Santa Clara County Superintendent of Schools (PERB 0065E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 715,
Charging 	Party,
v.
SANTA CLARA COUNTY 	SUPERINTENDENT
OF SCHOOLS,
Respondent.
Case No. 	SF-CE-82
PERB 	Decision 	No. 	65
August 16,1978
Appearances; 	Robert J. 	Bezemek, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	& Roger) 	for 	Service 	Employees 	International Union,
Local 715; 	Richard J. 	Loftus, 	Jr. 	(Paterson and Taggart) 	for
Santa 	Clara 	County 	Superintendent 	of 	Schools.
Before Gluck, 	Chairperson; 	Gonzales 	and Cossack Twohey, Members.
DECISION
This 	case 	is 	before 	the 	Public Employment Relations. Board on
exceptions 	to 	the 	attached 	hearing 	officer's 	recommended
decision. 	Service Employees 	International Union, 	Local 	715
excepts 	to 	the 	conclusions 	of 	law 	that 	Santa Clara 	County
Superintendent 	of 	Schools 	did 	not 	violate 	section 	3343.5(a) 	of
the 	Educational 	Employment 	Relations 	Act 	by 	transferring
Arthur 	Gonzales 	from his 	position as 	bus 	driver, 	and 	by 	failing
to 	grant 	a bus 	driver's 	permit 	to Carole Cheshier 	and 	removing
her 	from her position as 	bus 	driver. 	It 	also excepts 	to the
recommended 	order 	that 	the 	unfair 	practice 	charge 	be 	dismissed.
1/Gov. Code sec. 3540 et seq.
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We 	have 	considered 	the 	record 	and 	the 	proposed 	decision 	in
light 	of 	the 	exceptions 	and 	briefs. 	We 	affirm 	the 	proposed
findings 	of 	fact, 	discussion 	and 	conclusions 	of 	law, 	and 	adopt
the 	recommended 	order 	insofar 	as 	it 	dismisses 	the 	unfair
practice 	charge .
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that:
The 	unfair 	practice 	charge 	filed 	by 	the 	Service 	Employees
International 	Union, 	Local 	715 	against 	the 	Santa 	Clara 	County
Superintendent 	of 	Schools 	is 	dismissed.
By 	Raymond 	J.Gonzales, 	Member 	Harry 	Gluck, 	Chairperson
Jerilou Cossack Twohey, 	Member	.!
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:_ 	I.I -

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STATE OF 	CALIFORNIA
EDUCATIONAL 	EMPLOYMENT RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 715,
Employee Organization,
vs.
SANTA CLARA COUNTY 	SUPERINTENDENT
OF 	SCHOOLS,
Employer.
CASE NO. 	SF-CE-82
Appearances: 	Robert J. 	Bezemek, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	and Roger) 	for 	Service Employees 	International Union,
Local 715; 	Richard J. 	Loftus, 	Jr. 	(Paterson and Taggart) 	for
Santa 	Clara County 	Superintendent 	of 	Schools.
Before Michael J. 	Tonsing, 	Hearing Officer.
STATEMENT OF 	THE CASE AND 	ISSUES
On April 14, 	1977, 	Service Employees International Union,
Local 	715 	(SEIU) 	filed 	the 	above-captioned 	unfair 	practice
charge, 	alleging 	in substance 	(1) 	that on March 30, 	1977
Arthur 	Gonzales was 	transferred 	from his position 	as 	a 	school
bus 	driver 	with 	the Office 	of 	the 	Santa Clara County
Superintendent of 	Schools 	(Employer) 	because of 	his
organizational activities, 	and 	(2) 	that on or 	about
February 1, 	1977, 	Carole Cheshier 	was 	suspended 	and 	terminated
as 	a bus driver with the Employer, 	also on account of her
organizational 	activities. 	The Employer 	filed 	an 	answer 	to 	the
charge on May 	2, 	1977, 	denying that 	its actions were
discriminatorily motivated 	and alleging 	(1) 	that Mr. 	Gonzales
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was 	transferred because he was uninsurable as a bus driver, 	and
(2) 	that Ms. 	Cheshier 	never had been suspended or 	terminated.
An 	informal conference was held on May 19, 	1977. 	The parties
were unable to reach an agreement, 	and a formal hearing was
held on July 27-29, 	1977.l The following 	issues were
addressed 	at 	the hearing:
1. 	Whether 	the Employer's 	transfer of Mr. 	Gonzales
was 	an 	act of 	discrimination based on his organizational
activities 	and 	therefore violative of Section 	3543.5(a) 	of 	the
EERA;
2. 	Whether 	the Employer's 	alleged action with 	respect
to Ms. 	Cheshier was an act of discrimination based on her
organizational activities 	and 	therefore 	violative of 	Section
3543.5(a) 	of the EERA.
FINDINGS OF FACT
Transfer 	of Arthur 	Gonzales
Arthur Gonzales was hired 	in November 	of 	1974 as 	a
transportation driver 	with 	the North County Regional
Occupational Program 	(NCROP) 	of the Employer. 	He applied for
and received 	a county bus 	driving permit before beginning his
job as 	a driver. 	His 	responsibilities 	included transporting
students 	to 	county vocational 	centers 	and county vehicles. 	He
underwent 	a 	six month probationary period 	and 	thereafter 	received
a 	favorable review of his work. 	He was 	reemployed 	for 	the
1975-76 	school year 	— 	first 	as 	a 	transportation 	driver, 	then
as 	a bus driver. 	He 	received another 	favorable evaluation
during 	the course of 	that year. 	During 	the summer of 	1976,
l It was stipulated 	that 	the Employer was an employer, 	and
that SEIU was an employee organization, 	within the meaning of
the Education Employment Relations Act 	(EERA).
2

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Mr. 	Gonzales continued 	to work as a bus driver 	for 	the
Employer.
Mr. 	Gonzales was employed again 	for 	the 1976-77 	school
year with NCROP. 	He was 	assigned 	the position of 	head bus
driver 	by Ernie Hickson, 	his 	immediate supervisor. 	As head
driver, 	Mr. 	Gonzales was 	in charge of NCROP's drivers and 15
school buses. 	He was 	responsible 	for maintaining and cleaning
buses 	and keeping 	records. 	His 	rate of pay increased as 	a
result of 	his new position. 	He received a third evaluation 	in
November 	of 	1976 	from Mr. 	Hickson which rated his work as
"exceptional."
In February of 1977, Mr. 	Gonzales became involved in
the organizational drive of 	the Service Employees 	International
Union within NCROP. 	He 	called 	a meeting 	attended by 	four 	other
drivers 	and 	SEIU 	field 	representatives 	Peter 	Gautshi 	and
Bob 	Muscat.2/ 	The meeting 	took place 	in 	the board 	room of
the 	Fremont Union High School District, 	located just behind the
NCROP offices. 	Another 	similar meeting was held 	in March of
that year, 	for which Mr. 	Gonzales 	reserved NCROP meeting room
space through Mr. 	Hickson. 	Mr. Gonzales told Mr. 	Hickson that
he was 	having a meeting with Mr. 	Gautshi 	in the NCROP office,
and Mr. 	Hickson walked by as 	the meeting was 	in progress.
Mr. 	Gautshi was wearing several SEIU buttons 	at the time.
In March of 	1977 	SEIU published 	an election edition of
2/ During February there was no elected president of the SEIU
local who 	normally would 	call organizational meetings.

