Carlsbad Unified School District (PERB 0089E)

DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF
	THE
	STATE
	OF
	CALIFORNIA
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DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
OCEANSIDE-CARLSBAD FEDERATION
	OF
TEACHERS,
	LOCAL
	1344,
	CFT/AFT,
Charging
	Party,
v.
CARLSBAD
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
CASE 	NO.
	LA-CE-61
PERB
	Decision
	No.
	89
January 	30,
	1979
Appearances:	
Anne
	Fragasso, 	Attorney,
	California 	Federation
	of
Teachers, 	for 	Oceanside-Carlsbad
	Federation 	of 	Teachers, 	Local1344,
	CFT/AFT;
	Arlene
	Prater,
	Deputy County
	Counsel, 	County
	of
San
	Diego,
	for 	Carlsbad 	Unified
	School
	District.
Before 	Gluck,
	Chairperson;
	Cossack
	Twohey
	and
	Gonzales,
	Members.
DECISION
This 	case
	is
	before 	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board) 	on
	exceptions
	to
	the 	attached 	hearing
officer
	recommended
	decision.
	The
	hearing
	officer
	found
	that
the 	Carlsbad 	Unified
	School
	District
	(hereafter
	District)
violated 	sections
	3543.S(a)
	and 	(b)
	of 	the 	Educational
Employment
	Relations
	Act
	(hereafter
	EERA)l 	when
	it
lsections
	3543.S(a) 	and 	(b)
	of 	the 	Educational
	Employment
Relations
	Act 	(Gov. 	Code
	sec.
	3540
	et 	seq.)
	states:
be
	unlawful
to:
a
	public 	school	It shall be unlawful for a public school
employer to:
(a) 	Impose 	or 	threaten 	to
	impose
	repris
	s
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
OCEANSIDE-CARLSBAD FEDERATION OF
TEACHERS, LOCAL 1344, CFT/AFT, 	CASE NO. LA-CE-61
Charging Party, 	PERB Decision No. 89
v .
January 30, 1979
CARLSBAD UNIFIED SCHOOL DISTRICT,
Respondent.
Appearances: Anne Fragasso, Attorney, California Federation of
Teachers, for Oceanside-Carlsbad Federation of Teachers, Local
1344, CFT/AFT; Arlene Prater, Deputy County Counsel, County of
San Diego, for Carlsbad Unified School District.
Before Gluck, Chairperson; Cossack Twohey and Gonzales, Members.
DECISION
This case is before the Public Employment Relations Board
(hereafter PERB or Board) on exceptions to the attached hearing
officer recommended decision. The hearing officer found that
the Carlsbad Unified School District (hereafter District)
violated sections 3543.5(a) and (b) of the Educational
Employment Relations Act (hereafter EERA) I when it
1sections 3543.5(a) and (b) of the Educational Employment
Relations Act (Gov. Code sec. 3540 et seq. ) states:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce

transferred 	certain
	members/supporters
	of 	the
Oceanside-Carlsbad
	Federation
	of 	Teachers,
	Local 	1344,
	CFT/AFT
(hereafter
	0-CFT)
	from
	Carlsbad
	High
	School
	to
	Valley
	Junior
High
	School.
	He
	also
	found
	that
	the
	charge
	was
	barred
	neither
by
	the
	statute
	of
	limitations
	provision 	of
	the
	EERA
	nor
	by
	a
requirement
	that
	the 	charging
	party
	exhaust
	the
	District's
grievance 	procedure.2h 	The
	District
	voices 	four
	exceptions
	to
the
	proposed
	decisions:
employees
	because
	of
	their
	exercise
	of
rights
	guaranteed
	by
	this
	chapter.
(b) 	Deny
	to
	employee
	organizations
	rights
guaranteed 	to
	them 	by
	this
	chapter.
Hereafter
	all
	references 	are
	to
	the
	Government 	Code
	unlessotherwise
	indicated.
2section
	3541.S(a)
	states:
The
	initial
	determination
	as
	to
	whether
	thecharges 	of
	unfair 	practices
	are
	justified,
and,
	if
	so,
	what 	remedy
	is
	necessary 	to
effectuate
	the 	purposes 	of
	this
	chapter,
shall
	be 	a
	matter 	within 	the 	exclusive
jurisdiction
	of 	the 	board. 	Procedures 	for
investigating,
	hearing,
	and
	deciding 	thesecases
	shall
	be
	devised
	and
	promulgated
	by
the
	board
	and
	shall
	include
	all
	of 	the
following:
(a) 	Any
	employee, 	employee
	organization,
	oremployer
	shall
	have
	the 	right 	to
	file
	an
unfair 	practice 	charge, 	except
	that
	theboard
	shall
	not
	do
	either
	of 	the 	following:
(1)
	Issue
	a
	complaint 	in 	respect 	of
	any
charge 	based 	upon 	an
	alleged 	unfair 	practiceoccurring
	more
	than 	six
	months
	prior 	to 	the
filing 	of 	the 	charge;
(2)
	Issue
	a 	complaint 	against 	conduct 	also
prohibited 	by 	the 	provisions 	of 	theagreement 	between 	the 	parties 	until 	the
2
transferred certain members/supporters of the
Oceanside-Carlsbad Federation of Teachers, Local 1344, CFT/AFT
(hereafter 0-CFT) from Carlsbad High School to Valley Junior
High School. He also found that the charge was barred neither
by the statute of limitations provision of the EERA nor by a
requirement that the charging party exhaust the District's
grievance procedure. 2 T e District voices four exceptions to
the proposed decisions:
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
Hereafter all references are to the Government Code unless
otherwise indicated.
2Section 3541.5 (a) states:
The initial determination as to whether the
charges of unfair practices are justified,
and, if so, what remedy is necessary to
effectuate the purposes of this chapter,
shall be a matter within the exclusive
jurisdiction of the board. Procedures for
investigating, hearing, and deciding these
cases shall be devised and promulgated by
the board and shall include all of the
following :
(a) Any employee, employee organization, or
employer shall have the right to file an
unfair practice charge, except that the
board shall not do either of the following:
(1) 	Issue a complaint in respect of any
charge based upon an alleged unfair practice
occurring more than six months prior to the
filing of the charge;
(2) Issue a complaint against conduct also
prohibited by the provisions of the
agreement between the parties until the
2

