Oakdale Union Elementary School District (PERB 1246E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	OAKDALE
ELEMENTARY 	CHAPTER 	685,
Charging 	Party,
v.
OAKDALE UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	SA-CE-1703
PERB Decision No. 	1246
January 	28, 	1998
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Appearances: 	California 	School 	Employees Association by Burton
Gray, 	Labor Relations Representative, 	for California School
Employees Association and 	its 	Oakdale 	Elementary Chapter 	685;
Stroup & de Goede by Daniel G. 	Stevenson, 	Attorney, 	for Oakdale
Union 	Elementary 	School 	District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Oakdale Union Elementary School 	District 	(District) 	to a Board
administrative 	law judge's 	(ALJ) 	proposed decision. 	In his
proposed decision, 	the ALJ held 	that 	the District violated
section 3543.5(a) 	and 	(b) 	of 	the Educational Employment Relations
Act 	(EERA)1 when it disciplined Denise Bianchi 	(Bianchi) 	for
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 provides, 	in relevant
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
_____ )

reporting alleged 	safety violations 	to 	a 	third party and 	for
allegedly harassing 	a 	co-worker 	and discussing 	union business
during work hours.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	the hearing transcript, 	the
District's 	exceptions 	and 	the 	California 	School 	Employees
Association and 	its 	Oakdale 	Elementary 	Chapter 	685's
(Association) 	response thereto. 	For the reasons 	that 	follow, 	the
Board 	finds 	that 	the District's 	actions 	violated 	section
3543.5(a) 	and 	(b) 	of the EERA.
PROCEDURAL 	HISTORY
On November 6, 	1995, 	the Association filed an unfair
practice 	charge 	in Case No. 	SA-CE-1703. 	The District 	responded
to the charge on December 4, 	1995. 	On January 16, 	1996, 	the PERB
Office 	of 	the General 	Counsel 	issued a 	complaint 	on 	the 	charge.
The 	complaint 	alleged 	that 	the 	District 	violated 	EERA section
3543.5(a) 	and 	(b) 	when it 	took adverse action against Bianchi
because 	of her exercise 	of 	EERA-protected rights. 	The District
answered the 	complaint on February 5, 	1996.
The ALJ held a 	formal 	hearing on June 	26, 	1996 	and 	issued
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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his proposed decision on October 31, 	1996. 	The District 	filed
exceptions 	to that proposed decision on November 12, 	1996. 	The
Association responded to 	those exceptions 	on November 25, 	1996.
FACTS
The District 	is 	a public 	school 	employer within 	the meaning
of EERA section 3540.1(k). 	The Association is an employee
organization 	and 	the 	exclusive 	representative 	of 	an appropriate
unit 	of 	employees 	within 	the meaning 	of 	EERA section 	3540.l(d)
and 	(e). 	Bianchi 	is an employee within the meaning of EERA
section 3540.1 (j) .2
2Section 3540.1 provides, 	in relevant part:
As 	used 	in this 	chapter:
(d) 	"Employee organization" means any
organization which 	includes 	employees 	of 	a
public 	school 	employer and which has 	as 	one
of 	its 	primary purposes 	representing 	those
employees 	in their 	relations with 	that 	public
school 	employer. 	"Employee 	organization"
shall 	also 	include 	any person 	such an
organization authorizes 	to act 	on 	its behalf.
(e) 	"Exclusive representative" 	means 	the
employee 	organization 	recognized 	or 	certified
as 	the 	exclusive 	negotiating 	representative
of 	certificated or 	classified employees 	in an
appropriate unit 	of 	a public 	school 	employer.
(j) 	"Public school employee" 	or 	"employee"
means 	any person 	employed by any public
school 	employer except persons 	elected by
popular vote, 	persons appointed by the
Governor of this state, 	management employees,
and 	confidential 	employees.
(k) 	"Public school 	employer" 	or 	"employer"
means 	the 	governing board 	of 	a 	school
district, 	a school district, 	a county board
of 	education, 	or a county superintendent 	of
schools.
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The District 	and the Association are parties 	to a 	collective
bargaining agreement 	(CBA). 	The CBA contains 	a grievance
procedure which does 	not 	include binding arbitration. 	Article
XII of 	the CBA covers employee 	safety. 	Article XII provides, 	in
relevant part:
12.1.1 	The District 	will 	make 	a 	reasonable
effort 	to provide 	for each
employee's 	safety.
12.1.2 	Any employee who 	observes 	a working
condition deemed unsafe 	to
employees 	shall 	report 	such
condition 	to his/her 	immediate
supervisor. 	The 	immediate
supervisor will 	consider 	such
report 	promptly.
12.1.6 	No employees 	shall 	be 	in any way
discriminated against 	as 	a 	result
of 	reporting any unsafe 	conditions.
The District 	has 	employed Bianchi 	for approximately 20
years. 	During the 	time period covered by the 	charge, 	Bianchi
held the position of 	Secretary 	I 	in the 	office 	of 	the 	Principal
at Oakdale Junior High School 	(OJHS). 	Bianchi was 	the
Association 	chapter president 	for 	the 	1994 	and 	1995 	calendar
years.
During the 	1995 	calendar year, 	OJHS 	Principal 	Kenneth Meil
(Meil) 	held periodic administrative/staff meetings. 	Meil, 	OJHS
Assistant Principal Richard Jones, 	Sharon Lemons 	(Lemons),
Carolyn Wright 	(Wright), 	and Association President Bianchi
attended 	these meetings. 	These meetings were 	informally
structured and were used to 	discuss 	current 	work 	items 	or 	items
of 	general 	interest 	or concern. 	Bianchi 	and other staff 	also
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used 	these meetings 	to 	report 	safety concerns 	to Meil.
Safety 	Memoranda
On April 	13, 	1995, 	Bianchi was working at the counter in the
Principal's 	office 	when 	a 	safety 	inspector 	from 	the 	District's
worker's 	compensation 	insurance 	carrier 	(safety 	inspector)
approached. 	The 	inspector 	informed Bianchi 	that he was 	there 	to
look 	for unsafe 	conditions 	at 	OJHS. 	Bianchi 	informed the
inspector that 	she was aware 	of 	a number of unsafe 	conditions 	at
the 	school. 	After extracting a promise 	of anonymity, 	Bianchi
provided a list 	of 	those 	conditions 	to 	the 	inspector. 	Bianchi
testified 	that 	she 	requested anonymity because 	she 	feared
reprisal. 	The 	list 	contained the 	following 	items:
1. 	Doors 	should have glass 	inserts 	to view
people 	coming 	out 	as 	we 	often have 	"near
miss" accidents.
2. 	Storage 	room needs 	to be 	checked as
there are:
a. 	inadequate 	shelves
b. 	items 	stacked above 	cupboards
that 	are 	often opened
c. 	HEAVY ITEMS get 	stacked in
front 	of 	cupboards 	and must be
shuffled 	around 	before
cabinets 	can be 	opened.
3. 	Corners 	on desk too sharp. 	Constantly
bruising knees 	on the drawers.
4. 	Inadequate 	computer protection: 	Glare
screens, wrist guards, 	etc.
5. 	Inadequate work space 	- 	too much on
desks, no storage . 	. 	. causes
accidents.
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6.	
6 • 	Water 	in nurse's 	office 	is 	draining
outside. 	(Not 	in covered sewage) 	Blood
products 	can be 	washed 	directly 	outside
of building.
7 .	
7 	Students must vomit 	in a 	trash 	can
(while other students are present), 	as
there are no bathrooms 	in the
nurse's/business 	office. 	Students 	in
cramped quarters 	must 	be 	exposed 	to 	the
uncovered vomit 	and virus 	contained 	in
the trash.
8. 	Carpet 	is 	constantly 	snagging where
portables 	join. 	(Heels get 	caught 	on it
and it 	causes 	tripping.)
On May 10, 	1995, 	Meil 	sent Bianchi a memorandum regarding
the anonymous 	list. 	The memorandum read as 	follows:
I 	am in 	receipt 	of 	a 	list provided by you 	for
the 	CRSIG safety inspector. 	I believe you
[sic] 	actions are 	inappropriate in providing
the 	information 	to 	the 	safety 	inspector
without 	first appraising 	[sic] 	me of 	the
situation and 	specific violations.
In the 	future, 	concerns about 	safety issues
on this 	campus 	should be brought 	to my
attention 	immediately.
This memo will 	be placed 	in your personnel
file. 	You have 	ten days 	if you wish to
respond.
Bianchi 	responded to Meil's memorandum on May 12, 	1995.
Bianchi's memo stated, 	in part:
You have been 	told verbally many 	times 	of
safety 	issues 	regarding 	this 	school 	site
including 	the 	drainage 	of 	blood and vomit
onto 	the outside 	lawn area. 	This has been
discussed with others present. 	The 	safety
issues were also brought up years 	ago with
