Sacramento City Unified School District (PERB 0492E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SERVICE
	EMPLOYEES
	INTERNATIONAL
UNION,
	LOCAL
	22,
	AFL-CIO,
Charging
	Party,
v.
SACRAMENTO
	CITY 	UNIFIED
	SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
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_____________________
)
Case
	No.
	S-CE-582
S-CE-615
PERB
	Decision
	No. 	492
March
	6,
	1985
Appearances:	
Van
	Bourg,
	Allen,
	Weinberg	
&	
Roger
	by
W.
	Daniel
	Boone
	for 	Service
	Employees
	International
	Union,
Local
	22,
	AFL-CIO; 	Brown
	&
Conradi
	by 	Penn
	Foote
	for
	Sacramento
City
	Unified
	School
	District.
Before
	Hesse,
	Chairperson; 	Jaeger
	and
	Burt,
	Members.
DECISION
	AND
	ORDER
BURT,
	Member: 	The
	Service
	Employees
	International
	Union,
Local
	22,
	AFL-CIO 	(SEIU)
	excepts 	to 	the 	dismissal 	of
	certain
portions
	of
	its
	unfair 	practice
	charges
	against
	the
	Sacramento
City 	Unified
	School
	District
	following
	a
	formal 	hearing
conducted
	by
	an
	administrative
	law
	judge
	(ALJ)
	for
	.the
	Public
Employment
	Relations
	Board
	(Board).
The 	Board
	has 	reviewed 	the
	entire
	record, 	including 	SEIU's
exceptions
	and
	the 	attached 	proposed
	decision.
	Finding
	no
prejudicial 	error 	in 	the 	ALJ's
	findings 	of 	fact
	or 	conclusions
of 	law, 	the
	Board
	ORDERS
	that 	said 	portions 	of 	the 	charge
	are
DISMISSED 	and
	adopts 	the 	proposed 	decision
	and
	order 	as
	its
	own.
Chairperson 	Hesse 	and 	Member
	Jaeger 	joined 	in 	this 	Decision.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 	22, 	AFL-CIO,
Charging 	Party,
v.
SACRAMENTO 	CITY 	UNIFIED SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
___________________ )
Case 	Nos. 	S-CE-582
S-CE-615
PROPOSED 	DECISION
(1/20/84)
Appearances: 	w. 	Daniel Boone, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	and 	Roger), 	for 	Service Employees 	International 	Union,
Local 	22, 	AFL-CIO; 	Penn Foote, 	Attorney 	(Brown 	and 	Conradi) 	for
the 	Sacramento City Unified 	School 	District.
Before 	Ronald 	E. 	Blubaugh, 	Hearing 	Officer.
PROCEDURAL 	HISTORY
In 	these 	consolidated 	cases 	an 	exclusive 	representative
contends 	that 	a 	supervisor 	threatened 	reprisals 	against 	two
employees 	if 	they 	exercised 	their 	protected 	right 	to 	union
assistance. 	The 	union 	contends 	further 	that 	the 	threat
ultimately 	was 	carried 	out 	against 	one 	employee 	when 	he 	was
given 	a 	failing 	score 	on 	a 	promotional 	exam. 	The 	employer
denies 	that 	any 	threats 	were 	made 	and 	argues 	that, 	in 	any
event, 	the 	employee's 	exam 	grade 	was 	unrelated 	to 	the 	contested
actions 	of 	the 	supervisor.
Charge 	5-CE-582 	originally 	was 	filed 	on 	February 	15, 	1983,
by 	the 	Service Employees 	International 	Union, 	Local 	22, 	AFL-CIO

(hereafter 	SEIU) 	against 	the 	Sacramento 	City Unified 	School
District 	(hereafter 	District). 	The 	charge 	alleged 	that 	the
District 	director 	of 	building 	maintenance 	threatened 	a
custodian 	who 	had 	sought 	union 	assistance. 	The 	charge 	was
amended 	on 	March 	15, 	1983, 	by 	the 	addition 	of 	more 	detailed
allegations. 	A complaint 	was 	issued 	on 	April 	29, 	1983, 	by 	the
office 	of 	the 	General 	Counsel 	of 	the 	Public Employment
Relations 	Board 	(hereafter 	PERB) 	alleging 	that 	the 	supervisor's
conduct 	was 	in 	violation 	of 	Educational 	Employment 	Relations
Act 	subsections 	3543.5(a) 	and 	(b).l
The 	District 	answered 	the 	charge 	on 	May 	16, 	1983, 	denying
that 	the 	supervisor 	had 	violated 	any 	provision 	of 	the 	EERA 	and
asserting 	affirmatively 	that 	the 	supervisor's 	statements 	were
in 	response 	to 	insubordination 	by 	the 	employee.
lunless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code. 	The 	Educational 	Employment 	Relations 	Act
(hereafter 	EERA) 	is 	found 	at 	section 	3540 	et 	seq. 	In 	relevant
part, 	section 	3543.5 	provides 	as 	follows:
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.
• 	• 	• 	• 	• 	• 	• 	• 	e 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

The
	charge
	was 	amended
	on
	July 	1,
	1983,
	to
	add
	the
allegation 	that
	the
	employee
	had
	been
	denied
	eligibility
	for
	a
laborer-gardener
	position
	in
	retaliation
	for
	his 	protected
conduct.
	The
	complaint
	was 	amended
	on
	July
	7;
	1983;
	to
	add
	the
new
	allegation.
Charge
	S-CE-615
	originally
	was
	filed
	against
	the
	District
on
	May
	4,
	1983,
	by SEIU. 	The
	charge
	alleged
	that
	the
	same
supervisor
	as
	was
	involved
	in
	the
	earlier
	case
	threatened
	a
clerical
	employee
	when
	she
	said
	she
	was
	going
	to
	call
	the
	union
for 	assistance.
	A
complaint
	was
	issued
	on
	May
	25,
	1983,
	by
	the
office
	of 	the
	PERB
	General 	Counsel,
	alleging 	that
	the
District's
	conduct
	was
	in
	violation
	of
	EERA
	subsection
3543.S(a).
	The
	District
	answered
	the 	complaint
	on
	June
	8,
	1983.
On
	June
	9,
	1983,
	the
	charge
	was 	amended
	to
	add
	the
allegation 	that
	during
	a
	grievance
	meeting 	about 	the
	alleged
threat,
	the 	~upervisor
	warned
	the
	employee
	that
	if
	she 	pursued
the 	grievance 	other 	things
	would 	be
	brought 	out
	that
	the
supervisor 	did 	not
	wish
	to 	bring 	out.
	On
	June 	24, 	1983,
	the
PERB
	complaint
	was 	amended
	to
	add
	the
	allegations
	in 	the
	June
	9
amendment.
On
	July 	5, 	1983, 	charges
	s-CE-582 	and 	S-CE-615 	were
consolidated 	for 	hearing.
	The
	hearing
	was
	held 	in 	Sacramento
on 	October
	18 	and 	21 	and 	November
	28, 	1983. 	The
	parties 	filed
simultaneous
	briefs
	which 	were
	received
	on January 	9, 	1984.
The 	matter
	was
	submitted 	for 	decision 	as 	of 	that 	date.
3

FINDINGS
	OF
	FACT
The
	Sacramento
	City
Unified
	School
	District 	is
	a
	public
school
	employer 	under
	the
	EERA.
	At
	all
	times
	relevant 	to
	this
case,
	SEIU
	has
	been
	the
	exclusive
	representative
	of
	the
District's
	four
	classified
	employee
	units.
	Harry
	Hughes,
	the
complainant
	in
	case
	S-CE-582,
	is
	employed
	in
	the
	District's
Operations. Support
	Services 	Unit.
	Judy
	Gianatasio,
	the
complainant
	in
	case
	S-CE-615,
	is
	employed
	in
	the
	District's
Office
	Technical 	Unit.
Job 	History 	of
	Harry
	Hughes.
Harry
	Hughes
	first
	was 	employed 	by
	the
	District
	in
	1979.
Initially,
	he 	was 	a
	hall
	monitor
	and
	then
	became 	a
	part-time
custodian.
	He
	served 	in 	these
	temporary
	positions
	for 	about
	a
year
	and 	a
	half
	when 	he 	was
	appointed
	to
	a
	permanent
	position
as
	a
	custodian 	in
	an
	administrative
	complex
	at
	the
	former
Joaquin 	Miller 	Junior
	High
	School.
In 	the
	fall
	of
	1981,
	Mr. 	Hughes
	took
	an
	oral
	examination
for
	the
	position 	of 	laborer-gardener.
	There
	were
	about
	six
	to
eight 	applicants 	of
	whom
	five
	were
	placed
	on 	an
	eligibilty
list.
	Mr. 	Hughes 	was 	one
	of 	the 	successful 	candidates
	and
	his
name 	was
	placed
	on
	the
	eligibility
	list
	that
	was
	issued
	by
	the
District
	on 	November
	23, 	1981. 	Although 	Mr. 	Hughes' 	name
appears
	first
	on
	the
	list,
	the 	ranking
	was 	made
	alphabetically
and
	his 	position
	on
	the
	list
	does 	not
	mean
	that
	he 	was 	found
	to
be 	the
	most
	qualified 	candidate.
4