(1)	
Under 	San
	Dieguito 	Unified
	School
	District
	(9/2/77)
EERB
	Decision
	No.
	22,
	the
	applicable
	Board
	precedent,
affirmative
	proof 	of
	discriminatory
	intent
	is
	required
	to
establish
	a
	violation
	of
	section
	3543.S(a),
	and
	the 	record
failed
	to
	establish
	such
	intent;
(2) 	The
	transfers
	did 	not
	interfere
	with 	the
	rights
	of
Bongiorni,
	Gill,
	Giordano
	and
	Schurch;
(3)
(4)
No
	violation
	of
	section
	3543.S(b) 	has
	been
	proven;
(4) 	The
	charge
	is
	barred
	by
	the
	six-month
	statute
	of
limitations
	period 	for
	filing
	unfair 	practice
	charges.
The
	hearing
	officer's
	findings
	of
	fact
	are 	supported
	by
	the
record,
	and
	are
	hereby 	adopted
	by
	the
	Board.
grievance
	machinery
	of 	the
	agreement,
	if
	it
exists
	and
	covers 	the 	matter
	at
	issue,
	hasbeen
	exhausted,
	either
	by
	settlement
	or
binding
	arbitration.
	However, 	when
	thecharging
	party
	demonstrates
	that 	resort 	to
contract
	grievance 	procedure
	would 	be
futile,
	exhaustion
	sha 	not
	be
	necessary.
The
	board
	shall
	have
	discretionary
jurisdiction
	to
	review 	such
	settlement
	or
arbitration
	award
	reached 	pursuant 	to 	the
grievance
	machinery
	solely
	for 	the 	purpose
of 	determining 	whether
	it
	is
	repugnant
	tothe 	purposes 	of
	this
	chapter.
	If
	the 	board
finds
	that
	such
	settlement
	or
	arbitration
award
	is
	repugnant
	to 	the 	purposes 	of
	thischapter,
	it
	shall
	issue
	a
	complaint
	on
	the
basis
	of
	a
	timely
	filed
	charge,
	and
	ar
	and
decide 	the 	case
	on
	the 	merits; 	otherwise,
	it
shall
	dismiss 	the 	charge.
	The
	board
	shall,in 	determining 	whether 	the 	charge
	was
	timely
fil
	,
	consider 	the 	six-month
	limitation 	set
forth in	
in
	is
	subdivision 	to
tolleded 	during 	the 	time
	it
	took 	the 	charging
party 	to 	exhaust 	the 	grievance machinery.(Emphasis 	added.)
3
(1) Under San Diegueto Unified School District (9/2/77)
EERB Decision No. 22, the applicable Board precedent,
affirmative proof of discriminatory intent is required to
establish a violation of section 3543.5 (a) , and the record
failed to establish such intent;
(2) The transfers did not interfere with the rights of
Bongiorno, Gill, Giordano and Schurch;
(3) No violation of section 3543.5 (b) has been proven;
The charge is barred by the six-month statute of
limitations period for filing unfair practice charges.
The hearing officer's findings of fact are supported by the
record, and are hereby adopted by the Board.
grievance machinery of the agreement, if it
exists and covers the matter at issue, has
been exhausted, either by settlement or
binding arbitration. However, when the
charging party demonstrates that resort to
contract grievance procedure would be
futile, exhaustion shall not be necessary.
The board shall have discretionary
jurisdiction to review such settlement or
arbitration award reached pursuant to the
grievance machinery solely for the purpose
of determining whether it is repugnant to
the purposes of this chapter. If the board
finds that such settlement or arbitration
award is repugnant to the purposes of this
chapter, it shall issue a complaint on the
basis of a timely filed charge, and hear and
decide the case on the merits; otherwise, it
shall dismiss the charge. 	The board shall,
in determining whether the charge was timely
filed, consider the six-month limitation set
this subdivision to have been
during the time it took the charging
party to exhaust the grievance machinery.
(Emphasis added. )
3

DISCUSSION
The
	Question
	of
	Intent
The
	District's
	chief
	argument
	is
	that
	San
	Dieguito
	Unified
School
	District,
	supra,
	requires
	that 	intent
	be
	proven
affirmatively
	in
	all
	cases 	involving
	alleged
	violations
	of
section
	3543.S(a),
	and
	that
	no
	such
	proof
	was 	made 	by
	the
charging
	party 	in
	this
	case.
San
	Dieguito
	concerned
	a
	charge
	filed
	by
	the
	San
	Dieguito
Faculty 	Association
	against
	San
	Dieguito Unified
	High
	School
District
	alleging
	that
	the
	District
	violated 	sections
3543.
5
(a),
	(b) 	and 	(d)
	of
	the
	EERA
	by
	unilaterally
	rescinding
and
	revising
	certain
	personnel
	policies
	in
	June
	and
	August
	of
1976.
	In 	analyzing
	section
	3543.S(a), 	the 	majority
	of
	the
Board
	in
	San
	Dieguito
	stated:
Government 	Code
	Section
	3543.S(a)
	combines
the
	language
	of 	National
	Labor
	Relations
	Act
Sections
	8 (a) (1)
	and
	8 (a)
(3).
[3]	
...
Unlike
	section
	8(a)
(1)
	of
	the
	NLRA,
Government 	Code
	Section
	3543.S(a)
	seems
	to
make
	motive
	or 	purpose
	a
	requirement 	for
	a
violation.
	The
	pertinent 	part
	of
	GovernmentCode
	Section
	3543.S(a)
	reads:
	"It 	shall
	be
unlawful 	for
	a
	public
	school
	employer
	to:
3NLRA
	sections
	8 (a) (1) 	and 	8 (a) (3)
	state:
(a)
	It
	shall
	be 	an
	unfair 	labor
	practicefor
	an
	employer--	-
(1)
	to 	interfere
	with,
	restrain,
	or 	coerceemployees
	in 	the 	exercise
	of 	the 	rightsguarant 	in 	section
	7;
(3) 	iscrimination in regard t	
discrimination 	in
	r 	d
	to 	re 	or
tenure 	of 	employment 	or 	any 	term 	or
condition 	of
	employment
	to 	encourage 	or
discourage membership 	in
	any
	labor
organization
	.•.. 
4
DISCUSSION
The Question of Intent
The District's chief argument is that San Diegueto Unified
School District, supra, requires that intent be proven
affirmatively in all cases involving alleged violations of
section 3543.5 (a) , and that no such proof was made by the
charging party in this case.
San Diegueto concerned a charge filed by the San Diegueto
Faculty Association against San Diegueto Unified High School
District alleging that the District violated sections
3543.5 (a) , (b) and (d) of the EERA by unilaterally rescinding
and revising certain personnel policies in June and August of
1976. In analyzing section 3543.5 (a) , the majority of the
Board in San Diegueto stated:
Government Code Section 3543.5 (a) combines
the language of National Labor Relations Act
Sections 8 (a) (1) and 8 (a) (3) . [3] .
Unlike section 8 (a) (1) of the NLRA,
Government Code Section 3543.5 (a) seems to
make motive or purpose a requirement for a
violation. 	The pertinent part of Government
Code Section 3543.5 (a) reads: "It shall be
unlawful for a public school employer to:
3NLRA sections 8 (a) (1) and 8 (a) (3) state:
(a) It shall be an unfair labor practice
for an employer-
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights
guaranteed in section 7;
. . . . . . . . . . . . . . . . . . . .
(3) by d 	o hire or
tenure of employment or any term or
condition of employment to encourage or
discourage membership in any labor
organization . . . .