Mr. 	Cook when he was principal 	and
communicated our concerns to Dr. 	Kennedy, 	per
Mr. 	Cook at 	the 	time of 	installation of 	the
nurse's 	sink.
The 	other 	issues 	listed have been discussed
6
.
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with you as well, 	verbally.
Bianchi 	also 	filed a grievance 	over Meil's memorandum. 	In the
first 	level 	response 	to Bianchi's 	grievance, 	Meil 	agreed to
remove 	the memorandum from Bianchi's 	personnel 	file.
Nonetheless, 	Meil gave Bianchi a second memorandum, 	also dated
May 10, 	1995, 	which stated:
I 	am in 	receipt 	of 	a 	list 	provided by you 	for
the CRSIG safety inspector. 	In the 	future,
concerns 	about 	safety 	issues 	on this 	campus
should be 	brought 	to my attention
immediately.
On May 19, 	1995, 	Bianchi appealed her grievance 	to the
second level. 	Bianchi 	expressed relief 	that 	the District 	had
agreed 	to 	remove 	the 	original 	memorandum from her personnel 	file,
but 	indicated 	that 	the new memorandum was 	unacceptable because 	it
"could be implied 	. 	. 	. 	that I have not 	followed 	[D]istrict
procedure in reporting safety issues when, 	in fact, 	I have."
On May 31, 	1995, 	Meil 	responded to Bianchi's grievance appeal by
informing her 	that 	the 	second May 	10, 	1995 memorandum had been
destroyed.
At 	the hearing, 	Bianchi and Lemons 	testified, 	without
contradiction, 	that all 	of 	the 	safety concerns 	on Bianchi's
April 	13 	list 	had been discussed during administrative/staff
meetings. 	Meil was present during these discussions.3
Letter 	of 	Reprimand
On January 3, 	1994, 	Wright 	joined the office staff at 0JHS.
3In fact, 	under cross 	examination, 	Meil 	conceded that 	the
safety 	conditions 	included 	on 	the 	list 	had been mentioned during
administrative/staff 	meetings.
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Wright 	had been a part-time District 	employee 	for 	the past
sixteen 	(16) 	years. 	She had known Bianchi 	for eleven 	(11) 	or
twelve 	(12) 	of 	those years. 	Bianchi had recommended Wright 	for
the position at OJHS.
On January 6, 	1994, 	Wright 	filled out a 	"Notice of 	Intent,"
stating 	that 	she 	did not wish to 	join the Association. 	Bianchi
received a 	copy 	of 	this 	form in her 	capacity as Association
president.
A few days prior to May 24, 	1995, 	Wright 	spoke to Meil and
expressed a 	concern 	that 	she was 	being harassed by Bianchi. 	Meil
asked Wright 	to put 	her 	concerns 	in writing. 	Wright 	did so 	in a
May 24, 	1995 	letter to Meil. 	Wright 	indicated that Bianchi's
behavior:
. 	. 	. 	has been ongoing from the time I was
first 	hired 	and Denise 	received 	notification
that 	I did not 	join the Union. 	She 	told me
that 	she was disappointed that 	I 	didn't want
to 	join 	the Union and began 	to 	explain what
the Union was all 	about.
Wright 	contended 	that 	Bianchi 	then:
. 	. 	. 	began to instruct me on what she felt
were 	the 	requirements 	of my job. 	And if 	I
failed to 	comply with her 	instructions, 	she
would become angry. 	Denise 	then began to
tell me 	that 	I was hired in large part as 	a
result 	of 	her letter of 	recommendation and
that 	she had input 	as 	to what 	kind of
evaluation I would receive. 	She also said
that 	her 	input 	would be 	considered as 	to
whether or not 	I would be 	retained as 	a
permanent 	employee 	after my probationary
period was 	over.
Wright 	also 	complained 	that 	Bianchi 	told her 	that 	she would
be 	required 	to do 	the 	textbook 	inventory at 	the 	end of 	the 	school
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year.4 Wright's 	letter 	indicated that 	she did not believe 	that
she 	could 	complete 	the 	textbook 	inventory 	in addition 	to 	the 	rest
of 	her year-end duties. 	Wright 	complained that 	Bianchi 	had
threatened 	to 	file 	a 	grievance 	against 	her 	if 	she 	failed 	to
perform 	the 	textbook 	inventory.
Wright 	also 	indicated 	that 	Bianchi 	intimidated her by
questioning her work assignments. 	For example, 	Bianchi would ask
Wright 	what 	project 	she 	was 	working 	on and whether 	the 	assignment
was 	on time. 	Wright believed that 	these 	incidents, 	plus her
refusal 	to 	join the Association, 	caused Bianchi 	to maintain a
file on her. 	Wright 	felt 	that 	the purpose of 	that 	file was 	"to
place my 	job 	in jeopardy." 	It was 	for these 	reasons 	that Wright
indicated she brought 	the matter to Meil's 	attention, 	even though
there was 	no 	specific 	action which 	occurred on or 	immediately
prior 	to her 	conversation with Meil. 	Wright 	testified that 	she
was 	unhappy about 	Bianchi's 	instructions 	regarding 	office
etiquette. 	Wright 	felt 	that Bianchi's 	tone was authoritarian and
confrontational 	and 	that 	Bianchi 	assumed a de 	facto 	supervisory
role 	and became 	angry when Wright 	did not 	acquiesce 	to 	that
status.
In addition, 	Wright 	testified that 	she 	spoke 	to both Michael
Branham 	(Branham), 	District personnel director, 	and his
secretary, 	Kellie Fulton, 	about 	the extent 	to which Bianchi would
have 	input 	into Wright's 	evaluation and 	the 	question of 	whether
4A1though Bianchi 	had performed 	the 	year-end 	inventory 	in
past years, 	Wright's 	job description listed it as 	one 	of her
duties.
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Wright 	successfully passed 	her probationary period. 	Branham
assured Wright 	that 	such decisions 	would be made by 	the District
and that 	Bianchi was 	not 	a party 	to 	that procedure.
Wright 	also 	called Branham regarding 	the meaning 	of 	a
recently 	implemented agency 	fee provision. 	During 	this
conversation, 	Wright 	expressed concerns 	about 	Bianchi 	harassing
her 	regarding 	the 	choice 	of 	paying Association dues 	or a 	service
fee.5
On May 26, 	1995, 	Meil 	summoned Bianchi 	to a meeting in his
office. 	Meil 	informed Bianchi 	that 	she 	could bring an
Association representative. 	Bianchi and her representative, 	Lisa
Lucero, 	attended the meeting, 	at which time Meil 	read the
following 	letter:
It 	has 	been brought 	to my attention by Carole
Wright 	that 	she 	feels 	harassed and
intimidated by you 	for 	the 	following 	reasons:
1. 	You have mentioned to her on more 	than
one 	occasion while on district 	time,
that 	Carole's union dues 	need to be paid
and 	the process 	for payment.
2. 	When Carole 	has been given permission by
administration 	to go 	to 	the 	district
office, 	you made her feel 	uncomfortable
by asking why she 	is 	going and what
reports 	she 	is providing the district.
3. 	During the past year, 	you have told
Carole 	[that] 	you would play a part 	in
her 	evaluation because 	you wrote 	her a
letter of 	recommendation.
5The 	CBA required Wright 	to pay: 	(1) 	the Association's
membership fee; 	(2) 	a service agency fee; 	or 	(3) 	a charitable
contribution. 	Wright 	chose 	to 	contribute 	to a non-profit
organization.
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4. 	Carole 	feels 	intimated 	[sic] 	by your
comments 	about 	the 	textbook 	inventory.
5. 	Carole 	feels 	harassed by your statements
that you are going 	to keep a 	log of 	her
telephone 	calls, 	and the 	time she goes
to and returns 	from lunch.
Carole 	states 	that 	she 	feels 	uncomfortable,
intimidated, 	and harassed by your 	remarks,
comments 	and implied threats.
You are directed to 	cease harassing, 	threatening
and 	intimidating 	Carole Wright 	at 	work.
A copy of 	this memo will 	be placed 	in your
personnel 	file. 	You may respond 	in writing
within ten days. 	[Emphasis 	in original.]
After 	reading 	the 	letter of 	reprimand, 	Meil 	terminated the
meeting without 	further discussion. 	Meil 	did not 	reference
Wright's May 24 	letter or provide Bianchi 	a 	copy thereof.
At 	the hearing, 	Meil 	testified that 	he did not 	discuss
Wright's 	letter with Bianchi 	before 	issuing 	the 	letter of
reprimand because:
. 	. 	. At the time I didn't discuss it with
her because 	I 	felt 	she was using District
time 	to do Union business 	and so 	that was 	a
primary function in terms 	of 	that, 	that's
what 	I gleaned out of that, 	so I didn't
discuss 	it with her.
When asked how he 	knew Wright's 	allegations were 	true, 	Meil
responded:
In terms 	of reading that, 	in terms of
discussion, 	that was 	one of 	the things when
she 	started 	orally 	talking 	to me 	about 	before
she wrote this.
After a discussion between 	the ALJ and 	the parties'
attorneys, 	Meil was 	given another opportunity to answer the
11