During 	the 	summer 	of 	1982, 	Mr. 	Hughes 	learned 	that 	an
employee 	who 	was 	not 	on 	the 	laborer-gardener 	promotional 	list
had 	been 	hired 	for 	a 	temporary 	position 	as 	laborer-gardener.
The 	position 	became 	available 	when 	the 	District 	temporarily
upgraded 	two 	laborer-gardeners 	to 	the 	position 	of 	roofer 	for 	a
summer 	roofing 	project. 	When 	Mr. 	Hughes 	learned 	that 	he 	had
been 	passed 	over 	for 	the 	opportunity 	to 	fill 	in 	behind 	the
laborer-gardeners, 	he 	complained 	to 	Maintenance 	Supervisor
Al 	Artero. 	He 	later 	went 	to 	the 	union 	for 	assistance 	when 	he
determined 	that 	Mr. 	Artero 	would 	not 	help 	him.
At 	that 	time, 	the 	SEIU 	business 	representative 	was
Kathy 	Felch. 	She 	complained 	to Thomas 	McPoil, 	the 	District
coordinator 	of 	maintenance 	and 	operations, 	that 	the 	eligibility
list 	for 	laborer-gardener 	was 	not 	followed 	when 	Mr. 	Hughes 	was
bypassed 	for 	the 	temporary 	promotion. 	Mr. 	McPoil 	responded
that 	there 	was 	no 	eligibility 	list. 	Ms. 	Felch 	then 	went 	to 	the
District 	personnel 	office, 	obtained 	a 	copy 	of 	the 	list 	and
again 	contacted 	Mr. 	McPoil. 	She 	told 	Mr. 	McPoil 	that 	an
eligibility 	list 	did 	exist 	and 	that 	Harry Hughes 	was 	on 	it.
Ms. 	Felch 	testified 	that 	Mr. 	McPoil 	persisted 	in 	his 	refusal 	to
give 	Mr. 	Hughes 	temporary 	employment 	as 	a 	laborer-gardener.
Ms. 	Felch 	testified 	that 	during 	a 	subsequent 	conversation
she 	again 	demanded 	that 	Mr. 	McPoil 	employ 	Mr. 	Hughes 	in 	the
temporary 	laborer-gardener 	position. 	At 	that 	point, 	Ms. 	Felch
5

testified 	without 	contradiction, 	Mr. 	McPoil 	responded 	that 	if
Mr. 	Hughes 	"ended 	up 	working 	on 	the 	crew, 	that 	he 	would 	be
reprimanded."
Following 	the 	second 	conversation 	with Mr. 	McPoil,
Ms. 	Felch 	called 	Roy 	Johnson, 	District 	director 	of 	maintenance,
operations, 	security 	and 	construction. 	Ms. 	Felch 	testified
that 	although 	Mr. 	Johnson 	at 	first 	was 	annoyed.by 	her 	call, 	he
ultimately 	agreed 	to 	give 	Mr. 	Hughes 	a 	temporary 	position 	as 	a
laborer-gardener. 	Mr. 	Hughes 	commenced 	work 	in 	that 	position
on 	August 	2, 	1982.
The 	Grievances 	of 	Harry Hughes.
When Mr. 	Hughes 	received 	his 	first 	paycheck 	after 	securing
the 	temporary 	job 	as 	a 	laborer-gardener, 	he 	was 	surprised 	to
discover 	that 	the 	amount 	of 	his 	check 	had 	not 	increased.
Laborer-gardeners 	are 	paid 	at 	a 	higher 	rate 	than 	Mr. 	Hughes'
permanent 	class 	of 	custodian. 	Mr. 	Hughes 	complained 	to
Leonard 	Nielsen, 	the 	laborer-gardener 	foreman, 	who 	sent 	him 	to
the 	payroll 	department. 	Payroll, 	in 	turn, 	advised 	Mr. 	Hughes
to 	contact 	Roy 	Johnson.
Mr. 	Hughes 	testified 	that 	he 	called 	Mr. 	Johnson 	who 	told
him, 	" ... 	don't 	worry, 	you'll 	get 	paid. 	Button 	your 	lip.
You're 	causing 	me 	enough 	trouble." 	Mr. 	Hughes 	testified 	that
Mr. 	Johnson 	did 	not 	explain 	what 	he 	meant 	by 	the 	statement,
"You're 	causing 	me 	enough 	trouble." 	Mr. 	Hughes 	testified 	that
he 	did 	not 	press 	the 	matter 	once 	he 	learned 	he 	would 	be 	paid 	at
6

the
	higher
	rate
	as
	he
	ultimately
	was.
	Mr.
	Johnson
	did
	not
recall
	a
	conversation
	with 	Harry
	Hughes
	about
	the
	pay
	problem.
On
	a
	Friday 	in
	November
	of
	1982,
	Mr.
	Nielsen
	was
	notified
that
	the
	roofing
	assignment
	would
	terminate
	that
	day
	for
	the
two
	laborer-gardeners
	who
	had
	temporarily
	left
	his
	crew.
Because 	both
	employees
	would 	be
	returning 	to
	their
laborer-gardener
	duties
	the 	following
	Monday, 	Mr.
	Nielsen
	told
Harry
	Hughes
	to
	report
	to
	his 	custodial
	job 	the 	next
	workday.
Mr. 	Hughes
	protested 	that
	under
	the
	contract
	he 	was
	entitled
	to
two 	weeks
	notice
	prior
	to
	a
	change
	in
	work
	schedule.2
Despite 	the
	protest,
	he 	was
	required 	to
	return 	to 	his
	custodial
position 	at
	Joaquin 	Miller 	the 	next
	workday.
Mr. 	Hughes 	once 	more
	called
	Mr.
	Johnson.
	He
	told
Mr.
	Johnson 	about 	the
	District's
	failure
	to
	give
	him 	a 	two-week
notice.
	In
	his
	testimony,
	Mr. 	Hughes 	gave
	three
	slightly
differing
	versions 	of 	the
	two
	telephone 	conversations
	he
	had
with
	Mr.
	Johnson
	that
	day. 	In
	his
	first
	version,
	Mr. 	Hughes
described 	the 	conversation 	as 	follows:
2Article
	16.2
	of 	the
	contract
	between
	the
	parties
provides
	as 	follows:
Except
	in 	cases
	deemed 	an 	emergency 	by
	the
district,
	two 	(2) 	weeks, 	when
	feasible,
advance
	written 	notice 	of
	a 	change
	in
	work
schedule
	will
	be
	given 	affected
	employees.When 	a
	schedule 	change
	will 	affect
	a
significant
	number
	of 	employees, 	the 	union
will
	be
	notified 	of 	the 	change.
7

..• 	I 	called 	Roy 	Johnson 	and 	requested 	to
sit 	down 	at 	a 	meeting 	over 	this. 	[I 	said]
that 	I'd 	been 	treated 	very 	unfairly 	and 	I'd
like 	to 	know 	why 	I 	was 	not 	give 	(sic) 	a
two-week 	notice 	or 	what. 	He 	says, 	"I 	think
I've 	been 	very 	fair." 	I 	says, 	"I 	don't
think 	you 	have. 	I'd 	like 	to 	talk 	about
it." 	He 	says, 	"You 	cannot 	have 	any 	(sic.)"
I 	says, 	"I'd 	like 	to." 	[Ee 	says], 	"Do 	what
you 	got 	to 	do," 	you 	know, 	"forget 	it." 	And
I 	said, 	"Okay, 	I'll 	go 	to 	the 	union." 	I
went 	to 	Channel 	3, 	first.3 	(Reporter's
Transcript, 	p. 	21.)
In 	his 	second 	version, 	Mr. 	Hughes 	recalled 	the 	conversation
this 	way:
••• 	[A]fter 	he 	said, 	"Do 	what 	you 	got 	to
do," 	I 	called 	Channel 	3 	and 	I 	called 	him
back 	and 	I 	said, 	"Yes, 	I 	contacted 	Channel
3." 	And 	he 	says, 	"You 	understand, 	you're 	on
my 	list 	Do 	you 	understand?" 	I 	said,
"Yes." 	I 	knew 	who 	I 	called. 	And 	then 	the
phone 	was 	hung 	up 	(sic}. 	(Reporter's
Transcript, 	p. 	21.)
Moments 	thereafter, 	Mr. 	Hughes 	described 	the 	conversation
as 	follows:
• 	Well, 	more 	or 	less 	it 	was 	just, 	you
know, 	"I 	want 	to 	have 	a 	meeting," 	and 	then 	I
was 	refused 	a 	meeting •••• 	I 	said, 	"I'm
going 	to 	go 	to 	the 	union. 	I'm 	going 	to 	go
to 	Channel 	3." 	He 	says, 	"Do 	what 	you 	got 	to
do," 	and 	hung 	up. 	So, 	I 	did. 	I 	went 	to
call 	Channel 	3. 	I 	called 	the 	union 	and 	then
the 	next 	time 	I 	called 	him 	back, 	I 	said, 	"I
took 	your 	advice. 	I 	am 	pursuing 	it." 	And
he 	said, 	"You 	understand 	you're 	on 	my 	list.
Do 	you 	understand?" 	(Reporter's 	Transcript
p. 	22.)
3sacramento 	television 	station 	KCRA 	broadcasts 	on
Channel 	3. 	As 	a 	public 	service, 	the 	station 	operates 	a 	program
to 	assist 	viewers 	in 	the 	resolution 	of 	problems 	with 	government
and 	business.
8

Mr.
	Johnson
	recalled
	the 	telephone
	conversations 	with
Mr. 	Hughes 	somewhat
	differently.
	Mr.
	Johnson
	said
	that
	he
	told
Mr. 	Hughes 	he 	was 	unaware
	of 	the
	two-week
	notice
	problem.
	He
suggested
	that
	Mr. 	Hughes
	call
	his
	immediate
	supervisor,
Mr.
	Artero.
	Mr.
	Johnson
	said 	there
	was 	a
	second
	telephone
conversation
	during
	which Mr.
	Hughes,
• 	renewed 	what 	had
	been
	discussed
	at
	theprevious 	conversation
	on
	the
	phone 	and
	then
threatened 	to
	call
	certain
	people
	to
	turn
me
in,
	so
	to
	speak.
	He
	was
	rude, 	very 	rude.
Mr.
	Johnson
	said
	that
	he
	offered
	no
	response
	other 	than
	to
say,
•.•
	you
	should
	do 	what 	you
	feel
	you 	have
to
	do.
	With
	that,
	Mr. 	Hughes 	became
insubordinate, 	progressively
	so,
	and 	I
	added
the
	comment, 	I
	said,
	"You
	should
	watch
	who
you're
	speaking
	with."
When
	asked
	if
	he
	ever
	said 	to
	Mr. 	Hughes
	that,
	"You're
	on
my
	list,"
	Mr.
	Johnson 	responded,
	"No,
	absolutely
	not
	and 	I
repeat
	that,
	absolutely 	not."
Mr.
	Johnson
	testified
	that
	Mr. 	Hughes
	said 	in
	either 	his
first
	or
	second
	telephone
	call
	that
	he 	was
	going
	to
	go
	to 	the
union.
	He
	said 	that
	Mr. 	Hughes
	also
	warned
	that
	he 	would 	go
	to
Channel
	3 	and 	Mr.
	Johnson
	ultimately
	did 	receive
	a
	telephone
call
	from
	the
	television 	station
	inquiring 	about
	Mr. 	Hughes.
Mr. 	Johnson
	said 	that,
	in 	general,
	Mr. 	Hughes 	was
	accusing 	the
department 	of 	being
	"irregular."
His
	indication
	(was)
	that
	he 	was 	going 	tokind 	of 	get
	me
	by, 	I 	guess 	blowing 	the
whistle, 	so 	to 	speak, 	not
	me
	particularly,
9

