El Dorado County Office of Education (PERB 0788E)

STATE 	OP 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EL 	DORADO COUNTY TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
EL 	DORADO COUNTY OFFICE 	OF
EDUCATION,
Respondent.
Case No. 	S-CE-1252
PERB Decision No. 	788
January 17, 1990
Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for El Dorado County Teachers Association, 	CTA/NEA;
Girard and Griffin by Allen R. 	Vinson, 	Attorney, 	for El 	Dorado
County Office 	of 	Education.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by the El 	Dorado County
Teachers Association, 	CTA/NEA 	(Association) 	of a Board agent's
partial 	dismissal 	of 	its 	charge 	that 	the 	El 	Dorado County Office
of Education 	(County) 	violated 	section 3543.5(a) 	of the
Educational 	Employment Relations Act 	(EERA)1 by discriminating
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code. 	Section 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.
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against 	Ray Hancock 	(Hancock). 	The Board agent 	concluded that
the 	allegations 	in the 	third amended 	charge did not 	state 	a prima
facie 	case 	because 	the 	facts 	did not provide 	sufficient 	evidence
of 	a 	nexus 	between Hancock's 	union activity 	and 	the purported
adverse 	action.
We have reviewed the 	entire record 	in this 	case, 	and affirm
the partial 	dismissal 	of 	the 	Board agent 	for the 	reasons 	set
forth below.
FACTUAL 	SUMMARY
Hancock was 	a 	teacher at 	the 	El 	Dorado County Juvenile 	Hall
from the 	1977-78 	school 	year through the 	1986-87 	school 	year.
Hancock was 	involuntarily 	transferred 	to 	a 	new 	community 	school
for the 	1987-88 	school year, 	but was 	then granted a 	leave of
absence 	for that year.
In January of 	1987, 	Hancock and others participated 	in a
protest of working conditions. 	In May of 	1987, 	the Association
filed unfair practice 	charge 	No. 	S-CE-1100 	alleging 	retaliation
against 	Hancock 	and 	another 	individual 	for 	engaging 	in protected
activities. 	On March 	17 	through March 25 of 	1988, 	Hancock
testified 	at 	the hearing 	concerning that 	charge. 	On October 	3,
1988, 	PERB Hearing Officer Decision No. 	HO-U-372 was 	issued. 	In
the 	charge presently before the 	Board, 	the Association alleges
that during the 	litigation of 	Charge No. 	S-CE-1100 	through to 	the
time the 	charge 	in the present case was 	filed, 	the County has
continued 	to 	engage 	in a practice 	of 	interference 	and
discrimination 	against 	Hancock because 	of 	protected 	activity.
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Before 	Hancock received his 	1987-88 	school 	year assignment,
he requested a 	leave of 	absence 	for 	that 	school 	year 	for health
purposes. 	He asked, 	however, 	for a personal necessity leave
under 	section 	13.10 	of 	the 	collective 	bargaining 	agreement
(CBA).2 Deputy Superintendent Wally Newberry, 	by letter dated
2Article 	13.10 	states:
13.10.1. 	Upon written request by the
employee, 	the Employer may grant an employee
an unpaid 	leave 	of 	absence 	for personal
reasons 	for a period of 	time 	not to 	exceed
one 	(1) year.
13.10.2. 	An employee must request 	such 	leave
no 	later than April 	1 	or November 	1 preceding
the 	term 	it 	is 	desired that 	the 	leave become
effective.
13.10.3. 	The employee may continue all
fringe benefit programs 	at his/her own
expense.
13.10.4. 	Employees 	employed as replacements
for 	employees 	on personal 	leave 	shall 	be
notified 	at the 	time 	they are 	hired 	that
their employment 	is 	on a 	temporary basis 	due
to 	such 	leave of 	absence.
13.10.5. 	The number of 	employees 	on leave
during any one 	(1) 	semester or year 	shall 	not
exceed two 	(2) 	employees at any one 	(1) 	time.
13.10.6. 	With approval of 	the 	Superintendent
and 	the 	County Board of 	Education,
certificated 	employees 	shall 	be 	granted a
leave 	of 	absence without 	interruption of
health 	and 	dental 	benefit payments 	by the
County Office 	under 	certain 	circumstances.