question. 	He 	stated:
Because 	I 	felt 	I needed to get a response 	in
writing 	to 	that 	allegation.
On June 5, 	1995, 	Bianchi responded, 	in writing, 	to Meil's
letter. 	Her opening paragraphs 	stated:
I was quite shocked, 	and surprised, 	to be
informed by your letter of May 26, 	1995, 	that
Carol 	Wright 	feels 	harassed and 	intimidated
by me. 	However, 	what 	I 	find even more
remarkable 	is your stated 	conclusions 	that 	I
have, 	in fact, 	harassed, 	threatened, 	and
intimidated another 	employee.
Your 	letter 	clearly 	indicates 	that you have
determined 	I 	am guilty of 	the 	stated 	offenses
without 	conducting any 	investigation, 	or
attempting 	to obtain my version of 	the 	facts.
It 	appears 	that 	any requirement 	of 	due
process 	has been tossed aside.
I 	am particularly 	concerned with 	the 	fact
that 	the 	referenced memo 	is 	being placed 	in
my personnel 	file. 	I 	can see no other reason
for such, 	except as 	the 	initiation of
disciplinary action under Articles 	XXII 	and
IX of 	the 	Classified Contract. 	Placement 	in
my personnel 	file 	and the 	10 	day response
time 	clearly 	indicate your 	subversive
purpose.
I 	have 	no 	recollection 	in my years 	of 	service
with 	the 	School 	District 	and The Union
wherein this procedure was 	employed. 	Had
this 	sort 	of 	complaint been brought 	to your
attention regarding any other employee, 	the
issues 	would have been addressed 	in a 	less
formal, 	and less accusatorial manner. 	I am
dumbfounded as 	to why you did not 	simply 	call
me 	in to your office 	to notify me 	of 	Carol's
"feelings."
Bianchi 	then offered her 	rebuttal 	to 	each of Wright's
allegations, 	denying 	that 	she had harassed or 	intimidated Wright.
Bianchi 	objected 	that 	Meil 	had apparently 	concluded 	that 	Wright's
accusations 	were 	true 	even 	though he 	had not 	conducted any
12