but 	I 	think 	me/the 	District 	by 	calling
certain 	people 	to 	make 	what 	he 	felt 	[were]
irregularties 	known. 	(Reporter's
Transcript, 	p. 	150.)
When 	Mr. 	Johnson 	returned 	as 	a 	witness 	after 	a 	three-day
break 	in 	the 	hearing, 	he 	was 	asked 	on 	cross-examination 	about
his 	description 	of Mr. 	Hughes 	as 	a 	"whistle 	blower." 	His
dialogue 	with 	counsel 	for 	the 	Charging 	Party 	was 	as 	follows:
Q. 	(By Mr. 	Boone) 	Now, 	you 	used 	the 	term
before 	that 	Mr. 	Hughes 	was 	talking 	like
being 	a 	"whistle 	blower," 	am 	I 	correct 	in
recalling 	that?
A. 	I 	think 	your 	reference 	is 	entirely 	out
of 	line. 	I've 	never 	used 	that 	term.
Q. 	You've 	never 	used 	the 	word 	"blowing 	the
whistle?"
A. 	I 	don't 	ever 	remember 	using 	that 	term.
Q. 	You 	don't 	remember 	testifying 	about
"whistle 	blowing" 	or 	"blowing 	a 	whistle" 	on
Tuesday 	afternoon?
A. 	Not 	to 	my 	recollection.
Q. 	So 	you 	wouldn't 	characterize 	that
Mr. 	Hughes 	was 	saying 	to 	you 	as 	anything
like 	a 	whistle 	blowing?
A. 	Explain 	your 	statement, 	would 	you,
please?
Q. 	What's 	a 	whistle 	blower? 	Does 	that 	have
any 	meaning 	to 	you?
A. 	I 	think 	a 	person 	who 	may 	make 	a 	lot 	of
general 	statements 	on 	circumstances, 	good
and 	bad. 	(Reporter's 	Transcript, 	p. 	193.)
On 	December 	10, 	1982, 	Ruth 	O'Hearn, 	who 	had 	replaced
Kathy 	Felch 	as 	SEIU 	business 	representative 	for 	Local 	22,
10

requested 	Mr. 	Johnson 	to 	meet 	with 	her 	and 	Harry Hughes.
Ms. 	O'Hearn 	testified 	that 	she 	and Hughes 	had 	come 	from 	a
meeting 	with 	Al 	Artero. 	At 	the 	meeting 	with Artero, 	they 	had
discussed 	the 	District's 	failure 	to 	give 	Mr. 	Hughes 	two 	weeks
notice 	before 	removing 	him 	from 	the 	laborer-gardener 	position.
Dissatisfied 	with 	the 	result 	of 	the 	meeting 	with 	Mr. 	Artero,
Ms. 	O'Hearn 	asked 	Mr. 	Johnson's 	secretary 	if 	she 	could 	speak
with 	Johnson. 	Ms. 	O'Hearn 	was 	admitted 	to 	Mr. 	Johnson's 	office
where 	she 	told 	Johnson 	she 	wanted 	to 	talk 	about 	"the 	way 	that
he 	had 	been 	relating 	to 	Harry Hughes 	and 	the 	implied 	threats
and 	the 	threats 	that 	he 	had 	made 	to 	him." 	Ms. 	O'Hearn
testified 	that 	Johnson 	replied 	that, 	"Harry Hughes 	has 	no
concerns 	and 	that 	he 	would 	not 	meet 	with 	him." 	Ms. 	O'Hearn
said 	the 	atmosphere 	was 	strained 	at 	the 	brief 	meeting 	which 	was
marked 	by 	the 	absence 	of 	any 	of 	the 	usual 	business 	amenities.
Mr. 	Johnson 	had 	not 	met Ms. 	O'Hearn 	prior 	to 	the
December 	10 	meeting 	and 	when 	his 	secretary 	said 	she 	was 	from
the 	union, 	he 	was 	under 	the 	impression 	that 	she 	was 	a 	reporter
from 	the 	Sacramento 	Union, 	a 	newspaper. 	He 	said 	he 	had 	been
having 	some 	trouble 	with 	his 	Union 	carrier 	and 	he 	went 	to 	meet
Ms. 	O'Hearn 	thinking 	he 	was 	going 	to 	deal 	with 	a 	newspaper
reporter. 	He 	said 	that 	when 	he 	discovered 	her 	actual 	purpose,
the 	meeting 	did 	not 	get 	off 	to 	a 	good 	start 	and 	that 	the 	two 	of
them, 	"seemed 	to 	have 	some 	kind 	of 	a 	heavy 	veil 	between 	us 	for
some 	reason."
11

Following 	the 	attempt 	to 	meet 	with 	Mr. 	Johnson 	about 	the
problems 	of 	Harry Hughes, 	Ms. 	O'Hearn 	wrote 	a 	series 	of 	letters
in 	an 	attempt 	to 	secure 	another 	meeting. 	She 	was 	not
successful. 	A grievance 	was 	filed 	by SEIU 	about 	the 	failure 	of
the 	District 	to 	give 	Mr. 	Hughes 	the 	two-week 	notice.
The 	Second 	Exam For 	Laborer-Gardener.
On 	March 	25, 	1983, 	Harry Hughes 	took 	the 	exam 	for
laborer-gardener 	a 	second 	time. 	The 	examination 	was 	arranged
by 	Thomas 	McPoil, 	the 	District 	coordinator 	of 	maintenance 	and
operations. 	Conducted 	on 	a 	promotional 	basis, 	the 	exam 	was
open 	to 	District 	employees 	only. 	There 	were 	some 	65 	applicants
of 	whom 	37 	met 	the 	minimum qualifications 	and 	were 	permitted 	to
take 	the 	oral 	interview 	which 	constituted 	the 	exam.
A series 	of 	14 	questions 	pertaining 	to 	gardening 	was
prepared 	for 	the 	three-member 	interview 	panel 	to 	ask 	of 	the
candidates. 	The 	persons 	who 	conducted 	the 	interviews 	were
Leonard 	Nielsen, 	the 	laborer-gardener 	foreman 	and 	principal
author 	of 	the 	questions, 	Tom 	Medellin, 	the 	plant 	manager 	at 	the
District's 	McClatchy High 	School, 	and 	Richard 	B. 	Young, 	a
painter-foreman 	for 	the 	District.
Mr. 	McPoil 	instructed 	the 	three 	interviewers 	that 	the
District's 	affirmative 	action 	goals 	were 	to 	be 	considered 	in
evaluating 	the 	candidates. 	The 	interviewers 	were 	given 	a 	job
description 	for 	laborer-gardener 	and 	the 	applications 	of 	each
candidate. 	Other 	than 	that, 	they 	were 	given 	no 	specific
12

instructions
	on
	how
	to
	grade
	the
	candidates.
	Mr.
	McPoil
introduced
	each
	candidate
	and
	then
	left.
	Thirty-two 	candidates
actually
	appeared 	over
	a
	two-day
	period 	for 	the
	interview.
The
	three 	interviewers,
	all
	witnesses
	at
	the
	hearing,
agreed 	in
	their
	descriptions
	of 	the
	process.
	They
	said
	that
they
	took
	turns
	asking 	each
	candidate 	the
	questions
	on
	the
list.
	After
	each
	interview,
	the 	panel
	memb~rs
	separately
	gave
the
	candidate
	a
	grade.
	The
	interviewers
	did
	not
	discuss
	their
individual 	evaluations 	of 	the 	candidates
	prior
	to 	assigning
	a
grade
	and
	they
	did 	not
	discuss
	their
	individual
	grading
techniques.
	The
	interviewers 	entered 	the 	scores
	they
	had
assigned 	to 	the 	various 	candidates
	on
	rating
	sheets
	provided
	by
the
	District.
	Each
	interviewer
	testified
	that
	he
	graded
	the
individual
	candidates
	on
	the
	basis 	of
	his
	impressions
	of
	them
at
	the
	time
	they 	completed
	the 	interview.
	None
	of
	the
	panel
members
	could
	recall 	at
	the 	hearing 	the 	basis
	for 	the 	grade 	of
any
	individual 	candidate 	or
	why 	any
	candidate 	scored 	higher
than
	any
	other 	candidate.
The
	three 	interviewers
	testified
	that 	at
	the
	time
	of 	the
exam
	they
	did 	not
	know
	about
	any
	grievances
	which
	Harry
	Hughes
had
	filed
	or
	that
	Mr. 	Hughes 	was 	a 	member
	of
	SEIU. 	Mr.
	Nielsen
and
	Mr.
	Medellin 	also
	testified 	that
	they
	had
	never
	had
conversations
	with
	Mr.
	Johnson 	about 	Harry
	Hughes
	prior 	to
their 	service
	on
	the 	interview 	panel.
	Mr. 	Young 	was
	not 	asked
13

about
	any
	conversations
	he
	might
	have
	had
	with
	Mr.
	Johnson
about
	Harry
	Hughes.
Following 	the
	interviews,
	the 	panel
	members
	gave
	the
completed
	rating
	sheets
	to
	Mr. 	McPoil
	who
	tallied
	the
	final
scores.
	All
	entries
	on
	the
	rating 	sheets
	given
	to
	Mr.
	McPoil
were
	made
	in 	ink.
	Mr.
	McPoil
	testified
	that
	he
	did 	not
	speak
to
	the
	interviewers
	about
	the 	scores
	and 	he
	prepared
	the
	list
of 	successful
	candidates
	on
	the
	basis
	of 	the 	score
	sheets.
Five
	persons
	were
	placed
	on
	the
	eligibility
	list
	effective
April
	4,
	1983. 	Harry
	Hughes 	was
	ranked
	sixteenth.
	The
eligibility
	list
	will
	remain
	in
	effect
	for
	one
	year.
Ms.
	O'Hearn
	testified
	that
	one
	of 	the
	five
	persons
	placed
on
	the
	eligibility
	list
	is
	a member
	of
	SEIU.
	No
	evidence
	was
presented
	about 	the
	union
	membership
	of 	the 	unsuccessful
candidates 	other
	than
	Mr. 	Hughes.
Job 	History 	of
	Judy
	Gianatasio.
Judy
	Gianatasio
	first
	was 	employed 	by
	the
	District
	in
September
	of
	1973
	as
	a
	substitute 	secretary.
	In
	September
	of
1974, 	she
	was
	hired 	as
	a
	permanent
	full-time
	maintenance
	and
operations 	clerk.
	When
	she
	assumed
	the
	position,
	she
	was
	told
that
	her 	primary 	duty
	was
	to
	keep
	the 	payroll 	records 	for
maintenance
	and
	operations
	employees. 	She
	also
	took
	reports 	of
maintenance 	problems 	in
	District
	buildings
	and
	dispatched
employees 	to 	the 	job
	sites.
	She
	operated 	the 	maintenance
radio. 	Since 	July 	of 	1980, 	her 	supervisor 	has 	been 	Roy 	Johnson.
14

