Palo Verde Unified School District (PERB 0689E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PALO VERDE 	TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
PALO VERDE UNIFIED 	SCHOOL DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-2313
PERB 	Decision 	No. 	689
June 30 	1988
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Appearances; 	Schwartz, 	Steinsapir, 	Dohrmann & Sommers by
Michael 	D. 	Four 	for 	Palo Verde 	Teachers 	Association, 	CTA/NEA;
Atkinson, 	Andelson, 	Loya, 	Ruud & Romo by Ronald C. 	Ruud 	for
Palo Verde 	Unified 	School 	District.
Before 	Porter, 	Craib and 	Shank Members.
DECISION
SHANK, 	Member: 	This 	case 	is before 	the 	the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the 	Palo Verde 	Unified 	School 	District 	(District) 	to 	the
attached proposed 	decision 	of 	the hearing 	officer. 	The
Administrative 	Law 	Judge 	(hereafter ALJ) 	found 	that 	the
District 	violated 	the 	Educational 	Employment 	Relations 	Act
(EERA or 	A c t ) , 1 section 	3543.5(a), 	by discriminatorily
relocating 	the 	extra-duty office 	location of 	James 	Brown, 	a
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein 	are 	to 	the 	Government 	Code.
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_____ )

member 	of 	and 	negotiator 	for 	the 	Palo Verde 	Teachers
Association, 	CTA/NEA (Association, 	PVTA, 	or Charging Party), 	at
the 	commencement 	of 	the 	1985-86 	academic year. 	The ALJ 	further
found 	that 	Charging 	Party's 	allegations 	asserting 	the
District's 	unlawful 	interference 	with 	employee 	rights 	and
constructive 	discharge 	of 	Brown 	in 	violation of 	section
3543.5(a)2 are 	unsupported by the 	record 	and, 	accordingly,
dismissed those portions 	of the complaint.3 3
For 	the 	reasons 	set 	forth below, 	we 	reverse 	the ALJ's
finding 	that 	Brown's 	relocation 	constituted 	unlawful
discrimination 	in violation of section 3543.5(a).
FACTUAL 	SUMMARY
We 	find 	the ALJ's 	lengthy 	findings 	of 	fact 	to be 	free 	from
prejudicial 	error 	and, 	to 	the 	extent 	they are 	consistent with
the 	following 	summary and discussion, 	we 	adopt 	them as 	our 	own.
James 	Brown began work 	for 	the 	District 	as 	a 	classroom
teacher 	in 	1971. 	During 	the 	course of his 	employment, 	he was
an 	active 	member 	of 	the Association, 	having 	served 	as 	its
2section 3543.5(a) 	states:
It 	shall be 	unlawful 	for a public 	school 	employer 	to:
(a) 	Impose 	or 	threaten to 	impose 	reprisals 	on
employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter.
3Charging 	Party has 	filed 	no 	exceptions 	to 	this 	partial
dismissal of 	the 	complaint. 	Therefore, 	we need not 	review 	the
merits 	of 	the proposed decision 	in 	these 	regards.
N
3
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president 	and 	vice-president, 	and periodically having been 	a
member 	of 	its 	negotiating 	committee. 	Brown 	also 	served 	as
state 	council 	representative 	for 	the 	California 	Teachers
Association 	(CTA) 	and 	vice-chair 	and chair 	of 	the 	service
center 	council, 	as 	well 	as 	on several 	CTA committees 	for 	the
past 	five 	years. 	Brown's 	union affiliation 	and 	activism were
well-known 	to 	the 	District.
At 	all 	times 	relevant 	to this proceeding, 	Brown's 	regular
assignment 	entailed 	teaching 	reading 	and 	computer 	science 	at
Blythe Junior High 	School. 	However, 	as 	of 	the beginning of 	the
1983-84 	school 	year, 	he was 	given 	the 	extra-duty assignment 	of
District 	computer 	coordinator, 	a position 	in which 	the 	design
and 	establishment 	was 	largely 	attributable 	to 	Brown's 	own
efforts. 	This 	assignment, 	for which he was provided additional
compensation, 	entailed 	two additional hours 	of 	work 	in 	the
afternoon, 	four days per week.
As 	computer 	coordinator, 	Brown was 	provided 	with 	an office
at 	the District's Administration Center 	(Center), 	situated
approximately 14 	feet 	from 	that of 	the 	superintendent, 	Dr.
Leamon Hanson. 	The 	Center 	is 	about 	a 	ten-minute 	drive 	from
Blythe Junior High 	School. 	From his 	office, 	Brown was 	in a
position 	to 	see 	and hear 	much 	of 	what 	transpired 	in 	and 	about
Dr. 	Hanson's 	office. 	Furthermore, 	the key to Brown's office
also provided 	Brown 	with 	access 	to an 	exterior 	entrance 	to 	the
superintendent's 	personal 	office. 	The 	record does 	not 	reflect
that 	Brown 	ever 	attempted 	to use 	such 	access.
W	
3

Contemporaneously with his 	extra-duty assignment, 	Brown
again 	served 	on 	the Association's 	negotiations 	committee, 	again
with 	full 	knowledge of 	the 	District. 	During this 	time,
bargaining was 	both 	ongoing 	and 	difficult. 	The parties 	had
failed 	to 	reach 	agreement 	on a 	contract 	for 	the 	1984-85 	school
year 	and, 	as of May 1985, 	the prospects 	of 	achieving a contract
for 	the 	forthcoming year were not promising. 	On May 25, 	1985,
members 	of 	the 	unit 	staged 	a one-day 	strike.
At 	about 	this 	time, 	the Association 	formed 	a 	crisis
committee 	which 	was 	charged 	with 	planning 	for 	further 	concerted
action.4 Brown was 	not 	included 	in 	this 	group. 	During 	the
summer 	months, 	the Association 	released public 	statements
threatening a 	strike 	if 	agreement 	on a 	contract 	could not be
reached by 	the 	resumption of 	classes 	in 	the 	Fall. 	A strike
vote had been 	scheduled 	for August 	19, 	1985 	(the 	day before
teachers 	were 	to 	report back 	for 	duty 	following 	summer
vacation), 	but was postponed. 	Two other 	strike votes were
scheduled 	for 	shortly 	thereafter but 	also did 	not 	in 	fact 	take
place.
Anticipating 	a 	strike by the Association, 	the 	District 	was
engaged 	in 	actively 	planning 	for 	emergency 	operations 	and
continued 	instruction 	as 	of 	the 	time 	Brown 	and 	other 	unit
employees 	returned 	to duty on August 	20, 	1985. 	The 	District's
4See 	this 	Board's 	decision 	in 	Palo Verde 	Unified 	School
District 	(1987) 	PERB Decision No. 	642.
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planning 	efforts, 	which were headquartered 	at 	the 	Center,
included 	arranging 	for 	substitutes, 	conferring with 	law
enforcement 	personnel 	and 	coordinating 	contingency plans 	with
site 	administrators 	and 	others.
On August 	29, 	1985, 	Dr. 	Hanson advised Brown that he had
determined 	to 	relocate 	Brown's 	office 	as 	computer 	coordinator
to Brown's 	regular 	classroom at 	Blythe 	Junior High 	School. 	Dr.
Hanson explained 	that, 	under 	the circumstances, 	he and others
were 	uncomfortable 	with 	Brown's 	presence 	adjacent 	to 	the
superintendent's 	office. 	Although 	Brown was 	allowed 	to 	address
the 	governing board 	on 	this 	issue, 	the 	relocation was
thereafter 	implemented 	over 	Brown's 	objections.
Although 	relations 	remained 	strained between 	the
Association and 	the 	District 	for much 	of 	that 	school 	year, 	no
strike 	in 	fact 	occurred. 	Brown, 	however, 	resigned as 	computer
coordinator 	in 	January 	1986, 	citing what he perceived 	to be
intolerable 	working 	conditions.
DISTRICT'S 	POSITION
The 	District 	excepts 	generally 	to 	the 	hearing 	officer's
ultimate 	findings 	that 	Brown's 	transfer 	was 	motivated by his
protected 	activities 	and 	that 	it 	failed 	to 	establish 	that 	the
transfer would have 	occurred 	in any event. 	It 	insists here, 	as
it 	did 	at hearing, 	that 	Brown was 	transferred 	solely due 	to 	the
Association's 	threat 	of 	strike 	activity 	and 	not because 	of his
long-standing 	and 	well-known 	union 	activism.
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Specifically, 	the 	District 	argues 	that 	the Association
failed 	to make 	out 	a prima 	facie 	case 	of 	unlawful
discrimination 	in 	that 	no 	evidence 	was 	presented 	to 	establish
that 	the 	Association's 	efforts 	to promote 	a work 	stoppage were
protected under 	the Act. 	Accordingly, 	it 	contends 	that 	the
matter 	should 	have 	been 	dismissed 	due 	to 	the 	Association's
failure 	to prove 	up 	the 	necessary element 	of 	protected
activity. 	In 	the 	alternative, 	the 	District claims 	that 	it had
a 	right 	to 	effect 	Brown's 	relocation as 	a 	reasonable
precautionary 	measure 	even 	if 	the Association's 	strike 	threats
were 	protected. 	It 	further 	argues 	that 	the 	record 	fails 	to
permit 	an 	inference 	of 	unlawful 	motivation 	in 	that 	the
Association has 	failed 	to present 	evidence 	of 	a 	nexus between
Brown's 	own protected 	activities 	and his 	relocation. 	Finally,
the 	District 	insists 	the 	relocation was 	in 	any event 	justified
by 	operational 	necessity.
ASSOCIATION'S 	POSITION
The 	Association 	contends 	James 	Brown 	was 	relocated because
of his 	Association 	activity and 	therefore, 	under 	Novato Unified
School 	District 	(1982) 	PERB Decision No. 	210, 	discrimination
has 	occurred 	and he 	is 	entitled 	to be 	restored 	to his 	position
and 	work 	location 	and 	receive 	back 	pay 	from 	the 	date 	of 	his
resignation.
ISSUES
The 	issues 	presented 	are 	whether 	the 	District's 	relocation
of 	James 	Brown's 	extra-duty work place 	from 	the 	District's
Administration 	Center 	to his 	classroom 	at 	Blythe 	Junior 	High
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School 	constituted 	an 	"adverse action" 	and, 	also, 	whether 	such
action 	was 	unlawfully motivated by 	Brown's 	participation 	in
protected 	activities.
DISCUSSION
In 	reversing 	the ALJ we hold 	that 	James 	Brown did not
suffer 	any adverse 	consequences 	as 	a 	result 	of his 	relocation
to his 	classroom 	to perform 	the 	duties 	of 	computer 	coordinator
for 	the 	District, 	thus 	failing 	to satisfy an essential 	element
in 	support 	of 	a 	claim 	of 	discrimination 	under 	the 	Novato
standard.
While 	a prima 	facie 	showing of 	some 	adverse 	action 	is 	not
clearly expressed as 	such 	in Novato, 	it 	is 	nonetheless
essential. 	In Novato we cited, 	with approval, 	Wright Line, 	A
Division of Wright Line, 	Inc. 	(1980) 	2 51 NLRB No. 	150 [105 LRRM
1169], 	enforcement granted 	(1st Cir. 	1981) 	662 F.2d 899 	[108
LRRM 2513], 	cert. 	den. 	(1982) 	455 US 989 	[109 LRRM 2779]. 	In
Wright 	Line 	the 	National 	Labor 	Relations 	Board 	(NLRB) 	required
a 	". 	. 	. 	showing sufficient to support the 	inference that
protected 	conduct 	was 	a 	'motivating 	factor' 	in 	the 	employer's
decision." 	(Id., 	105 LRRM at 	1175.) 	The United 	States 	Supreme
Court 	expressly 	adopted 	the 	NLRB's 	Wright 	Line 	analysis 	in
NLRB v. 	Transportation Management Corp. 	(1983) 	462 U.S. 	393
[113 LRRM 2857], 	revd. 	(1st Cir. 	1982) 	674 F.2d 130 	[109 LRRM
3291]. 	In so doing, 	the Supreme Court stated:
As 	we 	understand 	the Board's 	decisions, 	they
have 	consistently held 	that 	the 	unfair 	labor
practice 	consists 	of 	a discharge 	or 	other
adverse 	action that 	is based 	in whole or 	in
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part 	on 	anti-union 	animus—or 	as 	the 	Board
now puts 	it, 	that 	the 	employee's protected
conduct 	was 	a 	substantial 	or 	motivating
factor 	in 	the 	adverse 	action. 	(Emphasis
added.) 	(113 LRRM at pp. 	2860-2861.)	- -
Furthermore, 	in 	issuing 	its Petition 	for Enforcement, 	the
First 	Circuit 	acknowledged 	that 	in 	its 	earlier 	cases 	it
. 	. 	. 	came to recognize that 	the existence or
not 	of 	a 	causal 	link between union 	activity
and the employee's 	injury 	. 	. 	. was most
accurately 	determined by 	asking 	whether 	the
discharge 	would have 	occurred 	"but 	for" 	the
protected activity, 	it 	is 	clear no unfair
practice 	existed 	since 	a bad 	motive 	without
effect 	is 	no more 	an unfair 	labor 	practice
than an unexecuted 	evil 	intent 	is 	a 	crime.
(Emphasis 	added.) 	(Wright Line 	(1st 	Cir.
1981) 	108 LRRM 2513, 	2516.)
Just 	as 	federal 	courts 	reviewing 	the 	NLRB's 	standard 	in
Wright 	Line 	have 	expressly acknowledged 	the 	need 	to make 	a prima
facie 	showing of 	adverse 	action, 	we 	too 	expressly acknowledge
that 	while 	a showing of harm has 	always been a requisite, 	it has
not 	heretofore been 	expressed 	as 	such. 	We 	are 	now doing 	so.
Since 	this 	case 	turns 	on whether 	or 	not 	Brown's 	relocation was
an 	"adverse 	action," 	the 	nature of his 	duties 	and 	the
circumstances 	under 	which 	he 	was 	relocated 	must be 	examined 	in
detail.
- -
As 	computer 	coordinator, 	Brown was 	responsible 	for 	the
facilitation, 	introduction and 	use of 	computers 	in 	the
classroom. 	He 	was 	required 	to 	operate 	computers 	and keep
District 	employees 	and members 	of 	the 	school 	board 	apprised 	of
computer programs 	which were 	available 	or 	obsolete. 	He 	was
required 	to maintain 	contact 	with 	the 	Teacher 	Education 	Computer
8