investigation or asked Bianchi 	her version of 	the 	events.
At 	the hearing, 	Bianchi 	testified that 	she 	spoke 	to Wright
on only one 	occasion about 	joining 	the Association, 	and
purposefully avoided 	the 	subject 	after 	that 	because Wright 	became
so upset. 	According to Bianchi, 	this discussion occurred shortly
after she received Wright's January 6, 	1994, 	Notice of 	Intent.
Bianchi 	testified 	that 	she 	advised Wright 	to 	contact 	Branham
regarding 	the 	alternatives 	to Association membership.
Bianchi 	received performance 	evaluations 	in May of 	1994,
1995, 	and 1996. 	The 	1994 	and 1995 	evaluations were prepared and
signed by Meil. 	The 	1994 	evaluation reflected all 	ratings 	of
"Meets Expectations," 	the highest possible rating, 	with a
positive 	comment 	about 	Bianchi's 	bookkeeping and organizational
skills. 	The 	1995 	evaluation was 	signed by Meil 	on May 15, 	1995,
during 	the 	time Meil 	was 	sending Bianchi memos 	concerning her
report 	of 	safety concerns 	to 	the 	safety 	inspector. 	The
evaluation reflected all 	ratings 	of 	"Meets 	Expectations," 	with
the 	following 	comment: 	"Care 	should be 	taken around 	equipment
and objects 	to avoid injury." 	Bianchi 	responded: 	"I 	feel my
injuries 	are 	caused because 	the 	office 	isn't 	safe. 	Storage 	etc.
isn't provided and lots 	of 	times people 	run 	into others because
of 	the 	cramped spaces." 	Bianchi 	signed the evaluation on May 24,
1995, 	just 	two days before 	the meeting with Meil 	concerning the
alleged harassment 	of Wright. 	The 	1996 	evaluation again
reflected all 	ratings 	of 	"Meets 	Expectations" 	with the 	following
comment 	included: 	"Doing excellent work, 	keep it up."
13

ALJ'S 	DECISION
The ALJ 	found that 	the District 	issued the 	two May 	10, 	1995
memoranda and the May 26, 	1995 	letter of 	reprimand to Bianchi 	in
retaliation for her protected activities. 	Accordingly, 	the ALJ
found 	that 	the District's 	conduct violated EERA section
3543.5(a). 	The ALJ 	found that both reprisal violations 	also
interfered with 	the Association's 	right 	to 	represent 	its members
in violation of EERA section 3543.5(b).
DISTRICT'S 	APPEAL
The District 	filed eight 	exceptions 	to 	the proposed
decision. 	These 	exceptions 	essentially challenge 	two aspects 	of
the ALJ's decision. 	First, 	the District 	contends 	that 	there was
insufficient 	evidence 	to 	demonstrate 	that Meil 	had an unlawful
motive when he 	disciplined Bianchi 	for 	reporting 	safety 	issues.
Second, 	the District argues 	that Meil 	had a 	factual basis 	for
issuing 	the 	letter 	of 	reprimand and 	that 	this 	factual 	basis
precludes 	a 	finding 	of unlawful motive.
ASSOCIATION'S 	RESPONSE
The Association 	responded 	to 	each of 	the District's
exceptions, 	arguing that 	the proposed decision 	is 	supported by
the 	facts 	and 	the 	law.
DISCUSSION
As 	the ALJ noted, 	it 	is unlawful 	for the District 	to
discriminate 	against 	an employee because 	of 	that 	employee's
exercise of protected activity. 	(EERA sec. 	3543.5(a).) 	In order
to 	establish a prima 	facie 	case 	for a discrimination violation,
14

the 	charging party must 	prove 	that 	he 	or 	she 	engaged 	in an
activity protected by the 	EERA; 	that 	the 	employer had knowledge
of 	that 	activity; 	and that 	the 	employer 	took adverse action
against 	the 	charging party because 	of 	that protected activity.
(Scotts Valley Union Elementary School 	District 	(1994) 	PERB
Decision No. 	1052 at p. 	2 	(Scotts Valley); 	Novato Unified School
District 	(1982) 	PERB Decision No. 	210 at p. 	6 	(Novato); 	Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89 at p. 	11.)
Because motivation 	is 	a 	state 	of mind which may be 	known
only to 	the actor, 	direct proof 	of unlawful motivation is 	rarely
possible. 	(See, 	e.g., 	Novato at p. 	6.) 	Accordingly, 	the Board
recognizes 	the 	following 	circumstantial 	indications 	of 	unlawful
motivation: 	(1) 	proximity in time between the participation in
protected activity and the adverse action; 	(2) 	disparate
treatment 	of 	the affected employee; 	(3) 	departure 	from
established procedures and standards; 	(4) 	inconsistent or
contradictory justifications 	for the 	employer's actions; 	and 	(5)
inadequate investigation. 	(Id. 	at p. 	7; 	Baldwin Park Unified
School District 	(1982) 	PERB Decision No. 	221 at p. 	16.) 	If a
charging party 	can demonstrate 	the 	existence 	of more 	than 	one 	of
these 	factors, 	the Board will 	infer that 	the employee's protected
activity motivated the 	employer's 	conduct. 	(Ibid.) 	The 	employer
may, 	of 	course, 	rebut 	this 	inference through evidence showing
that 	it 	would have 	taken the 	complained of action(s) 	despite 	the
employee's 	protected activity. 	(Healdsburg Union High School
District 	(1997) 	PERB Decision No. 	1185, 	proposed dec. 	at p. 	47;
15

Scotts Valley at pp. 	4- 5.)
Letter 	of 	Reprimand
Taking last 	things 	first, 	we 	find that 	the District 	issued
the May 26, 	1995 	letter of 	reprimand for discriminatory reasons.
As 	the ALJ 	found, 	Bianchi 	was 	engaged 	in ample protected
activities, 	including her presidency of 	the Association and her
filing of 	a grievance challenging the May 10, 	1995 memoranda.
(Chula Vista 	Elementary School 	District 	(1997) 	PERB Decision
No. 	1232 	at p. 	4 	(representing members 	of 	employee organization
is protected activity); 	Los Angeles Community College District
(1995) 	PERB Decision No. 	1091 at p. 	11 	(filing grievances and
participating 	in employee 	organizational 	activities 	is 	protected
activity).) 	It 	is uncontested that 	the District knew of 	these
protected activities. 	Accordingly, 	we 	turn our attention to the
issue of motive.
As 	the ALJ 	found, 	Meil 	issued the 	letter of 	reprimand at 	the
same 	time 	that 	Bianchi was 	pursuing her grievance 	over 	the
May 10, 	1995 memoranda. 	In addition, 	we agree with the ALJ's
finding 	that 	Meil 	based 	the 	letter 	of 	reprimand 	solely on
Wright's version of 	the 	events 	in question, 	without 	interviewing
Bianchi 	or any other member of 	the office 	staff. 	Taken together,
we 	find 	that Meil's 	failure 	to 	complete 	a 	thorough 	investigation,
coupled with the 	timing of 	the 	letter of 	reprimand, 	is 	sufficient
to 	support 	an inference 	of 	unlawful motive. 	Because 	the District
failed 	to present 	evidence 	demonstrating 	that 	it 	would have
issued 	the 	letter 	of 	reprimand despite 	Bianchi's 	protected
16