its 	newsletter. 	Mr. 	Gonzales placed copies of 	the newsletters
in the mail boxes of employees 	in the NCROP offices. 	The
newsletters consisted of photographs of 	and 	statements 	by
employees 	of 	the 	Employer 	who were 	supporters 	of 	SEIU.
Mr. 	Gonzales1 photograph was on page 	2, 	accompanied by the
statement,
SEIU represents 	the people 	... 	CSEA hasn't
even 	come 	to see 	us while Local 	715 	has made
sincere 	effort 	to 	bring NCROP within 	the
scope of 	collective 	bargaining.
Mr. 	Gonzales was 	the only NCROP driver 	whose
photograph 	appeared 	in 	the 	SEIU newsletter.
Mr. 	Gonzales 	also 	talked 	to other 	NCROP drivers 	about
SEIU. 	As he 	stated, 	"I was 	the one who 	initiated 	the action 	to
get 	the 	(NCROP) 	drivers 	involved 	in 	the 	union." 	He 	also signed
an SEIU authorization card on March 	17 	in 	the NCROP office.
On March 	17, 	Mr. 	Hickson held three separate one-hour
meetings with NCROP employees 	in 	the NCROP offices 	at which 	he
distributed 	copies 	of 	a 	five-year 	plan which 	discussed
long-term expansion 	of 	the Regional Occupational 	Program.4
On March 21, Mr. 	Gonzales hand-delivered a copy of 	the
3 The election occurred on May 	18, 	1977. 	California School
Employees Association won 	the 	election.
4
The evidence 	is 	in conflict as 	to whether Mr. 	Hickson stated
that 	the 	contents 	of 	the plan were 	not 	to be 	discussed with
persons outside of 	the office. 	Mr. 	Gonzales 	stated that he had
not, 	while Mr. 	Hickson testified that he had. 	Although the
alleged 	conduct of Mr. 	Gonzales 	could 	establish a motive 	for
any 	demonstrated 	hostility of 	Mr. 	Hickson distinct 	from any
alleged organizational 	bias, 	the 	hearing officer 	finds 	it
unnecessary 	to resolve 	this 	conflict 	in 	testimony. 	As 	noted
below 	(footnote 6), Mr. 	Hickson played no part in the decision
to transfer Mr. 	Gonzales, 	and Mr. 	Gonzales' 	transfer was not
based on 	his 	alleged 	disclosure 	of 	the 	five-year 	plan.
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five-year 	plan 	to Peter 	Gautshi. 	Upon 	receiving 	the plan,
Mr. 	Gautshi 	telephoned Ann Fruers, 	the Assistant Superintendent
for 	Instructional 	Services. 	He 	told 	her 	that 	he wished 	to
speak 	with whomever 	was 	responsible 	for 	developing 	the 	plan 	in
the 	event 	that 	reclassification or 	realignment 	of 	employment
positions was being considered. 	According to Mr. 	Gautshi, 	he
told Ms. 	Fruers 	that Mr. 	Gonzales 	had given the plan to him.
On March 25, Mr. 	Hickson met with Mr. 	Gonzales to
discuss Mr. 	Gonzales' 	disclosure of 	the 	five-year 	plan.
Mr. 	Hickson 	told Mr. 	Gonzales 	that 	the 	five-year 	plan was 	to
have 	been 	considered confidential 	and 	that 	it was 	intended
specifically 	for 	the operations 	committee of 	the 	Employer.
According to Mr. 	Gonzales, 	Mr. 	Hickson stated that 	if word of
Mr. 	Gonzales1 disclosure 	had gotten back 	to the operations
committee, Mr. 	Hickson would have "blown 	(Mr. 	Gonzales) 	out of
the water." 	According to Mr. 	Gonzales, 	Mr. 	Gonzales 	stated to
Mr. 	Hickson that he 	(Mr. 	Gonzales) 	would take 	"full
responsibility" 	for 	the disclosure, 	to which Mr. 	Hickson
allegedly responded, 	"You bet you will." 	Mr. 	Hickson also
allegedly said, 	"I 	don't give a shit about Local 715."
Mr. 	Hickson 	testified 	that 	his 	talk with Mr. 	Gonzales 	consisted
of 	"dressing 	him down," 	but 	he did not 	recall 	specifically
stating 	that 	he would 	"blow 	(Mr. 	Gonzales) 	out of 	the water."
On March 31, 	pursuant 	to directions by
Mr. 	Satterstrom, 	chief deputy of the Employer, Mr. 	Hickson told
Mr. 	Gonzales 	that 	he was 	being placed on 	leave with 	pay pending
investigation of 	his motor 	vehicle 	record 	(MVR) 	by the