Center 	which 	coordinated 	the 	use 	of 	computers 	within 	the 	two
counties 	of San Bernardino and Riverside. 	Brown, 	as 	computer
coordinator, 	discharged his duties 	in two-hour 	increments, 	four
days 	a week. 	His workday ended 	at 	about 	5:00 p.m. 	on 	the 	four
days he 	spent 	in 	the 	Center. 	His 	office 	was 	originally 	located
in 	the 	District's Administrative 	Center because 	there was 	a
vacant 	office 	which 	accommodated his 	needs. 	The 	latter 	included
access 	to a computer, 	telephone, 	and xerox machine. 	These were
available 	in 	the 	Center, 	which was 	about 	a 	ten-minute drive 	from
the 	classroom 	where 	he performed his 	full-time 	teaching duties.
As 	previously noted, 	Brown was 	active 	in 	the Association 	and
had been 	a member 	of 	the bargaining 	team 	for 	a 	number 	of 	years.
In Palo Verde 	Teachers Association, 	supra, 	this Board adopted
the 	ALJ's 	findings 	concerning 	the Association's 	threat 	of 	strike
activity 	in 	the 	summer of 	1985, 	and 	into 	the 	school year 	of
1985-86. 	While 	some 	of 	the 	same 	facts 	were presented 	in 	the
instant 	case, 	a more 	extensive discussion 	is 	contained 	in PERB
Decision No. 	642. 	It 	is clear 	in both the 	instant 	record and
the 	Board's 	decision 	in Palo Verde 	Teachers Association, 	supra,
that 	there 	was 	sufficient 	activity 	on 	the part 	of 	the
Association 	to 	justify the 	District's 	preparations 	for 	a
possible 	strike. 	It 	was 	this 	situation 	that 	led 	to 	the 	decision
of 	the 	superintendent 	to 	relocate 	Brown 	to his 	classroom 	to
perform 	the 	duties 	of 	computer 	coordinator.
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Upon being 	informed of 	the 	relocation 	of his 	work 	site, 	Brown
was 	understandably 	upset 	and 	prepared 	the 	following 	memorandum
detailing his 	objections 	to 	the 	change:
1. 	This 	will be 	seen by everyone 	as 	a 	"slap
in 	the 	face" 	for me personally.
2. 	The 	idea of 	a district 	computer program
will be 	dealt 	a 	severe blow.
3. 	The 	school personnel 	(administrators 	and
teachers) 	who 	tend 	to 	like 	to 	'go their
own way' will 	have 	a 	greater 	tendency 	to
do 	so having 	sensed weakness 	in a
district 	directed 	program.
4. 	The 	facilities 	at 	the 	junior high 	school
are 	much 	less 	satisfactory 	then 	those 	at
the 	district 	office.
a. 	I have no phone 	in my classroom and
there 	is 	no office 	space 	available
on 	the 	junior high campus.
b. 	Teachers 	and administrators, 	who
drop by while 	doing 	other 	errands 	at
the 	District, 	would be much 	less
likely 	to do 	so at 	the 	junior high.
c. 	There 	is 	no microwave phone 	in 	the
junior high 	school 	campus.
d. 	Even 	if 	copying 	facilities 	were made
available 	to me 	at 	the 	junior high
school 	(which 	as 	I understand 	it,
they would not), 	they would be 	three
locked 	doors 	and 	three 	hundred 	yards
away 	instead of 	20 	steps 	away as
they are 	at 	the 	District 	office.
e. 	Instead 	of 	down-the-hall 	convenience
to 	educational 	services 	assistance,
it 	would be 	across 	town.
5. 	An arbitrary decision 	to shove 	aside 	a
qualified 	and hard 	working 	employee 	on
the 	feeling 	of 	discomfort 	by 	the
Superintendent 	hardly moves 	the 	District
toward 	well-planned 	presentations 	of 	its
educational 	program.
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6. 	A move 	(which 	can be 	viewed 	as
retaliation 	for 	serving 	on 	the 	teachers
negotiation 	team) 	will 	hardly promote
the 	'problem-solving' 	approach 	so badly
needed 	at 	the 	negotiation 	table.
The 	arrangements 	for 	performing his 	duties 	as 	computer
coordinator 	in his 	classroom were 	as 	follows. 	Brown's 	workday
during 	the 	four 	days 	he 	worked 	the 	additional 	two hours 	now
ended 	at 	4:30 p.m. 	rather 	than 	5:00 p.m. 	as 	it had been at 	the
Center. 	He 	had available 	the 	same model 	computer, 	printer 	and
disc-drives 	as he had had. 	A copy machine 	was 	available 	in 	the
principal's 	office 	at 	the 	junior high 	until 	3:30 p.m. 	and
secretaries 	were 	available 	to 	run 	the 	copies. 	The 	classroom
had 	space 	for 	filing 	and 	storage 	which had 	not 	been 	available
to him before. 	His 	classroom office 	did 	not have 	a phone but
the 	junior high principal 	was 	in 	the process 	of 	obtaining a
portable 	phone 	which 	would have been 	available 	to 	Brown had he
remained 	on 	the 	job. 	There were phones 	available 	for his 	use
in 	the 	teacher's 	lounge, 	his 	wife's 	classroom which was 	next
door 	to his, 	and 	in 	the principal's 	office 	if needed. 	A
microwave 	phone 	was 	available 	in 	the 	counseling office 	at 	the
junior high 	also. 	All 	of 	the 	telephones 	were within 	100 paces
or 	less 	from 	Brown's 	classroom.
In 	addition 	to Brown's 	objections 	concerning 	inadequate
access 	to phones 	and 	copying 	facilities, 	they also go 	to 	lack
of 	"foot 	traffic" 	and his 	perceived 	inaccessibility. 	There 	was
no 	evidence 	that 	the 	"foot 	traffic" 	was 	important 	or 	essential
11

to 	the performance of his 	duties 	and he 	was 	not 	inaccessible 	in
his 	classroom 	after 	normal 	school hours.
While 	some 	aspects 	of 	the 	job arrangements 	in Brown's
classroom were 	certainly not 	as 	convenient 	as 	had been 	the 	case
in 	the Center, 	a number 	of 	improvements were obvious. 	His
workday was 	shortened by a half hour, 	more 	space 	was 	available
for 	storing materials, 	and 	there were 	fewer 	distractions 	and
less 	noise 	in his 	new location.
It 	is 	apparent 	that 	Brown's 	main 	objections 	were 	to what he
perceived 	as 	a 	downgrading of 	the 	computer 	program 	in 	the
District 	and 	an 	accompanying 	diminishing 	of 	the 	prestige 	of 	his
position as coordinator. 	There was, 	however, 	no evidence to
support his 	subjective 	reactions.
We 	apply an 	objective 	test 	in determining 	whether 	the
changes 	made 	as 	a 	result 	of 	the 	relocation 	actually 	resulted 	in
injury 	to Brown.5 	His duties 	remained the 	same, 	his
compensation 	remained 	the 	same 	and his 	workday was 	actually
shortened. 	While 	telephone 	communication was 	more 	difficult,
the 	evidence 	indicated 	this 	was 	temporary 	and 	would have been
corrected. 	In 	fact 	the 	ALJ 	found 	that 	working conditions 	did
not 	change 	substantially 	enough 	to 	constitute 	a 	constructive
discharge.
5
5While 	the 	employee 	may 	reasonably have 	felt 	that 	he 	was
in 	fact 	injured by the relocation, 	as 	the dissent 	argues, 	his
reaction 	is 	still 	a subjective one 	if, 	as here, 	the 	facts do
not 	support 	the 	alleged 	injury.
12

In 	light 	of 	our 	conclusion 	that 	Brown 	was 	not 	adversely
affected, 	the Novato analysis may properly end. 	However, 	even
assuming, 	arguendo, 	that 	the District's decision to assign
Brown 	a 	different 	office 	constituted 	an 	adverse 	action, 	we 	find
that 	it 	was 	not 	motivated by his 	participation 	in protected
activities.
The 	District 	contends 	that 	Brown's 	presence 	in 	close
proximity 	to 	the 	superintendent's 	office made 	the
superintendent 	and his 	visitors 	"uncomfortable." 	Indeed,
Superintendent 	Hanson 	testified 	that he 	felt 	inhibited 	in his
ability 	to 	function 	effectively 	in his 	primary 	work 	site
because 	of 	the 	immediate 	proximity of 	a member 	of 	the 	PVTA
bargaining 	team 	during 	a 	time 	when 	the 	Association 	was
threatening strike activity. 	It 	is, 	thus, 	obvious 	from the
record 	that 	Brown's 	position 	on 	the 	PVTA's 	bargaining 	team
during 	the 	time 	of 	an 	imminent 	strike was 	instrumental 	in 	the
District's 	decision 	to 	relocate his 	office. 	In 	the 	strictest
technical 	sense, 	then, 	the relocation of 	Brown's office
resulted 	from his 	participation 	in protected 	activities.
I
In this 	instance, 	however, 	we believe 	that 	the District
rebutted 	any 	inference 	of 	unlawful 	motive. 	Brown's
participation 	in protected activities, 	as 	a 	factor motivating
the 	District's 	relocation of his 	office, 	was 	inextricably tied
to 	the 	threatened 	strike. 	The 	record 	clearly showed 	that
Brown's 	office 	would 	not 	have 	been 	reassigned 	at 	the beginning
of 	the 	1985-86 	school 	year were 	it 	not 	for 	the 	District's
13

reasonable perception of 	an 	imminent 	strike. 	In 	this 	regard,
it 	is 	critical 	to note that, 	when Brown was 	originally assigned
an office 	next 	door 	to that 	of 	the 	superintendent, 	he was
extensively 	involved 	in activities 	of 	PVTA, 	a 	fact 	then known
to 	the 	District. 	It 	can 	thus be 	inferred 	that 	it was 	the
strong possibility of 	a 	strike 	which 	provided 	the 	true 	impetus
for 	the 	relocation of 	Brown's 	office.
The ALJ and 	the Association, 	we believe, 	placed undue
reliance 	on 	the 	fact 	that 	no 	strike 	actually 	occurred. 	While
this 	is 	true, 	the 	threat of 	the strike was 	very real, 	and 	the
District 	was 	nonetheless 	required 	to make 	preparations 	in
response 	thereto. 	Just 	as 	a 	school 	district has 	an 	inherent
interest 	in preserving the 	security of 	its 	facilities, 	so also
does 	it have 	an 	interest 	in protecting 	the 	integrity of 	its
managerial 	communications. 	(See Modesto 	City 	Schools 	(1983)
PERB 	Decision No. 	291.) 	We 	are persuaded by 	the 	record 	in 	this
case 	that 	the 	District's 	decision 	to 	relocate 	Brown's 	office
was 	a 	reasonable 	measure 	in 	response 	to 	the 	exigent
circumstances 	then 	confronting 	the 	District.
In 	this 	instance 	the 	charge 	is 	DISMISSED.
Member 	Porter 	joined 	in 	this 	Decision.
Member 	Craib's 	dissent begins 	on page 	15.
14

Member Craib, 	dissenting: 	On 	its 	face, 	the 	transfer of 	a
union 	negotiator 	away 	from 	close 	proximity 	to 	the
superintendent's 	office, 	especially 	in 	light of 	ongoing 	strike
preparations, 	does not seem unreasonable. 	However, 	as
discussed below, 	the 	District's 	failure 	to present 	evidence 	to
rebut 	the 	charging party's 	prima 	facie 	case 	of 	discrimination
requires 	a 	finding of a violation. 	That 	is 	the 	real 	issue 	in
this 	case, 	an 	issue 	the majority seeks 	to avoid by 	finding 	that
the 	transfer 	was 	not 	adverse. 	In 	order 	to 	reach 	that 	result,
the 	majority has 	been 	forced 	to create 	a misguided 	rule 	of 	law
whose 	implications 	I 	trust 	the majority does 	not 	appreciate.
I 	agree 	with 	the 	majority 	that 	an 	objective 	test 	must be
applied 	in determining whether 	an action 	is 	adverse; 	however,
the 	majority's 	test 	goes 	far beyond what 	is 	necessary to be
termed 	"objective." 	A subjective 	test 	would 	consider 	only 	the
employee's 	perception of whether 	the 	action was 	adverse, 	while
an 	objective 	test 	would 	require 	that 	the 	perception be
reasonable, 	i.e., 	could 	the action 	reasonably be 	viewed as
adverse? 	The majority 	instead 	requires 	that 	the 	action 	cause 	a
substantial 	change 	in working conditions. 	Such 	analysis
improperly blurs 	the 	distinction between 	constructive 	discharge
issues 	and 	issues 	of 	discrimination 	or 	retaliation. 	Only where
a constructive 	discharge 	is 	at 	issue 	is 	it 	relevant 	to consider
whether 	the 	changes 	in working conditions 	make 	the 	job
difficult 	or 	impossible 	to perform. 	Further, 	whether 	the
action's 	effect 	upon protected 	rights 	is 	relatively slight 	is 	a
15

proper 	consideration 	only 	in 	interference 	cases, 	where 	a
balancing of 	interests 	is 	an 	integral 	part 	of 	the 	analysis
applied. 	See, 	e.g., 	Novato Unified School 	District 	(1982) 	PERB
Decision No. 	210; 	Carlsbad Unified School 	District 	(1979) 	PERB
Decision No. 	89.
In 	a discrimination 	case 	the 	inquiry 	is 	whether 	there 	was
some harm 	(caused by unlawfully motivated 	conduct), 	though 	no
particular 	quantum 	of harm 	is 	required. 	The 	reason 	for 	this 	is
rather 	obvious. 	While 	very 	serious 	unlawfully motivated
adverse 	actions, 	such as discharges, 	would naturally have 	the
greatest 	chilling 	effect 	upon 	the 	exercise 	of protected 	rights,
relatively minor 	adverse 	actions 	also have 	a 	chilling
1	effect. 	The difference 	is quantitative, 	not qualitative.
If 	such 	actions 	could be 	taken with 	impunity 	the potential
interference 	with 	the 	exercise 	of protected 	rights 	is
significant. 	For 	example, 	an employer 	could harass 	and
1 The 	NLRB has 	consistently 	found 	discrimination
violations 	where 	the 	adverse 	action was 	relatively minor 	and
had 	no 	significant 	effect 	upon 	the 	employee's 	ability 	to
perform 	job duties, 	nor 	affected wages, 	hours or other major
conditions of employment. 	See, 	e.g., 	Advertisers'
Manufacturing Co. 	(1986) 	280 NLRB No. 	128 	[124 LRRM 1017]
(personal 	telephone 	use policy, 	use 	of 	receiving dock 	area 	for
breaks 	and 	lunch, 	restrictions 	on employee conversations,
allowing 	only 	supervisors 	to park 	in 	first 	row of parking 	lot,
pattern 	of harassment 	against 	newly-elected 	chief 	steward; 	La
Reina, 	Inc. 	(1986) 	279 NLRB No. 	103 	[123 LRRM 1235] 	(more
stringent 	enforcement of all-white 	clothing work 	rule);
Inductive Components, 	Inc. 	(1984) 	271 NLRB 1448 	[116 LRRM 1207]
(more 	stringent 	enforcement 	of 	work 	rules 	and 	transfer 	of
employee 	to 	isolated work 	location). 	The 	focus 	in 	these 	cases
is 	on 	the 	evidence of unlawful motive, 	not on the 	seriousness
of 	the 	action 	taken.
16

intimidate 	employees 	through 	a 	series 	of 	relatively minor
actions, 	effectively discouraging protected 	activity. 	Under
the majority's 	analysis, 	such 	an 	employer 	would 	not 	violate 	the
law 	as 	long 	as 	the 	adverse 	action 	did 	not 	"substantially"
affect 	terms 	and 	conditions 	of 	employment. 	That 	such an
approach 	does 	not 	effectuate 	the purposes 	of 	the Act 	is
manifest.2
Having 	established 	that 	the proper 	test 	is 	whether 	the
employee 	could 	reasonably view 	the action as 	adverse, 	I 	now
turn 	to consideration 	of 	the 	action 	taken 	in 	this 	case.
According 	to 	the 	testimony, 	Brown's 	transfer 	out of 	the
Administration Center 	affected his 	job 	in 	three ways. 	One, 	he
no 	longer had 	access 	to 	the 	foot 	traffic 	that 	regularly passed
through 	the 	Center, 	which 	Brown 	testified was 	very helpful 	in
making 	the 	contacts 	necessary 	to maintain 	and 	expand 	the
District-wide 	program he 	oversaw 	as 	District 	Computer
Coordinator. 	Second, 	Brown 	viewed 	the 	transfer 	as 	denigrating
the 	status 	of 	the program, 	which he 	feared would also hinder
his 	efforts. 	Lastly, 	he had 	less 	convenient access 	to
telephone 	and 	copying 	services.
2EERA section 	3543 	states, 	in pertinent part:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations 	. . . .
17