(a)
	•.• 	interfere
	with,
	restrain
	or 	coerce
employees
	because
	of
	[Emphasis
	in
	original.]
their
	exercise
	of
	rights
	guaranteed
	by
	this
chapter. 	Interference
	"because
	of"
	is
quite 	different
	from 	mere
	"interference
in."
	"Because
	of" 	connotes
	purposeful 	or
intentional
	behavior;
	"interference
	in"connotes
	interference
	with
	or
	without
	an
unlawful
	intent.
	[Footnotes
	omitted.]
[Emphasis
	added.)
Due
	to
	this
	language,
	San
	Dieguito
	has 	been
	read
	to
	have
	held
that
	an
	unlawful 	motive
	must
	be
	proven
	in
	every 	case
	where
	a
violation
	of
	section
	3543.S(a) 	has
	been
	alleged.
	To
	the
	extent
that
	San
	Dieguito
	so
	held,
	it
	is
	hereby
	overruled.
San
	Dieguito
	gave
	unnecessary
	significance 	to
	the
difference 	in 	the
	language
	between
	section
	3543.S(a)
	and
Sections
	8(a)
(1)
	and
	8(a)
(3)
	of
	the 	National
	Labor
	Relations
Act.4	
Specifically,
	it
	advanced
	the 	theory
	that
	the
	term
"because
	of,"
	found
	in 	the
	EERA,
	as
	distinguished
	from
	the
phrase
	"interference 	in,"
	found
	in 	the
	NLRA,
	implied 	purposeful
conduct 	or 	motivation
	and
	therefore 	necessitated
	proof
	of
unlawful
	intent.
Perhaps,
	too, 	there
	is
	implicit 	in 	the
	San
	Dieguito
rationale,
	the
	belief 	that
	because
	the
	EERA
	embraces
	in
	a
single 	section,
	3543.S(a), 	the 	various 	prohibitions
	found
separately 	in
	8 (a)
(1)
	and 	8
(a)
(3),
	a
	single
	test
	should
	be
applicable 	to
	all
	legations
	of 	awful 	conduct;
	and
	that
unlawful 	purpose 	or 	motivation
	would
	therefore
	be 	a 	common
requirement.
2
5
4 29 	u.s.c. 	sec.
	151
	et 	seq.
(a) ... interfere with, restrain or coerce
employees because of [Emphasis in original. ]
their exercise of rights guaranteed by this
chapter . 	. . 	Interference "because of" is
quite different from mere "interference
in. " 	"Because of" connotes purposeful or
intentional behavior; "interference in"
connotes interference with or without an
unlawful intent. [Footnotes omitted. ]
[Emphasis added. ]
Due to this language, San Diegueto has been read to have held
that an unlawful motive must be proven in every case where a
violation of section 3543.5 (a) has been alleged. To the extent
that San Diegueto so held, it is hereby overruled.
San Diegueto gave unnecessary significance to the
difference in the language between section 3543.5 (a) and
Sections 8 (a) (1) and 8(a) (3) of the National Labor Relations
Act. 4 Specifically, it advanced the theory that the term
"because of," found in the EERA, as distinguished from the
phrase "interference in," found in the NLRA, implied purposeful
conduct or motivation and therefore necessitated proof of
unlawful intent.
Perhaps, too, there is implicit in the San Diegueto
rationale, the belief that because the EERA embraces in a
single section, 3543.5 (a) , the various prohibitions found
separately in 8 (a) (1) and 8 (a) (3) , a single test should be
applicable to all allegations of unlawful conduct; and that
unlawful purpose or motivation would therefore be a common
requirement.
4 9 U.S.C. sec. 151 et seq.
5

In
	Los
	Angeles
	Unified
	School
	District
	(11/24/76)
	EERB
Decision
	No.
	5,
	the
	Board
	indicated
	that
	while
	it
	was
	not
	bound
by
	NLRB
	decisions,
	it
	would
	take
	cognizance 	of
	them
	where
appropriate.
Where
	provisions
	of
	California
	and
	federallabor
	legislation
	are
	parallel,
	the
California
	courts
	have
	sanctioned 	the
	use
	of
federal
	statutes
	and
	decisions
	arising
thereunder,
	to
	aid
	in
	interpreting
	the
identical
	or 	analogous
	California
legislation.
But
	it
	is
	implicit 	in
	the 	cases
	cited 	that
	PERB
	does
	not
believe
	that
	federal
	law
	is
	the
	invariable
	exegesis
	of
	the
	EERA.
The
	NLRA
	was
	designed
	for 	labor
	relations 	in
	the
	private
sector.
	PERB
	will
	remain 	open
	to 	the
	possibility 	that 	there
may 	be
	inherent
	and
	necessary
	distinctions
	to
	be 	drawn
	for
public
	employment
	relations 	in California.
	Furthermore,
	the
persuasiveness 	of
	federal 	ajudication
	is
	mitigated,
	if
	not
defeated,	
by	
specific 	distinctions
	between
	the
	language
	of 	the
respective
	statutes.
Intent
	Under 	The
	NLRA
Generally, 	with 	respect 	to 	"intent,"
	the
	NLRB
	and
	federal
courts
	have 	drawn 	a
	distinction
	between
	sections
	8(a)
(1) 	and
B(a)
(3).
	While 	unlawful
	intent
	appears 	not
	to
	be 	a
	necessary
element 	f a an
	interference
	charge 	under 	8 (a) (1) , 5	
it
	has
generally
	been 	held 	to
	be 	a
	necessary 	ingredient 	in 	finding
	a
5Gorman,
	Basic 	Text 	on 	Labor 	Law 	(West 	1976)
	p.
	132
et 	seq.
6
In Los Angeles Unified School District (11/24/76) EERB
Decision No. 5, the Board indicated that while it was not bound
by NLRB decisions, it would take cognizance of them where
appropriate.
Where provisions of California and federal
labor legislation are parallel, the
California courts have sanctioned the use of
federal statutes and decisions arising
thereunder, to aid in interpreting the
identical or analogous California
legislation.
But it is implicit in the cases cited that PERB does not
believe that federal law is the invariable exegesis of the EERA.
The NLRA was designed for labor relations in the private
sector . 	PERB will remain open to the possibility that there
may be inherent and necessary distinctions to be drawn for
public employment relations in California. 	Furthermore, the
persuasiveness of federal ajudication is mitigated, if not
defeated, by specific distinctions between the language of the
respective statutes.
Intent Under The NLRA
Generally, with respect to "intent," the NLRB and federal
courts have drawn a distinction between sections 8 (a) (1) and
8 (a) (3) . While unlawful intent appears not to be a necessary
element o 	n interference charge under 8 (a) (1) ,5 it has
generally been held to be a necessary ingredient in finding a
5Gorman, Basic Text on Labor Law (West 1976) p. 132
et seq.
6