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Employer's 	insurer. 	The 	Employer 	had 	changed 	insurers
effective March 	28, 	and 	the new company, 	National 	Indemnity,
was 	in 	the process of 	reviewing 	the MVRs of 	the Employer's 	bus
drivers, 	particularly those 	(including Mr. 	Gonzales) 	who were
under 	the age of 	25.5 	George Redington, 	the 	insurance
manager 	for 	the Employer, 	decided about March 	1, 	to 	terminate
the 	Hartford policy 	because 	the 	premiums were 	"too 	high."
Effective March 	28, 	the 	Employer 	acquired 	vehicle 	liability
insurance 	through 	National 	Indemnity.
5 The 	Employer 	changed 	insurers 	for 	its 	vehicle 	liabilities
three 	times 	during 	the 	preceding year. 	The Employer's 	insurer
during 	1976, 	St. 	Paul 	Insurance Co., 	did not renew its policy,
and 	that policy lapsed on October 	13, 	1976. 	The Employer 	went
uninsured 	from October 	13 	to January 14, 	1977. 	On the 	latter
date, 	an 	insurance 	contract with Hartford 	Insurance Company
became 	effective. 	Hartford 	examined 	the MVRs 	of 	drivers of 	the
Employer, 	but 	raised no objection 	to continuing 	the 	coverage of
Mr. 	Gonzales. 	(See discussion infra at page 15. 	fn. 	14.)
George 	Redington, 	the 	insurance manager 	for 	the Employer,
decided 	on 	about March 	1, 	to 	terminate 	the Hartford policy
because 	the premiums were 	"too high." 	Effective March 	28, 	the
Employer 	acquired 	vehicle 	liability 	insurance 	through National
Indemnity. 	On March 	29, 	Welch 	and Company 	(the managing
general 	agents 	of National 	Indemnity) 	notified William Kummer,
the 	agent who 	sold 	the 	National 	Indemnity policy 	to 	the
Employer, 	that four drivers, 	including Mr. Gonzales, were
"objectionable" 	because 	they were 	under 	the age of 	25. 	On 	that
same date, 	Mr. 	Kummer 	told Mr. 	Redington of Mr. 	Welch's
notification. 	Mr. 	Redington 	in turn notified
Mr. 	Satterstrom about National 	Indemnity's 	unwillingness 	to
insure 	the 	four 	underage drivers. 	(Hereafter, 	the word
"underage" 	describes drivers who were 	under 	the 	age of 	25
during 	the 	time 	in question.) 	Between March 29 	and 30, 	1977,
the 	insurance 	company 	decided 	after 	further 	investigation 	not
to object 	to 	insuring 	the 	three 	underage 	drivers 	aside 	from
Mr. 	Gonzales, 	because 	their 	driving 	records were 	"absolutely
clear." 	Word of 	that decision 	filtered down to Mr.
Satterstrom, 	who decided on March 	30 	that 	the problem with
respect 	to 	insuring Mr. 	Gonzales was of 	sufficient 	seriousness
to warrant 	placing 	him on 	leave 	pending 	a 	final 	determination
as 	to what 	to do. 	In any event, 	no evidence 	indicates 	that 	the
insurer's decision not 	to cover Mr. 	Gonzales was made 	because
of 	influence 	asserted 	by 	the 	Employer.

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Mr. 	Gonzales returned to work on April 1 to pick up
his pay check 	and his 	clipboard, 	which usually was 	stored 	in
the desk which he used while 	attending 	to his duties 	in 	the
NCROP office. 	The desk 	had been moved 	from the office. 	The
NCROP offices were being remodeled at the time, 	and 	it was not
unusual 	for 	furniture 	to be moved 	to facilitate 	the 	remodeling
crew. 	The clipboard, 	which had notes 	from the last
organizational meeting on 	its 	face, 	had been placed on a high
shelf 	in the office.
On that same day, 	Mr. 	Hickson telephoned Mr. 	Gonzales
and 	informed him that he was 	to 	report 	the 	following Monday,
April 4, to John Satterstrom. 	(Mr. 	Hickson did not inform
Mr. 	Gonzales 	that he had a right to be represented at the
meeting 	on 	April 	4.)
On April 4, Mr. 	Gonzales met with Mr. 	Satterstrom,
Philip 	Starke 	(the 	director 	of attendance 	and 	support
services) 	and Ann Fruers. 	Mr. 	Satterstrom never before had
taken part 	in a conference 	involving 	evaluation of 	a bus
driver's MVR.6 At the meeting, 	Mr. 	Satterstrom questioned
Mr. 	Gonzales about two MVRs which Mr. 	Satterstrom had
obtained. 	There was 	a discrepancy between the 	two MVRs 	in 	that
only one of 	them recorded an accident 	in San Bernardino. 	It
was 	established 	that 	the 	San Bernardino 	accident 	involved
another 	individual also named Arthur Gonzales. 	Mr. 	Gonzales
6 Mr. 	Hickson did not attend 	this meeting, 	and he had no part
in 	the Employer's 	subsequent decision to 	transfer
Mr. Gonzales.

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explained 	that 	the 	MVR 	containing 	the 	record of 	the 	San
Bernardino accident was 	incorrect 	in 	that 	respect. 	The
allegedly 	"correct" 	MVR contained 	the 	following 	entries:
1. 	Accident 	8/11/74 	(apparently no fault).
2. 	Moving 	violation 	3/25/75.
3. 	"Fix-it" 	citation 	(lights) 	8/6/76.
At 	the conclusion of 	the meeting, 	Mr. 	Satterstrom was
convinced 	that Mr. 	Gonzales was 	being 	discriminated 	against 	by
the 	insurer, 	and 	he 	resolved 	to 	talk with 	the Employer's
insurance 	agent 	about 	the matter. 7 The 	following day, 	he
spoke with Mr. 	Kummer 	and 	stated his opinion that Mr. 	Gonzales1
MVR was 	not 	serious 	enough 	to warrant 	the 	treatment 	to which
the 	insurer 	was 	subjecting him. 	Mr. 	Kummer 	informed
Mr. 	Satterstrom that his MVRs of Mr. 	Gonzales 	showed another
accident on June 	4, 	1976 	and 	another 	moving violation on
March 31, 	1974 which had involved Mr. Gonzales.8
On April 5, Mr. 	Gautshi 	had lunch with Mr. 	Gonzales 	in
the 	cafeteria of 	the Employer 	to discuss 	his 	being placed on
7According to the Employer, 	Mr. 	Satterstrom asked
Mr. 	Gonzales 	at 	the 	conclusion of 	the meeting whether 	he was
aware of 	any other 	driving 	violations 	or 	accidents 	in 	his
record, 	to which he purportedly responded, 	"No." 	According 	to
Mr. 	Gonzales, 	no such conversation took place. 	Since the
Employer's 	subsequent 	transfer 	of Mr. 	Gonzales was 	not 	shown 	to
have 	been 	based on 	this 	alleged misrepresentation, 	the 	hearing
officer 	finds 	it 	unnecessary 	to 	resolve 	this 	conflict 	in
testimony.
8In the 	accident of June 	4, 	Mr. 	Gonzales had been
rear-ended. 	The 	insurance company of 	the driver 	of 	the other
vehicle paid Mr. 	Gonzales 	for 	the damage done 	to his 	car.
Mr. 	Gonzales 	had 	noted 	the occurrence of 	this 	accident on his
county permit 	application 	in October 	1976. 	The 	record 	does 	not
indicate whether 	Mr. 	Satterstrom had 	before him a 	file
containing Mr. 	Gonzales' 	application during the April 	4 meeting.
8