The 	above 	changes 	in working 	conditions 	may not have
substantially 	impaired 	Brown's 	ability 	to perform his 	duties,
but 	they are hardly de minimis. 	To 	some, 	it may appear as 	if
Brown has 	made 	"much 	ado 	about 	nothing," 	but 	such 	a 	subjective
assessment 	does 	not 	reflect 	the proper 	inquiry. 	When 	the 	issue
is 	properly 	framed 	as 	whether 	Brown 	could 	reasonably 	view 	the
transfer 	as 	adversely affecting his 	working 	conditions, 	the
answer 	is 	a clear 	yes. 	Whether 	the 	adverse 	effect 	upon working
conditions was 	severe, 	critical, 	or even substantial, 	is simply
irrelevant.
When 	considering 	whether 	an 	employee 	is 	adversely 	affected,
it 	is 	important 	to 	remember 	that working 	conditions 	involve
both 	intangible 	as 	well 	as 	tangible 	elements. 	Involuntary
transfers, 	perhaps more 	than any other actions, 	bring to light
this 	simple 	fact. 	Though 	tangible working conditions, 	such 	as
wages, 	hours 	or 	equipment may not 	vary 	from one 	site 	to
another, 	it 	is 	quite 	common 	for one 	location to be preferable
to another. 	This 	might 	range 	from one 	job 	site being 	that
particular 	employer's 	"Siberia" 	to 	the 	desire 	to 	remain 	in a
positive 	work 	environment 	that 	has 	resulted 	from building
productive 	relationships with 	fellow employees, 	students, 	or
administrators. 	Nor 	should 	the 	status 	that might 	come with
assignment 	to a particular 	location be 	easily dismissed. 	If
the 	change 	in working 	conditions 	is 	reasonably perceived 	as
adverse 	and 	occurred 	due 	to protected 	activity, 	there will
indeed be 	a 	chilling 	effect 	upon 	the 	exercise 	of 	protected
18

rights. 	That 	is 	what 	the prohibition on discrimination 	is
designed 	to prevent 	and 	that 	should be 	the 	focus 	of 	our 	inquiry,
While 	a 	discrimination 	claim 	should 	not be 	upheld 	where 	the
action 	taken 	may 	not 	be 	reasonably 	viewed 	as 	adverse 	(because
it 	is 	not 	likely to have any chilling effect), 	that 	is not the
situation 	faced here. 	Nor 	is 	it 	likely that an 	involuntary
transfer 	would 	fail 	to meet 	the 	requirement 	of being
objectively adverse. 	By definition, 	an 	involuntary transfer 	is
seen by 	the 	employee 	as 	punitive. 	The 	only 	remaining question
is whether 	that perception 	is 	reasonable, 	and 	in 	the vast
majority of 	cases 	a 	reasonable basis 	for 	the perception 	is
beyond dispute. 	That 	is 	why 	it 	is 	so 	rare 	that anyone argues
that 	such a transfer 	is not adverse. 	In the past, 	this Board
has 	not 	found 	it 	necessary 	to address 	the 	issue of 	whether 	an
involuntary transfer 	is 	indeed adverse. 	See, 	e.g., 	Riverside
Unified 	School 	District 	(Petrich) 	(1986) 	PERB Decision No. 	571;
State of 	California 	(Dept. 	of 	the Youth Authority) 	(1985) 	PERB
Decision No. 	535-S; 	Santa Paula School District 	(1985) 	PERB
Decision No. 	505; 	San Leandro Unified 	School 	District 	(1983)
PERB Decision No. 	288. 	In 	fact, 	Member Porter, 	who joins 	in
the majority opinion 	in 	the 	instant 	case, 	in his 	concurrence
and dissent 	in Riverside, 	stated:
The 	regional 	attorney dismissed 	the 	reprisal
issue 	on 	the 	ground 	that 	Charging 	Party
failed 	to 	show how 	the 	transfer 	was
adverse. 	However, 	I believe that an
involuntary 	transfer 	is 	itself 	sufficiently
adverse, 	and nothing 	further 	need be 	shown
in that 	respect.
19

I 	now 	turn 	to 	the 	evaluation of 	the 	discrimination 	claim 	as
a whole. 	A prima 	facie 	case 	of 	unlawful 	discrimination 	is
established by 	showing 	that 	(1) 	the 	employee 	engaged 	in
protected 	activity, 	(2) 	the 	employer had 	actual 	or 	constructive
knowledge 	of 	the 	employee's 	exercise of protected 	rights, 	(3)
the 	employer 	thereafter 	took 	adverse 	action 	against 	the
employee, 	and 	(4) 	a nexus 	existed between 	the employer's
complained-of 	action 	and 	the 	employee's 	protected 	activity. 	In
essence, 	it must be 	established by a preponderance 	of 	the
evidence 	that 	the 	employer's 	conduct 	was 	motivated 	at 	least 	in
part by 	the 	employee's 	exercise of 	rights. 	Accordingly,
unlawful 	motivation 	is 	the 	specific 	nexus 	necessary 	to
establish a prima 	facie 	case of 	discrimination. 	Novato Unified
School District, 	supra.
Brown 	clearly 	engaged 	in 	protected 	activity by being 	a
union member 	and, 	more 	importantly, 	by being a member of 	the
negotiating 	team. 	Santa 	Paula 	Unified 	School 	District 	(1985)
PERB 	Decision No. 	505. 	It 	is not disputed that 	the District
was 	aware 	of 	Brown's 	protected activity. 	As 	discussed 	above,
the 	element 	of 	adverse 	action was 	also 	clearly established.33
While 	most 	often a 	finding of 	unlawful 	motivation 	rests
upon 	an 	inference 	drawn 	from 	circumstantial 	evidence 	(timing,
3while 	the 	majority 	is 	certainly 	free 	to address 	the
issue, 	I 	nonetheless 	find 	that 	it 	is 	revealing that 	the
District 	did 	not 	argue 	on 	appeal 	that 	the 	transfer 	was 	not
adverse.
20

disparate 	treatment, 	shifting 	justification, 	deviation 	from
established procedures, 	etc.), 	here there is substantial direct
evidence 	of 	the 	District's 	motivation 	in 	effecting 	Brown's
transfer. 	For example, 	Brown's contemporaneous notes of 	the
August 	29, 	1985 	conversation with Superintendent 	Hanson, 	during
which 	Brown was 	first 	apprised of his 	transfer, 	clearly
indicate 	the 	superintendent's 	discomfort 	with 	the presence 	of 	a
high 	level 	union 	official 	in 	the midst 	of 	the 	District's 	strike
contingency planning. 	Hanson himself 	acknowledged 	the 	general
accuracy of 	Brown's 	notes 	of 	this 	conversation:
. 	. 	. 	[A]nd so it seemed to me 	that to have
someone 	who was 	very active 	in 	the whole
business 	of 	PVTA 	relationships 	with 	the
District 	from 	the 	negotiations 	standpoint
and 	from 	the 	strategizing 	standpoint, 	right
in my own office, 	was 	ludicrous 	almost.
. . . 	It 	just 	didn't 	make 	any 	sense 	to me 	to
allow, 	to continue, 	any more 	than I, 	and as
I 	suggested 	to Jim 	[Brown], 	any more than
during this 	whole 	thing, 	if 	I were sitting
over 	in 	the 	corner 	of 	the 	PVTA office down
there 	on Hobson Way while 	they were 	doing
their 	strategizing 	and planning 	and 	so 	on.
I 	felt 	the 	same 	way as 	I 	thought he would
feel by, 	as 	I relayed that analogous
situation.
Hanson 	also 	testified 	as 	to his 	discomfort 	with 	Brown's
role 	as 	a 	"prime 	functionary 	in 	the 	union" 	and 	the 	attendant
risk 	of 	union 	access 	to 	sensitive 	District 	information 	through
Brown. 	On 	cross-examination, 	he 	offered 	further 	explanation
for 	the transfer, 	as 	follows:
21

The whole 	reason 	for 	the 	transfer was 	out 	of
concern 	for 	having him 	as 	very 	instrumental
in 	the way 	that 	the union was 	conducting 	its
affairs being right 	in 	the middle 	of 	the
District 	operation. 	That 	was 	the 	reason 	for
it.
. 	. 	. 	[A]nd here we are getting ready to
start 	the year, 	and 	the 	teachers have come
back 	and Mr. 	Brown 	is beginning 	to 	come 	down
here as we are, 	you know, 	making telephone
calls 	with 	the 	clerical 	staff and, 	you know,
doing 	all, 	you know 	to line up 	substitutes
and 	to do our preparations. 	And 	the 	last
thing 	I 	needed was 	to determine whether 	or
not Mr. 	Brown, 	as a unit member and
negotiations 	long-time, 	you know, 	member of
that 	committee 	and 	very 	instrumental 	in 	the
way 	things 	functioned with 	that 	group, 	in my
perception, 	right in my midst, 	you know, 	in
the middle 	of 	everything going on. 	Even 	the
board had 	felt 	uncomfortable 	in 	coming 	in
and 	talking to me, 	and 	looking over 	their
shoulder 	a 	little bit. 	(Emphasis 	added.)
In 	sum, 	though 	the 	record makes 	it 	abundantly clear 	that
the 	precipitating event 	in 	the 	transfer 	was 	the 	District's
perception of 	the 	threat of an 	imminent 	strike, 	it 	is 	equally
clear 	from 	the 	record 	as 	a whole 	that 	Brown's 	union 	activities
were 	also 	a motivating 	factor 	in 	the 	decision 	to 	relocate his
office. 	Thus, 	under Novato, 	supra, 	the burden properly shifted
to 	the 	District 	to 	show 	that 	its 	actions 	would have been 	the
same 	regardless 	of 	Brown's 	union 	affiliation 	and 	activism.
I 	have 	no 	trouble 	concluding 	that 	the 	District had a
legitimate 	interest 	in maintaining 	confidentiality during 	its
contingency 	strike planning, 	and 	that 	such planning was 	a
motivating 	factor 	in 	transferring Brown. 	However, 	the
District's 	genuine 	need 	for 	confidentiality would have 	required
22

the 	transfer 	of 	any 	unit 	member 	out 	of 	close proximity 	to 	the
superintendent's 	office. 	Thus, 	in order 	to rebut Brown's prima
facie 	case, 	the 	District 	need only have 	shown 	that 	Brown would
have been 	transferred 	regardless 	of his 	status 	as 	a union
negotiator. 	Under 	these 	circumstances, 	this would not 	seem 	to
have been 	a 	terribly difficult burden 	to meet, 	but 	the 	record
is 	devoid 	of 	such 	evidence.4 	Instead, 	the 	record 	repeatedly
reflects 	that 	the 	transfer was 	initiated because 	of 	the
District's 	need 	for 	confidentiality 	in preparing 	for 	a 	strike
and because 	of 	Brown's 	relationship with 	the 	union.
4
If 	Hanson had 	found 	it 	necessary as 	part 	of 	the 	District's
contingency planning 	to 	relocate 	any 	nonexempt 	employee
stationed 	within 	sight 	and 	earshot 	of his 	office, 	he 	could have
expressly 	stated 	as 	much 	during 	the 	course 	of his 	testimony.
Furthermore, 	assuming this was 	the case, 	testimony as 	to why
the 	District 	would 	have 	transferred 	any 	nonexempt 	employee
under 	the 	circumstances 	would have been helpful. 	Little 	more
would 	have been 	required 	than 	to point 	to 	the 	fact 	that 	only
managerial 	and 	confidential 	employees 	owe 	the 	District 	a
legally 	cognizable 	duty of 	loyalty and 	confidentiality; 	thus,
the 	mere 	presence 	of 	any nonexempt 	individual 	would, 	under 	the
4 The 	District 	asserts 	in 	its 	Brief 	in 	Support 	of
Exceptions 	that 	it 	". 	. 	. 	had a right under 	the circumstances
to 	transfer 	Brown or 	any other 	unit 	member 	officed 	next 	to 	the
Superintendent. 	. . . " 	However, 	abstract 	arguments 	made 	on
appeal 	are 	no 	substitute 	for 	a 	failure 	to present 	the 	necessary
evidence at 	the hearing. 	The Board 	is, 	of course, 	restricted
to 	deciding 	a 	case based 	on 	the 	record before 	it.
23

circumstances, 	pose 	an 	inherently unacceptable 	risk 	of 	leaking
sensitive 	labor 	relations 	information. 	Finally, 	it would have
been 	appropriate 	to 	offer 	evidence 	that 	the 	only workers 	who
remained 	within 	sight 	and hearing of 	the 	comings 	and 	goings 	in
and 	about 	the 	superintendent's 	office 	after 	the 	transfer 	were
those 	in managerial 	or 	confidential 	classifications.
Since 	the 	District 	failed 	to establish 	that 	Brown would
have been 	transferred 	regardless 	of his 	union activities, 	I
must 	conclude 	that 	it has 	not 	discharged 	the burden properly
shifted 	to 	it 	upon 	Charging 	Party's 	prima 	facie 	showing of
unlawful 	discrimination. 	Accordingly, 	I 	would 	find 	the
transfer 	to have 	constituted 	discrimination 	within 	the 	meaning
of 	section 3543.5(a) 	and, 	therefore, 	affirm the ALJ's 	finding
of 	a 	violation.
24

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
PALO VERDE TEACHERS ASSOCIATION,
CTA/NEA
Charging 	Party,
v.
PALO VERDE 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
) 	Unfair 	Practice
Case No. 	LA-CE-2313
PROPOSED 	DECISION
(12/31/86)
Appearances; 	Schwartz, 	Steinsapir, 	Dohrmann & Sommers by
Michael 	Four 	for 	Palo Verde Teachers Association, 	CTA/NEA;
Atkinson, 	Adelson, 	Loya, 	Ruud and Romo by Ronald C. 	Ruud for
Palo 	Verde Unified 	School 	District.
Before: 	W. 	Jean Thomas, 	Administrative Law Judge.
I. 	STATEMENT OF THE CASE
This 	case 	concerns 	allegations 	that 	the 	employer
discriminatorily 	transferred 	the work 	site 	of 	a 	unit 	member 	for
the 	performance 	of 	an extra-duty 	assignment 	because 	of 	the
member's 	participation in protected 	activities, 	namely,
membership on the Association's 	negotiating 	committee. 	It 	is
further 	alleged 	that 	the 	unit 	member was 	eventually 	forced 	to
resign 	from 	the 	extra-duty position 	because 	the 	lack 	of
adequate 	facilities 	at 	the 	new 	site made 	it 	difficult 	for 	him
to 	effectively perform the duties 	of 	the 	assignment.
The Respondent 	admits making 	the transfer, 	but denies 	that
the 	employee's 	ability to 	perform was 	impaired 	in 	any way by
the 	transfer. 	It 	is 	asserted 	that 	the 	relocation was 	justified
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.
)
)
)
)
)
)
)
)
)
)
__________ )

by operational 	necessity. 	It 	is 	further 	contended 	that 	the
unit 	member was 	not 	"constructively discharged," 	but
voluntarily 	resigned 	from 	the 	extra-duty 	position.
II. 	PROCEDURAL HISTORY
This 	charge was 	filed with 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB or Board) 	on January 	15, 	1986, 	by the
Palo Verde Teachers Association, 	CTA/NEA 	(hereafter 	Charging
Party or Association), 	against 	the Palo Verde Unified School
District 	(hereafter Respondent 	or District) 	alleging 	a
violation of 	Government 	Code 	section 3543.5(a) 	of 	the
Educational Employment Relations Act 	(hereafter EERA or Act) l .
The 	charge 	specifically 	states 	that 	the 	District 	violated
section 3543.5(a) 	by involuntarily transferring James 	Brown, 	a
unit member, 	on September 	6, 	1985 	from the District
headquarters 	office 	to 	Blythe 	Junior 	High 	School 	to 	perform 	the
. .'. 	1
1 The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	future 	statutory references, 	unless 	otherwise
indicated, 	are 	to 	the Government Code.
Section 3543.5 	states, 	in pertinent part, 	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.
22

extra-duty assignment 	as 	District 	computer 	coordinator. 	It 	is
alleged 	that 	the 	transfer was 	made 	because 	of 	Brown's 	exercise
of 	the 	right 	to 	join 	and participate 	as 	a member 	of 	the
Association's 	negotiating 	team.
On March 	10, 	1986, 	the charge was 	amended 	to 	add 	the
allegation 	that 	four 	months 	after 	the 	involuntary 	transfer,
Brown 	found 	it 	so 	difficult 	to 	perform the 	computer 	coordinator
duties 	at 	the new site, 	without 	access 	to 	the necessary
equipment, 	that 	he was 	forced 	to 	resign 	from the position on
January 	1, 	1986, 	and was 	thereby constructively discharged 	in
further violation of 	section 3543.5(a).
On March 10, 	1986, 	the Office of the General Counsel 	of 	the
PERB 	issued 	a 	Complaint 	against 	the District which 	alleged 	that
the conduct 	set 	forth in the charge, 	as 	amended, 	constituted
violations of 	sections 3543.5(a) 	and, 	derivatively, 	section
3543.5(b).
The District 	filed 	its Answer on March 28, 	1986, 	denying
any violations 	of 	section 	3543.5 	and 	raising 	several
affirmative defenses 	to 	the charge.
An 	informal 	settlement 	conference was 	held on May 	15, 	1986,
but 	the 	parties 	failed 	to 	resolve 	their 	dispute.
2
2This 	case was 	consolidated 	for 	processing 	with 	another
case 	involving 	the Association 	and 	the District, 	LA-CE-2334.
However, 	prior 	to 	the pre-hearing conference, 	the Charging
Party withdrew 	the 	latter 	charge 	and 	that 	case was 	closed.
w3