Criteria which 	can 	influence 	the 	decision
include, 	but may not be 	limited to:
a) 	the program needs 	can be adequately met
during the period of absence. 	b) 	the County
Office 	realizes 	a 	financial benefit 	from the
transaction. 	c) 	the reason for the requested
leave 	is 	acceptable to 	the 	Superintendent and
3

August 	17, 	1987, 	denied Hancock's 	request on the basis that he
missed the April 	1 	deadline 	for 	submittal 	of personal 	necessity
leave, 	the 	office had no 	information regarding any health
condition of 	Hancock, 	and that he had basically abandoned the
position 	to which he 	had 	been assigned and was 	not 	in 	contact
with 	the 	County 	regarding 	that position. 	Shortly 	thereafter,
Hancock 	sent a 	letter to 	Superintendent Ken Lowery 	(Lowery),
responding to the denial 	of his 	leave, 	and enclosing a note 	from
Dr. 	Robert L. 	Macy.3 In early September 	1987, 	Hancock received a
letter 	from Lowery 	stating he had decided, 	in the 	interests 	of
educational 	need, 	to grant Hancock's 	leave request as 	an unpaid
leave 	of 	absence 	for the 	1987-88 	school 	year under 	section 	13.10
of 	the CBA.
While on leave, 	Hancock was 	employed as 	a 	substitute 	teacher
at the Preston Industrial 	School, 	which 	is part of 	the California
Youth Authority. 	In February 	1988, 	Hancock notified the County
that 	he would be 	returning 	to 	his 	teaching 	assignment 	for 	the
1988-89 	school year. 	At the end of March 	1988, 	after having
testified 	in the 	formal 	hearing 	in Unfair 	Practice 	Charge
No. 	S-CE-1100, 	Hancock requested a 	leave of absence 	for the
the 	Board.
3That note 	is 	alleged to have 	stated:
Raymond 	Hancock 	has 	debile 	hypertension which
is 	being 	exacerbated by 	the 	apparent 	stress
of his 	teaching position. 	If a 	less
stressful 	environment 	could be 	assigned 	or 	a
leave of 	absence were permitted as he 	is
recuperating, 	it would improve his blood
pressure.
4

1988-89 	school year from Lowery. 	By letter dated April 	21, 	1988,
Lowery 	stated he was 	inclined 	to 	recommend 	approval 	of 	Hancock's
leave request in the interest of the office, 	although, 	under
usual 	circumstances, 	he 	considered one year of 	leave 	to be the
maximum allowable. 	Lowery 	requested that 	Hancock undergo 	a
physical 	examination by a 	County-selected physician 	(Dr. 	Dale
Coco) 	to verify his medical condition. 	By October 4, 	1988,
Dr. 	Coco 	had performed a physical 	examination of 	Hancock and
confirmed 	that 	the 	condition 	still 	existed. 	In the 	first part 	of
November 	1988, 	Hancock was 	called to a meeting by Lowery. 	At
this 	meeting, 	Lowery told Hancock that his 	substitute 	teaching
during his 	leave of 	absence was 	illegal. 	Lowery requested 	that
Hancock 	sign a document. 	Hancock refused to 	sign the document
because 	he 	thought 	the document 	constituted 	charges 	against 	him
and because 	it 	included a resignation. 	A few days 	later, 	Lowery
telephoned 	Hancock and 	threatened 	that 	if 	Hancock did 	not 	resign
his 	employment with the County, 	Lowery would 	seek revocation of
his teaching credential. 	On November 	11, 	1988, 	Hancock resigned
from his 	employment with 	the 	County.
DISCUSSION
For the purposes 	of 	determining whether a 	charge 	states 	a
prima 	facie 	case of a violation of 	the EERA, 	all 	essential 	facts
alleged must be assumed as 	true. 	(Klamath-Trinity Jt. 	Unified
School District 	(1988) 	PERB Decision No. 	717, p. 	3, 	citing
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San Juan Unified School District 	(1977) 	EERB Decision No. 	12.)4
Not 	only must 	the 	charging party 	allege 	that 	the 	employee was
engaged 	in protected 	activity 	and 	that 	the 	employer 	had 	knowledge
of 	such activity, 	but also that the employer's 	conduct was
motivated by that participation. 	(Novato 	Unified 	School 	District
(1982) 	PERB Decision No. 	210, 	p. 	6.)