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leave. 	During that meeting, 	Mr. 	Starke walked by their 	table.
Mr. 	Gautshi 	stated, 	"What have you guys done to declare war on
us?" 	Mr. 	Starke responded, 	"If that's 	the way you see 	it,
we'll get 	together 	after 	lunch and 	talk 	about 	it." 	During 	the
post-lunch meeting, 	according to Mr. Gautshi, Mr. 	Starke
stated, 	"Yes, 	you don't want to lose your steward Cor your only
steward] 	over there." Mr. 	Starke then stated that he had little
to do with the situation, 	and told Mr. 	Gautshi 	that he should
direct his questions to Mr. 	Redington.
On April 	5, 	Mr. 	Satterstrom received from 	Mr. 	Kummer
a copy of 	a letter 	from Mr. 	Gonzales' 	personal 	insurance agent,
Kennedy 	Insurance Agency. 	That 	letter 	indicated 	that
Mr. 	Gonzales' 	personal automobile insurance would not be
renewed 	upon 	its 	expiration on October 	3, 	1976.
Mr. 	Satterstrom did not rely on that 	information, 	however, 	in
evaluating Mr. 	Gonzales' 	employment 	status.
On April 6, 	Mr. 	Satterstrom again met with
Mr. 	Gonzales. 	Mr. 	Gonzales confirmed that he 	in fact had been
involved 	in the June 4, 	1976 	accident 	and had received another
moving violation, 	but denied 	that he had withheld 	that
information from Mr. 	Satterstrom. 	At that time, Mr. 	Gonzales
also indicated that on April 8, 	1976, 	while driving an
unoccupied bus of 	the Employer, 	he backed 	into an unoccupied
automobile. 	Information concerning 	that accident was 	not
contained 	in any of Mr. Gonzales' MVRs.
In a letter of April 7, 	Mr. 	Satterstrom informed
Mr. 	Gonzales 	that he was 	being 	removed 	from any responsibility

involving 	vehicles 	owned 	by 	the 	Employer 	because 	of 	the 	refusal
of National 	Indemnity 	to 	insure 	him. 	The 	letter 	also 	stated
that Mr. 	Satterstrom was 	directing 	the personnel office 	to make
efforts 	to find suitable employment 	for 	Mr. 	Gonzales 	at 	a
salary placement 	similar 	to 	that of 	an NCROP driver.
Mr. 	Satterstrom 	testified 	that 	he 	had 	no choice 	but 	to
remove Mr. 	Gonzales 	from his position as driver. 	He 	stated:
I 	had no other 	option. 	The 	insurance
company would 	not 	cover 	him 	and 	there was
every 	indication 	that 	they would 	not 	in 	a
matter 	that 	serious 	in 	terms of 	liability,
and 	it 	couldn't 	be 	tolerated 	to 	keep him 	in
that 	kind of a position. 	(T. 	212:20)
On April 11, 	Mr. 	Satterstrom told Mr. 	Gonzales that he
could 	be 	transferred 	to 	a 	temporary position of 	film 	inspector,
or 	that 	he 	could 	quit 	his 	employment with 	the 	Employer.
Mr. 	Gonzales 	chose 	to 	take 	the position of 	film 	inspector.
On May 3, 	Mr. 	Gonzales was 	transferred to a position
of 	film packer. 	His 	salary as 	a packer 	was 	three 	ranges 	lower
than 	his 	salary 	as 	a driver 	or 	film 	inspector. 	In addition,
Mr. 	Gonzales was not able 	to log 	in 	this position 	the
approximately 	2 	hours of 	overtime pay per 	week which 	he 	had
registered as 	a driver. 	Mr. 	Gonzales did not work as a film
packer 	during 	the 	summer 	of 	1977, 	but he 	expected 	to be
employed 	in 	that position 	for 	the 	1977-78 	school 	year.
Pursuant 	to negotiations 	conducted between Mr. 	Kummer
and Welch 	and Company, 	National 	Indemnity 	agreed 	in April or
May 	to 	insure 	drivers 	for 	the 	Employer 	who were 	between 	the
10

ages of 	22 and 25 	if 	they had 	"perfectly clean" MVRs. 	(A
points 	system was 	implemented 	in which 	a 	driver 	was 	charged
three points 	for 	being 	unmarried and 	under 	the 	age of 	30, 	and
one 	point 	for 	any moving 	violation or 	accident 	which was
assessed 	to have been 	the 	fault 	of the 	applicants. 	If a driver
accumulated more 	than 	four 	points, 	s/he would 	not 	be 	insured 	by
National 	Indemnity. 	Moving 	violations 	which occurred more 	than
approximately 	three 	years 	before 	the 	insurer's 	review of 	a
driver's MVR would not 	be 	included 	in 	the count of points.) 	In
the course of negotiations, 	Mr. 	Kummer 	asked National 	Indemnity
whether 	it would agree 	to 	insure Mr. 	Gonzales 	if 	an additional
premium were paid. 	The 	insurer 	answered 	that 	it would 	not.
The 	employer 	has 	not 	adopted 	formally 	the 	point 	system 	as
guidelines 	for 	hiring 	new drivers.
Neither Mr. 	Satterstrom, Mr. 	Redington nor Ms. 	Fruers
knew of Mr. 	Gonzales1 organizational activities 	at 	the 	time
Welch 	and Company contacted Mr. 	Kummer 	with 	respect 	to 	the
insurability of Mr. 	Gonzales. 	Mr. 	Satterstrom first 	learned of
Mr. 	Gonzales1 activities with SEIU 	"a day or 	two" 	after 	he made
the decision to transfer Mr. 	Gonzales. 	Ms. 	Fruers learned of
Mr. 	Gonzales' 	organizational activities after 	the second
meeting with Mr. 	Gonzales and Mr. 	Satterstrom. 	Ms. 	Fruers
testified 	that:
It was 	one of my conversations 	with 	Ernie Hickson
and he said, 	"you know, 	Art 	is the union
steward. 	You better 	be careful." 	And 	I 	said,
"careful?" 	What's 	that 	have 	to do with 	it?" 	And
so I was aware 	(of Mr. 	Gonzales' 	organizational
activities) 	at that point, 	but it was a
negligible 	fact as 	far 	as 	I was concerned. 	(Tr.
400:11)
11