At the pre-hearing conference, 	held July 10, 	1986, 	it was
agreed 	that 	a 	site visit would 	be 	conducted 	at 	the District
during 	the 	hearing 	by the 	undersigned 	to 	gather 	evidence
relevant 	to 	the 	constructive discharge 	issue.
The 	formal 	hearing was 	conducted on July 21, 	1986, 	at 	the
District. 	A 	recess 	was 	called 	and 	an on-site 	visit was 	made 	to
view 	the 	locations 	where 	Brown was 	assigned 	to work 	as 	the
computer 	coordinator prior 	to, 	and 	after, 	the transfer of 	his
work site on 	September 	6, 	1985. 	Pursuant 	to 	the 	ground 	rules
established 	for 	the development 	of 	this 	part 	of 	the 	record, 	a
summary was 	prepared 	by this 	administrative 	law 	judge, 	reviewed
by the parties, 	and became 	an official 	augmentation of 	the
hearing 	record on August 	18, 	1986.
At 	the conclusion of 	the 	Charging 	Party's 	case-in-chief,
Respondent made 	a motion 	to 	dismiss 	the 	entire 	charge.
Following 	oral 	arguments, 	the motion was 	taken under 	submission
for 	a 	ruling 	in 	this 	proposed decision.
Post-hearing 	briefs 	were 	filed 	and 	the 	case 	submitted
November 10, 	1986.
III. 	FINDINGS OF FACT
A. 	Background
The 	parties 	stipulated 	that 	the 	Charging 	Party 	is 	an
employee 	organization 	and 	that 	the District 	is 	a 	public 	school
employer within 	the meaning 	of 	the EERA. 	The District, 	which
provides 	educational 	services 	for 	the 	community of 	Blythe,
4

California, 	consists 	of 	six 	school 	sites. 	These 	include 	three
elementary schools, 	one junior high school, 	one high 	school 	and
one 	continuation 	school. 	The 	total 	student 	enrollment 	is
approximately 3,578. 	Dr. 	Leamon Hanson has 	been the District
superintendent 	since 	1983.
The Association 	is 	the exclusive 	representative 	of 	the
District's 	certificated 	employee 	bargaining 	unit 	which 	numbers
approximately 	142 	people. 	The Association 	and 	the District
were 	parties 	to 	a 	collective 	bargaining 	agreement 	covering 	the
period from July 	1, 	1983 	to June 30, 	1984. 	Between the period
from September 	1983 	to 	September 	1985, 	the parties were 	in
almost 	continuous 	negotiations. 	They bargained 	throughout 	the
1984-85 	school 	year without 	reaching 	an 	agreement.
In May 	1985 	the Association established 	a 	crisis 	committee
to 	focus 	attention on what 	the Association 	perceived 	as 	a
"crisis 	situation" 	in 	its 	negotiations with the District.
At 	that 	time 	the 	parties were 	negotiating 	for 	an 	agreement 	for
the 	1984-85 	and 	1985-86 	school 	years. 	In June 	and August 	of
1985, 	the Association 	leadership 	held meetings with 	its 	members
and 	the 	state 	California 	Teachers 	Association 	representatives
3Official 	notice 	is 	taken of 	the 	record established 	in
unfair 	practice 	case 	number 	LA-CE-2248 	which 	involves 	the
Association 	and 	the 	District. 	Excerpts 	of 	testimony given by
the Association president, 	Robert 	Jeppson, 	in that 	hearing 	on
cross-examination, 	were 	received 	into 	evidence 	in 	this
proceeding 	as 	an exhibit 	for 	the Respondent.
5

to 	discuss 	the 	possibility of 	having 	a 	strike 	against 	the
District 	during 	the 	1985-86 	school 	year 	if 	no 	settlement was
reached. 	During 	this 	time 	the Association 	also 	issued
statements 	to 	the 	local 	Palo Verde 	newspaper 	to 	inform the
public 	about 	the possibility of 	a 	strike 	by the 	teachers 	at 	the
beginning 	of 	the 	1985-86 	school 	year 	and 	to 	elicit 	community
support 	if 	no 	progress was 	made 	in 	negotiations 	during 	the
summer.
The 	first 	duty day 	for 	teachers 	in 	the 	fall 	of 	1985 was
August 	20. 	On August 	19, 	1985, 	the Association held a general
membership meeting 	to 	discuss 	the 	progress 	in 	negotiations 	and
take 	a 	strike vote. 	At 	the meeting 	it was 	decided 	to 	postpone
the 	strike vote until August 	26, 	1985, 	and the negotiating 	team
was 	instructed 	to 	attempt 	to 	reach 	a 	settlement with 	the
District.
At the August 26, 	1985, 	Association meeting, 	the unit
members were 	divided 	on 	the 	strike 	question. 	No 	vote was
taken. 	Instead, 	the negotiating 	team was 	authorized 	to
continue 	negotiations 	with 	the 	District 	through 	the month 	of
September, 	at which time 	the 	situation would be 	reassessed.
B. 	The Transfer 	of 	James 	Brown
In 	1971 	James 	Brown began his 	employment with 	the District
as 	a 	classroom teacher 	at 	Blythe Junior High School. 	During
his 	tenure with 	the District, 	Brown taught 	in 	the 	junior 	high
school 	and 	the high school. 	During 	the 	last 	few years 	of 	his
6

employment, 	Brown 	taught 	reading 	and 	computing 	at 	the 	junior
high 	school. 4
Beginning 	in 	1971, 	Brown was 	an 	active member 	of 	the
Association 	and 	held 	various 	state 	and 	local 	offices, 	including
the 	presidency 	and 	vice-presidency 	of 	the Association. 	Brown
was 	a 	member 	of 	the Association 	negotiating 	team 	for 	several
years, 	including 	the period 	from September 	1983 	to
September 	1985. 	Membership 	on 	the Association 	negotiating 	team
is 	not 	an elective office. 	Brown was not 	a member 	of 	the
Association 	crisis 	committee.
Brown 	first 	performed 	computer 	coordinator 	work 	for 	the
District 	as 	a 	temporary 	assignment 	during 	the 	summer 	of 	1983
under 	the 	previous 	District 	Superintendent, 	Harry Roberts.
When 	Superintendent 	Hanson 	began 	his 	employment 	with 	the
District 	during 	the 	summer 	of 	1983, 	he 	and 	Brown discussed 	the
possibility of 	developing 	a 	permanent 	computer 	coordinator
position. 	That 	summer 	they 	jointly developed 	the 	job
description 	for 	the 	District 	computer 	coordinator 	which was 	to
be 	a compensated part-time, 	non-management, 	certificated
position. 	The 	position was 	posted 	and 	interviews 	were 	held.
At Hanson's 	recommendation, 	Brown was 	hired 	in the 	fall 	of 	1983
4 At 	all 	times 	relevant 	to 	this 	case, 	Brown was 	employed
by the District. 	However, 	at 	the conclusion of 	1985-86 	school
year, 	Brown 	resigned 	from employment with 	the District 	and
accepted 	a 	position with 	another 	school 	district.
7

to 	perform 	the 	extra-duty 	assignment 	of 	District 	computer
coordinator. 	Brown 	thereafter 	organized 	a 	District 	computer
resource 	committee 	that 	consisted 	of 	representatives 	from 	every
school 	site. 	This 	committee was 	used 	to 	help 	Brown maintain
contact with 	each 	school 	and 	formulate 	a 	District-wide 	program.
From September 	6, 	1983 	to September 	6, 	1985, 	Brown
performed 	his 	extra 	duties 	following 	the 	end 	of 	his 	regular
teacher 	duty day. 	He 	had 	an 	assigned office 	for 	these 	duties
in 	the District 	administrative 	building. 	Brown's 	computer
coordinator 	duties 	were 	performed 	from 3:00 	p.m. 	to 	5:00 	p.m.,
Monday through Thursday. 	For 	these 	services, 	Brown 	received
one-fifth of 	his 	annual 	teacher's 	salary 	for 	a 	total 	annual
compensation of 	six-fifths 	of 	his 	normal 	salary.
As 	the computer 	coordinator, 	Brown's 	primary 	responsibility
was 	to 	facilitate 	the 	introduction 	and use 	of 	computers 	in 	the
classroom. 	Specific 	duties 	of 	this 	position 	included
gathering, 	planning, 	and disseminating 	computer 	program
information 	to 	the 	teaching 	staff 	and 	training 	those
individuals who 	needed 	such 	assistance. 	Additionally, 	he 	had
to 	oversee 	the 	purchasing 	of 	hardware 	and 	software 	for 	the
program 	and 	the maintenance 	program 	for 	all 	the 	computer
machinery. 	In 	addition, 	Brown was 	responsible 	for 	insuring
that 	the 	District 	computer 	program policies 	were 	in 	accordance
with 	the 	State 	program requirements. 	This 	aspect was 	important
in 	order 	to 	insure 	that 	the District 	obtained 	State 	revenues
allocated 	for 	local 	school 	district 	computer 	programs.
CO	
8

As 	a 	part of 	his 	coordinator 	activities. 	Brown maintained
rather 	constant 	contact 	with 	the 	Teacher 	Education 	Computer
Center 	(TEC), 	which is 	located 	in the city of Riverside.
Besides 	coordinating 	the use 	of 	computers within 	the 	two
counties 	of 	San Bernardino 	and Riverside, 	TEC also 	acted 	as 	a
liaison 	between 	the 	State 	and 	local 	school 	districts 	that
applied 	for 	computer 	program grants. 	Since 	the TEC 	is
located 	some distance 	from Blythe, 	it was 	necessary 	for 	Brown
to 	spend 	a 	portion of 	his 	time 	in 	telephone 	communication with
TEC personnel. 	For 	this 	contact, 	Brown primarily used 	the
microwave 	telephone 	system which 	provided 	phone 	service 	at 	a
cost 	that was 	cheaper 	to 	the District 	than 	the 	regular
telephone 	service.
. . . . . .
Brown's 	office was 	one of 	five 	or 	six 	individual 	offices
located 	in 	the west 	end 	of 	the 	headquarters 	building, 	and was
situated 	approximately 	14 	feet 	away 	from 	the 	superintendent's
office. 	The office was 	equipped with an Apple 	II-E computer, 	a
regular telephone system, 	a microwave telephone, 	a desk, 	a
filing 	cabinet 	and 	several 	open 	book 	shelves.
... .
During 	the 	regular 	business 	hours, 	a 	switchboard operator
was 	normally on duty to 	take messages 	for 	Brown which 	he would
pick up when he 	arrived 	in the 	afternoon. 	According 	to 	Brown's
testimony, 	he 	received 	an 	average of 	one to 	two messages 	a day
related 	to 	the 	computer 	program.
... . "7:
Brown 	had 	easy 	access 	to 	the 	photocopying 	equipment 	which
was 	located 	close 	by his 	office. 	Brown used 	this 	machine
9

approximately 30 	to 	45 	minutes 	per 	day to 	duplicate materials
for 	dissemination 	to 	the 	teachers 	involved with 	the 	District
computer 	program.
MRS . .. ...
During 	the on-site visit 	to 	this 	location, 	it was 	noted
that 	there 	is 	a 	fair 	amount 	of 	"foot 	traffic" 	during 	the 	normal
business 	day. 	With 	regard 	to 	the 	computer 	program, 	this
situation 	provided 	Brown with 	fairly easy 	access 	to 	the
teachers 	and members 	of 	the 	general 	public who 	came 	into 	the
administrative 	offices.
. . .
Brown had 	a 	key to 	the 	exterior 	entrance of 	the 	building.
This 	key 	also 	provided 	him with 	entry 	to 	the 	superintendent's
private 	office 	through the 	outside 	entrance 	to 	the 	office.
However, 	Brown did not 	have 	a 	key to 	the 	superintendent's 	suite
of 	offices 	from the 	inside entrance 	to 	the offices. 	It was
Brown's 	unrefuted 	testimony 	that 	he 	had 	never 	used 	his 	key 	to
enter 	the 	superintendent's 	office 	through 	the 	exterior 	door.
It was 	also 	his 	undisputed 	testimony 	that 	he 	had 	never 	gone
into 	the 	superintendent's 	private 	office 	for 	any 	reason 	other
than 	official 	District 	business.
In the 	late afternoon of August 29, 	1985, 	Superintendent
Hanson visited 	Brown's 	office 	to 	inform Brown 	that 	he 	had
decided 	to move 	the 	base 	of 	operation 	for 	the 	computer
coordinator 	from the District 	administrative 	offices 	to 	the
junior 	high 	school. 	When Brown 	asked Hanson 	to 	explain 	the
10

reason 	for 	the move, 	the 	superintendent 	told Brown 	that 	he 	felt
"uncomfortable" 	about 	Brown's 	presence 	near 	his 	office 	because
of 	the 	"adversarial 	relationship" 	which 	had 	developed 	between
the Association 	and 	the 	District 	concerning 	the 	ongoing
negotiations. 	However, 	Hanson went on to 	state that 	though he
was 	sure 	that 	Brown 	had 	not 	abused 	the 	accessibility which 	he
had 	to 	the headquarter offices, 	he 	had begun to 	feel
uncomfortable 	that 	Brown has 	such easy access 	to 	the
administrative operations. 	Brown 	responded 	that 	he 	felt 	that 	a
change 	of 	location 	from 	the 	administrative 	office 	would 	detract
from the 	staff's 	perception 	of 	the 	computer 	program 	as 	being
district-wide 	in 	scope. 	However, 	Hanson disagreed 	and 	refused
to 	change his 	decision.
Hanson 	testified 	that 	it was 	his 	initial 	decision 	to 	house
Brown's 	computer 	operations 	at 	the 	administrative 	headquarters
and 	that 	he 	never 	considered 	transferring 	Brown 	prior 	to
August 	1985. 	Although Hanson 	admitted 	that 	he 	had 	no 	reason 	to
believe 	that 	Brown had ever 	used his 	access 	to 	the District
administrative 	offices 	for 	the benefit 	of 	the Association,
Hanson 	nonetheless 	began 	to 	feel 	discomfort 	about 	Brown's
presence 	in 	the building. 	Because of 	all 	of 	the 	top-level
administrative 	activity that was 	going 	on 	in August 	1985 	to
prepare 	for 	a 	possible strike by the 	teachers, 	Hanson testified
that 	he 	began 	to 	feel 	hampered 	and 	"constrained 	in my 	own
primary work place" 	because of 	Brown's 	presence. 	For 	this
reason, 	he decided 	to 	change Brown's 	office 	location.
11