In 	April 	of 	1983, 	Roy 	Johnson 	requested 	Ms. 	Gianatasio 	to
prepare 	a 	report 	which, 	among 	other 	facts, 	was 	to 	describe 	the
promotional 	patterns 	for 	maintenance 	and 	operations 	employees.
In 	order 	to 	complete 	the 	report, 	Ms. 	Gianatasio 	had 	to
determine 	the 	date 	of 	hire 	of 	each 	employee 	and 	the 	date 	of
each 	subsequent 	change 	in 	job 	classification. 	Some 	preliminary
work 	had 	been 	completed 	by Mr. 	McPoil 	and 	what 	he 	had 	developed
was 	given 	to 	Ms. 	Gianatasio 	at 	the 	time 	she 	commenced 	the
project. 	She 	was 	not 	given 	a 	specific 	deadline 	but 	was 	told 	to
complete 	the 	project 	in 	"a 	couple 	of 	weeks."
From 	the 	start, 	Ms. 	Gianatasio 	encountered 	difficulty 	in
securing 	the 	required 	information. 	She 	discovered 	that 	the
work 	given 	to 	her 	by Mr. 	McPoil 	contained 	incorrect
information. 	When 	she 	called 	various 	foremen 	to 	ask 	about
employees 	under 	their 	supervision 	th~ 	foremen 	told 	her 	that 	the
information 	she 	sought 	was 	not 	available. 	The 	District
personnel 	records 	were 	incomplete 	and 	the 	personnel 	office
could 	not 	answer 	her 	inquiries. 	No 	District 	records 	contained
the 	dates 	employees 	had 	transferred 	from 	one 	position 	to
another.
Several 	times 	when 	Ms. 	Gianatasio 	mentioned 	the 	problem 	to
Mr. 	Johnson, 	he 	responded, 	"Judy, 	you 	can 	do 	it."
The 	Meeting 	of 	April 	22, 	1983.
On April 	22, 	1983, 	about 	a 	week 	and 	a 	half 	after
Ms. 	Gianatasio 	was 	given 	the 	assignment, 	she 	was 	called 	into
15

Mr.
	Johnson's
	office.
	Mr.
	McPoil
	was
	present
	in
	addition
	to
Mr.
	Johnson
	and 	Ms.
	Gianatasio.
	Mr.
	Johnson
	called
	the
	meeting
because
	he
	believed
	that
	the
	project
	was
	overdue.
Ms.
	Gianatasio 	explained
	that
	she
	was
	having
	difficulty
obtaining
	the 	information
	required
	for
	the
	report.
	Mr.
	Johnson
offered
	the
	opinion
	that
	she
	was
	spending 	too
	much
	time
	talking
on
	the
	telephone.
	It
	was
	not 	long
	until
	the
	meeting
	became
highly
	emotional.
Ms.
	Gianatasio
	testified
	that
	when
	she
	tried
	to
	explain
	the
reasons
	why
	she
	had
	not
	been
	able 	to
	complete
	the
	report,
Mr.
	Johnson
	seemed
	not
	to 	understand.
	She
	said
	he
	got
	angry
with
	her
	and
	spoke
	loudly.
	He
	told
	her
	that
	she
	would
	do
	it
and
	that
	it
	was
	"a
	directive."
	She
	said
	she
	started
	to 	cry
	and
became
	angry,
	herself.
	She
	testified
	that
	Mr.
	Johnson
	said
	he
was
	going
	to
	call
	his 	secretary 	into
	the
	office
	and
	that
	"it
was
	going
	to
	go
	into
	my
	file."
When
	she
	heard
	that,
	Ms.
	Gianatasio
	responded
	that
	she
	was
"going 	to
	call
	the 	union
	and
	that's
	when 	he
	told
	me
	that
	if
	I
did
	call
	the 	union
	I'd
	be
	sorry."
	She
	testified
	that
	at
	one
point
	in 	the
	conversation
	she
	said 	to
	Mr.
	Johnson,
•.•
	that
	he 	had
	talked 	to
	me
	this
	way
before, 	but
	he
	wasn't
	going
	to 	talk 	to
	me
this
	way
	again,
	that,
	you 	know, 	a
	person 	can
only 	take 	so
	much 	and
	that's 	it.
	You 	have
to 	stand
	up
	for 	your
	rights.
She
	said 	she 	was
	standing
	and 	when 	she 	completed 	her
statement 	she 	walked 	out 	of 	his 	office.
16

Ms.
	Gianatasio 	said
	that
	Mr.
	Johnson's
	secretary
	did 	not
enter
	his
	office
	while
	she
	was
	present.
	After 	leaving
	the
office,
	Ms.
	Gianatasio
	went
	to
	a
	co-worker,
	Irene 	Garcia,
	who
took
	her
	to
	a
	doctor.
	She
	remained
	off
	work
	for
	seven
	days
after
	the
	incident.
Mr.
	Johnson
	testified
	that
	he
	told
	Ms.
	Gianatasio
	that
	the
project,
•••
	was
	her
	job,
	that
	she
	had
	[been]
	given
an
	opportunity 	to 	turn 	in
	whatever 	she
	could
and
	...
	to
	take
	it
	as
	far
	as
	she
	could,
and
	I
	said, 	"that 	is
	a
	directive."
Mr.
	Johnson
	testified
	that
	the
	meeting 	reached
	an
	apparent
conclusion
	and
	Mr.
	McPoil
	left
	the
	room. 	Ms.
	Gianatasio
started
	out
	with
	him
	but 	then
	said
	something,
•..
	which
	appeared
	and 	had
	the
	tone
	of
being
	a
	derogatory
	remark
....
	I
	believe
that
	it
	was
	of 	a,
	it
	sounded
	like
	a 	word
	of
retaliation.
After
	that,
	Mr.
	Johnson
	called
	her
	back
	into
	the
	room.
	He
told
	her
	that
	she
	had
	engaged
	in 	"too
	much
	lollygagging"
	and
recited
	various 	steps
	he 	had
	taken
	to
	curtail
	her
	talking
	at
work.
	Ms.
	Gianatasio
	responded
	that
	she
	did 	not 	think
Mr.
	Johnson
	was
	being
	fair.
	Mr.
	Johnson
	testified
	that
	the
conversation 	continued
	when
	at
	one
	point
	Ms.
	Gianatasio,
•••
	stated 	that,
	"You're 	threatening
	me.
I'm
	~oing 	to 	the 	Union."
	With
	that,
	I
	said,
"Don 	t
	say 	another 	word."
	I 	opened
	the
door.
	I 	was
	sitting 	right
	by
	the 	door.
	I
called
	my
	secretary,
	Rena. 	I
	said,
	"GetMickey McPoil 	in 	here 	immediately."Mr. 	McPoil 	came
	in.
	He
	closed 	the 	door.
	I
17

asked
	him
	to
	sit
	down,
	and
	I
	said,
	"Mickey,
Judy
	just
	said
	I'm
	threatening
	her.
	She
wants
	to
	go
	to 	the
	Union,"
	or
	in
	those
general
	terms.
	"And
	I'm 	saying
	to
	you,
Judy,
	that
	I'm
	not
	threatening
	you,
	and 	you
have
	every
	right
	to
	go
	to
	the 	Union."
	I
said,	
"Now,	
pay
	attention
	to
	what
	I'm
saying.
	I
	said
	I
	am
	not
	threatening
	you 	andyou
	have
	every
	right
	to
	go
	to 	the
	Union
	as
an
	employee."
Mr.
	Johnson
	testified
	that 	shortly 	thereafter
	Ms.
	Gianatasio
left
	his
	office.
Mr.
	McPoil
	confirmed
	that
	he 	had
	been
	called
	back
	into
Mr.
	Johnson's
	office
	on
	April
	22
	while
	Ms.
	Gianatasio
	was
	still
there.
	He
	recalled
	that,
When 	I
	went
	in
	there
	Mr.
	Johnson
	said,
"Mick,	
Judy
	says
	I
	told
	her
	•..
	that
	she
could 	not
	go
	to 	the
	Union 	[and]
	if
	she
	didshe
	would
	be
	sorry,
	and
	at 	this
	time
	I'm
telling
	you,
	her,
	and
	in
	front 	of
	you,
	shecan
	go
	to
	the
	Union 	any
	time 	she
	wants
	to."
Although
	he
	said
	he 	was
	unable
	to
	recall
	the 	exact
	words
spoken,
	Mr.
	McPoil
	was
	sure
	that
	Mr.
	Johnson
	did 	not 	admit
	that
he 	had
	told
	Ms.
	Gianatasio
	she
	"would 	be
	sorry"
	if
	she 	went
	to
the
	union.
	Mr. 	McPoil
	said 	that
	Mr.
	Johnson
	was
	stating
	only
that
	Ms.
	Gianatasio
	had
	accused
	him
	of
	making
	the 	remark.
When
	specifically
	asked
	if
	he
	told
	Ms.
	Gianatasio
	that
	she
would 	be
	sorry
	if
	she
	called
	the 	union,
	Mr.
	Johnson
	replied:
"I
	did 	not."
	When
	asked
	if
	he
	said
	any 	words
	"parallel 	or
similar 	in
	meaning
	to 	those 	words,"
	he
	responded: 	"Absolutely
not.
	No.
	Just
	no."
18