Before making 	his 	decision 	to 	transfer 	Mr. 	Gonzales,
Mr. 	Satterstrom did not check 	the Employer's 	records 	to
determine whether 	there were other 	drivers 	under 	the 	age of 	25
whose MVRs 	had 	not 	been 	examined 	by National 	Indemnity. 	At 	the
time of Mr. 	Gonzales1 transfer, 	the Employer 	in fact had other
underage 	drivers 	in 	its 	employ 	in 	addition to 	the 	four 	whose
MVRs were 	examined 	initially. 	Mr. 	Satterstrom did not 	know of
that 	fact 	until a few days 	after 	April 	4, 	but Mr. 	Redington was
aware of 	it.9
Refusal 	to Grant Driver's 	Permit 	to Carole Cheshier
In late November 	or 	early December 	of 	1976,
Carole Cheshier 	applied 	for 	a position 	as 	bus 	driver 	with 	the
Employer. 	At approximately the same 	time, 	she applied 	to the
county for 	a bus driver's permit, 	which was 	a requirement 	for
working 	as 	a bus 	driver 	with 	the Employer.10
9As discussed below at page 15, 	fn. 	14, 	Hartford Insurance
Company 	examined 	the records of 	drivers 	for 	the Respondent 	in
February 	1977 	and 	notified 	the Employer 	that 	it 	was 	"concerned"
about 	the 	records of 	some of 	the drivers. 	Hartford's
notification, 	which 	found 	its way 	into 	the 	hands of Mr.
Redington, 	indicated 	that 	there were 	eight 	drivers with
relatively poor 	MVRs 	employed 	by 	the 	Employer. 	Four 	of 	those
eight were 	under 	the age of 	25, 	and 	the 	insurer's memorandum
indicated on 	its 	face 	that one of 	the drivers was 	19 	years of
age. 	None of 	those 	four 	underage 	drivers was 	subject 	to 	the
scrutiny of National 	Indemnity 	in March or 	April.
Mr. 	Redington 	knew 	that 	there were 	other 	underage 	drivers 	who
were 	left 	unchallenged 	by National 	Indemnity, 	but 	he 	did not
attempt 	to 	find out 	the 	reason 	for 	that.
10 Ms. 	Cheshier 	included 	in her 	permit 	application a 	list
of 	the moving 	traffic 	citations 	which 	she 	received 	over 	the
preceding 	three years. 	Since 	her 	employment 	application did
not 	require a 	listing of 	traffic citations, 	she did not 	supply
such 	a list 	to the Employer.
12

Ms. 	Cheshier 	began work on January 5, 	1977. 	She had
not 	received 	her 	county permit 	as of 	that date. 	She 	initially
was 	assigned 	to ride 	the 	bus 	routes 	with 	the 	Employer's
drivers, 	and did so for 	six 	to eight hours per 	day, 	four 	to
five days per 	week.
At 	the beginning of February, 	Ms. 	Cheshier 	still had
not 	received 	a driving permit, 	and 	she 	submitted 	another
application 	to 	the 	county.11
Ms. 	Cheshier 	continued 	to ride 	the bus 	routes 	until
February 3, 	when she was 	called 	to 	the office of
Antone 	Zoletti, 	the director 	of 	transportation 	for 	special
programs. 	Mr. 	Zoletti 	informed Ms. 	Cheshier 	that because of
the 	high number 	of 	traffic 	violations 	in 	her 	MVR, 	she would not
be 	allowed 	to drive 	"until 	the matter 	was 	cleared 	up." 12
Mr. 	Zoletti 	also told Ms. 	Cheshier 	that 	she could not continue
her 	employment with 	the Employer 	after 	that day.
11 The 	record does 	not 	show 	clearly 	the 	reason 	for 	the 	delay
in processing Ms. 	Cheshier's application. 	The County of 	Santa
Clara was 	responsible 	until 	late 	1976 	for 	determining whether
applicants 	for 	bus 	driver 	permits were qualified 	to receive
them. 	In December 	the 	responsibility 	for 	processing permits
was 	turned over 	to 	the 	Employer's Office of Administrative
Support Services. 	Apparently Ms. 	Cheshier's original
application was misplaced 	between 	the 	county offices 	and 	those
of 	the Employer.
12
On December 	6, 	a photocopy of Ms. 	Cheshier's 	initial permit
had 	been 	sent 	to Philip Starke 	by G.D. 	Shellard, 	the 	county
personnel 	employee who was 	responsible 	for 	issuing 	driving
permits. 	That photocopy was 	accompanied 	by a memorandum
stating 	"if 	this were 	a 	county employee we would 	not 	issue."
Mr. 	Starke was 	not 	responsible 	for 	processing 	the application
for 	the 	Employer.
13

The MVR of Ms. 	Cheshier, 	who was 18 years old during
the 	time she was 	employed by the Office of 	the Superintendent,
showed 	the 	following 	traffic 	violations:
1. 	Driving over 	55 miles per 	hour 	2/19/75
2. 	Violation of basic speed 	law 	5/4/75
3. 	Running red light 	11/21/75
4. 	Violation of basic speed law 	11/21/75
Peter Gautshi, 	a field representative for SEIU, 	filed
an appeal on behalf of Ms. 	Cheshier 	in March of 1977.
Mr. 	Starke provided verbally to Mr. 	Gautshi 	the criteria that
the Accident Review Board would 	follow 	in evaluating Ms.
Cheshier's case. 	The record does 	not show clearly what 	those
criteria are. 	It appears 	that a conviction on three or 	four
moving 	violations 	during 	the past 	three years would prohibit 	an
applicant 	from obtaining a permit, 	although mitigating
circumstances would 	be 	considered.
On March 24, 	Ms. 	Cheshier's 	appeal was heard by the
Employer's Accident Review Board, 	which was responsible 	for
reviewing 	the 	decision not 	to grant 	the permit 	to
Ms. 	Cheshier.13 There was no written 	criteria 	for determining
whether 	a driving permit 	should be granted. 	The Board did 	not
compare Ms. 	Cheshier's MVR with those of other 	drivers of 	the
Employer.
Mr. 	Gautshi presented evidence on behalf 	of
13 There were 	five persons 	on 	the Accident Review Board which
convened to hear Ms. Cheshier's appeal: 	Marge Peters 	(Director
of Business Services), 	Carl Miescke 	(Director of Environmental
Education), Roy Brown 	(Audio-Visual Department member),
Bob Michaels 	(Special Schools and Services Division), 	and
Mr. Zoletti.
14