Later, 	during 	the evening 	of August 	29 	at 	approximately
7:30 	p.m., 	Brown 	typed out 	a 	summary of 	his 	afternoon
conversation with 	the 	superintendent. 	Brown's 	memo 	indicates
that 	he 	(Brown) 	expressed his 	concern to Hanson 	about 	the
availability of 	telephones 	and 	computers 	at 	the 	junior 	high
school 	site. 	It 	further 	states 	that 	although Gary Tibbits, 	the
junior 	high 	school 	principal, 	had 	approved 	the transfer, 	Brown
feared 	there would 	be 	limited 	access 	to 	the 	junior 	high 	school
office 	and 	the 	teachers' 	lounge 	for 	the performance 	of 	his
computer 	coordinator duties. 	According 	to 	the memo, 	the
superintendent, 	however, 	felt that 	suitable 	accommodations
would 	be 	available 	and 	assured 	Brown 	of 	help 	in making 	the
physical 	move 	of 	his 	program materials 	and 	equipment 	to 	the
junior high 	school. 	At 	the hearing, 	Hanson 	substantiated 	the
accuracy of 	Brown's 	summary of 	their 	conversation.
Later, 	at 	approximately 9:30 	p.m. 	on the 	same 	evening,
Brown 	typed 	a 	second memorandum which 	listed 	six
"disadvantages" 	of 	the change 	in 	location. 	They were 	as
follows:
1. 	This will 	be 	seen by everyone 	as 	"a
slap 	in 	the 	face" 	for me 	personally.
2. 	The 	idea of 	a district 	computer program
will 	be dealt 	a 	severe blow.
3. 	The 	school 	personnel 	(administrators
and 	teachers) 	who 	tend 	to 	like 	to 	"go 	their
own way" 	will 	have 	a 	greater 	tendency to 	do
so 	having 	sensed weakness 	in a 	district
directed 	program.
12

4. 	The 	facilities 	at 	the 	jr. 	high school
are much 	less 	satisfactory than 	those 	at 	the
district 	office.
a. 	I 	have no 	phone 	in my classroom and
there 	is 	no 	office 	space 	available on
the 	jr high campus.
b. 	Teachers 	and administrators, 	who
drop 	by while doing 	other 	errands 	at
the district, would 	be much 	less 	likely
to do so at the jr. 	high.
c. 	There 	is 	no microwave phone on 	the
jr. 	high school campus.
d. 	Even 	if 	copying 	facilities were
made 	available to me 	at 	the jr. 	high
school 	(which as 	I understand 	it, 	they
would not), 	they would be three 	locked
doors 	and 	three 	hundred yards 	away
instead of 	20 	steps 	away as 	they are 	at
the district 	office.
e. 	Instead 	of 	down-the-hall
convenience 	to 	educational 	services'
assistance, 	it would be across town.
[Sic]
5. 	An 	arbitrary decision 	to 	shove 	aside 	a
qualified 	and 	hard working 	employee 	on 	the
feeling 	of 	discomfort 	by the 	superintendent
hardly moves 	the 	district 	toward well
planned 	presentation 	of 	its 	educational
program.
6. 	A move 	(which can be viewed 	as
retaliation 	for 	serving 	on 	the 	teachers'
negotiation 	team) 	will 	hardly promote 	the
"problem 	solving" 	approach 	so 	badly needed
at 	the negotiations 	table.
The next day, 	August 30, 	1985, 	Brown presented the
arguments 	set 	forth 	in the 	9:30 	p.m. 	memorandum to 	the
superintendent, 	but Hanson 	refused 	to 	change his 	decision.'
Brown then requested, 	and was 	granted, 	the opportunity to
present 	his 	case directly to 	the District 	board.
13

Brown made 	both 	a written 	and 	an oral 	presentation 	to 	the
board 	at 	its meeting on September 	3, 	1985. 	The written
presentation was 	a 	two-page 	typewritten 	statement 	entitled
"Plea 	to 	the 	Palo Verde Unified 	School 	Board," 	seeking 	a
reversal 	of 	Hanson's 	decision. 	During 	the course of 	his
dialogue with 	the 	board, 	individual 	members 	expressed 	the
feeling 	that 	Brown's 	presence 	in 	the 	administrative 	offices
"intimidated" 	people. 	Following 	Brown's 	presentation 	and 	some
discussion, 	the 	four 	board members 	present 	took 	a 	straw vote
that 	indicated 	that 	the decision 	to 	move 	Brown's 	location would
stand.
On September 	6, 	1985, 	all 	the computer coordinator
equipment 	and materials 	that 	Brown used, 	with the 	exception of
the Apple 	II-E computer 	and 	the 	filing 	cabinet, 	were
transferred 	from his 	District 	administrative 	office 	to 	Brown's
classroom at 	Blythe 	Junior High 	School. 	A 	representative 	from
the 	District 	administration 	later 	picked 	up 	the 	headquarters
door 	key 	that 	had 	been 	issued 	to 	Brown.
Brown's 	classroom at 	the 	junior 	high 	school, 	which 	is
called 	room 22, 	was 	a very large 	room. 	It was described by
Principal 	Tibbits 	as 	a 	"double 	classroom." 	This 	room was 	much
larger 	than 	the 	office 	assigned 	to 	Brown 	at 	the 	administrative
building. 	The furnishings 	included, 	among other things, 	a
large 	number 	of 	desks 	and 	computer 	terminals 	that 	are 	used 	by
the 	students 	participating 	in 	the 	computer 	laboratory 	taught
by Brown. 	One 	side 	of 	the 	room was 	set up 	as 	Brown's 	computer
14

coordinator work 	area. 	It was 	equipped with a desk, 	an Apple
II-E 	computer 	and 	a 	printer. 	Software 	for 	the computer was
kept 	in 	a 	separate unlocked 	storage 	cabinet which was 	situated
near 	the 	desk. 	The 	room contained 	two 	large 	book 	shelves 	that
were 	used 	by Brown 	for 	storing 	magazines 	and 	other 	computer
program 	library materials. 	Brown's 	classroom was 	not 	equipped
with 	a 	telephone 	for 	outside 	dialing. 	It 	contained 	an 	intercom
phone 	for 	receiving 	messages 	from the 	principal's 	office. 	The
intercom phone 	could 	not 	be 	used 	for 	direct 	communication 	from
one 	classroom to 	another 	or 	from one 	school 	site 	to 	another.
The 	junior 	high 	school 	site 	has 	two 	teacher 	lounges—one 	for
smokers 	and 	one 	for 	non-smokers—which 	each 	contained 	a 	regular
phone with one 	line 	for 	incoming 	and outgoing 	calls. 	At 	the
time of 	the on-site visit, 	the non-smoking 	lounge 	also
contained 	a 	portable 	telephone which was 	connected 	to 	the 	same
line 	as 	the 	regular 	phone. 	There was 	also 	a 	regular 	telephone
with 	an outside 	line 	installed 	in 	classroom 8 which 	is 	located
several 	feet 	away 	from Brown's 	classroom. 	Classroom 8, 	like
room 22, 	is 	also 	a double classroom which 	is used 	as 	a 	computer
laboratory. 	This 	room is 	assigned to Joyce Brown, 	Jim Brown's
wife, 	who 	is 	also 	a 	teacher 	for the District.
. ... .
There 	are 	also 	telephones with 	two 	outside 	lines 	in 	the
main 	school 	office. 	There 	is 	no 	limit 	on 	faculty use of 	these
telephones. 	Additionally, 	the principal has 	a 	telephone 	in his
private office which, 	according 	to Tibbit's 	testimony, 	Brown
was 	permitted 	to 	use 	on 	request.
15

The 	teachers' 	mailboxes 	are 	located 	in the non-smoking
lounge. 	Telephone messages 	for, the 	faculty are normally placed
in 	their mailboxes. 	During 	the course of 	the usual 	duty day,
Brown would visit 	the 	non-smoking 	lounge 	at 	least 	two 	to 	three
times 	a day for various 	reasons, 	including 	the use 	of 	the
regular 	telephone 	from time 	to 	time. 	. ...
The counselling 	center, 	which 	is 	located 	in 	a 	separate
building 	near 	Brown's 	classroom, 	has 	seven 	telephones 	that 	are
connected 	to 	the District's 	microwave 	system. 	Brown 	testified
that, 	prior 	to 	the on-site visit, 	he was unaware that 	the
microwave 	system existed 	in the 	counselling 	center. 	However,
this 	center 	is 	used 	primarily by the 	high 	school 	students 	and
its 	staff. 	It 	is 	rarely used 	by the 	junior 	high 	school 	faculty
and 	students 	for 	counselling 	services.
The main office of 	the 	junior 	high school, 	which 	is 	also
referred 	to 	as 	the 	"inner" 	office, 	is 	located next door 	to 	the
teachers' 	lounges. 	In addition to the telephones mentioned
above, 	this office contained, 	among other things, 	a 	large
photocopying 	machine which 	can 	be 	used 	by 	all 	staff 	during 	the
regular office hours. 	However, 	a brief orientation 	is 	required
for 	correct 	operation of 	the machine which operates 	on 	a 	"flash
copy" 	method. 	As 	their 	time permits, 	the 	school 	secretaries
for 	the principal 	and vice principal will, 	upon 	request,
photocopy materials 	for 	the 	faculty. 	When 	the 	secretaries
16

leave 	for 	the day 	(usually at 	3:30 	p.m.)/ 	they 	lock the machine
behind 	a 	large metal; door, 	which then makes 	the machine
inaccessible.
Following 	the 	transfer 	of 	the 	computer 	coordinator 	program
work 	site 	to 	his 	regular 	classroom, 	Brown began 	to 	perform his
coordinator 	duties 	from 2:30 	p.m. 	to 	4:30 	p.m., 	starting 	and
ending 	one-half 	hour 	earlier 	than 	he 	had 	at 	the 	District
administrative 	office. 	The end 	of 	the 	regular 	teacher 	duty day
at 	the 	junior 	high 	school 	is 	2:30 	p.m.
Shortly 	after 	his 	transfer, 	Brown 	spoke with Principal
Tibbits 	about 	the 	District's 	installing 	either 	a microwave
telephone 	line 	at 	the 	school 	site 	or 	placing 	a 	regular 	outside
telephone 	line 	in 	his 	classroom.
The 	testimony of 	Brown 	and 	Tibbits 	conflicts 	with 	regard 	to
the 	District's 	efforts 	to 	obtain more 	convenient 	telephone
service 	for 	Brown 	at 	the 	junior 	high 	school. 	Brown 	admitted
that 	Tibbits 	informed 	him that 	the 	District 	could 	not 	install
another 	outside 	telephone 	line 	at 	the 	junior high 	school, 	but
that 	the District was 	in the process 	of 	procuring 	a 	portable
telephone for use 	at 	the school. 	However, 	he denies 	that
Tibbits 	told 	him that 	he 	could use 	the 	portable 	phone 	for 	his
computer coordinator 	activities. 	Tibbits, 	on the contrary,
testified 	that 	he 	informed 	Brown of 	his 	efforts 	to 	obtain 	a
portable 	telephone 	that 	he 	could use 	for 	the 	computer 	program
and 	he 	gave 	Brown progress 	reports 	during 	the 	fall 	of 	1985.
17

The 	record 	shows 	that 	Tibbits 	started 	trying 	to 	obtain 	a
portable 	telephone 	in 	1984 	for 	use 	by the 	faculty conducting
the 	"Saturday school," 	which 	is 	a 	special 	student 	detention
program that 	is 	conducted 	on 	Saturdays. 	After 	Brown presented
his 	need 	for 	an outside 	telephone 	line 	in his 	classroom,
Tibbitts 	decided 	that 	a 	portable 	telephone would 	serve 	Brown's,
need 	as well 	as 	that 	of 	the 	Saturday 	school 	program faculty.
The 	District 	purchased 	a 	portable 	telephone 	on or 	about
October 	29, 	1985, 	and it was made 	available for use sometime 	in
early November 	1985. 	However, 	this 	telephone developed
problems 	with 	excess 	static 	and was 	not 	in 	good 	operating
condition until 	the 	District 	installed 	an 	external 	antenna
sometime 	in 	early February 	1986. 	The portable 	telephone uses
the 	same outside 	line as 	the 	regular 	telephone. 	During 	the
four 	months 	that 	Brown performed 	his 	computer 	coordinator
duties 	at 	the 	junior 	high 	school, 	Brown used the 	regular
telephone 	system, 	but he never used the portable 	telephone. 	In
general, 	he 	also decreased 	the number 	of 	calls 	that 	he made 	to
the TEC 	and 	other 	outside 	agencies 	following 	his 	transfer.
Brown testified 	that, 	in his opinion, 	the most 	significant
adverse 	impact 	of 	the 	transfer 	upon his 	performance 	of 	the
coordinator 	duties 	was 	the marked decrease 	in his 	contact with
"foot 	traffic," 	i.e., 	the 	teachers 	and 	administrators who would
visit 	the 	District 	headquarters 	office 	between 	2:30-3:30 	p.m.
each day. 	The 	junior 	high 	school 	location was 	"out 	of 	the way"
18

and 	provided 	less 	accessibility 	to 	those 	individuals 	whom Brown
would 	like 	to 	recruit 	for 	participation 	in 	the computer
program. 	Brown 	felt 	that 	this 	lack of 	contact 	drastically
affected 	his 	ability 	to 	communicate with 	and 	influence 	District
personnel 	about 	the 	program. 	Aside 	from the 	telephone 	issue,
Brown 	felt 	that 	other 	facilities 	at 	the 	junior 	high 	school,
such 	as 	the 	availability of 	the copying machine, 	were much 	less
adequate 	and 	convenient 	for 	his 	use 	in 	the 	program.
Tibbits, 	who 	had been a member 	of 	the District 	computer
resource 	committee 	since 	it was 	formed 	by Brown 	in 	1983,
testified 	that 	he 	felt 	that 	after 	the 	transfer, 	Brown had 	a
considerably 	larger work area, 	more 	storage 	space, 	and quieter
surroundings 	for 	his 	computer 	coordinator work. 	In 	addition,
he 	had 	immediate 	access 	to 	other 	computers 	if 	they were
needed. 	Tibbits 	did 	admit 	that 	at 	the 	junior 	high 	school 	Brown
did not 	have 	as 	much exposure 	to 	the 	"foot 	traffic." 	However,
Tibbits 	felt 	that 	the other 	facilities, 	such as 	the copying
machine 	and 	the 	telephone 	service, 	were 	as 	adequate 	for 	Brown's
performance 	of 	his 	extra-duty 	assignment 	as 	those 	at 	the main
District 	office.
. . ..
C. 	The GATE Program
The 	District 	has 	another 	district-wide 	program which 	is
based 	at 	the 	junior 	high 	school. 	The 	gifted 	and 	talented
education program, 	known as 	the GATE program, 	is 	coordinated by
19

a 	teacher who 	is 	assigned 	to 	Blythe Junior High School. 	In
addition 	to 	teaching 	one or 	two classes 	per day, 	the GATE
program coordinator 	is 	responsible 	for 	planning 	and
implementing 	the 	program 	for 	approximately 	150 	students 	located
at 	all 	school 	sites 	throughout 	the District. 	These 	students
have 	been 	identified 	as 	being 	gifted 	and 	talented. 	The
coordination of 	the GATE program includes 	visitations, 	on 	a
regular 	basis, 	to 	all of 	the 	school 	sites. 	The Gate Program
coordinator 	position 	is 	considered 	to 	be 	a 	full-time 	position.
D. 	The 	Termination of 	Brown's 	Extra-Duty Assignment
In 	January 	1986 	Brown decided 	to 	resign 	from the 	position
of 	District 	computer 	coordinator. 	He 	submitted 	a 	letter 	of
resignation to Hanson, 	which was dated January 1, 	1986, 	but he
actually 	resigned 	from the position, 	effective January 	6, 	1986.
According 	to 	Brown, 	nothing 	special 	occurred 	in January to
trigger 	his 	decision. 	Rather, 	the decision 	represented 	the
culmination 	of 	his 	build-up 	of 	frustration during 	the
four-month 	period 	following 	the 	transfer. 	Brown 	felt 	that 	he
did 	not 	have 	the 	facilities 	needed 	to 	properly perform his
coordinator duties. 	Additionally, 	he 	felt 	an acute 	"loss 	of
foot 	traffic" 	which he 	regarded 	as 	extremely vital 	to 	the
success 	of 	his 	program. 	Consequently, 	he 	"felt 	he had to 	quit."
Tibbits 	testified that, 	in his 	opinion, 	Brown 	lost 	some of
his 	enthusiasm 	for 	the 	computer 	coordinator 	program 	after 	the
transfer. 	However, 	other 	than their discussion 	in the 	fall 	of
20