SEIU
	subsequently
	filed
	a
	grievance
	about
	Mr.
	Johnson's
alleged
	threat 	that
	Ms.
	Gianatasio
	would 	be
	sorry
	if
	she
	went
to
	the 	union.
	Ms.
	Gianatasio
	testified
	that
	during
	a
	grievance
meeting,
	Mr.
	Johnson
	stated 	that
	if
	SEIU
	pursued 	the
	grievance
"he
	would 	have
	to 	take
	further 	steps
	and 	. . 	•
	investigate
	this
further	
" 	SEIU
	business
	representative
	O'Hearn
	recalled
Johnson 	as
	saying
	that
	if
	SEIU
	pursued
	the 	grievance
	further,
"he
	would 	be
	forced
	to 	bring
	out 	things
	that
	he
	did 	not
	wish
	to
bring
	out."
	Both
	Ms.
	Gianatasio
	and
	Ms.
	O'Hearn
	said
	that
	the
remark
	was 	made
	in
	a
	threatening
	manner.
Mr.
	Johnson
	did
	not
	deny 	making
	that
	statement 	during 	the
grievance
	meeting.
	He
	explained
	his
	comment
	as 	follows:
I 	meant
	that
	there
	had
	been
	several
discussions
	about
	Judy's
	performance 	betweenMr. 	McPoil 	and
	myself
	and
	that
	these
	points
would 	be
	brought 	out 	in
	more
	detail
	to
	where
I
	preferred
	not
	to, 	to
	try
	to
	keep
	the
harmony
	in 	the 	department.
Credibility
	Determinations.
Two
	of
	the 	threatening 	statements
	attributed
	to
	Mr.
	Johnson
by 	SEIU
	witnesses 	are 	in 	dispute.
	He
	is
	alleged 	to
	have
	told
Mr. 	Hughes
	in 	response
	to
	Hughes'
	appeal 	to 	the 	union,
	"You
understand, 	you're
	on
	my
	list.
	Do
	you
	understand?"
	He
	is
alleged 	to
	have
	told
	Ms.
	Gianatasio, 	that
	if
	she 	went
	to
	the
union, 	she 	"would 	be
	sorry."
	Mr. 	Johnson 	adamantly
	denies
making 	both 	remarks.
Initially, 	it
	can 	be 	observed
	that 	the 	remarks
	attributed
to
	Mr. 	Johnson 	are 	consistent 	with 	attitudes
	and
	statements 	by
19

him 	on 	other 	occasions. 	For 	example, 	Ms. 	Gianatasio 	testified
without 	contradiction 	that 	once 	when 	Mr. 	Johnson 	observed 	her
with 	Ms. 	O'Hearn 	during 	a 	break, 	he 	called Ms. 	Gianatasio 	into
his 	office 	and 	angrily 	questioned 	her. 	Ms. 	Gianatasio
testified 	that 	Mr. 	Johnson 	insisted 	upon 	knowing 	whether 	the
meeting 	with 	Ms. 	O'Hearn 	had 	been 	prearranged. 	She 	quoted 	him
as 	saying, 	"I 	have 	to 	know 	if 	there's 	any 	prearranged 	meetings
going 	on 	here." 	These 	comments 	evidence 	anger 	toward 	an
employee 	merely 	because 	she 	was 	seen 	with 	a 	union
representative.
Another 	example 	of 	Mr. 	Johnson's 	attitude 	about 	employee
grievance 	filing 	was 	displayed 	during 	a 	grievance 	meeting 	with
Ms. 	Gianatasio 	and 	Ms. 	O'Hearn. 	Mr. 	Johnson 	warned 	if 	the
grievance 	were 	pursued 	"he 	would 	be 	forced 	to 	bring 	out 	things
he 	did 	not 	wish 	to 	bring 	out." 	At 	the 	hearing, 	Mr. 	Johnson 	did
not 	deny 	making 	the 	statement 	but 	sought 	to 	pass 	it 	off 	as 	an
attempt 	to 	protect 	the 	reputation 	of 	Ms. 	Gianatasio. 	Actually,
the 	comment 	seems 	more 	like 	an 	attempt 	to 	coerce 	her 	into
withdrawing 	a 	grievance 	which 	had 	the 	potential 	for
embarrassment 	to 	himself.
It 	is 	significant 	to 	note, 	also, 	that 	on 	the 	witness 	stand
Mr. 	Johnson 	was 	forgetful 	about 	comments 	made 	by 	him 	only 	three
days 	earlier. 	During 	testimony 	on 	October 	18, 	1983,
Mr. 	Johnson 	said 	that 	Harry 	Hughes 	was 	out 	to 	get 	him 	by
"blowing 	the 	whistle." 	When 	asked 	about 	that 	comment 	during
20

cross-examination 	on 	October 	21, 	1983, 	Mr. 	Johnson 	denied 	ever
using 	the 	expression 	"blowing 	the 	whistle" 	and 	told 	counsel 	for
the 	Charging 	Party 	that 	his 	"reference 	is 	entirely 	out 	of
line." 	Mr. 	Johnson 	evidenced 	the 	same 	adamance 	in 	denying 	that
he 	had 	ever 	used 	the 	expression 	"blowing 	the 	whistle" 	that 	he
evidenced 	in 	denying 	that 	he 	had 	threatened 	Mr. 	Hughes 	and
Ms. 	Gianatasio.
It 	is 	indeed 	possible 	that 	Mr. 	Johnson 	did 	not 	recall 	his
description 	of 	Mr. 	Hughes' 	conduct 	as 	"blowing 	the 	whistle."
It 	similarly 	is 	possible 	that 	he 	did 	not 	recall 	making
threatening 	remarks 	to 	both Mr. 	Hughes 	and 	Ms. 	Gianatasio. 	His
failure 	of 	memory, 	however, 	does 	not 	convince 	the 	hearing
officer 	that 	he 	did 	not 	make 	the 	alleged 	remarks. 	Both 	of 	the
threatening 	statements 	are 	consistent 	with 	attitudes 	evidenced
by 	Mr. 	Johnson 	in 	other 	relationships 	with SEIU. 	With 	respect
to 	the 	comment 	made 	to 	Ms. 	Gianatasio, 	Mr. 	Johnson's 	own
conduct 	at 	the 	time 	of 	the 	incident 	is 	consistent 	with 	the
conclusion 	that 	he 	made 	the 	remark 	attributed 	to 	him. 	If 	he
did 	not 	tell 	Ms. 	Gianatasio 	that 	she 	would 	be 	"sorry" 	if 	she
went 	to 	the 	union, 	why 	would 	he 	have 	felt 	the 	need 	to 	call
Mr. 	McPoil 	back 	into 	the 	room 	and 	tell 	Ms. 	Gianatasio 	in 	front
of 	McPoil 	that 	she 	could 	go 	to 	the 	union? 	The 	most 	likely
explanation 	is 	that 	Mr. 	Johnson 	made 	the 	threat 	and 	then
attempted 	to 	recant 	it 	in 	front 	of 	a 	witness.
21

On 	the 	witness 	stand, 	Mr. 	Johnson 	displayed 	flashes 	of 	the
quick 	anger 	which 	the 	witnesses 	attributed 	to 	him. 	In 	light 	of
his 	denial 	of 	statements 	made 	in 	front 	of 	the 	hearing 	officer,
his 	adamant 	denial 	of 	earlier 	statements 	attributed 	to 	him 	is
not 	convincing. 	On 	the 	witness 	stand, 	both 	Mr. 	Hughes 	and
Ms. 	Gianatasio 	appeared 	frank 	and 	sincere. 	The 	testimony 	of
Mr. 	Hughes 	and 	Ms. 	Gianatasio 	is 	credited 	and 	it 	is 	concluded
that 	Mr. 	Johnson 	did 	say 	to 	Mr. 	Hughes, 	"You 	understand 	you're
on 	my 	list," 	and 	to 	Ms. 	Gianatasio, 	that 	she 	would 	"be 	sorry"
if 	she 	went 	to 	the 	union. 	Mr. 	Johnson's 	denial 	that 	he 	made
these 	statements 	is 	rejected.
LEGAL 	ISSUES
1. 	Did 	the 	District, 	in 	violation 	of 	subsection 	3543.S(a)
and/or 	(b) 	interfere 	with 	the 	protected 	rights 	of 	Harry Hughes
and 	Judy 	Gianatasio 	to 	seek 	assistance 	from 	a 	union?
2. 	Did 	the 	District, 	in 	violation 	of 	subsection
3543.S(a), 	discriminate 	against 	Harry Hughes 	in 	retaliation 	for
his 	exercise 	of 	the 	protected 	right 	to 	seek 	union 	assistance?
CONCLUSIONS 	OF 	LAW
Interference.
Although 	the 	complaints 	in 	both 	S-CE-582 	and 	S-CE-615 	raise
the 	issue 	of 	interference, 	neither 	party 	discusses 	the 	question
in 	its 	brief. 	Both 	parties 	argue 	these 	charges 	solely 	as
discrimination 	cases. 	Nevertheless, 	because 	the 	question 	of
interference 	is 	apparent 	in 	the 	allegations, 	the 	cases 	will 	be
analyzed 	accordingly.
22

Public 	school 	employees 	have 	the 	protected 	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.4
It 	is 	an 	unfair 	practice 	under 	subsection 	3543.S{a} 	for 	a
public 	school 	employer 	"to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of" 	protected 	rights.5
In 	an 	unfair 	practice 	case 	involving 	an 	allegation 	of
interference, 	a 	violation 	will 	be 	found 	where 	the 	employer's
acts 	interfere 	or 	tend 	to 	interfere 	with 	the 	exercise 	of
protected 	rights 	and 	the 	employer 	is 	unable 	to 	justify 	its
actions 	by 	proving 	operational 	necessity. 	Carlsbad 	Unified
School 	District 	(1/30/79) 	PERB 	Decision No. 	89.6 	See 	also,
Novato 	Unified 	School 	District 	(4/30/82) 	PERB 	Decision 	No. 	210
4section 	3543.
5section 	3543.5 	is 	found 	at 	footnote 	no. 	1, 	supra.
6The 	Carlsbad 	test 	for 	interference 	provides 	as 	follows:
. . 	. 	. . . 	. 	. 	. . 	. . 	. . . . 	. 	. 	. 	.
23
. .
2. 	Where 	the 	charging 	party 	establishes
that 	the 	employer's 	conduct 	tends 	to 	or 	does
result 	in 	some 	harm 	to 	employee 	rights
granted 	under 	the EERA, 	a 	prima 	facie 	case
shall 	be 	deemed 	to 	exist;
3. 	Where 	the 	harm 	to 	the 	employees' 	rights
is 	slight, 	and 	the 	employer 	offers
justification 	based 	on 	operational
necessity, 	the 	competing 	interest 	of 	the