Ms. 	Cheshier 	at 	the hearing. 	He submitted, 	among other 	things,
Ms. 	Cheshier's California School Bus Driver's Certificate, 	a
certification 	that Ms. 	Cheshier 	had 	been 	authorized 	by 	the
county 	to operate 	a mobile 	unit 	for 	the County Communications
Department, 	a medical examiner's certificate, 	and a speedometer
check. 	The speedometer 	check 	showed 	that on May 8, 	1975, 	just
after 	her 	second 	speeding 	citation, 	the 	speedometer 	of
Ms. 	Cheshier's 	vehicle 	registered 	a 	speed 	approximately 	five
miles 	per 	hour 	less 	than 	the 	actual 	speed 	at which 	the 	vehicle
was 	traveling.
After 	hearing 	the 	evidence, 	the Accident Review Board
deliberated 	for 	ten 	to 	fifteen minutes 	before 	deciding 	that,
based on Ms. 	Cheshier's 	driving 	record 	and age, 	the decision
not 	to 	issue 	a permit 	to her 	should 	stand. 14
Ms. 	Cheshier's organizational 	activities 	consisted of
her 	joining 	SEIU 	approximately 	two weeks 	after 	she 	began
working 	for 	the Employer 	and 	her 	attending 	two SEIU meetings.
She 	could 	not 	recall whether 	she 	had 	attended 	any 	SEIU meetings
before February 	(she was 	removed from her 	job on February 	3) .
When 	asked 	whether 	she 	believed 	that 	she 	had 	been 	terminated
14
The Employer's 	insurer 	during 	the 	early part of 	1977,
Hartford 	Insurance Company, 	indicated 	to 	the Employer 	in 	a
letter 	dated February 	4, 	that 	it was 	"concerned" 	about 	the MVRs
of 	eight 	drivers, 	and was 	particularly concerned 	about 	the MVRs
of 	three, 	including Ms. 	Cheshier. 	Weeks later, 	on the basis of
that letter, 	Mr. 	Starke prepared a list of 	the employees 	about
whom 	the 	insurer 	was 	concerned 	and 	forwarded 	that 	list 	to
Mr. 	Gautshi. 	The 	record does 	not 	show that either 	the 	county's
failure 	to 	issue 	a permit or 	the Board's decision not 	to
overturn the 	initial denial of Ms. 	Cheshier's permit
application was 	based on 	the 	concerns 	of 	the 	insurer.
15

because of her organizational activities, 	Ms. 	Cheshier
responded, 	"I don't know." 15
Ms. 	Cheshier's mother, 	Lottie Cheshier, 	also was a
driver 	for 	the 	Employer 	and was 	a 	supporter of 	the 	SEIU.
Lottie Cheshier 	had 	distributed 	information 	for 	the 	SEIU 	and
had 	been a spokesperson 	for 	it on occasion. 	Her 	name 	and
photograph 	appeared 	in 	the 	SEIU's 	election 	newsletter 	of
March 3, 	1977.
The 	Accident 	Review 	Board 	did 	not 	discuss
Ms. 	Cheshier's organizational 	affiliations 	during 	its 	review of
her 	case. 	No evidence 	suggests 	that members of 	the Board
discussed 	her 	affiliations 	before 	the Board met. 	Testimony of
Carl Mieske, 	one of 	the members of 	the Review Board, 	showed
that 	he was 	aware 	that Ms. 	Cheshier 	was 	being 	represented 	by a
union 	field representative, 	but 	that 	the question of
Ms. 	Cheshier's organizational 	activities 	did not 	enter 	into his
consideration of whether 	to 	issue 	a permit 	to her. 	SEIU has
not shown that Ms. 	Cheshier's organizational activities, 	even
if 	known 	to 	the members 	of 	the Review Board, 	entered 	into 	their
consideration of 	her 	appeal.
15 Peter 	Gautshi's 	testimony 	appeared 	to 	indicate 	that
Ms. 	Cheshier's organizational 	activities consisted of 	speaking
in 	favor 	of 	the 	SEIU at 	her 	work 	location 	and of 	being 	involved
in "minor 	representational matters" 	for other 	drivers. 	In view
of Ms. 	Cheshier's own testimony, 	which did not 	indicate 	that
she 	took part 	in 	such activities, 	the hearing officer 	finds
Mr. 	Gautshi's 	testimony on 	this 	issue 	to be 	unpersuasive.
16

DISCUSSION
In order 	for 	a violation of 	Section 	3543.5(a) 	to be
found 	in 	this 	case, 	SEIU must prove by 	a preponderance of 	the
evidence 	that 	the 	actions 	which 	the 	Employer 	took 	with 	respect
to Mr. 	Gonzales 	and Ms. 	Cheshier were effected with 	the 	intent
to discriminate 	or 	impose 	reprisals 	against 	them because of
their 	exercise of 	rights 	guaranteed 	by 	the EERA, 	or 	that 	such
was 	the 	natural 	and probable 	consequence of 	the 	Employer's
actions. 	San Dieguito Faculty Association;16 California
Administrative Code, 	tit. 	8, Section 35207.
An employer's 	unlawful 	intent or 	motive may 	be proved
by circumstantial evidence. 	NLRB v. 	Laney & Duke Co. 	369 	F.2d
859, 	63 LRRM 2552 	(5th Cir. 	1966). 	Among those elements which
circumstantially 	may 	indicate 	discriminatory 	intent 	are
disparate 	treatment of 	union 	adherents 	as opposed 	to other
employees within 	the same 	negotiating 	unit, 	Thermo Electric
Co., 	Inc. 	222 NLRB 358, 91 LRRM 1310 	(1976); previous
promotions 	of 	employees 	who 	later 	are 	discharged 	for 	allegedly
unlawful reasons, Flavoripe, 	Inc. 	222 NLRB 1052, 	91 LRRM 1415
(1976); 	the 	timing of 	the 	allegedly discriminatory action of
the employer, Big "E" Corp. 	223 NLRB 1349, 	92 LRRM 1127 	(1976);
and 	knowledge 	by 	the 	employer 	of 	an 	employee's 	organizational
activities, Gould Inc. 	216 NLRB 1031, 	88 LRRM 1581 	(1975). 	It
has 	long 	been 	held 	that proof 	of 	an 	employer's 	knowledge of 	an
employee's 	organizational 	activities may 	be 	established 	by
16 EERB Decision No. 	22, 	September 2, 	1977,
17