violation 	of 	section 	8 (a) (3) 6. 	The 	reason 	for 	this
distinction 	lies 	in 	the 	language 	of 	that 	latter 	section.
There, 	discrimination must 	be 	for 	the 	specific 	purpose 	of
encouraging 	or 	discouraging 	membership 	in 	a 	labor
organization.? 	Indeed, 	discrimination 	for 	any 	other 	purpose
- 	whether 	lawful 	or 	unlawful 	- 	is 	not 	discrimination 	within 	the
meaning 	of 	section 	8(a) (3) 	and 	may 	not 	serve 	as 	a 	basis 	for
sustaining 	a 	charge 	under 	that 	section.8
It 	appears 	that 	it 	is 	the 	specificity 	of 	purpose, 	rather
than 	the 	phrase 	"interference 	in," 	that 	distinguishes 	the 	two
NLRA 	sections 	with 	respect 	to 	the 	need 	to 	prove 	unlawful
motivation. 	No 	such 	specificity 	is 	to 	be 	found 	in
section 	3 5 4 3 • 5 (a) .
To 	the 	contrary, 	the 	EERA 	established 	for 	employees, 	a
variety 	of 	rights, 	including 	the 	right 	to 	join 	and 	participate
in 	the 	activities 	of 	employees 	organizations 	of 	their 	own
choosing.9 	These 	rights 	are 	vested 	without 	patent
condition. 	PERB 	finds 	no 	reason 	to 	conclude 	that 	the
6Gorman, 	Basic 	Text 	on 	Labor 	Law 	(West 	1976) 	supra,
p. 	137.
7NLRA 	section 	8(a) (3) 	ante, 	fn. 	3.
8Radio Officers' 	Union 	v. 	NLRB 	( 	54) 	347 	U.S. 	17 	[33
LRRM 	2417].
9Gov. 	Code 	sec. 	3540 	states 	in 	pertinent 	part:
It 	is 	the 	purpose 	of 	this 	chapter 	to 	emote
the 	improvement 	of 	personnel 	management	t and 	and
employer-employee 	relations 	within 	the
public 	school 	systems 	in 	the 	State of
California 	by 	providing 	a 	uniform 	basis 	for
recognizing 	the 	right 	of 	public 	school
7
violation of section 8 (a) (3)6. The reason for this
distinction lies in the language of that latter section.
There, discrimination must be for the specific purpose of
encouraging or discouraging membership in a labor
organization. Indeed, discrimination for any other purpose
whether lawful or unlawful - is not discrimination within the
meaning of section 8 (a) (3) and may not serve as a basis for
sustaining a charge under that section. 8
It appears that it is the specificity of purpose, rather
than the phrase "interference in," that distinguishes the two
NLRA sections with respect to the need to prove unlawful
motivation. No such specificity is to be found in
section 3543.5 (a) .
To the contrary, the EERA established for employees,
variety of rights, including the right to join and participate
in the activities of employees organizations of their own
choosing . 9 These rights are vested without patent
condition. 	PERB finds no reason to conclude that the
6Gorman, Basic Text on Labor Law (West 1976) supra,
p. 137.
7NLRA section 8 (a) (3) ante, fn. 3.
BRadio Officers' Union v. NLRB (1954) 347 U.S. 17 [33
LRRM 24171 .
9 Gov. Code sec. 3540 states in pertinent part:
It is the purpose of this chapter to promote
the improvement of personnel managemen
employer-employee relations within the
public school systems in the State of
California by providing a uniform basis for
recognizing the right of public school

protection
	of 	these
	rights
	is
	invariably
	dependent
	upon
	an
affirmative
	finding
	of
	intentional
	infringement.
The
	"because
	of"
	language 	should 	not
	be
	so 	narrowly
	read
	as
to
	preclude
	one
	whose
	rights
	have
	been
	damaged 	from
	seeking
redress
	unless
	intentional
	harm
	can
	be
	demonstrated.
	PERB
understands
	that 	brief
	phrase
	to
mean
	only
	that
	some
	nexus
	must
exist
	between
	the
	exercise
	of
	employee
	rights
	under
	the
	EERA
and
	the
	actions
	of
	the
	employer 	which 	have
	provoked
	the
	filing
of
	an
	unfair
	practice
	charge.
This
	interpretation
	of
	3543.S(a) 	does 	not
	mean,
	however,
that 	intent
	need
	never
	be
	proven
	in
	order
	to 	sustain
	a
	charge.
The
	test
	will
	be
	in 	the 	nature 	of 	the 	charge
	and
	of 	the
response.
	However,
	preliminary 	to 	establishing 	that
	test,
	the
question 	to
	be
	resolved
	is
	whether
	the
	NLRB
	bifurcated
	model
	is
to
	be
	followed, 	or
	whether
	a
	single
	test 	is
	more
	appropriate
when
	considering 	the
	variety
	of 	charges
	that
	may 	be
	brought
under
	section 	3543.S(a).
As
	already 	indicated,
	the 	Legislature
	does 	not
	seem
	to
	have
attached 	"conditions" 	to 	the 	exercise
	of
	rights
	granted
	to
school 	employees. 	Furthermore, 	the
	statute
	lacks
	any
	specific
"management
	rights" 	clause. 	Yet,
	it
	is
	unarguable
	that 	the
employees
	to 	join organizations 	of
	their
	own
choice, 	to
	be
	represented
	by
	such
organizations 	in 	their 	professi
	and
employment 	r
	ationships 	th 	school
employers, 	to 	select
	one 	employee
organization 	as 	the 	exclusive 	representativeof 	the 	employees 	in
	an
	appropriate 	unit,
	and
to 	afford 	certificated
	employees 	a 	voice 	in
the 	formulation 	of 	educational 	policy
	•...
8
protection of these rights is invariably dependent upon an
affirmative finding of intentional infringement.
The "because of" language should not be so narrowly read as
to preclude one whose rights have been damaged from seeking
redress unless intentional harm can be demonstrated. 	PERB
understands that brief phrase to mean only that some nexus must
exist between the exercise of employee rights under the EERA
and the actions of the employer which have provoked the filing
of an unfair practice charge.
This interpretation of 3543.5(a) does not mean, however,
that intent need never be proven in order to sustain a charge.
The test will be in the nature of the charge and of the
response. 	However, preliminary to establishing that test, the
question to be resolved is whether the NLRB bifurcated model is
to be followed, or whether a single test is more appropriate
when considering the variety of charges that may be brought
under section 3543.5 (a) .
As already indicated, the Legislature does not seem to have
attached "conditions" to the exercise of rights granted to
school employees. Furthermore, the statute lacks any specific
"management rights" clause. Yet, it is unarguable that the
employees to join organizations of their own
choice, to be represented by such
organizations in their professional and
employment relationships with public
employers, to select one employee
organization as the exclusive representative
of the employees in an appropriate unit, and
to afford certificated employees a voice in
the formulation of educational policy . ...