activity, 	we 	concur in the ALJ's holding that 	the District
violated EERA section 3543.5(a) 	and 	(b) 	when it 	issued the
May 26, 	1995 	letter of reprimand.6
Safety 	Complaint
We also 	concur with 	the ALJ's 	finding 	that 	the District
issued 	the May 	10, 	1995 	memoranda 	in retaliation 	for Bianchi's
protected activities. 	We take this 	opportunity, 	however, 	to
address 	an issue 	of 	first 	impression.
The 	Board has 	long held 	that 	an employee's 	pursuit 	of 	a
safety-related 	complaint 	through his 	or her union 	is 	protected by
the EERA. 	(Regents 	of 	the University of 	California 	(1983) 	PERB
Decision No. 	319-H at p. 	15, 	fn. 	6.) 	Likewise, 	EERA protects
employees' 	right 	to report 	safety concerns 	to their employer.
(Los Angeles Unified School District 	(1995) 	PERB Decision No.
1129, 	proposed dec. 	at p. 	8; 	Pleasant Valley School District
(1988) 	PERB Decision No. 	708 at p. 	15 	(noting that EERA section
3543 	protects 	employee's 	right 	to 	represent 	him/herself 	in
employment 	relations with the 	employer).)7 The Board has never
60n appeal, 	the District 	contends 	that 	the letter of
reprimand was 	proper because 	Bianchi 	later admitted 	that 	she 	had
discussed Association business 	during work hours 	on 	one 	occasion.
The District's 	argument 	is unpersuasive. 	The mere 	fact 	that 	some
of 	the allegations 	in 	the 	letter of 	reprimand were 	later shown 	to
be 	accurate 	does 	not 	excuse Meil's 	failure 	to perform an adequate
investigation. 	The District has 	failed to rebut 	the 	inference of
unlawful 	motivation.
7EERA section 3543 provides, 	in relevant 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
17

specifically ruled, 	however, 	on the 	issue of whether EERA
protects 	the 	right 	of an 	individual 	employee 	to 	subsequently
report 	safety 	concerns 	to a 	third party.
As 	noted above, 	the 	CBA between the Association and the
District 	provides 	that 	employees 	shall 	report 	unsafe working
conditions 	to 	their 	immediate 	supervisor. 	Association president
Bianchi 	complied with 	the 	CBA by 	consistently 	reporting 	safety
issues, 	including 	those ultimately delivered to 	the 	safety
inspector, 	during 	administrative/staff meetings 	held by Meil 	and
his predecessor. 	Thereafter, 	when approached by the 	safety
inspector, 	Bianchi provided a 	list 	of 	safety issues 	which had not
yet 	been 	resolved 	to her 	satisfaction.
Based on the 	totality of 	the 	circumstances 	in this 	case, 	we
find 	that 	Bianchi's 	report 	to 	the 	safety 	inspector was 	consistent
with 	the parties' 	CBA and was 	an extension of 	her attempts 	to
resolve 	these 	issues 	through 	the Association and 	the District.
Accordingly, 	we 	find that Bianchi's 	report 	to 	the 	safety
inspector 	constituted participation 	in 	the 	activities 	of 	an
employee 	organization within 	the meaning 	of 	EERA section 	3543.8
representation on all matters 	of 	employer-
employee 	relations. 	Public 	school 	employees
shall 	also have 	the 	right 	to 	refuse 	to 	join
or participate 	in the activities 	of 	employee
organizations 	and shall 	have 	the 	right 	to
represent 	themselves 	individually 	in 	their
employment 	relations 	with the 	public 	school
employer.
8We note 	that 	this 	result 	is 	consistent with National 	Labor
Relations 	Board 	(NLRB) 	precedent protecting 	employee 	complaints
to employers, 	as well as 	to third parties, 	when those complaints
are a 	logical 	continuation of 	group activity. 	(Transport
18

Since 	the District 	took adverse 	action against 	Bianchi 	in direct
response 	to 	this 	protected activity, 	the District's 	action
violated EERA section 3543.5(a) 	and 	(b).
CONCLUSION
The 	Board 	finds 	that 	Bianchi's 	conduct 	in reporting 	safety-
issues 	to 	the District's 	worker's 	compensation 	insurance
investigator was 	protected 	and 	that 	the 	District 	violated 	EERA
section 3543.5(a) 	when it disciplined Bianchi 	for that 	conduct.
The 	Board also affirms 	the ALJ's 	finding 	that 	the 	District
violated EERA section 3543.5(a) 	when it 	issued the May 26, 	1995
letter of 	reprimand 	to Bianchi 	because 	of 	her protected 	conduct.
The District's 	conduct 	also denied 	the Association 	its 	right 	to
represent 	its members 	in violation of EERA section 3543.5(b).
America. 	Inc. 	(1996) 	320 NLRB 882, 	888 	[153 LRRM 1048] 	(noting
that 	individual 	complaint 	protected as 	continuation of 	group
complaints made during staff meetings); 	Salisbury Hotel 	(1987)
283 NLRB 	685, 	687 	[125 LRRM 1020] 	(holding that 	individual's
report 	to Department 	of 	Labor protected because 	it 	was 	logical
extension of group complaints); 	Consumers Power Co. 	(1986) 	282
NLRB 130, 	131-132 	[123 	LRRM 1305] 	(finding that 	individual
employee's 	complaint 	was 	concerted and 	therefore 	protected
because 	it was 	continuation of 	employee 	discussions 	during 	staff
meetings); 	cf. Meyers Industries. 	(1984) 	268 NLRB 493, 	497
[115 	LRRM 1025] 	(finding 	individual's 	action lacked protection
because 	it was undertaken alone and 	for 	sole benefit 	of 	the
employee).) 	Although the 	language 	of 	the 	EERA is 	not 	identical
to that of 	the National 	labor Relations Act 	(NLRA), 	the Board may
look to 	the NLRB's 	construction of various 	provisions 	of 	the NLRA
for guidance 	in 	interpreting 	similar 	sections 	of 	the various
public employment 	relations 	statutes. 	(See, 	e.g., 	McPherson v.
Public Employment Relations Bd. 	(1987) 	189 	Cal.App.3d 293, 	311
(holding that, 	despite differences 	in statutory language, 	PERB
was 	not 	justified 	in departing 	from NLRB precedent 	establishing
parameters of protected conduct); 	Modesto City Schools 	(19 83)
PERB Decision No. 	291 at pp. 	61-62.)
19