circumstantial evidence, 	NLRB v. 	Tru-Line Metal Products Co«
324 F.2d 614, 	54 LRRM 2655 	(6 Cir 1963), cert. 	den. 	377 U.S.
906, 	55 LRRM 3023 	(1964); 	Board Ford Inc. 	222 NLRB 922, 	91
LRRM 1294 	(1976).
Transfer 	of Arthur 	Gonzales
There 	is 	some 	circumstantial evidence 	that
Mr. 	Gonzales was 	transferred because of 	his organizational
activities. 	He was 	active in the SEIU. 	His supervisor,
Mr. 	Hickson, 	knew of his organizational 	activities 	and may have
harbored 	some bias 	against Mr. 	Gonzales 	because of 	them.17
Another 	managerial employee, 	Philip Starke, 	also knew of
Mr. 	Gonzales 1 organizational affiliation. 	The 	timing of
Mr. 	Gonzales 1 transfer--two months 	after 	the advent of his
organizational 	activities, 	and 	a 	few days 	after 	his 	disclosure
of 	the 	five-year 	plan--is 	further 	evidence of a nexus 	between
his activities and his 	transfer, 	as 	is 	the fact that
Mr. 	Gonzales 	alone was 	singled out 	for 	removal 	from driving
responsibilities 	in 	spite of 	the 	fact 	that he was 	not 	the only
driver 	under 	the 	age of 	25 who had 	a 	flawed driving record.
Finally, 	Mr. 	Gonzales had been promoted to 	the position of head
bus 	driver in 	the 	fall 	of 1976, 	and had received excellent
evaluations 	from his 	supervisor 	since he began working 	for 	the
Employer.
17 For 	example, Mr. 	Hickson stated to Mr. 	Gonzales 	that he
"didn't give a shit" 	about Local 	715, 	and that he would 	"blow
(Mr. 	Gonzales) 	out of the water" 	in the event that the
Employer's 	operations 	committee 	learned of Mr. 	Gonzales'
disclosure of 	the 	five-year 	plan 	to 	the 	SEIU.
18

In spite of the 	above circumstantial evidence,
however, 	credible direct testimony showed that Mr. 	Satterstrom,
who was responsible for 	transferring Mr. 	Gonzales, 	had no
knowledge of Mr. 	Gonzales1 organizational activities 	until
after 	the date of his 	transfer, 	and also showed that
Mr. 	Gonzales 1 transfer 	was 	effected because of 	the 	insurer's
unwillingness 	to 	insure him. 18 (As 	indicated 	in 	the Findings
of Fact, Mr. 	Hickson had no part 	in the decision to transfer
Mr. 	Gonzales.) 	Since the record does not provide an adequate
basis 	for 	inferring that Mr. 	Satterstrom knew of Mr. 	Gonzales'
organizational activities 	at 	the 	time 	he decided 	to 	transfer
Mr. 	Gonzales, 	it is found that the Employer's transfer of
Mr. 	Gonzales was not "because of" 	his organizational
activities, 	San Dieguito Faculty Association, 	supra. 19
Apart 	from the 	fact 	that 	the SEIU has 	not 	established
that 	the Employer's 	transfer of Mr. 	Gonzales was accompanied by
a discriminatory motivation, 	the Employer 	has 	shown
18 As noted in the Findings of Fact 	(page 6, 	fn. 	5 ) , 	there
is no evidence that the 	insurer's decision not to insure Mr.
Gonzales was made because of 	influence asserted by 	the Employer,
19 Compare Board Ford, 	supra at page 18, 	where the NLRB 	found
the Employer's dismissal of 	two union adherents 	to be violative
of Sections 8(a) 	(1) 	and 	(3) 	of the NLRA. 	In that case, 	the
NLRB 	imputed 	to 	the Employer 	knowledge of 	the Charging Party's
organizational activities, 	based on 	the actual 	knowledge of one
employee whose 	interests were 	"aligned" 	with management. 	The
NLRB's 	finding was based on the record as 	a whole, 	which
included 	evidence of 	anti-organizational 	remarks 	rendered 	by
the Charging Party at 	the 	beginning of organizational
activities within the shop, 	and dismissal of two union
adherents on 	the basis 	that 	"business was slow," 	followed by
employment of 	two 	replacements 	for 	the dismissed workers 	within
one month.
19

affirmatively 	that 	its 	transfer 	of Mr. 	Gonzales was 	based on a
legitimate business 	justification, 	i.e., 	that 	the transfer of
Mr. 	Gonzales was 	effected 	because 	the 	insurer 	was 	unwilling 	to
insure 	him.
The 	evidence 	does 	not 	substantiate SEIU's 	two-pronged
assertion 	that 	the Employer's 	business 	"justification" 	for
transferring Mr. 	Gonzales was 	a mere pretext 	utilized 	to
discriminate against him. 	First, 	SEIU suggests 	that 	if
securing 	insurance 	for 	Mr. 	Gonzales 	truly was 	the problem 	faced
by the 	Employer, 	the Employer 	would 	have 	attempted 	to 	secure
insurance 	for Mr. 	Gonzales 	elsewhere. 	But 	the record shows
that 	the Employer 	in 	fact 	had 	inquired of 	the 	insurer 	whether
it would 	be possible 	to obtain a rider 	to 	its policy 	for
Mr. 	Gonzales, 	to which the 	insurer 	answered that 	it would
not.20 In 	addition, 	the 	fact 	that 	the Employer 	did not
attempt 	to secure other 	insurance 	for Mr. 	Gonzales 	is
susceptible of 	numerous 	inferences, 	including the obvious
possibilities 	that 	execution of 	a policy solely 	for 	the 	benefit
of Mr. 	Gonzales would entail additional cost and some
administrative 	inconvenience. 	And since Mssrs. 	Satterstrom and
Redington did 	not 	know of Mr. 	Gonzales1 organizational
activities, 	the 	fact that no attempt was made 	to secure other
insurance 	is 	not 	logically 	susceptible of 	an 	inference of
discrimination.
20
It would 	be 	circumstantial 	evidence of 	discrimination 	if
the Employer 	had secured riders, 	or 	other 	insurance, 	for 	other
drivers 	aside 	from Mr. 	Gonzales, 	but no evidence was submitted
on that point.
20