1985 	about 	the 	telephone 	situation, 	Tibbits maintains 	that
Brown 	never 	complained 	to 	him 	about problems with 	the
facilities 	at 	the 	school 	or 	gave 	him any 	indication 	that 	he
(Brown) 	intended to 	resign. 	Thus, 	he was very surprised when
Brown 	tendered 	his 	resignation.
Superintendent 	Hanson 	testified 	that 	he 	also was 	surprised
about 	Brown's 	resignation. 	After 	the transfer, 	he was 	never
told by Brown, 	or 	anyone else, 	that Brown was unable to perform
his 	computer 	coordinator 	duties 	because 	of 	inadequate working
conditions 	at 	the 	junior 	high 	school. 	He did 	not 	speak with
Brown 	after 	receiving 	his 	resignation 	letter, 	but 	accepted 	the
resignation without 	question. 	At 	the time of 	the hearing, 	the
computer 	coordinator 	position was 	still 	vacant.
IV. 	ISSUES
1. 	Did 	the District's 	involuntary transfer 	of 	James
Brown, 	with 	respect 	to 	the work 	location 	for his 	extra-duty
assignment, 	constitute 	a violation of 	section 3543.5(a)? 	Did
this 	same 	conduct 	also 	unlawfully 	interfere with 	the 	exercise
of 	guaranteed 	rights 	by the 	other 	unit members 	in 	further
violation 	of 	section 	3543.5(a)?
2. 	Did 	the 	District 	constructively discharge 	Brown 	by
causing 	his working 	conditions 	to 	become 	so 	difficult 	that 	he
was 	forced 	to 	resign 	from the 	computer 	coordinator 	position?
If 	so, 	did this conduct also violate section 3543.5(a), 	and
derivatively, 	section 3543.5(b)?
21

V. 	CONCLUSIONS OF LAW
A. 	Positions 	of 	the 	Parties
The 	Charging 	Party 	alleges 	that 	the 	District 	discriminated
against 	Brown because of 	his 	membership 	in 	the Association 	and
his 	participation on 	the Association's 	bargaining 	team. 	This
discrimination took the 	form of 	a 	transfer 	of 	his 	base 	of
operation 	as 	the 	District 	computer 	coordinator 	from the
District 	administrative 	office 	to 	his 	own 	classroom at 	the
junior 	high 	school. 	It 	is 	further 	alleged 	that 	the District
subsequently 	constructively 	discharged 	Brown 	by 	providing 	him
with 	such 	inadequate 	facilities 	for 	performing 	his 	computer
coordinator 	duties 	that 	he was 	forced 	to 	resign. 	Additionally,
Charging 	Party 	alleges 	that, 	by discriminating 	against 	Brown,
the District 	also 	interfered with 	the 	exercise 	of 	rights 	by
other 	unit members, 	thus 	further violating 	section 3543.5(a)	...
Respondent 	defends 	its 	transfer 	of 	Brown by 	arguing 	that,
pursuant 	to 	the 	authority of 	California 	Education 	Code 	section
44923, 	certificated 	employees 	serve 	in 	extra-duty positions 	at
the 	pleasure 	of 	the 	board 	and 	"may be 	terminated 	by 	the
governing board of 	the District 	at 	any time." 	Moreover, 	school
boards 	have 	broad 	power 	to 	assign 	teachers 	anywhere within 	the
district 	according 	to the needs 	of 	the district, 	absent 	a
specific 	contractual 	limitation 	to 	the 	contrary. 	(See
Education Code 	section 35035.) 	No 	such 	limitation 	is 	present
22

in this case. 	Thus, 	the authority rests with the
superintendent 	to 	determine 	the particular 	site where duties,
such 	as 	those described 	for 	the computer 	coordinator, 	are 	to 	be
carried 	out.
Additionally, 	the District 	contends 	that Brown was 	not
transferred 	because 	of 	his 	Association 	bargaining 	team
activities. 	The District 	had 	known of 	his 	participation 	as 	an
Association 	representative 	for 	two 	years 	prior 	to 	the
transfer. 	The District 	defends 	its 	transfer 	action 	on 	the
ground 	that 	it was 	necessary as 	a 	security precaution 	in 	light
of 	the 	"crisis 	situation" 	brought 	about 	by the 	threat 	of 	a
teachers' 	strike 	at 	the beginning of 	the 	school year. 	The
transfer 	was 	justifiable 	since 	the 	District 	needed 	security 	and
confidentiality 	in 	planning 	and 	preparing 	to 	maintain 	its
instructional 	program if 	a work 	stoppage 	had 	occurred.:
Finally, 	the District 	argues 	that 	even 	if 	the 	evidence
shows 	that 	the 	transfer was 	motivated 	by 	Brown's 	participation
in the negotiating 	process, 	the 	record will 	not 	support 	a
finding 	of 	a 	violation under 	the Novato 	rule because 	there were
no 	adverse 	consequences 	to 	Brown 	as 	a 	result 	of 	the 	transfer.
B. 	Introduction
The 	EERA guarantees 	public 	school 	employees 	the 	right,
. 	. 	. 	to form, 	join, 	and participate in the
activities 	of 	employee organizations 	of
their 	own choosing 	for 	the 	purpose 	of
representation on 	all 	matters 	of
employer-employee 	relations. 	(Sec. 	3543)
23

The activities guaranteed 	by the Act 	include, 	among 	other
things, 	the 	right to participate 	in negotiations 	as 	a member of
the 	negotiating 	team of 	the 	exclusive 	representative. 	(Santa
Paula Unified 	School 	District 	(1985) 	PERB Decision No. 	505.)
.. .
Section 3543.5(a) 	makes 	it 	an unfair practice 	for 	a public
school 	employer 	to,
. 	. 	. 	threaten to impose 	reprisals 	. . . 	to
discriminate 	. . . 	or 	otherwise 	to 	interfere
with 	. 	. 	. 	employees because of their
exercise 	of 	rights 	guaranteed by 	this
chapter.
In Carlsbad Unified 	School 	District 	(1979) 	PERB Decision
No. 	89, 	and Novato Unified School District 	(1982) 	PERB Decision
No. 	210, 	the 	Board 	set 	forth the 	standard by which charges
alleging 	discriminatory 	conduct 	in violation 	of 	section
3543.5(a) 	are 	to 	be decided. 	The 	Board 	summarized 	this 	test 	in
a 	decision 	issued 	the 	same day 	as 	Novato.. ... 	...
. 	. 	. 	a party alleging a violation . 	. 	. has
the 	burden 	of making 	a 	showing 	sufficient 	to
support 	the 	inference 	that 	protected 	conduct
was 	a 	"motivating 	factor" 	in the employer's
decision 	to 	engage 	in 	the conduct 	of which
the employee complains. 	Once this 	is
established, 	the burden shifts 	to 	the
employer 	to 	demonstrate 	that 	it would 	have
taken 	the 	same 	action even 	in 	the 	absence 	of
protected conduct. 	As 	noted 	in Novato, 	this
shift 	in the 	burden of 	producing 	evidence
must 	operate 	consistently with 	the 	charging
party's 	obligation 	to 	establish 	an unfair
practice 	by 	a 	preponderance 	of 	the
evidence. 	(California 	State University,
Sacramento 	(1982) 	PERB Decision No. 	211-H at
pp 	13-14)
24

The 	test 	adopted 	by 	the 	Board 	is 	consistent 	with 	precedent
in 	California 	and 	under 	the National 	Labor 	Relations 	Act 	(NLRA)
requiring 	the 	trier 	of 	fact 	to weigh 	both direct 	and
circumstantial 	evidence 	in order 	to 	determine whether 	an 	action
would 	have 	been 	taken 	against 	an 	employee 	but 	for 	the 	exercise
of protected 	rights. 	See, 	e.g., 	Martori 	Brothers. 	Distributors
v. 	Agricultural Labor Relations Bd. 	(1981) 	29 Cal.3d 721,
729-730; 	Wright Line. 	Inc. 	(1980) 	251 NLRB 	1083 	[105 LRRM 1169]
To meet 	its 	burden of 	establishing 	a 	prima 	facie 	case 	of
discrimination or 	retaliation, 	the 	charging 	party must 	first
show that 	the 	conduct 	in which 	the 	employee 	engaged was
protected 	by 	the EERA 	and 	that 	the 	employer 	had 	knowledge 	of
the 	employee's 	participation 	in 	the 	protected 	activity.
Next, 	the charging party must 	provide direct 	or
circumstantial 	evidence, 	from which 	an 	inference may be drawn
that 	the 	protected 	conduct was 	a 	"motivating 	factor" 	in 	the
employer's 	decision to 	engage 	in the 	challenged 	action. 	A
variety of 	factors 	may 	indicate 	unlawful 	motivation,
including: 	the 	timing of 	an employer's 	conduct 	in 	relation 	to
the employee's 	involvement 	in protected 	activity, 	the
employer's 	disparate 	treatment 	of 	employees 	engaged 	in 	such
activity, 	the 	employer's 	departure 	from standard 	or usual
procedures, 	statements of 	hostility to 	the union or 	general
animus 	toward unions, 	an employer's 	inconsistent or
25

contradictory 	justification 	for 	its 	actions. 	(See 	San 	Joaquin
Delta Community College District 	(1982) 	PERB Decision No. 	261;
North-Sacramento 	School District 	(1982) 	PERB Decision No. 	264;
Santa 	Clara 	Unified 	School 	District 	(1979) 	PERB Decision No.
104 	and 	State 	of 	California 	(Department 	of 	Transportation)
(1984) 	PERB Decision No. 	459-S.)
Once 	the 	charging party has 	made 	a 	prima 	facie 	showing
sufficient 	to 	support 	an 	inference 	that 	the 	exercise 	of
protected 	rights 	was 	a motivating 	factor 	for 	the 	employer's
allegedly unlawful 	conduct, 	the burden shifts 	to 	the employer
to 	prove 	that 	its 	conduct would 	have been the 	same, 	even 	in 	the
absence 	of 	the 	employee's 	protected 	activity. 	If 	the 	employer
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 	section 3543.5(a) 	will, be
found. 	(Novato Unified School District, 	supra); 	see also, 	NLRB
v. 	Transportation Management Corp 	(1983) 	462 U.S. 	393 	[113 LRRM
2857].)
C. 	The Discrimination Charge
Viewed 	in 	its 	entirety, 	the 	preponderance 	of 	the evidence
presented 	supports 	a 	conclusion 	that 	the 	Charging 	Party has
demonstrated 	a 	prima 	facie 	case 	of 	discriminatory 	treatment.
The Charging Party must 	first 	show, 	as 	it has, 	that Brown
was 	engaged 	in 	protected 	activity 	and 	that 	the 	employer was
aware 	of 	Brown's 	protected 	conduct. 	The 	record 	amply
26

demonstrates 	that 	Brown had 	a 	long 	history 	as 	an 	activist 	for
the Association 	and was 	participating 	as 	a 	member 	of 	the
Association negotiating 	team at 	the 	time of 	the 	transfer 	of 	his
work 	site 	in 	September 	1985.
Additionally, 	there 	is 	no 	question 	about 	the 	employer's
knowledge 	of 	Brown's 	long-time Association 	activities. 	The
District 	readily 	acknowledges 	awareness 	of 	Brown's 	Association
activism during 	the 	period 	immediately preceding 	the 	transfer.
Respondent, 	however, 	argues 	that 	since Brown's 	bargaining 	team
participation had 	gone on 	for 	two years 	prior 	to 	the 	transfer,
the 	transfer 	clearly 	could 	not 	have 	been motivated 	by 	Brown's
exercise of 	this 	protected 	right. 	Thus, 	no nexus 	exists
between 	the 	exercise 	of 	the 	right 	and 	the 	transfer.
Although 	the 	record 	reveals 	that 	the 	parties 	had 	been 	in
rather 	difficult 	and 	somewhat 	protracted 	negotiations,from
September 	1983 	to 	the 	spring 	of 	1985 without 	succeeding 	in
reaching 	an 	agreement, 	until 	the 	spring 	of 	1985 	the Association
had 	never 	made 	a 	public 	statement 	suggesting 	that 	the 	teachers
were 	considering 	a work 	stoppage 	if 	the 	negotiations 	failed 	to
be more 	fruitful. 	Undoubtedly, 	this 	posture caused concern 	and
alarm 	among 	the 	District 	administration 	and 	its 	governing
board. 	The 	testimony of 	Superintendent 	Hanson on
cross-examination 	provides 	telling 	evidence 	of 	his 	reaction 	to
the 	situation 	and 	its 	link to 	Brown's 	transfer.
27

Q. 	(By Mr. 	Four) 	Let's 	get 	a question to
that 	answer. 	Was 	the 	sole 	reason that you
transferred Mr. 	Brown a 	result 	of what you
perceived 	to 	be 	a 	threatened 	strike? 	And
you 	can 	begin 	by 	saying whether 	yes was 	to
that 	question 	or 	not 	or whether 	you were
just 	—
A. 	Yes. 	The whole 	reason for 	the 	transfer
was 	out 	of 	concern 	for 	having 	him 	as 	very
instrumental 	in 	the way 	that 	the 	union was
conducting 	its 	affairs 	being 	right 	smack 	in
the middle of 	the District 	operation. 	That
was 	the 	reason 	for 	it.
Q. 	But 	how did 	the 	strike 	play into 	that?
A. 	Well, 	the 	pitch of 	feeling was 	probably
at 	the highest 	point, 	and 	it had been
developing 	all 	summer 	long, 	and 	here we 	are
getting 	ready to 	start 	the year, 	and 	the
teachers 	have come back and Mr. 	Brown 	is
beginning 	to come down here 	as we 	are, 	you
know, 	making 	the telephone calls with the
clerical 	staff 	and, 	you know, 	doing all, 	you
know to 	line up 	substitutes 	and 	to 	do 	our
preparations. 	And the 	last 	thing 	I 	needed
was 	to determine whether or not Mr. 	Brown,
as 	a unit member- and negotiations 	long-time,
you 	know, 	member 	of 	the committee 	and very
instrumental 	in 	the way 	things 	functioned
with that 	group, 	in my perception, 	right 	in
my midst, 	you know, 	in the middle of
everything 	going 	on. 	Even 	the 	board 	had
felt 	uncomfortable 	in 	coming 	in 	and 	talking
to me, 	and 	looking over 	their 	shoulder 	a
little bit.
Q. 	Okay 	[By Mr. 	Four]. 	Had 	it not been
for what you 	perceived 	to 	be 	a 	threatened
strike, 	would you have transferred Mr. 	Brown?
A. 	No. 	I don't 	think I would have
transferred 	him.
28