ORDER
Based upon the 	findings of 	fact, 	conclusions 	of 	law, 	and the
entire 	record in this 	case, 	it 	is 	found that 	the Oakdale Union
Elementary School 	District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA), 	Government Code section
3543.5(a) and (b).
Pursuant to section 3541.5(c) 	of the EERA, 	it 	is hereby
ORDERED that 	the District, 	its administrators, 	and
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Issuing sequential memoranda 	to Denise Bianchi
(Bianchi) 	regarding her preparation and transmittal 	of 	a 	list 	of
unsafe working 	conditions 	at 	her work site 	to 	the District's
worker's 	compensation insurance 	carrier 	(safety 	inspector);
2. 	Issuing a 	letter of 	reprimand to Bianchi 	regarding
allegations made by Carolyn Wright 	(Wright); 	and
3. 	Denying the 	California School 	Employees
Association and 	its 	Oakdale 	Elementary 	Chapter 	685 	the 	right 	to
represent 	its unit members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	PURPOSES 	OF THE 	EERA:
1. 	Destroy all 	copies 	in District 	files 	of 	the 	two
sequential memoranda, 	dated May 10, 	1995, 	issued by Principal
Kenneth Meil 	(Meil) 	to Bianchi 	regarding a 	list 	of unsafe working
conditions.
20

2. 	Destroy all 	copies 	of 	a 	letter of 	reprimand 	issued
by Meil 	to Bianchi 	on May 26, 	1995, 	regarding allegations made by
Wright.
3. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no longer subject 	to reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	classified 	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 	it will 	comply with the 	terms 	of
this 	Order. 	Such posting 	shall 	be maintained 	for a period of
thirty 	(30) 	consecutive workdays. 	Reasonable steps 	shall be
taken to 	insure 	that 	this Notice 	is not 	reduced in size, 	altered,
defaced 	or 	covered by any 	other material.
4. 	Written notification of 	the actions 	taken to
comply with 	this 	Order shall 	be made 	to 	the 	Sacramento Regional
Director 	in accordance with the director's 	instructions. 	All
reports 	to 	the 	director 	shall 	be 	concurrently 	served on 	the
charging 	party 	herein.
All 	other aspects 	of 	the 	charge and 	complaint 	are DISMISSED.
Member Johnson joined 	in 	this 	Decision.
Chairman Caffrey's 	concurrence 	and dissent begins 	on page 	22.
21

CAFFREY, 	Chairman, 	concurring and dissenting: 	I dissent
from the 	finding 	that 	the 	Oakdale Union Elementary 	School
District 	(District) 	violated section 3543.5(a) 	and 	(b) 	of 	the
Educational 	Employment Relations Act 	(EERA) 	when it 	issued two
memoranda dated May 10, 	1995, 	to Denise Bianchi 	(Bianchi)
concerning her 	report 	of 	safety 	concerns 	to a party 	outside 	of
the employment 	relationship. 	I 	concur in the 	finding that 	the
District violated EERA section 3543.5(a) 	and 	(b) 	when it 	issued a
disciplinary letter dated May 26, 	1995, 	to Bianchi 	for allegedly
harassing and intimidating employee Carolyn J. 	Wright 	(Wright).
DISCUSSION
In 	order 	to 	establish 	that 	an employer has 	engaged 	in
unlawful 	reprisal 	or discrimination 	in violation 	of 	EERA
section 3543.5, 	the 	charging party must 	demonstrate 	that 	the
employee 	engaged 	in protected activity; 	the 	employer was 	aware 	of
that activity; 	the 	employer took action adverse 	to the 	employee;
and 	the 	employer's 	conduct 	was motivated by 	the 	employee's
protected conduct. 	(Novato Unified School District 	(1982) 	PERB
Decision No. 	210 	(Novato).) 	The California School 	Employees
Association and 	its 	Oakdale 	Elementary 	Chapter 	685 	(Association)
alleges 	that 	the District 	engaged 	in unlawful 	reprisal 	against
Association 	President 	Bianchi 	when 	it 	issued two memoranda dated
May 10, 	1995, 	to her concerning her report of safety concerns 	to
an outside party; 	and when 	it 	issued a disciplinary 	letter to her
on May 26, 	1995, 	alleging that 	she had harassed and intimidated
another employee.
22

Safety 	Report
The 	record 	in this 	case 	reveals 	that 	Bianchi 	and other
employees 	complained about 	safety 	concerns 	on 	several 	occasions
during 	administrative/staff 	meetings 	conducted by 	school
principal 	Kenneth Meil 	(Meil). 	Dissatisfied with the District's
response, 	Bianchi on April 	13, 	1995, 	presented a list of safety
concerns 	to an 	inspector 	employed by 	the District's 	workers'
compensation 	insurance 	carrier who happened 	to be 	at 	the 	school
where Bianchi worked. 	In doing so, 	Bianchi 	requested and
received a promise 	of 	anonymity 	from the 	inspector. 	Nonetheless,
Meil 	became aware 	that Bianchi 	had given the 	list 	to 	the
inspector. 	As a result, 	he sent her a May 10, 	1995, 	memorandum
reprimanding her 	for providing 	the 	list 	without 	first 	notifying
him of 	the 	concerns. 	Bianchi 	filed a grievance and Meil
subsequently 	replaced 	that memorandum with another, 	also 	dated
May 10, 	1995, 	advising Bianchi 	to bring future safety concerns 	to
his 	attention 	immediately. 	The Association alleges 	that 	the Meil
memoranda 	constitute unlawful 	reprisal 	against 	Bianchi 	for her
exercise 	of 	protected 	conduct.
Applying the Novato test 	to these circumstances, 	it 	is 	clear
that 	the District 	took adverse action against Bianchi 	in the 	form
of 	the 	two May 10 memoranda. 	It 	is 	equally clear that 	the
conduct was motivated by, 	and a direct 	result 	of, 	Bianchi's
action of 	giving 	the 	list 	of 	safety complaints 	to 	the 	inspector
without providing a 	copy to Meil. 	There 	is 	no assertion in the
record 	that 	the 	adverse 	action was motivated by 	the 	fact 	that
23

Bianchi 	raised 	safety concerns 	at 	administrative/staff meetings,
or 	that 	it 	was motivated by Bianchi's 	role as Association
President. 	The District 	took adverse action against Bianchi
because 	she 	reported her safety concerns 	to an outside party, 	an
insurance 	company 	inspector, 	and did not notify the District.
The question, 	therefore, 	is whether the EERA gives Bianchi 	the
protected 	right 	to make 	a 	safety 	complaint 	to 	a party outside 	of
the 	employer-employee 	relationship.
As 	the majority notes, 	the Board has 	never specifically
addressed 	itself 	to 	this 	question, 	but 	has 	concluded that 	EERA
protects 	an employee's 	right 	to 	report 	safety 	concerns 	to 	the
employer. 	(Pleasant Valley School District 	(19 88) 	PERB Decision
No. 	708; 	Los Angeles Unified School District 	(1992) 	PERB Decision
No. 	957; 	Los Angeles Unified School District 	(1995) 	PERB Decision
No. 	1129.) 	In considering Bianchi's actions, 	the majority
concludes 	that 	her providing 	the 	list 	of 	safety concerns 	to 	the
inspector:
. 	. 	. 	was an extension of her attempts to
resolve 	these 	issues 	through 	the Association
and the District. 	Accordingly, 	we 	find that
Bianchi's 	report 	to 	the 	safety 	inspector
constituted participation 	in 	the 	activities
of 	an employee 	organization within the
meaning 	of 	EERA section 3543. 	[Footnote
omitted.]
I 	disagree with 	this 	conclusion.
EERA section 3543 	provides 	public 	school 	employees 	with 	the
right 	to be 	represented 	"on all 	matters 	of 	employer-employee
relations," 	the 	fundamental purpose of EERA. 	It 	is axiomatic
that 	the 	representational 	rights 	and obligations 	conferred 	on
24