lOt
Second, 	SEIU contends 	that 	the Employer
discriminatorily 	applied 	the 	insurer's 	criteria 	to
Mr. 	Gonzales, 	since other drivers 	under 	the age of 	25 had
driving 	records 	similar 	to or worse 	than that of Mr. 	Gonzales.
But 	the 	insurer 	initially 	scrutinized 	the 	records 	of 	three
underage drivers 	aside 	from Mr. 	Gonzales, 	although the 	insurer
determined 	to 	continue 	to 	insure 	them 	because of 	their
unblemished driving 	records. 	In contrast 	to 	the MVRs of 	those
drivers, 	Mr. 	Gonzales1 driving record consisted of 	two moving
violations, 	one "fix-it" 	violation,21 and three accidents
(one of which was the fault of Mr. 	Gonzales).
It 	is 	somewhat probative 	that 	at 	least one other
underage 	driver 	with a poor 	MVR was 	not 	subject 	to 	any degree
of 	scrutiny by 	the 	insurer 	or 	the Employer. 	The Employer's
insurance administrator, Mr. 	Redington, 	knew that other
underage drivers were employed by the 	Employer22 but did not
point out 	that 	fact to the 	insurer. 	However, 	there 	is no
21
Although 	the 	record 	is 	not 	entirely clear 	with 	respect 	to
this point, 	the 	evidence 	suggests 	that 	record of 	citations
which 	are 	somewhat over 	three 	years 	old 	are 	not 	included 	in 	a
driver's MVR except 	for 	serious 	violations. 	SEIU suggests 	that
the 	record of Mr. Gonzales' March 31, 	1974 	citation should not
have been considered by 	the 	insurer, 	since 	that citation was
almost 	three 	years 	old 	at 	the 	time 	the 	insurer 	took 	its
action. 	SEIU also argues 	that Mr. 	Gonzales 1 "fix-it" 	citation
should 	not 	have been 	included 	in 	the 	"points 	count" 	since 	that
citation was 	not 	a moving 	violation. 	Since 	no evidence was
presented 	at 	the 	hearing 	showing 	either 	that 	it 	is 	customary
procedure of 	the 	insurer 	not 	to consider 	citations over 	three
years old or 	that 	"fix-it" 	citations 	generally are not 	included
in 	the 	insurer's 	"points 	count," 	the hearing officer 	is 	unable
to make 	any relevant 	findings 	on 	these points.
22
See page 12 fn. 	9.
21

evidence 	that 	the 	Employer 	was 	under 	an obligation 	to 	inform
the 	insurer 	that 	other 	underage 	drivers 	were 	employed 	by 	the
Employer, 	particularly 	since 	the 	insurer 	was 	conducting 	its 	own
investigation of 	the Employer's drivers. 	Moreover, 	as 	stressed
above, 	the record does not 	show that Mr. 	Redington had 	any
knowledge of Mr. 	Gonzales1 organizational activities, 	thus
eliminating 	again 	the 	possibility of 	drawing 	the 	crucial
inference of 	a discriminatory motive 	from these 	facts.
In sum, 	the evidence 	shows 	that 	the decision of 	the
insurer 	not 	to 	insure Mr. 	Gonzales was 	based on his poor
driving 	record. 	That 	decision was made 	independently by 	the
insurer, 	and 	the managerial employee who was 	responsible 	for
transferring Mr. 	Gonzales 	had no 	knowledge of 	his
organizational 	activities. 	Under 	California Administrative
Code, 	Title 8, 	Section 35027, 	the Charging Party must prove the
charge 	by preponderance of 	the 	evidence 	in order 	to prevail 	in
an 	unfair 	practice 	case. 	SEIU has 	failed 	to sustain 	that
burden of proof here. 	On the basis of 	the record, 	it must 	be
concluded 	that 	the Employer's 	transfer 	of Mr. 	Gonzales was 	not
discriminatorily motivated, 	and 	therefore was 	not 	violative of
Section 	3343.5(a) 	of the EERA.
Refusal 	to Grant 	Permit 	to Carole Cheshier
SEIU contends 	that 	the Employer's 	refusal 	to grant 	a
driver's permit 	to Carole Cheshier 	was 	based on 	her
22

organizational 	activities.23 But 	the record 	shows 	this
contention to be flawed 	in two fatal respects. 	First,
Ms. 	Cheshier's organizational activities were not clearly
proven, 	were 	apparently quite minor 	in scope and 	in any event
were not shown to be known to the Employer. 24 Second, 	the
denial of Ms. 	Cheshier's permit was 	fully justifiable 	in light
of 	her 	age and poor 	driving record. 25 For 	those reasons, 	the
Employer's 	actions 	were not proved 	to 	have been
attributable 	to 	any organizational 	activity on 	the part 	of
Ms. 	Cheshier.. 	The charge must be dismissed as a result.
CONCLUSIONS OF LAW
1. 	The Santa Clara County Superintendent of 	Schools
did not violate Section 3343.5(a) 	of 	the EERA by transferring
Arthur 	Gonzales 	from his position as 	bus driver.
23
The 	SEIU also contends 	that 	she was denied 	a permit because
of 	the organizational activities of 	her mother,
Lottie Cheshier, 	who was 	a driver 	for 	the employer 	and was more
active 	in the SEIU than was Carole Cheshier. 	However, 	SEIU has
established no nexus between Lottie Cheshier's 	activities 	and
the Employer's denial of a permit to the younger Ms. 	Cheshier.
24
As noted in the Findings of Fact, 	supra, 	it was not
established that Ms. 	Cheshier 	had 	engaged 	in any organizational
activities, 	apart from joining the SEIU, 	as of 	the date of her
removal 	from her 	job as 	bus 	driver.
25 The 	SEIU contends 	that 	the Employer used Mrs. 	Cheshier's 	poor
driving record as 	a mere 	pretext 	for denying a permit 	to her.
It 	attempts 	to 	substantiate 	this position by positing 	that 	the
employer 	had no standards 	for 	determining whether 	an 	applicant
should be granted a permit. 	(Presumably, 	SEIU feels 	that 	if no
standards existed, 	the Employer's 	alleged discrimination
against her 	would be made easier 	in that denial of her 	permit
would not be based on objective, 	reviewable factors.) 	But the
record 	shows 	that 	the 	county's 	established 	criteria were 	used
during 	the Review Board hearing, 	although 	they were not 	in
writing at that time. 	(Tr. 	282:11, 	304:21) 	See Findings of
Fact, p. 15.
23

2. 	The 	Santa 	Clara County 	Superintendent 	of 	Schools
did not 	violate 	Section 	3343 . 5(a) 	of 	the 	EERA by 	failing 	to
grant 	a 	bus 	driver ' s 	permit 	to Carole 	Cheshier 	and by 	removing
her 	from her 	position 	as 	bus 	driver .
RECOMMENDED 	ORDER
The 	unfair 	practice 	charge 	filed 	by 	the 	Service
Employees 	International Union, 	Local 	715, 	against 	the 	Santa
Clara 	County Superintendent 	of 	Schools 	is 	hereby DISMISSED.
Pursuant 	to California Administrative 	Code, 	Title 	8,
Section 	35029, 	this 	Recommended Decision 	shall 	become 	final
on 	December 	20, 1977_____and 	an or de r 	w ill 	i ss ue 	from 	th e
EERB 	unless 	a 	party 	files 	a 	timely 	state ment 	of 	exceptions.
See 	California Administrative 	Code, 	Title 	8, 	Section 35030 .
D ate d ; --=Deceni	;.....;....;..;=·=ber	=·- 7.....,__=19;....;.7...;..7 __
MICH~EL 	J . 	TO~SlNG
Hearing 	Officer
__ _
24