Legislature
	did
	not
	intend
	to
	deny
	to
	employers
	the
	opportunity
to
	fulfill
	the 	mission
	of
	the 	public
	agency.
A
school
	district
	does
	not
	operate 	in
	a
	functional
	vacuum.
State
	legislation
	imposes
	on
	school
	districts
	specific
mandates.IO	
Compliance
	with
	these
	mandates,
	in 	turn,
	imposes
on
	the
	district
	management
	certain
	obligatory 	duties
	and
responsibilities.
	It
	is
	in 	recognition 	of
	this 	fact, 	at
	the
very
	least,
	that
	one
	is
	inescapably
	drawn
	to
	the 	conclusion
that
	inherent
	managerial
	interests
	coexist
	with
	those
	rights
vested
	by
	statute
	in
	the
	district's
	employees.
What,
	however,
	if
	these
	come
	into 	conflict?
	Are
	the
employer's
	needs
	to
	be
	sacrificed?
	Must
	the
	employees'
	rights
give
	way
	unless
	unlawful
	intent
	underlies
	the 	employer's
assertion
	of
	its
	managerial
	interests?
	We
	think 	the
	answer
	to
both
	questions
	is
	in
	the 	negative.
Rather,
	PERB
	finds
	a
	relatively
	uncomplicated,
	single
	test
is
	both
	useful
	and
	consonant 	with 	the
	legislative
	scheme
	which
placed 	the 	various
	forms
	of
	prohibited
	conduct
	in
	a
	single
section 	of 	the
	EERA.
	Essentially,
	competing
	interests
	of 	the
parties
	should
	be
	placed 	in 	balance
	and
	the matter 	resolved
accordingly. 	This 	concept
	eliminates
	both 	the
	need
	for
separate 	levels
	of 	oof
	for 	interference
	and
	discrimination
	or
lOFor 	example, 	Ed.Code
	sec. 7020 - 37022 req
requires 	school
districts
	to 	various
	1 	ools, Ed Code se	s 	, 	Ed
	sec.51041 	requires
	district
	evaluation 	of
	its
	educational 	program,Ed Code
	sec. 	51050 	requires 	enforcement 	of 	appropriate 	courses
of 	study,
	Ed.Code
	sec. 	51215 	requires 	adoption 	of 	standards 	of
proficiency 	in 	basic 	skills.
	Ed.Code 	sec. 	41420 	requires
districts 	to 	provide 	a m1n1mum 	of 	175 	days 	per 	school 	year 	in
order 	to 	receive
	ADA
	funding.
9
Legislature did not intend to deny to employers the opportunity
to fulfill the mission of the public agency.
A school district does not operate in a functional vacuum.
State legislation imposes on school districts specific
mandates. 10 Compliance with these mandates, in turn, imposes
on the district management certain obligatory duties and
responsibilities. It is in recognition of this fact, at the
very least, that one is inescapably drawn to the conclusion
that inherent managerial interests coexist with those rights
vested by statute in the district's employees.
What, however, if these come into conflict? Are the
employer's needs to be sacrificed? Must the employees' rights
give way unless unlawful intent underlies the employer's
assertion of its managerial interests? We think the answer to
both questions is in the negative.
Rather, PERB finds a relatively uncomplicated, single test
is both useful and consonant with the legislative scheme which
placed the various forms of prohibited conduct in a single
section of the EERA. Essentially, competing interests of the
parties should be placed in balance and the matter resolved
accordingly. This concept eliminates both the need for
separate levels of proof for interference and discrimination or
10For example, Ed. Code sec. 3 	uires school
districts to maintain various levels of sch 	c.
51041 requires district evaluation of its educational program,
Ed Code sec. 51050 requires enforcement of appropriate courses
of study, Ed. Code sec. 51215 requires adoption of standards of
proficiency in basic skills. Ed. Code sec. 41420 requires
districts to provide a minimum of 175 days per school year in
order to receive ADA funding.

attribution 	to 	the 	word 	"discrimination" 	a 	definition 	unique 	to
section 	8(a) (3) 	of 	the 	NLRA 	and 	absent 	in 	the 	EERA.
Under 	this 	approach, 	the 	matter 	of 	unlawful 	intent 	remains
significant 	where 	it 	is 	affirmatively 	proven 	by 	the 	charging
party or 	where 	the 	employer 	claims 	of 	justification 	for 	its
conduct.
The 	Test
To 	assist 	the 	parties 	and 	hearing 	officers 	in 	this 	and
future 	cases, 	PERB 	finds 	it 	advisable 	to 	establish
comprehensive 	guidelines 	for 	the 	disposition 	of 	charges
alleging 	violations 	of 	section 	3543.S(a):
1. 	A single 	test 	shall 	be 	applicable 	in 	all
instances 	in 	which 	violations 	of 	section 	3543.S(a) 	are
alleged;
2. 	Where 	the 	charging 	party 	establishes 	that 	the
employer's 	conduct 	tends 	to 	or 	does 	result 	in 	some
harm 	to 	employee 	rights 	granted 	under 	the 	EERA, 	a
prima 	facie 	case 	shall 	be 	deemed 	to 	exist;
3. 	Where 	the 	harm 	to 	the 	employees' 	rights 	is
slight, 	and 	the 	employer 	offers 	justification 	based 	on
operational 	necessity, 	the 	competing 	interest 	of 	the
employer 	and 	the 	rights 	of 	the 	employees 	wi 	be
balanced 	and 	the 	charge 	resolved 	accordingly:
4. 	Where 	the 	harm 	is 	i 	ently	estructive of	tructive
employee 	rights, 	the 	employer's 	conduct 	will 	be
excused 	only 	on 	proof 	that 	it 	was 	occasioned 	by
10
attribution to the word "discrimination" a definition unique to
section 8 (a) (3) of the NLRA and absent in the EERA.
Under this approach, the matter of unlawful intent remains
significant where it is affirmatively proven by the charging
party or where the employer claims of justification for its
conduct.
The Test
To assist the parties and hearing officers in this and
future cases, PERB finds it advisable to establish
comprehensive guidelines for the disposition of charges
alleging violations of section 3543.5 (a) :
1. A single test shall be applicable in all
instances in which violations of section 3543.5(a) are
alleged;
2. Where the charging party establishes that the
employer's conduct tends to or does result in some
harm to employee rights granted under the EERA, a
prima facie case shall be deemed to exist;
3. Where the harm to the employees' rights is
slight, and the employer offers justification based on
operational necessity, the competing interest of the
employer and the rights of the employees will be
balanced and the charge resolved accordingly;
4. Where the harm is inherently d
employee rights, the employer's conduct will be
excused only on proof that it was occasioned by
10

circumstances
	beyond
	the
	employer's
	control
	and
	that
no
	alternative
	course 	of
	action
	was
	available;
5.
	Irrespective
	of
	the 	foregoing,
	a
	charge
	will
be
	sustained
	where
	it
	is
	shown
	that
	the
	employer 	would
not
	have 	engaged
	in
	the
	complained-of 	conduct
	but
	for
an
	unlawful
	motivation,
	purpose
	or
	intent.
Proof
	Of
	Unlawful
	Intent
	Where
	Offered
	Or
	Required
Unlawful
	motivation,
	purpose 	or
	intent
	is
	essentially
a
	state
	of
	mind,
	a
	subjective
	condition 	generally
	known
only
	to
	the
	charged
	party. 	Direct
	and
	affirmative
	proof
is
	not
	always
	available
	or
	possible.
	However,
	following
generally
	accepted
	legal 	principles
	the 	presence 	of
	such
unlawful
	motivation,
	purpose 	or
	intent
	may 	be
	established
by
	inference
	from
	the
	entire
	recora.11
The
	Case
	Before
	The
	Board
Here,
	the
	gravaman
	of 	the 	charge
	is
	discriminatory
conduct
	directed 	against
	Gill,
	Bongiorni,
	Schurch
	and
Giordano.
	The
	hearing
	officer
	found
	that
	the
	total
evidence 	produced 	with
	respect 	to
	Bongiorni
	and
	Gill
failed 	to
	support 	the
	District's
	argument 	of 	business
justification
	and
	supported
	a
	finding
	of
	intent 	to
discriminate.
	These
	findings
	and
	conclusions 	are
sustained.
llRepublic 	Aviation 	Cor!. 	v.
	NLRB
	(1945) 	324 	U.S. 	793 	[16
LRRM
	620]; 	see 	also
	Radio O
ficers'Union
	v.
	NLRB
	(1954) 	347
U.S. 	17 	[33
	LRRM
	2417].
11
circumstances beyond the employer's control and that
no alternative course of action was available;
5. 	Irrespective of the foregoing, a charge will
be sustained where it is shown that the employer would
not have engaged in the complained-of conduct but for
an unlawful motivation, purpose or intent.
Proof Of Unlawful Intent Where Offered Or Required
Unlawful motivation, purpose or intent is essentially
a state of mind, a subjective condition generally known
only to the charged party. Direct and affirmative proof
is not always available or possible. However, following
generally accepted legal principles the presence of such
unlawful motivation, purpose or intent may be established
by inference from the entire record.ll
The Case Before The Board
Here, the gravaman of the charge is discriminatory
conduct directed against Gill, Bongiorno, Schurch and
Giordano. 	The hearing officer found that the total
evidence produced with respect to Bongiorno and Gill
failed to support the District's argument of business
justification and supported a finding of intent to
discriminate. These findings and conclusions are
sustained.
1lRepublic Aviation Corp. v. NLRB (1945) 324 U.S. 793 [16
LRRM 620] ; see also Radio Officers Union v. NLRB (1954) 347
U.S. 17 [33 LRRM 2417] .
11