and 	Sacramento City 	Unified 	School 	District 	(4/30/82) 	PERB
Decision 	No. 	214. 	In 	an 	interference 	case, 	it 	is 	not 	necessary
for 	the 	charging 	party 	to 	show 	that 	the 	respondent 	acted 	with
an 	unlawful 	motivation. 	Regents 	of 	the 	University 	of
California 	(4/28/83) 	PERB 	Decision No. 	305-H.
employer 	and 	the 	rights 	of 	the 	employees
will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
4. 	Where 	the 	harm 	is 	inherently 	destructive
of 	employee 	rights, 	the 	employer's 	conduct
will 	be 	excused 	only 	on 	proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course 	of 	action 	was 	available.
5. 	Irrespective 	of 	the 	foregoing, 	a 	charge
will 	be 	sustained 	where 	it 	is 	shown 	that 	the
employer 	would 	not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an 	unlawful
motivation, 	purpose 	or 	intent.
The 	protected 	right 	with 	which 	the 	District 	allegedly 	has
interfered 	is 	the 	right 	to 	seek 	the 	assistance 	of 	an 	employee
organization. 	Three 	separate 	remarks 	by Roy 	Johnson 	are
alleged 	in 	the 	complaints 	to 	have 	been 	threats 	in 	violation 	of
the 	EERA. 	Mr. 	Johnson 	stated 	to 	Mr. 	Hughes, 	"You 	understand
you're 	on 	my 	list," 	after 	Mr. 	Hughes 	sought 	union 	assistance.
He 	stated 	to 	Ms. 	Gianatasio 	that 	she 	would 	"be 	sorry" 	if 	she
went 	to 	the 	union. 	Finally, 	he 	stated 	to 	both 	Ms. 	Gianatasio
and 	Ms. 	O'Hearn 	that 	if SEIU 	pursued 	Ms. 	Gianatasio's 	grievance
any 	further, 	"he 	would 	be 	forced 	to 	bring 	out 	things 	he 	did 	not
24

wish
	to 	bring
	out."
	The
	three
	Johnson
	statements
	will
	be
considered 	in
	sequence.
The
	District
	offers
	several
	alternative
	explanations 	for
the
	Johnson
	statement
	to
	Mr. 	Hughes
	that,
	"You
	understand
you're
	on
	my
	list."
	The
	District
	argues
	that
	the
	statement
	was
not
	a
	threat
	of
	reprisal.
	The
	District
	argues
	that
	it
	could
mean
	"I
	don't 	like
	you,"
	or 	"I
	don't 	like
	the
	way
	you're
acting."
	If
	construed 	to
	be
	in
	the
	nature 	of
	a
	threat,
	the
District
	continues,
	the 	statement
	is
	"too
	indefinite
	and
insubstantial
	to
	constitute
	a
	threat
	of
	reprisal"
	under
	the
EERA. 	And
	even
	if
	construed 	as
	a
	threat
	of
	reprisal,
	the
District
	argues
	alternatively,
	the
	threat
	was
	motivated
	by
Mr.
	Hughes'
	call
	to 	the
	television 	station
	and
	not 	because
	he
went
	to 	the 	union.
	Finally,
	the
	District
	argues, 	the
	statement
was
	provoked
	by Mr.
	Hughes'
	rudeness
	and
	progressive
insubordination.
Statements
	made 	by 	an 	employer
	are 	to
	be 	viewed
	in
	their
over-all
	context 	to 	determine
	if
	they
	have 	a
	coercive
	meaning.
John Swett 	Unified 	School
	District
	(12/21/81)
	PERB
	Decision
No.
	188.
	The
	Johnson
	statement 	to
	Harry
	Hughes 	was 	made
	during
the 	third 	conversation
	between
	the
	two 	men.
	During 	the
	first
conversation,
	Mr. 	Johnson
	told
	Harry Hughes, 	"Button 	your
	lip.
You're 	causing
	me
	enough
	trouble."
	Mr. 	Johnson 	did 	not 	explain
the 	nature 	of 	the 	"trouble"
	which 	Mr. 	Hughes 	was
	causing.
25

However,
	the
	conversation
	followed
	Mr.
	Hughes'
	successful
grievance 	to
	win
	temporary 	appointment
	to
	the
	position 	of
laborer-gardener.
	The
	most
	logical
	inference
	is 	that 	the
"trouble"
	was 	Mr.
	Hughes'
	grievance.
The
	second
	conversation
	immediately 	preceded
	the
	statement
in 	question.
	During
	that
	conversation,
	the
	two
	disagreed
	about
whether
	Mr. 	Hughes 	had
	been
	treated
	fairly
	in
	his
	removal
	from
the
	temporary
	position.
	Mr. 	Hughes
	threatened 	to
	go
	to
	the
union
	and
	to
	Channel 	3.
	Not
	long
	thereafter,
	Mr. 	Hughes
	again
called
	Roy
	Johnson
	and
	told
	him
	that
	he 	had 	done 	what
	he
	said
he
	would
	do.
	Mr.
	Johnson
	replied,
	"You
	understand
	you're
	on
	my
list."
The
	District
	would
	pass
	off
	the
	"on
	my
	list"
	comment
	almost
as
	if
	it
	were 	a
	repartee
	from 	one
	friend 	to 	another.
	The
evidence
	does
	not
	allow 	such
	a
	benign
	interpretation.
	In 	the
context 	of
	Mr.
	Johnson's
	earlier
	statement
	that
	Mr. 	Hughes 	was
causing
	him 	"enough
	trouble,"
	the
	"on
	my
	list"
	statement
	can
	be
understood
	most
	reasonably 	as
	a
	threat.
	This
	is 	especially
true
	in
	light
	of 	the 	high 	rank
	which 	Mr.
	Johnson 	holds
	and
	his
authoritarian 	style
	of
	management.
The
	District 	is
	likewise 	unconvincing 	in
	its
	efforts
	to
pass 	the
	threat 	off
	as
	a
	response
	to
	Mr. 	Hughes'
	call
	to 	the
television 	station.
	In
	making
	this 	assertion,
	the
	District
relies
	heavily
	on Mr. 	Hughes' 	second
	version 	of 	the
26

conversation 	with Mr. 	Johnson. 	In 	the 	second 	version,
Mr. 	Hughes 	does 	not 	specifically 	state 	that 	he 	told Johnson 	he
had 	gone 	to 	the 	union. 	Even 	Mr. 	Johnson, 	however, 	acknowledges
that 	Mr. 	Hughes 	had 	said 	that 	he 	was 	going 	to 	go 	to 	the 	union.
Thus, 	when Mr. 	Johnson 	made 	the 	"on 	my 	list" 	comment 	it 	was
with 	the 	full 	knowledge 	that 	Mr. 	Hughes 	either 	had 	already 	gone
to 	SEIU 	for 	assistance 	or 	was 	planning 	to 	do 	so. 	Given
Mr •. Johnson's 	earlier 	statement 	that 	Mr. 	Hughes 	was 	causing 	him
"enough 	trouble" 	after 	the 	filing 	of 	a 	grievance, 	it 	is 	not
believable 	that 	the 	"on 	my 	list" 	comment 	was 	solely 	in 	response
to 	the 	Hughes 	call 	to 	Channel 	3.
As 	a 	final 	line 	of 	response, 	the 	District 	argues 	that
Mr. 	Johnson's 	"on my 	list" 	statement 	was 	provoked 	by
Mr. 	Hughes' 	rudeness 	and 	progressive 	insubordination. 	There 	is
nothing 	in 	the 	record 	to 	establish 	insubordination 	or 	rudeness
by 	Mr. 	Hughes 	toward 	Mr. 	Johnson 	or 	any 	other 	supervisor. 	But
even 	if 	the 	District 	had 	established 	that 	Mr. 	Hughes 	was 	rude
in 	dealing 	with 	Mr. 	Johnson, 	an 	employee's 	rude 	behavior 	does
not 	give 	a 	supervisor 	the 	right 	to 	make 	anti-union 	threats.
A supervisor's 	threat 	that 	an 	employee 	is 	"on 	my 	list" 	for
seeking 	union 	assistance 	would 	cause 	at 	least 	slight 	harm 	to 	an
employee's 	exercise 	of 	protected 	rights. 	At 	minimum, 	an
employee 	would 	be 	more 	hesitant 	to 	seek 	union 	assistance 	if 	he
believed 	the 	outcome 	might 	be 	some 	form 	of 	retaliation. 	The
27

District's 	proffered 	justifications 	are 	found 	unconvincing 	and
it 	therefore 	is 	concluded 	that 	Mr. 	Johnson's 	"on 	my 	list"
comment 	was 	an 	unlawful 	interference 	with 	Mr. 	Hughes' 	efforts
to 	exercise 	protected 	rights.
With 	respect 	to 	the 	you 	will 	"be 	sorry" 	statement 	to
Ms. 	Gianatasio, 	the 	District 	bases 	its 	entire 	argument 	on 	the
contention 	that 	the 	remark 	was 	never 	made. 	For 	the 	reasons
stated 	in 	the 	findings 	of 	fact, 	supra, 	it 	is 	concluded 	that
Mr. 	Johnson 	did 	in 	fact 	say 	to Ms. 	Gianatasio 	that 	she 	would
"be 	sorry" 	if 	she 	went 	to 	the 	union. 	A supervisor's 	statement
that 	an 	employee 	would 	"be 	sorry" 	if 	she 	went 	to 	the 	union 	is
an 	unabashed 	threat. 	It 	is 	the 	kind 	of 	remark 	which 	is
inherently 	destructive 	of 	protected 	employee 	rights. 	On 	its
face, 	the 	statement 	is 	an 	interference 	in 	protected 	rights 	and
a 	violation 	of 	the EERA.
After 	making 	the 	"be 	sorry" 	statement, 	Mr. 	Johnson 	called 	a
witness 	into 	the 	office 	and 	stated 	that 	Ms. 	Gianatasio 	could
"go 	to 	the 	union 	any 	time 	she 	wants 	to." 	An 	honestly 	given
retraction 	can 	erase 	the 	effects 	of 	a 	prior 	coercive
statement. 	See, 	e.g., 	Bartley Co. 	v. 	NLRB 	(6th 	Cir. 	1969) 	410
F.2d 	517 	[71 	LRRM 	2137] 	and 	Redcor 	Corp. 	(1967) 	166 	NLRB 	1013
[65 	LRRM 	1719]. 	The 	key 	question 	in 	cases 	involving 	the
discontinuance 	of 	illegal 	activity 	is 	whether 	the 	employer's
retraction 	was 	made 	in 	a 	manner 	that 	completely 	nullified 	the
coercive 	effects 	of 	the 	earlier 	statement. 	In 	Bartley Co., 	for
28

