students 	in the direction of 	the school principal, 	a
direction 	that 	became part 	of 	the District-adopted plan. 	That
plan was 	that 	administrators 	and 	counselors 	be more visible 	to
students 	during student's 	free 	time on campus. 	The
communications 	between Allison and McGriff 	clearly 	show a
disruption 	of 	working 	relationship 	appropriate 	for 	a 	principal
and subordinate. 	I 	conclude 	that 	the decision to transfer
Allison was 	predicated upon 	this 	failure 	of 	communication and
deterioration 	of 	relationship between Allison and McGriff 	and
Burnett.
It 	is 	found 	that 	the 	District 	would have 	transferred Marcia
Allison despite 	her protected activity. 	Accordingly, 	the
complaint 	and underlying unfair practice 	charge 	should be
dismissed.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the 	entire 	record 	in this matter, 	Unfair Practice 	Charge
No. 	SF-CE-1575, 	Scotts Valley Education Association. 	CTA/NEA v.
Scotts Valley Union Elementary School 	District, 	and 	the 	companion
PERB 	complaint 	are 	hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	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
25

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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	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 Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	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 Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Gary M, Gary M. Gallery
Administrative 	Administrative Law Judge
26
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