The
	Schurch
	Transfer.
	Schurch
	had 	a
	long
	history
	of
	0-CFT
activism.
	He
	had
	been
	a member
	of
	that
	organization 	for
	ten
years.
	In
	1964
	he 	had
	participated
	in
	an
	attempted
	work
stoppage. 	In
	1969
	and
	1970
	he 	had
	served
	as
	0-CFT
	president.
Considering
	his
	background
	it
	would 	be
	logical
	to
	expect
	that
Schurch,
	upon
	his
	return 	to
	Carlsbad
	High
	School,
	would
	fill
the
	organizing
	vacuum
	created
	by
	the
	District's
	transfer
	of
Bongiorni
	and
	Gill.
Furthermore, 	the
	Board
	cannot 	conclude
	that
	Schurch's
transfer
	was
	only
	coincidental
	and
	based
	on
	legitimate
operational
	need.
	He
	had
	taught
	psychology,
	sociology
	and
anthropology
	at
	the
	high 	school 	for
	nine
	years. 	All 	of
	his
teaching 	experience
	had 	been
	at
	the
	high 	school
	level,
including 	the 	three
	years
	he 	had
	taught
	abroad.
	His
	transfer,
ostensibly 	to
	accomplish 	enhanced
	educational
	objectives,
	was
to
Valley Junior
	High
	School
	to 	teach
	history
	and
	geography,
courses 	in
	which 	he 	had 	had 	no
	previous 	experience.
The
	hearing
	officer
	found
	that 	similarly 	idiosyncratic
reassignments 	for 	Bongiorni
	and
	Gill
	supported 	the 	conclusion
that 	their 	transfers
	were
	"not 	based
	on
	educational
considerations, 	but 	because 	of
	their
	organizing 	ef
	ts
	on
behalf 	of
	(0-CFT)
."
	He
	also
	found
	that
	it
	"was
	reasonable 	to
i
	that
	Schur 	uld resum	resume 	an 	i
	st
	posture'
	upon
return
	from
	his 	sabbatical 	leave."
Schurch's 	transfer,
	under 	these 	circumstances,
	is
comparable 	to 	the 	instance
	where 	an 	employer 	formulates 	and
implements 	a 	discriminatory 	hiring 	policy 	designed 	to 	prevent
J 2
The Schurch Transfer. Schurch had a long history of 0-CFT
activism. He had been a member of that organization for ten
years. 	In 1964 he had participated in an attempted work
stoppage. 	In 1969 and 1970 he had served as O-CFT president.
Considering his background it would be logical to expect that
Schurch, upon his return to Carlsbad High School, would fill
the organizing vacuum created by the District's transfer of
Bongiorno and Gill.
Furthermore, the Board cannot conclude that Schurch's
transfer was only coincidental and based on legitimate
operational need. He had taught psychology, sociology and
anthropology at the high school for nine years. All of his
teaching experience had been at the high school level,
including the three years he had taught abroad. His transfer,
ostensibly to accomplish enhanced educational objectives, was
to Valley Junior High School to teach history and geography,
courses in which he had had no previous experience.
The hearing officer found that similarly idiosyncratic
reassignments for Bongiorno and Gill supported the conclusion
that their transfers were "not based on educational
considerations, but because of their organizing efforts on
behalf of (0-CFT) ." He also found that it "was reasonable to
infer that Schurch wo 	e an 'activist posture' upon
return from his sabbatical leave."
Schurch's transfer, under these circumstances, is
comparable to the instance where an employer formulates and
implements a discriminatory hiring policy designed to prevent
12

the 	introduction 	into 	the 	work 	facility 	of 	known 	union
sympathizers 	or 	activists.1
the introduction into the work facility of known union
sympathizers or activists. 12 	2
Beyond 	the 	question 	of 	Schurch's 	rights, 	however, 	lies 	the
matter 	of 	the 	effect 	of 	the 	District's 	actions 	on 	other 	0-CFT
supporters. 	In 	the 	Board's 	opinion, 	considering 	Schurch's
long-standing 	known 	identification 	as 	an 0-CFT 	"activist," 	his
transfer, 	even 	before 	his 	actual 	return 	to 	Carlsbad 	High
School, 	together 	with 	those 	of 	Bongiorni 	and 	Gill, 	would 	have
the 	natural 	and 	probable 	consequence 	of 	causing 	other 	employees
reasonably 	to 	fear 	that 	similar 	action 	would 	be 	taken 	against
them 	if 	they 	engaged 	in 	organizing 	for 	0-CFT. 	This 	chilling
effect 	on 	the 	exercise 	of 	the 	employees' 	right 	of
self-organization was 	unlawful 	interference 	within 	the 	meaning
of 	section 	3543.S(a).
For 	these 	reasons 	the 	Board 	finds 	that 	the 	District
violated 	section 	3543.S(a) 	by 	its 	transfer 	of 	employee 	Schurch.
Giordano: T	Giordano: 	The 	Board, 	however, 	agrees 	with 	the 	District
that 	Giordano's 	transfer 	was 	not 	proven 	to 	be 	related 	to 	the
exercise 	of 	EERA 	rights. 	The 	only 	evidence made 	available 	to
the 	hearing 	officer 	was 	that 	Giordano 	was 	a 	member 	of 	0-CFT.
It 	cannot 	be 	concluded 	from 	this 	single 	fact 	that 	Giordano 	was
engaged 	in 	organizing 	or 	intended 	to 	be 	so 	engaged 	at 	any
future 	date. 	Further, 	there 	is 	neither 	evidence 	nor 	a 	cla
that 	the 	District 	violated 	or 	intended 	to 	violate 	the 	rights 	of
12Phelps 	Dodge 	Corp. 	v. 	NLRB 	(1941) 	313 	U.S. 	177 	[8 	LRRM
439] .
13
Beyond the question of Schurch's rights, however, lies the
matter of the effect of the District's actions on other O-CFT
supporters. In the Board's opinion, considering Schurch's
long-standing known identification as an 0-CFT "activist, " his
transfer, even before his actual return to Carlsbad High
School, together with those of Bongiorno and Gill, would have
the natural and probable consequence of causing other employees
reasonably to fear that similar action would be taken against
them if they engaged in organizing for O-CFT. This chilling
effect on the exercise of the employees' right of
self-organization was unlawful interference within the meaning
of section 3543.5(a) .
For these reasons the Board finds that the District
violated section 3543.5(a) by its transfer of employee Schurch.
he Board, however, agrees with the District
that Giordano's transfer was not proven to be related to the
exercise of EERA rights. The only evidence made available to
the hearing officer was that Giordano was a member of 0-CFT.
It cannot be concluded from this single fact that Giordano was
engaged in organizing or intended to be so engaged at any
future date. Further, there is neither evidence nor a claim
that the District violated or intended to violate the rights of
12phelps Dodge Corp. v. NLRB (1941) 313 U.S. 177 [8 LRRM
439] .
13