example,
	the
	court
	found
	it
	significant 	that
	the
	manager
	who
made
	the
	improper
	statement
	admitted
	he 	had
	been
	in
	error
	and
the
	employees
	knew
	that
	higher
	authorities
	were
	insistent
	upon
repudiation
	of
	the
	earlier
	statement.
Here,
	Mr.
	Johnson
	did 	subsequently
	state 	that
Ms.
	Gianatasio
	could
	"go
	to
	the
	union
	any
	time 	she 	wants
	to."
But
	this 	retraction,
	according
	to
	Mr.
	McPoil's
	version,
	appears
to
	have 	been
	directed
	more
	at
	McPoil
	than
	at
	Ms.
	Gianatasio.
It
	was
	preceded,
	moreover,
	by
	the
	statement
	that,
	"Judy
	says
	I
told
	her
	••.
	that
	she
	could 	not
	go
	to
	the
	union
	£and]
	if
	she
did
	she
	would 	be
	sorry.	
. . 	. 	"	
It
	would 	be
	small 	comfort 	to
an
	employee
	to
	hear
	a
	supposed
	retraction
	from 	an
	angry
supervisor
	who
	would
	not
	even 	acknowledge
	the
	remark 	he
supposedly
	was
	retracting.
	Indeed,
	by
	use
	of 	the
	words, 	"Judy
says
	I
	•••
"Mr.Johnson
	phrased
	his
	"go
	to 	the
	union 	anytime"
statement
	so 	as
	to
	imply
	that
	Ms.
	Gianatasio
	had 	made 	a
	false
accusation 	against
	him. 	Under
	these 	circumstances,
Mr.
	Johnson's
	retraction
	simply 	did 	not 	erase 	the 	coercive
effects
	of 	his
	"be
	sorry"
	warning.
The
	final
	form
	of
	unlawful
	interference 	alleged 	against
Mr.
	Johnson
	is 	his 	statement 	during
	a
	grievance 	meeting
	that
	if
the 	grievance
	were
	pursued
	further,
	he 	would 	"be 	forced 	to
bring 	out 	things"
	he
	did 	not 	wish
	to 	bring 	out.
	Although
Mr. 	Johnson 	admitted
	making
	the 	statement, 	the
	District
	argues
that
	the 	words 	"were 	not 	intended 	as 	a
	threat 	or
	reprisal."
29

The
	motivation
	behind
	the
	remark,
	the
	District
	argues,
	was
	to
protect
	the
	department
	from
	the
	disharmony
	which
	might
	result
from
	disclosure
	of
	certain
	matters 	in
	Ms.
	Gianatasio's
personnel
	evaluations.
Motivation,
	of 	course,
	is
	not
	an
	issue 	in
	an
	interference
case.
	Thus,
	Mr.
	Johnson's
	subjective
	intent
	in
	making
	the
"bring 	out 	things"
	remark
	is
	irrelevant.
	The
	question 	here
	is
whether
	such
	a
	remark 	would
	interfere
	or 	tend
	to
	interfere
	with
an
	employee's
	exercise 	of
	the
	protected
	right
	to
	seek
assistance
	from 	an 	employee
	organization
	and
	to
	file
	a
grievance.7	
It
	is
	self-evident 	that
	warning
	an 	employee
	that
"things"
	would 	be
	brought
	out
	if
	she 	pursued
	a
	grievance
	would
have 	the
	natural
	result
	of
	inhibiting
	the
	employee
	from
continuing 	to 	exercise 	protected
	rights.
	Mr.
	Johnson's
professed 	desire 	to
	avoid
	departmental
	disharmony
	is
	not
sufficient
	to
	outweigh
	the
	inhibiting 	effect
	his 	statement
would 	have 	on 	Ms.
	Gianatasio's 	right
	to
	union
	assistance 	in
grievance 	processing.
For
	these 	reasons
	it
	is
	concluded
	that
	the
	District,
	by
Mr.
	Johnson's
	"on
	my
	list,"
	"be
	sorry"
	and
	"bring 	out 	things"
remarks,
	violated
	EERA
	subsection 	3543.S(a).
	Such
	threats 	also
7Employe~s 	have 	a
	protected 	right 	to
	file
	a
	grievanceunder
	contractually 	negotiated 	grievance 	procedures. 	North
Sacramento 	School
	District
	(12/20/82)
	PERB
	Decision
	No. 	264.The
	contract
	between 	SEIU 	and
	the
	District 	contains
	a
negotiated 	grievance 	procedure.
30

concurrently
	violate
	subsection
	3543.S(b). 	Santa
	Monica
Unified
	School
	District
	(12/10/80)
	PERB
	Decision
	No.
	147.
Discrimination.
SEIU
	argues
	that
	the
	District
	engaged
	in
	unlawful
discrimination
	when
	Harry
	Hughes 	was
	not 	given
	a
	passing
	grade
on
	the
	March
	25, 	1983,
	exam
	for 	laborer-gardener.
	SEIU
	asserts
that
	Mr. 	Hughes
	engaged
	in
	protected
	conduct
	when 	he
	filed
grievances
	and
	obtained 	the
	assistance
	of
	the
	union.
	The
	union
contends
	that
	the
	District's
	subsequent
	failure
	to 	give
Mr. 	Hughes 	a
	passing 	grade
	on
	the
	exam was
	motivated
	by 	a
desire
	to
	retaliate
	against
	him
	for
	his 	protected
	activity.
Because 	the
	District
	has
	failed
	to
	demonstrate
	that
	Mr. 	Hughes
would 	have
	failed
	the
	exam
	despite 	his 	participation
	in
protected
	activity,
	SEIU
	contends
	that
	the
	District
	must 	be
found
	guilty
	of
	an
	unfair
	practice.
The
	District
	argues
	that
	in 	order 	to
	prove
	its
	case 	the
union
	must
	establish
	a
	link
	between
	the
	participation
	by
Mr. 	Hughes
	in 	protected
	activity
	and
	his 	failure
	to 	get
	on
	the
eligibility
	list.
	Since 	the 	persons
	who
	developed 	the
	list
	had
no 	knowledge
	of
	Mr. 	Hughes'
	participation
	in 	protected
activity,
	the
	District
	argues, 	the 	union 	has
	failed 	to
establish
	even 	a
	prima
	facie 	case 	of 	discrimination.
The
	analytical
	method
	for 	resolving 	charges 	of
discrimination
	and
	retaliation
	was
	set
	out
	by
	the 	Board
	in
Novato 	Unified 	School
	District
	(4/30/82)
	PERB
	Decision
31

No. 	210. 	Under 	Novato, 	a 	party 	alleging 	discrimination 	within
the 	meaning 	of 	subsection 	3543.S(a) 	must 	make 	a 	prima 	facie
showing 	that 	the 	employer's 	action 	against 	the 	employee 	was
motivated 	by 	the 	employee's 	participation 	in 	protected 	conduct.
Proof 	that 	the 	employer 	had 	actual 	or 	imputed 	knowledge 	of
an 	employee's 	participation 	in 	protected 	activity 	is 	a 	key
element 	in 	establishing 	unlawful 	motivation 	by 	circumstantial
evidence. 	Novato, 	supra, 	PERB 	Decision No. 	210; 	Moreland
Elementary 	School 	District 	(7/27/82) 	PERB 	Decision 	No. 	227. 	An
employer 	cannot 	retaliate 	against 	an 	employee 	for 	engaging 	in
protected 	conduct 	if 	the 	employer 	does 	not 	even 	know 	of 	the
existence 	of 	that 	conduct.
Once 	it 	is 	shown 	that 	the 	employer 	knew 	of 	the 	protected
conduct, 	the 	charging 	party 	then 	must 	produce 	evidence 	linking
that 	knowledge 	to 	the 	harm 	which 	befell 	the 	employee.
Respondent's 	knowledge 	of 	protected 	conduct 	together 	with 	some
indicia 	of 	unlawful 	intent 	will 	establish 	a 	prima 	facie 	case.
After 	the 	charging 	party 	has 	made 	a 	prima 	facie 	showing
sufficient 	to 	support 	an 	inference 	of 	unlawful 	motive, 	the
burden 	shifts 	to 	the 	employer 	to 	prove 	that 	its 	action 	would
have 	been 	the 	same 	despite 	the 	protected 	activity. 	If 	the
employer 	then 	fails 	to 	show 	that 	it 	was 	motivated 	by 	"a
legitimate 	operational 	purpose" 	and 	the 	charging 	party 	has 	met
its 	overall 	burden 	of 	proof, 	a 	violation 	of 	subsection
32

3543.S(a) 	will 	be 	found. 	Baldwin Park 	Unified 	School 	District
(6/30/82) 	PERB 	Decision No. 	221.
It 	is 	clear 	that 	Harry Hughes 	engaged 	in 	protected
activity. 	He 	sought 	and 	received 	assistance 	from SEIU 	and 	he
filed 	grievances. 	The 	evidence 	also 	establishes 	that
Mr. 	Johnson 	harbored 	anti-union 	attitudes 	and 	threatened
Mr. 	Hughes 	because 	of 	his 	participation 	in 	protected 	conduct.
However, 	a 	missing 	key 	element, 	as 	the 	District 	observes, 	is
proof 	that 	the 	members 	of 	the 	examination 	committee 	had
knowledge 	of 	Mr. 	Hughes' 	protected 	conduct. 	Also 	absent 	is
evidence 	that 	the 	committee 	members 	shared 	or 	acted 	upon
Mr. 	Johnson's 	anti-union 	attitudes.
All 	three 	committee 	members 	testified 	that 	at 	the 	time 	of
the 	exam 	they 	did 	not 	know 	Mr. 	Hughes 	had 	filed 	grievances.
Two 	of 	the 	committee 	members 	also 	testified 	that 	they 	had 	never
had 	conversations 	with 	Mr. 	Johnson 	about 	Harry Hughes 	prior 	to
their 	service 	on 	the 	committee. 	The 	third 	member 	of 	the
committee 	was 	not 	asked 	if 	he 	ever 	had 	such 	conversations 	with
Mr. 	Johnson. 	SEIU 	describes 	as 	"patently 	incredible" 	the
testimony 	of 	committee 	member 	Leonard 	Nielsen 	that 	he 	was
unaware 	Mr. 	Hughes 	had 	filed 	grievances. 	The 	hearing 	officer
does 	not 	share 	SEIU's 	evaluation. 	Mr. 	Hughes' 	grievances 	were
not 	filed 	with 	Mr. 	Nielsen. 	Mr. 	Hughes 	did 	not 	report 	to
Mr. 	Nielsen. 	His 	evaluations 	were 	filled 	out 	by 	someone 	other
than 	Mr. 	Nielsen 	and 	the 	two 	had 	very 	little 	contact 	with 	each
33