In the present case, 	the allegations 	indicate that Hancock
engaged 	in protected activity, 	and that 	the 	County 	had 	knowledge
of 	such. 	The 	issue 	in this 	case 	is whether a 	sufficient nexus
between the protected activity 	and 	the 	adverse 	action has 	been
stated. 	In Novato Unified School District, 	supra. 	at p. 	6, 	the
Board 	held 	that 	"knowledge 	along with 	other 	factors 	may 	support
the 	inference of unlawful motive." 	(Id. 	at pages 	6 	and 	7.)
Among 	the 	factors 	considered 	is 	the 	timing of 	the 	employer's
conduct 	in relation to the 	employee's 	performance 	of protected
activity. 	The protected 	activity 	allegedly 	engaged 	in by 	Hancock
was: 	(1) 	his acts of protest in January of 	1987; 	(2) 	his
testimony 	in a 	hearing 	concerning 	a 	charge 	against 	the 	County 	in
March of 	1988; 	and 	(3) 	his requests 	for leaves of absence 	in
August 	1987 	and March 	1988. 	Although Hancock was 	not 	told that
he was denied a leave of absence, 	in November 	1988, 	he was told
that 	it was 	illegal 	for him to 	substitute 	teach during his 	leave
of 	absence the prior year, 	and was 	requested to 	sign a document
which 	he 	believed 	to 	be 	charges 	against 	him and his 	resignation.
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4Prior to January 	1, 	1978, 	PERB was known as the Educational
Employment 	Relations 	Board.
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The protests 	in January 	1987 	took place 	22 	months prior to the
adverse 	act, 	the testimony given in March 	1988 was 	approximately
7 	to 	8 months prior to the adverse act, 	and the requests 	for
leaves 	of absence were 	15 	and 	7 	to 	8 months prior to the adverse
act.
The Association argues 	that, 	with regard to the testimony
given by Hancock in March 	1988, 	the pertinent date 	to be
considered is October 3, 	1988, 	when the final decision was
issued. 	However, 	the 	substance of 	the testimony given by Hancock
did 	not 	result 	in a 	finding adverse 	to the County. 	That 	argument
is 	therefore rejected. 	In addition, 	after Hancock gave his
testimony at the end of March 	1988, 	he requested a 	leave of
absence 	for the 	second 	consecutive 	year. 	The County 	initially
responded that 	it was 	inclined to grant that request, 	although,
as 	a rule, 	a 	leave of absence 	for personal reasons 	is 	not to
exceed the maximum of one year. 	In this 	case, 	however, 	due to
educational 	or office need, 	the County 	stated 	it would 	consider
the 	request. 	It was 	not until the 	fall 	of 	1988 	that 	any adverse
action was 	taken against Hancock. 	Based upon the above, 	we 	find
that 	the 	timing between Hancock's 	protected 	activities 	and 	the
adverse 	action taken by the County does 	not 	raise 	an 	inference 	of
unlawful 	motive on the part 	of 	the County.
Furthermore, 	even if the timing element was 	stronger, 	other
factors 	must be 	considered 	to 	support 	an 	inference 	of 	unlawful
motive. 	(Moreland Elementary School 	District 	(1982) 	PERB
Decision No. 	227, 	at p. 	13.) 	The Board has 	stated:
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. 	. 	. 	The timing of the employer's conduct in
relation to the 	employee's 	performance 	of
protected activity, 	the 	employer's 	disparate
treatment 	of 	employees 	engaged 	in 	such
activity, 	its 	departure 	from established
procedures 	and 	standards 	when dealing with
such employees, 	and the employer's
inconsistent 	or 	contradictory 	justifications
for 	its 	actions 	are 	facts which may 	support
the inference of unlawful motive. 	. 	. 	.
(Novato Unified School 	District, 	supra, 	PERB
Decision No. 	210, 	at p. 	7.)
Here, 	the Association has 	failed to adequately allege any of
these additional 	factors.
Because 	the Association's 	charge 	fails 	to allege 	facts
sufficient to give rise to an inference of unlawful motive, 	we
find that there 	is 	insufficient evidence 	of nexus, 	and that this
portion 	of 	the 	charge was 	properly dismissed.
ORDER
Based upon the entire record 	in this 	case, 	and 	consistent
with the discussion above, 	it 	is hereby ORDERED that 	the appeal
of 	the 	Board 	agent's 	partial 	dismissal 	of 	Unfair Practice Charge
No. 	S-CE-1252 	is DISMISSED WITH PREJUDICE.
Chairperson Hesse 	and Member Craib 	joined 	in this 	Decision.
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