Clearly, 	by Hanson's 	own admission, 	the motivation for his
decision 	to 	transfer 	Brown 	stemmed directly 	from his 	perception
of 	Brown's 	role 	as 	an Association 	leader 	in 	the 	protracted
negotiations. 	The 	stalled 	negotiations 	resulted 	in 	an
intensely 	adversarial 	relationship 	between 	the 	parties 	during
the 	summer 	and 	fall 	of 	1985. 	Although Hanson was 	fully 	aware
of 	Brown's 	activities with 	the Association prior 	to 	the 	fall 	of
1985, 	had he not 	perceived Brown's 	affiliation with the
Association 	to 	be 	adverse 	to 	the District's 	interest, 	he would
not 	have 	transferred 	Brown's work 	site 	in 	September 	of 	1985.
The 	timing 	of Hanson's 	decision to 	transfer 	Brown,
considered 	along with his 	admission 	about 	his 	motive, 	provides
clear 	evidence 	that 	Hanson was 	motivated 	by 	animus 	toward 	Brown
because 	of 	his 	affiliation with 	the Association.
Unless 	the 	District 	can 	rebut 	the 	inference 	of unlawful
motive, 	a violation of section 3543.5(a) 	will be found.
D. 	Operational 	Necessity Defense
The 	burden of 	rebutting 	the 	inference 	of 	unlawful 	motive 	is
placed 	on 	the 	employer 	in 	"recognition 	of 	the 	practical 	reality
that 	the 	employer 	is 	the 	party with the best 	access 	to 	proof 	of
its 	motivation." 	San 	Diego 	Community College 	District 	(1983)
PERB Decision No. 	368, 	at p. 	25, 	citing Wright Line, 	supra, 	251
NLRB 	at 	1087-1088. 	In this 	case the District 	seeks 	to 	rebut
the 	inference 	by 	relying 	on 	the 	affirmative 	defense 	of
operational 	or 	business 	necessity.
29

The District 	argues 	that 	the 	imminent 	threat 	of 	a 	teacher
strike created 	exigent 	circumstances 	which 	justified 	the
decision 	to 	transfer 	Brown's work 	site. 	It 	is 	contended 	that
Brown's 	presence 	in the District 	office during 	the 	time 	of
"crisis" 	caused 	problems 	for 	the 	superintendent 	and 	other
administrative 	staff. 	Brown's 	presence 	allegedly 	interfered
with District 	operations 	that were 	especially critical 	prior 	to
the opening of 	school. 	During 	this 	time, 	the District was
making 	preparations 	to maintain 	the 	normal 	school 	program 	in
the 	event 	that 	the 	teacher work 	stoppage 	actually 	occurred.
Additionally, 	since Brown had 	a 	key to 	the 	administrative
office 	building 	that 	gave 	him 	restricted 	access 	to 	the
superintendent's 	private 	office, 	the 	superintendent was
concerned 	about 	the 	need 	for 	maintaining 	confidentiality 	and
security within the 	facility. 	Thus, 	it was 	felt 	that 	the best
course 	of 	action was 	to 	transfer 	Brown's 	base 	of 	operation 	for
his 	extra-duty 	assignment.
Focusing 	on the 	strike 	threat 	as 	a 	valid operational
necessity defense, 	the District 	analogizes 	its 	situation 	to
that 	found 	by the 	PERB 	to 	exist 	in Modesto 	City 	Schools 	(1983)
PERB Decision No. 	291. 	In Modesto PERB upheld the 	right 	of 	the
District 	to 	issue 	letters 	of 	reprimand 	to 	teachers 	for 	failing
to turn in school 	keys prior to 	a 	strike. 	In that case, 	the
Board 	stated:
30

Even 	though 	the 	request 	to 	turn 	in 	keys 	was
made 	in 	response 	to 	protected 	strike
activity, 	. 	. 	. 	the keys belonged to the
District, 	and 	it 	had every 	legitimate 	right
to 	require 	their 	return 	as 	a 	security
precaution. 	Being 	required 	to 	turn 	in 	keys
in no way interfered with the strike. 	. 	. 	.
Modesto City Schools, 	supra at p. 	20.
However, 	in this case, 	the District's 	reliance on the
Modesto 	ruling 	is misplaced. 	The 	strike 	situation here 	is 	not
analogous 	to 	that 	found 	to 	exist 	in the 	the Modesto case. 	In
Modesto, 	a 	strike vote had 	already been 	taken 	by the 	bargaining
unit. 	The Board concluded, 	therefore, 	the District had the
right 	to demand, 	as 	a 	security precaution, 	that teachers 	turn
in 	their 	keys 	prior 	to 	the 	advent 	of 	the 	strike 	because 	turning
in keys on request was, 	by policy, 	a normal 	requirement. 	It
was 	further 	determined 	that 	the 	demand was 	not 	discriminatory
and 	did 	not 	interfere with 	the 	strike.
Here, 	although the District maintains 	that 	the 	"threat" 	of
a 	strike was 	imminent, 	the 	record 	shows 	that 	even though 	a
strike 	action was 	publicly discussed, 	the Association had 	not
taken 	an 	actual 	strike vote 	of 	its 	unit membership 	prior 	to
Brown's 	site 	transfer. 	The parties were 	still 	in 	a 	negotiating
posture 	in 	late August 	and 	early 	September 	1985. 	Additionally,
although 	Brown was 	a member 	of 	the Association bargaining 	team,
he was 	not 	a member 	of 	the 	ad hoc crisis 	committee 	that was
formed 	in 	the 	spring 	of 	1985 	to 	deal 	specifically with 	the
stalled 	negotiations 	and 	to 	plan 	for 	future 	activities 	such 	as
a teacher 	strike,. 	. . . " 	.. .
31

The 	District 	makes 	much 	ado 	about 	the 	key 	and 	Brown's
access. 	However, 	no evidence was 	presented to 	suggest 	that
Brown had 	ever 	used 	or 	tried 	to 	use his 	access 	to 	confidential
District 	information 	for 	use 	by the Association. 	Nor 	has 	it
been 	shown 	that 	during 	the 	"crisis" 	period, 	Brown was 	ever
asked 	to 	turn 	in 	his 	key 	and 	refused 	to 	do 	so. 	Although 	the
District 	claims 	that 	Brown 	presented 	a 	potential 	security 	risk,
it has not established that, 	given the circumstances, 	it had no
other 	alternative, 	but 	to 	transfer Brown's work site.
Even 	if 	the 	District 	had 	a 	legitimate 	concern 	about 	Brown's
presence 	in 	the 	administrative offices, 	Brown was 	physically
present 	in the building 	for 	only two 	hours 	per 	day, 	in the 	late
afternoon. 	Surely, 	during 	that brief 	time period, 	the District
could 	have 	restricted Brown's 	access 	to 	conversations 	and
meetings 	that 	it considered top 	secret. 5	89. ..
Although 	the 	growing 	intensity 	of 	the 	negotiations 	between
the Association 	and 	the 	District 	may have 	caused 	some
understandable 	alarm 	among 	the 	District 	administrative
hierachy, 	the District has 	failed 	to demonstrate 	that 	the
transfer 	of 	Brown was 	the 	only 	available 	alternative 	and was
excusable 	as 	a 	legitimate 	operational 	necessity.
5 it	5rt 	is 	further 	noted 	that 	apparently 	the District 	took no
special 	precautionary measures 	when 	engaging 	in 	its
"pre-strike" 	preparations. 	For example, 	Hanson testified 	that
he could have, 	but never did, 	close the door to 	his 	private
office when present 	in the office. 	He did 	this 	because he
wanted 	others 	t	. . ...-	o 	know that 	he was 	in 	the 	building,.
32

Likewise, 	Respondent's 	arguments 	relying 	on Education Code
sections 	35035 	and 	44923 	are 	not 	convincing. 	In San Leandro
Unified School District 	(1983) 	PERB Decision No. 	288, 	the
District 	transferred 	a 	dissenting 	union member 	who 	had 	formed
an 	ad 	hoc committee 	to 	protest 	the District's 	extra-duty
assignment 	policy. 	The District 	argued, 	among 	other 	things,
that 	it 	had 	the 	authority to 	transfer 	the 	employee 	pursuant 	to
Education Code 	section 	35035. 	The 	PERB 	rejected 	the District's
argument 	and 	held 	that 	the 	transfer was 	unlawful 	because 	it was
motivated 	by 	the 	employee's 	protected 	activity 	and 	was 	not
justified 	by 	any operational 	necessity. 	The 	Board 	stated:
Although Education Code 	section 	35035 	and
the 	CBA 	[collective 	bargaining 	agreement]
provide 	for 	involuntary 	transfers 	"when 	it
is 	in the best 	interest of 	the district,"
the 	basis 	for deciding whether 	it 	is 	in the
best 	interest 	of 	the district 	cannot 	be 	an
employee's 	involvement 	in 	protected
activities 	under 	EERA. 	Other 	legitimate
criteria 	must 	be 	advanced 	for 	the 	district
to 	exercise that discretion. 	San Leandro.
supra, 	at p. 	13 	(citation omitted)
- -
The 	burden 	is 	on the Respondent 	to 	show that 	Brown's
transfer 	to 	another 	site would 	have 	occurred 	absent 	the
protected 	activity. 	The Respondent 	has 	failed 	to meet 	this
burden. 	It 	has 	not 	offered 	any evidence 	indicating 	that 	Brown
would 	have been 	transferred 	absent 	his 	union 	activity, 	or 	for
any other 	reason 	other 	than 	the 	District's 	perceived 	threat 	of
a 	strike 	by members 	of 	Brown's 	bargaining 	unit.
33

Since 	the District 	has 	not 	proffered 	any 	justification 	for
its 	action beyond 	the 	aforementioned, 	it 	is 	found 	that 	the
District 	has 	failed 	to 	demonstrate 	that 	it would have 	taken 	the
same 	action 	in the 	absence of 	protected 	activity. 	It 	is
therefore 	concluded 	that 	the 	District 	violated 	section
3543.5(a) 	of 	the EERA by transferring 	the 	location of 	Brown's
extra-duty 	assignment 	because 	of 	his 	participation 	in 	activity
protected 	by the EERA. 	(San Leandro Unified 	School 	District,
supra.) 	Accordingly, 	that portion of 	the District's motion to
dismiss 	that 	addresses 	this 	charge 	in the complaint 	is 	denied.
. . . .
E. 	The 	Interference Charge
The Charging 	Party 	also urges 	a 	finding 	that 	the District
further 	violated 	section 	3543.5(a) 	by 	interfering with 	the
rights 	of 	all 	unit 	employee. 	It 	is 	asserted that 	Brown's
transfer 	had 	a 	"the chilling 	effect", on other unit members who
feared 	that 	a 	similar 	fate might 	befall 	them if 	they
participated 	in Association 	activities.
In Carlsbad Unified School District, 	supra, 	the Board 	set
forth 	the 	test 	for 	determining when 	employer 	actions 	interfere
with 	the 	rights 	of 	employees 	guaranteed 	by the Act.
Subsequently, 	in Novato Unified School District, 	supra, 	the
Board 	clarified 	Carlsbad 	by 	setting 	forth 	a 	test 	to 	be 	applied
in 	specific 	cases 	of 	alleged 	discrimination or 	reprisal 	against
34

employees 	for 	their 	participation 	in protected 	activities. 	In
Coast Community College District 	(1982) 	PERB Decision No. 	251,
the Board 	further 	distinguished 	between 	"interference" 	and
"discrimination" 	cases, 	which are often blurred.
A prima 	facie 	case 	of 	interference 	is 	established where 	the
charging 	party shows 	that 	the employer's 	conduct 	tends 	to 	or
does 	result 	in 	some harm to 	employee's 	rights. 	Where 	the 	harm
to 	employee 	rights 	is 	slight 	and 	the 	employer 	offers
justification based on operational 	necessity, 	the 	competing
interests 	are 	balanced. 	Where 	the harm 	is 	"inherently
disruptive" 	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 	no 	alternative 	course 	of
action was 	available. 	In 	interference cases, 	proof 	of unlawful
intent 	is 	not 	required. 	(Carlsbad Unified School 	District.
supra; 	Novato Unified School District, 	supra; 	and Coast
Community College District, 	supra.)
Applying 	that 	standard 	to 	this 	case, 	it 	is 	determined 	that
the Association has 	failed 	to 	establish 	a 	prima 	facie case. 	No
evidence 	was 	presented which 	established 	that 	the 	District's
transfer 	of 	Brown tended 	to 	have 	a 	chilling 	effect 	on 	the
exercise 	of 	employee 	rights 	by any other members 	of 	the
bargaining unit, 	or 	that 	the 	action 	actually 	resulted 	in 	some
specific 	harm to 	employee 	rights. 	Brown was 	in 	a unique
situation 	in 	that 	he was 	the 	only unit 	member 	assigned 	to
35

perform 	an 	extra-duty 	assignment 	at 	the 	District 	administrative
office. 	Moreover, 	it cannot be assumed that teachers, 	in
general, 	would conclude that 	because of 	Brown's 	transfer, 	any
future exercise 	of 	their 	rights 	of 	participation 	in 	the
Association was 	in 	jeopardy.
- . . . .
For 	this 	reason, 	it 	is 	concluded that no 	section 3543.5(a)
or 	derivative 	section 3543.5(b) 	violations 	have been 	shown.
This 	part of 	the complaint must 	therefore be dismissed.
Accordingly, 	this 	aspect 	of 	Respondent's motion to dismiss 	the
complaint 	is 	granted.
F. 	The Constructive Discharge Allegation
Following 	the 	transfer 	of 	Brown's 	computer 	coordinator
assignment 	to 	the 	junior 	high 	school, 	the Charging 	Party claims
that 	the 	existing 	facilities 	at 	that 	site were 	so 	inadequate
that 	Brown's working 	conditions 	became 	intolerable. 	The
primary 	complaint 	about 	the 	facility was 	Brown's 	alleged
inadequate 	access 	to 	telephone 	service, 	copying 	equipment 	and
telephone message 	service. 	Additionally, 	the 	alleged decrease
of 	"foot 	traffic" 	i.e., 	teachers 	and 	administrators 	coming 	to
the 	junior 	high 	school, 	adversely impacted 	the 	effectiveness 	of
the program. 	The net 	effect 	of 	the 	change 	in conditions 	caused
Brown 	to 	be 	"constructively discharged" 	when he 	resigned 	in
January 	1986.
The 	Respondent 	denies 	that 	Brown was 	constructively
discharged. 	It 	is 	asserted that, 	at the most, 	Brown suffered
minor 	inconvenience with 	the 	telephone 	situation. 	Furthermore,
36

in many 	respects, 	the work setting at 	the 	junior 	high 	school
was 	actually 	superior 	to 	that which 	existed 	at 	the 	District
administrative office. 	Finally, 	the District maintains 	that
most 	of 	Brown's 	complaints 	related 	to 	the 	"image" 	of 	the
computer 	coordinator 	program, 	as 	opposed 	to 	the 	actual working
conditions.
PERB 	has 	passed 	on 	the 	question of 	constructive 	discharge
in one case, 	Marin Community College District 	(1980) 	PERB
Decision No. 	145. 	In that 	case 	the Board disagreed with the
theory of 	the 	hearing 	officer 	that, 	among 	other 	violations 	by
the District-,. . a 	union 	activist 	who 	either 	quit 	or 	abandoned
his 	job was 	constructively discharged 	by the District.
Instead, 	the 	Board 	found 	that 	the 	employee was 	unequivocally
terminated 	by 	the 	District 	solely because 	of 	his 	union
activities. 6	6
The 	private 	sector 	test 	for 	finding 	constructive 	discharge
is 	set 	forth 	in Crystal 	Princeton Refining Co 	(1976) 	22 	NLRB
1068 	[91 LRRM 1302]. 	In that case, 	the National Labor
Relations 	Board 	(hereafter 	NLRB) 	enunciated 	the 	"constructive
discharge" 	standard 	as 	follows:
There 	are 	two 	elements which must 	be 	proven
to 	establish a 	"constructive discharge."
6 In Marin, 	the 	Board 	stated 	that 	"the doctrine 	of
constructive discharge 	is 	applied 	to 	situations where 	an
employee 	is 	forced 	to 	quit 	his/her 	employment 	because 	of 	the
illegal 	acts 	of 	the employer," 	citing 	as 	authority for 	this
proposition, 	J.P. 	Stevens Co 	(1972) 	461 F.2d 490 	[80 LRRM
2609], enf ...183, NLRB 25 [75 LRRM, 1407]; Hertz Corp (1971) 449
F.2d 	711 	[78 	LRRM 2569], 	enf. 	184 	NLRB 	445 	[74 	LRRM 	1633].
37