teachers
	simply 	because
	they
	were
	0-CFT members.
	For
	these
reasons 	the
	Board
	concludes
	that
	the
	transfer
	of
	Giordano
	did
not
	violate
	section
	3543.S(a).
Other
	District
	Positions
The
	District
	also
	argues
	that
	the
	right
	to
	organize
	does
not 	extend
	"to
	being
	in 	the
	most
	beneficial
	position" 	for
	that
activity
	and
	that
	the 	charging
	party
	was
	not 	precluded
	from
organizing 	in
	the
	new
	locations 	to
	which
	they
	were
	tranferred.
In
	a
	related
	argument,
	the
	District
	claims
	that
	the
	consequence
of 	the 	hearing
	officer's
	proposed
	decision
	would 	be
	to
"immunize" 	employees
	against
	"virtually
	any
	directions
	of 	the
employer."
	Each
	of
	these
	arguments
	misses 	the
	point
	and
	is
found
	to
	be
	without
	merit.
The
	District
	provides
	no
	authority
	for
	its
	position
	that
the
	six-month
	period 	for
	filing
	a
	charge
	started
	with
	the
issuance 	of 	the
	transfer 	notices.
	Its
	reasoning
	seems
	to
	be
that
	since 	the
	employees
	had 	no
	choice 	in 	the matter
	of
	their
transfers,
	it
	was
	the
	decision 	to 	transfer
	them
	that
	had
	to
serve
	as
	the 	basis
	of
	the 	charge.
	If
	there
	was
	interference,
the
	argument
	continues,
	it
	occurred
	at
	the
	time
	that 	decision
was 	made.
	We
	do
	not 	agree 	with
	this
	reasoning. 	The charge is	The
	charge
	is
predicated
	on
	the 	physical 	relocation
	the 	charging
	parties
from 	an
	area 	in
	which
	they
	were
	effectively
	organizing 	for
0-CFT
	to 	areas
	where
	their 	efforts
	were
	likely 	to
	be
ineff
	ve.
	Whi
	it ve be	may
	possi
	e
	for 	to
filed
	a
	charge
	at 	the 	time 	the 	decision 	to 	transfer 	the
14
teachers simply because they were O-CFT members. For these
reasons the Board concludes that the transfer of Giordano did
not violate section 3543.5 (a) .
Other District Positions
The District also argues that the right to organize does
not extend "to being in the most beneficial position" for that
activity and that the charging party was not precluded from
organizing in the new locations to which they were tranferred.
In a related argument, the District claims that the consequence
of the hearing officer's proposed decision would be to
"immunize" employees against "virtually any directions of the
employer . " 	Each of these arguments misses the point and is
found to be without merit.
The District provides no authority for its position that
the six-month period for filing a charge started with the
issuance of the transfer notices. Its reasoning seems to be
that since the employees had no choice in the matter of their
transfers, it was the decision to transfer them that had to
serve as the basis of the charge. If there was interference,
the argument continues, it occurred at the time that decision
was made. 	We do not agree with this reasoning.
predicated on the physical relocation of the charging parties
from an area in which they were effectively organizing for
O-CFT to areas where their efforts were likely to be
ineffective. While it may ha 	en possible for 0-CFT to have
filed a charge at the time the decision to transfer the
14

employees
	was
	announced,
	it
	was
	not
	precluded
	from
	doing
	so
when
	those
	transfers 	actually
	became
	effective.
	The
interference
	with
	the
	employees'
	rights
	did 	not
	start
	and
	end
with 	the
	announcement.
	It
	existed
	at
	the
	time
	the
	transfers
actually
	occurred
	and
	persisted 	thereafter.
	The
	District's
conduct
	constituted
	a
	continuing
	violation
	of
	section
	3543.5(a)
[See
	Swift 	Service
	Doors
	Inc.
	(1969) 	169
	NLRB
	359 	(67
	LRRM
1181)].
	We
	therefore 	sustain
	the 	hearing
	officer's
	finding
that
	the 	charge
	was
	timely
	filed.
Section
	3543.5(b)
The
	Board
	declines 	to
	uphold
	the 	hearing
	officer's
conclusion
	that
	O-CFT's
	rights
	under 	3543.S(b)
	were
	violated
	by
the
	District's
	actions.
	The
	rights
	of
	employees 	were
interfered
	with
	by
	the
	District's
	actions.
	However, 	an
interference
	with
	employee
	rights
	does
	not 	of
	necessity
constitute
	a
	denial
	of 	the
	rights
	of
	employee
	organizations.
See 	San
	Francisco Unified
	School
	District
	(10/3/78)
	PERB
Decision
	No.
	75. 	There
	is
	no
	evidence
	that
	the
	District
	denied
to
	O-CFT 	any
	right
	guaranteed
	to
	it	
by 	the
	EERA.
	The
	alleged
violation
	of
	section
	3543.5(b)
	therefore 	is
	dismissed.
15
employees was announced, it was not precluded from doing so
when those transfers actually became effective. 	The
interference with the employees' rights did not start and end
with the announcement. It existed at the time the transfers
actually occurred and persisted thereafter. The District's
conduct constituted a continuing violation of section 3543.5(a)
[See Swift Service Doors Inc. (1969) 169 NLRB 359 (67 LRRM
1181) ]. We therefore sustain the hearing officer's finding
that the charge was timely filed.
Section 3543.5 (b)
The Board declines to uphold the hearing officer's
conclusion that O-CFT's rights under 3543.5(b) were violated by
the District's actions. 	The rights of employees were
interfered with by the District's actions. However, an
interference with employee rights does not of necessity
constitute a denial of the rights of employee organizations.
See San Francisco Unified School District (10/3/78) PERB
Decision No. 75. There is no evidence that the District denied
to O-CFT any right guaranteed to it by the EERA. 	The alleged
violation of section 3543.5 (b) therefore is dismissed.
15