parties 	under 	EERA arise 	within 	the 	employer-employee
relationship. 	There 	is 	no provision of 	EERA which mandates 	that
EERA protections 	and 	representational 	rights 	extend 	to 	employees
pursuing 	issues 	relating 	to 	terms 	and 	conditions 	of 	employment
outside 	of 	that 	relationship. 	In my view, 	extending these EERA
rights 	beyond 	the 	employer-employee 	relationship 	is 	a policy 	the
Board 	should 	consider 	only when 	it 	is 	clearly necessary 	to
support 	the 	bargaining and dispute 	resolution process 	between 	the
parties, 	which EERA seeks 	to promote.
In this 	case, 	it 	is 	inappropriate 	to extend EERA protection
to 	conduct 	outside 	of 	the 	employment 	relationship. 	The 	record
includes 	only 	sketchy 	information 	regarding 	the 	safety 	concerns
raised by Bianchi 	and ultimately given 	to 	the 	inspector by her.
Among 	the 	listed concerns 	were 	inadequate 	shelving, 	heavy 	items
in the 	front 	of 	cupboards, 	sharp desk corners 	and a 	snagging
carpet, 	somewhat 	common office 	conditions which may or may not
pose 	serious 	safety hazards. 	Other concerns 	- 	improper drainage
from the 	school 	nurse's 	office 	- 	raise more significant 	issues,
but 	the 	record does 	not 	provide 	enough 	information 	to 	form an
accurate 	impression of 	the nature and scope 	of 	these problems.
It 	is also unclear what action, 	if any, 	the District has 	taken to
address 	these 	concerns. 	In order 	to 	consider extending EERA
protection to an employee's pursuit 	of 	safety 	concerns 	outside 	of
the 	employment 	relationship, 	there must be a showing 	that 	those
concerns 	are 	objectively valid and 	serious, 	not merely serious 	in
the 	subjective view of 	the 	employee.
25

Additionally, 	it appears 	that Bianchi acted on impulse and
alone when she presented the 	list 	of 	safety concerns 	to 	the
insurance 	inspector. 	There 	is 	no 	indication that 	Bianchi planned
her actions 	in advance, 	acted on behalf 	of any other employee,
or, 	for that matter, 	that any other employee was even aware of
her actions. 	I do not believe 	that 	the participation in the
activities 	of 	an employee 	organization described 	in EERA
section 	3543 	is 	intended 	to 	encompass 	any unplanned 	report 	of
safety 	concerns 	to an 	entity outside 	of 	the 	employment
relationship by an employee 	acting alone 	and not 	on behalf 	of
other employees.
For 	these 	reasons 	I 	conclude 	that 	Bianchi's 	report 	of 	safety
concerns 	to 	a 	third party 	insurance 	inspector outside 	of 	the
employment 	relationship 	did 	not 	constitute 	EERA-protected
participation 	in 	the activities 	of 	an employee 	organization.
Since 	Bianchi's 	conduct was 	not protected by EERA, 	the District
did not violate EERA section 3543.5(a) 	and 	(b) 	when it 	responded
to 	that 	conduct 	by 	issuing Bianchi 	the 	two memoranda 	dated
May 	10, 	1995.1
I must 	comment 	briefly on 	the National 	Labor Relations 	Board
(NLRB) 	cases 	cited by the majority at 	footnote 	8 	above. 	Looking
beyond the 	obvious, 	significant 	differences between the 	relevant
1I want 	to make 	it 	clear 	that my view relates 	only 	to
protection of Bianchi's 	conduct under EERA. 	It 	is possible 	that
a 	report 	of 	safety 	concerns 	to an appropriate 	agency 	outside 	of
the 	employment 	relationship may be 	protected under 	some 	other
statutory framework, 	such as 	the California Occupational 	Safety
and Health Act, 	but 	that 	framework is 	outside of 	PERB's purview.
26

language of EERA and the National 	Labor Relations Act 	(NLRA), 	I
do not believe 	that 	the 	cases 	lend support 	to 	the majority's
position. 	Two of 	the 	cited cases 	involve no conduct 	outside 	of
the employer-employee relationship and, 	therefore, 	are
immediately distinguishable 	from the 	case at bar. 	(Consumers
Power Co. 	(1986) 	282 NLRB 130, 	131-132 	[123 LRRM 13 05]; 	Transport
America. 	Inc. 	(1996) 	320 NLRB 882, 	888 	[153 LRRM 1048].) 	In a
third 	case, 	the NLRB 	specifically 	found 	that 	an employee's
safety-related 	contact with an 	agency 	outside 	of 	the 	employment
relationship was 	not protected by the NLRA. 	(Meyers 	Industries.
Inc. 	(1984) 	268 NLRB 493, 	497 	[115 LRRM 1025].) 	In a case in
which 	the NLRB 	found an employee's 	contact 	with 	the United 	States
Department 	of 	Labor to be protected by the NLRA, 	the 	employee
took 	the 	information obtained 	in 	the 	contact 	to 	the 	employer 	to
pursue discussion of 	the employee's 	concerns. 	Additionally, 	in
taking adverse action against 	the 	employee, 	the 	employer made
statements 	indicating 	that 	it 	considered 	the 	employee's 	actions
to be union activity. 	(Salsbury Hotel 	(1987) 	283 NLRB 685, 	687
[125 	LRRM 1020].) 	There 	can be 	little question after reviewing
these 	cases 	that 	Bianchi's 	report 	of 	safety concerns 	outside 	of
the 	employment 	relationship would not 	be 	considered protected
under 	the NLRB 	standard.
Letter 	of 	Reprimand
The 	record reveals 	that a few days prior to May 24, 	1995,
Wright 	spoke 	to Meil 	and 	expressed 	concern 	that 	she was 	being
harassed by Bianchi. 	Meil 	asked Wright 	to put 	her concerns 	in
27