other.
	There
	is
	no
	reason
	why Mr.
	Nielsen
	should
	have
	known
about 	the
	Hughes'
	grievances.
The
	evidence
	convincingly
	establishes 	that
	the 	promotional
list
	for 	the
	position
	of 	laborer-gardener
	was
	developed
	as
	a
result
	of
	grades 	given
	by
	the
	three-member
	interview
committee.
	Mr.
	Johnson
	had 	no
	role
	in 	fixing
	the
	final
	grades
or
	order 	of
	finish.
	Mr.
	McPoil,
	a
	close
	subordinate
	of
Mr.
	Johnson,
	limited 	his 	role
	to 	introducing 	the
	candidates 	to
the
	committee
	and
	adding 	the
	scores
	which
	the
	committee
	members
had 	given
	them.
	The 	animus
	possessed
	by
	Mr.
	Johnson
	cannot
	be
automatically
	imputed
	to 	the
	interview
	committee.
	See,
	e.g.,
Konocti
	Unified
	School
	District
	(6/29/82)
	PERB
	Decision
No. 	217.
	Since 	the
	members
	of 	the 	interview
	committee
	did
	not
even
	know
	of 	the
	Hughes'
	grievances 	or of
	Mr.
	Johnson's
attitude
	toward 	Hughes,
	they
	can
	hardly
	be
	accused
	of 	acting
	in
Mr.
	Johnson's
	stead.
SEIU
	contends
	that
	it
	was
	the
	District's
	burden
	to 	explain
the
	reason
	that
	Harry
	Hughes 	was
	not 	ranked
	higher
	on
	the
	1983
exam.
	Because 	the
	District's
	witnesses 	could 	not 	explain 	the
reasons 	for 	the 	grades 	they 	gave
	Mr. 	Hughes, 	SEIU
	argues
	that
the
	District
	loses
	as
	a
	matter 	of
	law. 	However, 	under 	Novato,
supra,
	PERB
	Decision
	No. 	210,
	it
	is
	the
	responsibility 	of 	the
charging 	party 	to
	establish
	a 	prima 	face 	case.
	It
	was
	SEIU's
burden 	to
	show
	anti-union 	motivation 	in 	the 	actual 	decision 	to
deny 	Mr. 	Hughes 	a
	position
	on
	the 	laborer-gardener
	eligibility
34

list. 	Here, 	as 	the 	District 	correctly 	contends, 	SEIU 	failed 	to
establish 	a 	prima 	facie 	case 	that 	Mr. 	Hughes 	was 	the 	victim of
unlawful 	discrimination. 	Absent 	that 	initial 	showing 	by SEIU,
the 	District 	had 	no 	responsibility 	to 	show 	that 	Mr. 	Hughes
would 	have 	failed 	the 	test 	anyway.
Accordingly, 	the 	charge 	that 	the 	District 	violated 	EERA
subsection 	3543.S(a) 	by 	denying 	Harry Hughes 	a 	position 	on 	the
laborer-gardener 	eligibility 	list 	must 	be 	dismissed.
REMEDY
The 	appropriate 	remedy 	for 	an 	interference 	case 	is 	a 	cease
and 	desist 	order 	requiring 	the 	District 	post 	a 	notice
incorporating 	the 	terms 	of 	the 	order. 	Posting 	of 	such 	a
notice, 	signed 	by 	an 	authorized 	agent 	of 	the 	District, 	will
provide 	employees 	with 	notice 	that 	the 	District 	has 	acted 	in 	an
unlawful 	manner, 	is 	being 	required 	to 	cease 	and 	desist 	from
this 	activity, 	and 	will 	comply 	with 	the 	order. 	It 	effectuates
the 	purposes 	?f 	the EERA 	that 	employees 	be 	informed 	of 	the
resolution 	of 	the 	controversy 	and 	the 	District's 	readiness 	to
comply 	with 	the 	ordered 	remedy. 	Davis 	Unified 	School 	District
(2/22/80) 	PERB 	Decision No. 	116: 	see 	also Placerville 	Union
School 	District 	(9/18/78) 	PERB 	Decision No. 	69.
PROPOSED ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	it 	is 	found 	that 	the
Sacramento City 	Unified 	School 	District 	violated 	subsections
35

3543.S(a)
	and
	(b)
	of
	the 	Educational
	Employment
	Relations
	Act.
Pursuant 	to
	subsection
	3541.S(c)
	of 	the
	Government
	Code,
	it
hereby
	is
	ORDERED
	that
	the
	District,
	its
	governing 	board
	and
its
	representatives
	shall:
1.
	CEASE
	AND
	DESIST
	FROM:
Interfering
	with
	the
	protected
	rights
	of
	employees
	to
	file
grievances
	and
	seek
	the
	assistance
	of
	an 	employee
	organization
by
	making
	threats
	to
	employees
	who
	choose
	to
	engage
	in
	such
activities.
2.
	TAKE 	THE
	FOLLOWING
AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF
	THE
	EDUCATIONAL
	EMPLOYMENT
	RELATIONS
ACT:
(a)
	Within 	seven
	(7)
	workdays
	of
	service
	of
	a
	final
decision
	in
	this
	matter,
	post
	at
	all
	school
	sites
	and
	all
	other
work
	locations
	where
	notices 	to
	employees
	are 	customarily
placed, 	copies 	of 	the
	notice 	attached 	hereto
	as
	an
	appendix.
The
	notice
	must
	be
	signed
	by
	an
	authorized 	agent
	of
	the
District,
	indicating 	that
	the
	District
	will
	comply
	with
	the
terms 	of
	this
	order.
	Such
	posting
	shall
	be
	maintained 	for
	a
period 	of
	thirty
	(30)
	consecutive
	workdays. 	Reasonable
	steps
shall
	be
	taken 	to 	insure 	that
	the
	notice 	is
	not 	reduced
	in
size, 	altered,
	defaced 	or 	covered
	by 	any
	other 	material.
(b)
	Within 	twenty
	(20)
	workdays 	from
	service 	of
	a
final
	decision 	in
	this 	matter, 	notify 	the 	Sacramento 	Regional
Director 	of 	the 	Public
	Employment
	Relations 	Board, 	in 	writing,
of 	the 	steps 	the 	employer 	has 	taken 	to
	comply 	with 	the 	terms 	of
36

this 	order. 	Continue 	to 	report 	in 	writing 	to 	the 	regional
director 	periodically 	thereafter 	as 	directed. 	All 	reports 	to
the 	regional 	director 	shall 	be 	served 	concurrently 	on 	the
charging 	party 	herein.
IT 	IS 	FURTHER ORDERED 	that 	in 	all 	other 	respects, 	charge
S-CE-582 	is 	hereby 	dismissed 	together 	with 	the 	July 	7, 	1983,
amendment 	to 	the 	complaint.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on February 	9, 	1984, 	unless 	a 	party 	files 	a 	timely
statement 	of 	exceptions. 	In 	accordance 	with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify 	by 	page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on
February 	9, 	1984, 	or 	sent 	by 	telegraph 	or 	certified 	United
States 	mail, 	postmarked 	not 	later 	than 	the 	last 	day 	for 	filing
in 	order 	to 	be 	timely 	filed. 	See 	California 	Administrative
Code, 	title 	8, 	part 	III, 	section 	32135. 	Any 	statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon 	each 	party 	to 	this 	proceeding. 	Proof 	of
37

service
	shall
	be
	filed
	with
	the
	Board
	itself.
	See
	California
Administrative
	Code,
	title
	8,
	part
	III,
	section
	32300
	and 	32305.
Dated: 	January
	20,
	1984	
-/z,
,y_c,c
	f!;z
·
1
r 	L
tc--•:/
Ronald 	E.
	Blubaugh
Hearing
	Officer
38

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 Nos. 	S-CE-582 	and
S-CE-615,
	Service
	Employees
	International
	Union,
	Local
	22,
AFL-CIO
	v.
	Sacramento
	City
	Unified
	School
	District,
	in
	which
all
	parties
	had
	the
	right
	to
	participate,
	it
	has
	been 	found
that
	the
	Sacramento
	City
	Unified
	School
	District
	violated
	the
.Educational
	Employment
	Relations
	Act
	subsections
	3543.S(a)
and
	(b).
	The
	District
	violated
	these 	provisions 	of 	the
	law
	by
making
	threats
	to
	unit
	members
	Harry
	Hughes
	and
	Judy
	Gianatasio
in
	retaliation
	for
	exercising
	the
	protected
	right
	to
	seek
assistance
	from 	an 	employee
	organization.
	Such
	threats
interfere
	with
	employee
	rights
	to
	form,
	join
	and
	participate
	in
the
	activities
	of
	employee
	organizations 	of
	their
	own
	choosing
in 	violation
	of 	subsection 	3543.5(a).
	Making
	threats 	to
	anemployee
	who
	seeks
	union
	assistance 	also
	interferes
	with
	the
union's 	protected
	right
	to 	represent
	its
	members.
As
	a
	result
	of
	this
	conduct,
	we
	have 	been
	ordered
	to 	post
this
	notice
	and
	will
	abide
	by
	the 	following:
CEASE
	AND
	DESIST
	FROM:
Interfering
	with 	the
	right
	of
	employees
	to
	participate
	in
the 	protected
	activities
	of
	employee
	organizations
	by
threatening
	employees
	who
	choose
	to
	engage
	in
	such
	activities.
Dated:	
SACRAMENTO
	CITY 	UNIFIED
	SCHOOL
DISTRICT
By:
Authorized 	Agent
THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN 	POSTED 	FOR
	THIRTY
(30)
	CONSECUTIVE
	WORKDAYS 	FROM THE 	DATE 	OF
	POSTING
	AND 	MUST 	NOT
BE	
REDUCED
	IN 	SIZE,
	DEFACED, 	ALTERED,
	OR COVERED BY ANY
	OTHER
MATERIAL.