First, 	the 	burden 	imposed 	upon 	the 	employee
must cause, 	and intend to cause, 	a change in
his working 	conditions 	so 	difficult 	or
unpleasant 	as 	to 	force him to 	resign.
Second, 	it must 	be 	shown that 	those burdens
were 	imposed because 	of 	the 	employee's 	union
activities.7
In Crystal 	Princeton, 	no 	constructive discharge was 	found
because 	it was 	not 	established 	that 	the 	employee was 	involved
in union 	activity.
The Charging Party argues 	that, 	the Crystal 	Princeton test,
-
is applicable to this case, 	and that, 	on this basis, 	the record
clearly 	supports 	a 	finding 	that 	Brown was 	constructively
'c'fi. ire!Uirged 	However, 	this 	argument 	is 	not 	supported by the	discharged
7 The 	parties 	have cited 	a 	number 	of 	federal 	and 	state
cases 	that 	address 	the concept 	of 	constructive discharge. 	For
example, 	under private sector precedent, 	it was held 	in East
Bay Properties 	(1977) 	232 NLRB 	670 	[96 LRRM 1343], 	that the
employer violated 	section 8A(3) 	of 	the NLRA when 	it
constructively discharged 	an 	employee 	by 	assigning-. more 	onerous
working conditions 	to the employee, 	who was 	a 	known union
activist, 	especially 	since 	the 	employer 	had 	demonstrated 	union
animus. 	In Keithly v. 	Civil 	Service Board 	(1970) 	11 Cal.App.3d
443 	[89 Cal.Rptr. 	809], 	the court stated that 	"whenever a
person 	is 	severed 	from his 	employment 	by coercion, 	the
severance is affected not 	by his 	own 	free will, 	but 	by the will
of his 	superior. 	A person who 	is 	forced 	to 	resign 	is 	thus 	in a
position of 	one who 	is discharged, 	not 	of 	one who exercises 	his
own 	free will 	to 	surrender 	his 	employment 	voluntarily." 	In
Satterwite v. 	Smith 	(9th Cir. 	1984) 	744 	F.2d 	1380, 	36 FEP Cases
148, 	[121 LRRM 2424], 	the court 	ruled that 	an employee who
resigned 	after 	he 	became 	convinced 	that 	he would 	not 	be
promoted 	because 	of 	his 	race was 	subjected 	to 	intolerable
working 	conditions, 	and was 	constructively terminated. 	The
Satterwite court 	held that 	the 	test 	of whether 	an employee 	has
been 	constructively 	terminated 	involved 	a 	determination 	of
whether 	a 	reasonable person 	in 	the 	employee's 	position would
have 	felt 	that 	he was 	forced 	to 	quit 	because of 	intolerable
working conditions. 	744 	F.2d 	at 	1381.
38

weight 	of 	the 	relevant 	evidence.
Brown 	testified 	that, 	following 	his 	transfer 	in 	September
of 	1985, 	the major 	problems with 	the 	new work 	location were:
(1) 	his 	decreased 	access 	to 	"foot 	traffic" 	— 	meaning 	his
exposure 	to 	teachers 	and 	administrators 	whom he 	could 	attempt
to 	recruit 	into participation in the computer program; 	(2) 	the
lack of 	an 	outside 	telephone 	line 	for 	communications 	both
within and outside 	the district; 	(3) 	poor message 	service which
was 	provided 	primarily by 	the 	student 	workers 	in 	the 	junior
high 	school 	office; 	(4) 	and 	lack of 	access 	to 	the 	school
photocopying 	machine 	after 	3:30 	p.m.
. . .
Brown was 	particularly unhappy 	about 	the 	fact 	that 	he 	no
longer 	had 	access 	to 	the microwave 	telephone 	for 	contacts 	with
the TEC. 	He 	testified 	that 	following 	his 	transfer 	he 	stopped
calling 	the TEC because 	of 	the 	telephone 	situation. 	Although 	,
he 	admitted 	that 	the 	regular 	telephone 	system was 	available, 	it
was 	not 	as 	convenient 	as when he had 	the 	two 	telephone 	systems
in his District 	headquarters 	office. 	Because of 	this
situation, 	Charging 	Party vigorously contends 	that 	the 	change
amounted 	to 	the 	imposition of more 	onerous working 	conditions.
- .". ...
Personal 	observation of 	the 	facilities 	available 	to 	Brown
at 	the 	junior 	high 	school 	did 	not 	reveal 	the work 	site 	to 	be
inadequate. 	With 	the possible 	exception of 	the 	inconvenience
39

of not having 	an outside 	telephone 	line 	in his 	classroom,
g
the physical 	setup 	in Brown's 	classroom appeared, 	in 	some
respects, 	to have been even better 	than the physical
arrangement 	of 	his 	office 	at 	the District 	administrative
office. 	Although 	the 	location of 	the photocopying machine 	and
the 	telephone 	at 	the 	junior 	high 	school 	required 	Brown 	to walk
farther 	than he had 	to 	at 	the headquarters 	location, 	this
clearly did not make 	them 	inadequate 	nor 	did 	it 	amount 	to more
onerous 	or 	intolerable working 	conditions.
. .. ' .. . . Additionally, 	it was 	shown 	that 	following 	Brown's 	complaint
to 	Tibbits 	about 	his 	need 	for 	more 	accessible 	telephone
service, 	consistent with the efforts 	that Tibbits 	already had
initiated 	to 	obtain 	portable 	telephone 	service 	for 	the 	Saturday
program, 	the District 	attempted 	to 	accommodate 	Brown's 	need 	for
more convenient 	access 	to, an outside 	telephone service.
Unfortunately, 	by the 	time 	that 	the portable phone 	service was
installed 	and working 	properly, 	Brown 	had 	resigned 	from 	the
position. 	Despite 	the Charging 	Party's 	assertions 	that 	Brown
was 	subjected 	to 	intolerable working 	conditions, 	other 	than 	the
complaint 	about 	the 	telephone 	service discussed 	above, 	there 	is
no 	evidence 	that 	Brown 	ever 	registered 	any other 	complaints
about 	the unsuitableness 	of 	his work 	setting 	to management
8The 	argument 	about 	the 	necessity of 	Brown having 	a
microwave 	telephone 	system to 	contact 	the TEC 	is 	overstated.
Brown preferred 	the microwave 	system. 	However, 	he was 	not
required 	by 	the 	District 	to 	use 	only 	the microwave 	telephone 	to
communicate with TEC. 	Aside 	from some cost-savings, 	the
microwave 	system offered 	no 	actual 	service 	advantage 	over 	the
regular 	telephone 	system.
40

prior 	to 	his 	resignation.
Likewise, 	there has 	not 	been 	any evidence whatsoever 	that,
after 	the 	transfer, 	the District 	imposed 	additional 	duties 	or
responsibilities 	on 	Brown 	to make 	the 	coordinator 	assignment
more onerous 	or 	less desirable 	in some way. 	Rather, 	it 	appears
that 	the 	"prestige" 	of 	having 	the 	computer 	coordinator 	program
housed 	at 	the 	District 	administrative 	office was 	very
significant 	to 	Brown. 	Although Brown never 	explained what 	he
meant 	by the 	statement 	that 	the 	transfer was 	tantamount 	to 	a
"slap 	in the face," 	it 	is very 	likely that 	Brown, 	more than
anything 	else, 	was 	disappointed by the move because he viewed
the 	program 	as 	appearing 	less 	effective 	or 	important 	after 	it
was 	transferred 	to 	the 	junior 	high 	school. 	Undoubtedly, 	the
change 	in 	location, 	even more 	than 	the changes 	in the
facilities 	at 	the 	junior 	high 	school 	site, 	contributed to
Brown's 	frustration 	and disenchantment 	with 	the 	program.
. .
In 	fact, 	Brown 	testified 	that 	nothing 	specific 	occurred 	in
January 	1986 	to 	cause 	him to 	resign. 	He 	stated 	that 	the
resignation was 	"the 	culmination of 	frustration" 	that 	had 	built
up during 	the 	four-month 	period 	following 	the 	transfer. 	This
frustration ultimately motivated 	him to 	resign. 	There 	is 	no
indication 	that 	either 	Hanson 	or 	Tibbits 	exerted 	any coercion
or 	pressure 	on Brown to 	force his decision.
For 	these 	reasons, 	it 	is 	concluded that 	the Charging 	Party
has 	failed 	to meet 	its 	burden 	of 	proving 	constructive
41

. .
discharge. 	Therefore, 	this 	part of 	the complaint will 	be
dismissed. 	Additionally, 	that 	part of 	the Respondent's motion
to dismiss 	that 	addresses 	this 	issue 	is 	granted.
VI. 	REMEDY
Section 3541.5(c) 	of 	the EERA states:
The board 	shall 	have the power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees with or without
back pay, 	as will 	effectuate the policies 	of
this 	chapter.
PERB 	has 	defined 	a 	properly designed 	remedial 	order 	as 	one
which 	"seeks 	a 	restoration of 	the 	situation 	as 	nearly 	as
possible 	to 	that 	which would 	have 	obtained 	but 	for 	the 	unfair
practice." 	Modesto City Schools, 	supra. 	The usual 	remedy in a
case of unlawful 	discrimination or 	reprisal 	is 	a 	cease 	and
desist order 	and, 	where 	appropriate, 	reinstatement 	and 	a back
pay 	award with 	interest 	if 	the 	employee 	has 	been discharged.
Santa 	Clara 	Unified 	School 	District 	(1979) 	PERB Decision
No. 	104. 	A cease and desist order 	is 	intended to prohibit 	a
repetition of 	the unlawful 	conduct.
In 	this 	instance 	the 	only 	remedy 	sought 	by the Charging
Party 	is 	an order 	that 	the District 	cease 	and desist 	from 	its
unlawful 	conduct. g
9Charging 	Party 	also 	sought 	a 	make-whole 	remedy of
compensation 	for 	monetary 	losses 	incurred 	by Brown 	because 	of
the District's alleged constructive discharge. 	However,, 	since
that 	issue of 	the complaint 	is 	being dismissed, 	it 	is 	not
necessary to 	consider 	this 	part 	of 	the 	proposed 	remedy.
42

Having 	found 	that 	the 	District 	did 	discriminate 	against
James Brown, 	in violation of section 3543.5(a), 	by transferring
the work 	site 	for 	the 	performance 	of 	the 	extra-duty computer
coordinator 	assignment, 	it 	is 	appropriate to order 	the District
to 	cease 	and 	desist 	from the 	unlawful 	conduct 	of 	discriminating
against 	Brown because of 	his 	exercise 	of 	rights 	protected 	by
the EERA.
It 	is 	also 	appropriate 	that 	the District 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the order. 	The notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	at 	the 	District
indicating 	that 	it will 	comply with the 	terms 	thereof. 	The
notice 	shall 	not be 	reduced 	in size, 	altered, 	defaced or
covered 	by 	any other 	material. 	Posting 	such notice will
provide 	employees 	with notice 	that 	the District 	acted 	in 	an
unlawful 	manner 	and 	it 	is 	being 	required 	to 	cease 	and desist.
from 	its 	activity. 	It 	effectuates 	the purposes 	of 	the EERA
that 	the employees 	be 	informed 	of 	the 	resolution of 	the
controversy 	and will 	announce 	the 	District's 	readiness 	to
comply with 	the 	ordered 	remedy. 	See 	Placerville Union 	School
District 	(1978) 	PERB Decision No. 	69. 	In Pandol 	and Sons v.
Agricultural 	Labor Relations 	Board 	(1979) 	98 	Cal.App.3d 	580,
587 the California District, 	the Court of Appeal 	approved 	a
posting 	requirement. 	The U.S. 	Supreme Court 	approved 	a 	similar
posting 	requirement 	in NLRB v. 	Express 	Publishing Co. 	(1941)
312 U.S. 	426 	[8 LRRM 415].
-
43

VII. 	PROPOSED ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and the 	entire 	record 	in this 	case, 	and pursuant 	to 	section
3541.5(c), 	it 	is hereby ordered that the Palo Verde Unified
School 	District, 	its 	governing 	board 	and 	its 	representatives
shall:
A. 	CEASE AND DESIST 	FROM:
Discriminating 	against 	James 	Brown because 	of 	his
exercise 	of 	the 	right 	to 	participate 	in 	an 	activity protected
by the Educational Employment Relations Act, 	namely, 	membership
in the Palo Verde Teachers Association, 	CTA/NEA and
participation 	as 	a member 	of 	the Association negotiating
committee.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Within ten 	(10) 	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 	the
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.
44

2. 	Upon 	issuance of 	a 	final decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	the Order 	to
the Los Angeles 	Regional 	Director 	of 	the 	Public Employment
Relations 	Board 	in 	accordance with his 	instructions. 	Continue
to 	report 	in writing 	to 	the Regional 	Director 	thereafter 	as
directed. 	All 	reports 	to 	the Regional 	Director 	shall 	be
concurrently 	served 	on 	the 	Charging 	Party 	herein.
Those 	parts 	of 	the 	complaint which 	allege 	that 	the District
unlawfully 	interfered with 	the 	rights 	of 	the members 	of 	the
certificated 	bargaining 	unit 	by 	the 	actions 	taken 	against 	Brown
and 	that 	the 	conditions 	created 	by 	the 	transfer 	of 	Brown's 	work
site 	led 	to 	his 	constructive 	discharge 	from the 	computer
coordinator 	position 	are 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision 	and Order 	shall
become 	final 	unless 	a party files 	a 	statement 	of 	exceptions
with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento
within 	20 	days 	of 	service of 	this Decision. 	In 	accordance with
PERB Regulations, 	the 	statement 	of 	exceptions 	should 	identify
by page 	citation or 	exhibit 	number 	the 	portions 	of 	the 	record,
if 	any, 	relied upon for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part 	III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
45

the close of 	business 	(5:00 	p.m.) 	on the 	last day 	set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express 	United 	States mail, 	postmarked 	not 	later 	than 	the 	last
day 	set 	for 	filing 	. . . " 	See 	California 	Administrative 	Code,
title 8, 	part 	III, 	section 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply. 	Any statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon 	each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany each 	copy 	served 	on 	a 	party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 	8, 	part 	III,
sections 	32300, 	32305 and 32140.
Dated: 	December 31, 	1986
W. JEAN THOMAS
Administrative 	Law Judge
46