writing, 	which she did in a May 24, 	1995, 	letter to Meil. 	Meil
asked Bianchi 	to attend a meeting on May 26, 	1995, 	at which he
presented Bianchi 	with a 	letter 	of 	reprimand 	for harassing 	and
intimidating Wright. 	Meil 	terminated 	the meeting without
discussion, 	did not 	reference Wright's 	letter of May 24 	to him,
and did not provide a copy of 	that 	letter to Bianchi. 	The
Association alleges 	that 	the Meil 	letter of 	reprimand 	constitutes
unlawful 	reprisal 	against 	Bianchi 	for her 	exercise 	of 	protected
conduct.
Applying the Novato test 	to these circumstances, 	it 	is 	clear
that 	the 	District 	took adverse 	action against 	Bianchi 	in 	the 	form
of 	the May 26 	letter of 	reprimand. 	Unlike 	the 	safety report
issue discussed above which did not 	involve protected conduct, 	it
is 	clear with 	regard 	to 	this 	allegation 	that 	Bianchi 	did engage
in protected activity. 	The 	specific protected activity was
Bianchi's 	filing of grievances 	relating to the May 10, 	1995,
memoranda 	she 	received 	concerning 	her 	report 	of 	safety 	concerns
to 	the 	insurance 	inspector.
On May 12, 	1995, 	Bianchi 	responded to the 	first May 10
memorandum and 	informed Meil 	that 	she 	was 	filing 	a 	grievance
regarding his 	"letter and harassment 	due 	to 	reporting a 	safety
concern." 	Meil 	responded to 	the grievance 	on May 	14 	indicating
that 	the 	original 	May 	10 memorandum had been destroyed. 	However,
. . .
he gave Bianchi 	a 	replacement memorandum, 	also dated May 	10,
prompting Bianchi 	to 	file a grievance appeal 	on May 	19
challenging the 	second May 10 memorandum. 	Bianchi's pursuit 	of
28

grievances 	concerning 	the May 	10 	memoranda 	she 	received as 	a
result 	of 	the 	safety report 	to 	the 	insurance 	inspector 	clearly
was protected conduct. 	(North Sacramento School 	District 	(1982)
PERB Decision No. 	264.)
Since 	the District 	was 	obviously aware 	of 	Bianchi's
protected activity, 	the 	question 	is 	whether the District's 	action
in giving Bianchi 	the May 26 	letter of 	reprimand was 	motivated by
her 	filing of 	grievances.
Direct proof 	of unlawful motivation is not 	often present.
The Board reviews 	the 	record as 	a whole 	to determine 	if 	the
inference 	of unlawful motive 	should be 	drawn. 	Factors 	that may
support 	such an 	inference 	are 	the 	timing 	of 	the 	employer's
adverse 	action 	in 	relation 	to 	the 	employee's protected 	conduct;
disparate 	treatment 	of 	employees 	engaged 	in protected activities;
the 	employer's 	departure 	from established procedures; 	the
employer's 	inconsistent 	or 	shifting 	justification 	for 	the
conduct; 	and the employer's 	failure 	to 	investigate 	charges 	of
improper 	activity before 	imposing 	a penalty against 	an 	employee
engaged 	in protected conduct. 	(Novato; 	Riverside Unified School
District 	(1987) 	PERB Decision No. 	639.)
The 	record 	contains 	ample 	evidence 	from which 	to 	conclude
that 	the District's May 26 	letter of 	reprimand to Bianchi was
motivated by 	her protected 	conduct.
First, 	the evidence 	relating to 	the 	timing 	factor is
compelling. 	Within a period of 	seven days 	from May 	12 	to May 19,
Bianchi 	grieved 	the 	original May 	10 	letter 	from Meil 	concerning
29

the 	safety 	report; 	Meil 	responded by destroying 	that memorandum
and replacing 	it with another dated May 	10; 	and Bianchi 	responded
that 	the 	second memorandum was 	also unacceptable 	and 	filed a
grievance appeal. 	At approximately the same time, 	Wright
complained to Meil 	about Bianchi harassing her. 	It was 	at 	this
point, 	as Meil 	faced the prospects 	of Bianchi's 	continued,
successful 	pursuit 	of 	grievances 	relating 	to his May 	10
memoranda, 	that 	he 	sent 	the May 26 	letter of 	reprimand to Bianchi
based on Wright's 	complaint.
Second, 	Meil 	conducted no 	investigation or review of
Wright's 	complaints 	about Bianchi, 	did not provide Bianchi with a
copy of Wright's 	complaint memorandum, 	and offered Bianchi 	no
opportunity 	to 	respond to 	the 	complaint 	before 	deciding 	to
present 	her with 	the May 26 	written 	reprimand.
Third, 	in his 	testimony, 	Meil 	offered inconsistent, 	shifting
explanations 	for his 	handling 	of 	the Wright 	complaint 	and
issuance 	of 	the May 26 	letter of 	reprimand to Bianchi.
I 	infer 	from the 	close 	temporal 	proximity 	of 	the 	employee's
protected conduct 	and the 	employer's 	adverse action, 	from the
employer's 	failure 	to 	investigate 	the 	charge of misconduct before
imposing adverse action, 	and from the 	employer's 	inconsistent
explanations of his conduct, 	that the May 26, 	1995, 	letter of
reprimand Meil 	sent 	to Bianchi 	was 	motivated by Bianchi's
protected filing and pursuit of grievances. 	Therefore, 	the
District violated EERA section 3543.5(a) 	and 	(b) 	when it 	issued
the May 26, 	1995, 	letter of reprimand to Bianchi.
30

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SA-CE-1703,
California 	School 	Employees 	Association and 	its 	Oakdale
Elementary Chapter 	685 	v. 	Oakdale Union Elementary School
District, 	in which all parties had the 	right 	to participate, 	it
has 	been 	found 	that 	the 	Oakdale 	Union 	Elementary 	School 	District
(District) 	violated 	the 	Educational 	Employment 	Relations Act
(EERA), 	Government Code section 3543.5(a) 	and 	(b).
As 	a 	result 	of 	this 	conduct, 	we have been ordered 	to post
this 	Notice 	and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Issuing 	sequential 	memoranda 	to Denise 	Bianchi
(Bianchi) 	regarding her preparation and 	transmittal 	of 	a 	list 	of
unsafe working 	conditions 	at 	her work 	site 	to 	the District's
worker's 	compensation 	insurance 	carrier 	(safety 	inspector);
2. 	Issuing a 	letter 	of 	reprimand to Bianchi 	regarding
allegations made by Carolyn Wright 	(Wright); 	and
3. 	Denying 	the 	California 	School 	Employees
Association and 	its 	Oakdale 	Elementary Chapter 	685 	the 	right 	to
represent 	its 	unit members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF THE 	EERA:
1. 	Destroy all 	copies 	in District 	files 	of 	the 	two
sequential memoranda, 	dated May 10, 	1995, 	issued by Principal
Kenneth Meil 	(Meil) 	to Bianchi 	regarding a 	list 	of unsafe working
conditions.
2. 	Destroy all 	copies 	of 	a 	letter of 	reprimand 	issued
by Meil 	to Bianchi 	on May 26, 	1995, 	regarding allegations made by
Wright.
Dated: 	OAKDALE 	UNION 	ELEMENTARY
SCHOOL 	DISTRICT
By:. Authorized 	Agent
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE 	OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.