ORDER
Upon
	the 	foregoing
	facts,
	conclusions
	of
	law 	and
	the
	entire
record
	in
	this
	case,
	it
	is
	hereby
	ORDERED
	that
	the 	Carlsbad
Unified
	School
	District
	and
	its
	representatives
	shall:
(1)
	Cease
	and
	desist
	from
	discriminating 	against
	employees
by
	transferring
	them
	because
	of
	their
	exercise
	of
	their 	right
to 	join
	or 	not
	join
	an
	employee
	organization, 	to
	participate
	in
the
	activities
	of
	an
	employee
	organization
	or
	to
	engage
	in
organizing
	activities
	on
	behalf
	of
	an
	employee
	organization.
(2) 	Take
	the
	following
	affirmative 	action
	which
	is
necessary
	to
	effectuate
	the
	policies
	of
	the 	Educational
Employment
	Relations
	Act:
(a)
	Offer
	Harry
	Bongiorni,
	Mary 	Anne
	Gill
	and
Harry 	Schurch
	full,
	immediate
	reinstatement 	to
	their
	former 	or
equivalent 	positions 	at
	Carlsbad
	High
	School, 	without
	prejudice
to
	their 	seniority
	or
	other
	rights
	and
	privileges.
(b)
	Post
	at
	all
	school
	sites,
	and
	all
	other
	work
locations
	where
	notices 	to
	employees
	customarily 	are
	placed,
immediately
	upon
	receipt 	thereof,
	copies 	of 	the 	notice 	attached
as
	an
	appendix
	hereto.
	Such
	posting
	shall
	be
	maintained 	for
	a
iodof 	30
	consecutive
	days 	from
	receipt 	thereof.
	Reas 	e
steps
	should
	be
	taken
	to 	insure 	that 	said 	notices 	are 	not
tered, efaced or	f
	or 	cover 	by	
ot 	materi
16
ORDER
Upon the foregoing facts, conclusions of law and the entire
record in this case, it is hereby ORDERED that the Carlsbad
Unified School District and its representatives shall:
(1) Cease and desist from discriminating against employees
by transferring them because of their exercise of their right
to join or not join an employee organization, to participate in
the activities of an employee organization or to engage in
organizing activities on behalf of an employee organization.
(2) Take the following affirmative action which is
necessary to effectuate the policies of the Educational
Employment Relations Act:
(a) Offer Harry Bongiorno, Mary Anne Gill and
Harry Schurch full, immediate reinstatement to their former or
equivalent positions at Carlsbad High School, without prejudice
to their seniority or other rights and privileges.
(b) Post at all school sites, and all other work
locations where notices to employees customarily are placed,
immediately upon receipt thereof, copies of the notice attached
as an appendix hereto. Such posting shall be maintained for a
period 	30 consecutive days from receipt thereof. Reasonable
steps should be taken to insure that said notices are not
altered, d 	covered by any other material.
16

(c) 	Notify 	the 	Los 	Angeles 	Regional 	Director 	of 	the
Public 	Employment 	Relations 	Board, 	in 	writing, 	within 	20 	days
from 	the 	date 	of 	this 	Decision, 	of 	what 	steps 	the 	District 	has
taken 	to 	comply 	herewith.
It 	is 	further 	ordered 	that 	the 	alleged 	violation 	of
Section 	3543.S(b), 	and 	so much 	of 	the 	charge 	that 	alleges 	a
violation 	of 	the 	rights 	of 	Art 	Giordano, 	are 	hereby 	dismissed.
This 	order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	Carlsbad 	Unified 	School 	District.
By: Harry Gluck, Chairperson 	Jerilou Cossack Twohey, Member
Concurring opinion of Board Member Dr. Raymond J. Gonzales begins
on page 19.
By: 	i'?,-y ciluck, 	Chfuperson 	0e/ilou 	Cossack 	Twohey, 	MemlMr
Concurring 	opinion 	of 	Board Member 	Dr. 	Raymond 	J. 	Gonzales 	begins
on 	page 	19.
17
(c) Notify the Los Angeles Regional Director of the
Public Employment Relations Board, in writing, within 20 days
from the date of this Decision, of what steps the District has
taken to comply herewith.
It is further ordered that the alleged violation of
Section 3543.5 (b) , and so much of the charge that alleges a
violation of the rights of Art Giordano, are hereby dismissed.
This order shall become effective immediately upon service
of a true copy thereof on the Carlsbad Unified School District.
17

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in which 	all 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	Carlsbad Unified 	School
District 	violated 	the 	Educational 	Employment 	Relations 	Act 	by
discriminatorily 	transferring 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed 	by 	the 	EERA, 	thereby 	interfering
with 	the 	right 	of 	employees 	to 	organize 	for 	the
Oceanside-Carlsbad 	Federation 	of 	Teachers. 	As 	a 	result 	of 	this
conduct, 	we 	have 	been 	ordered 	to 	post 	this 	notice 	and 	we 	will
abide 	by 	the 	following:
Cease 	and 	desist 	from 	discriminating 	against 	employees 	by
transferring 	them 	because 	of 	their 	exercise 	of 	their 	right 	to
join 	or 	not 	join 	an 	employee 	organization, 	to 	participate 	in
the 	activities 	of 	an 	employee 	organization 	or 	to 	engage 	in
organizing 	activities 	on 	behalf 	of 	an 	employee 	organization.
WE WILL 	offer 	to 	Harry 	Bongiorni, 	Mary Ann 	Gill 	and 	Harry
Schurch 	immediate 	reinstatement 	to 	their 	former 	or 	equivalent
positions 	at 	Carlsbad 	High 	School, 	without 	prejudice 	to 	their
seniority 	or 	other 	rights 	and 	privileges.
OCEANSIDE-CARLSBAD 	UNIFIED 	SCHOOL 	DISTRICT
By: 	Superintendent
Dated:
This is an official notice. It must remain posted for 30
consecutive days from the date of posting and must not be
defaced, altered or covered by any material.
sis 	an 	offici 	notice. 	It 	must 	r 	n 	posted 	30
consecu 	ve 	days 	from 	the 	date 	of 	posting 	and 	must 	not 	be
defaced, 	altered 	or 	covered 	by 	any material.
18
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in which all parties had the right to
participate, it has been found that the Carlsbad Unified School
District violated the Educational Employment Relations Act by
discriminatorily transferring employees because of their
exercise of rights guaranteed by the EERA, thereby interfering
with the right of employees to organize for the
Oceanside-Carlsbad Federation of Teachers. 	As a result of this
conduct, we have been ordered to post this notice and we will
abide by the following:
Cease and desist from discriminating against employees by
transferring them because of their exercise of their right to
join or not join an employee organization, to participate in
the activities of an employee organization or to engage in
organizing activities on behalf of an employee organization.
WE WILL offer to Harry Bongiorno, Mary Ann Gill and Harry
Schurch immediate reinstatement to their former or equivalent
positions at Carlsbad High School, without prejudice to their
seniority or other rights and privileges.
OCEANSIDE-CARLSBAD UNIFIED SCHOOL DISTRICT
By : Superintendent
Dated:
18

Raymond
	J. 	Gonzales,
	Member,
	concurring:
I
	concur
	in
	the
	result
	reachep
	in
	this
	case.
	I
	differ
	with
the
	majority
	on
	the
	test
	to
	be
	applied 	in 	section
	3543.S(a)
	cases.
I
	agree 	with 	the
	majority's
	finding
	that
	a
	single
	test
	is
appropriate.
	However,
	I
	think
	the
	statute
	requires
	that
	the
employer's
	intent
	play
	an
	integral 	part
	in
	determining
	when
section
	3543.S(a) 	has
	been
	violated.
The
	Legislature
	chose
	very
	specific
	language
	in writing
	this
section.
	It
	did not 	follow 	the
	NLRA
	and 	most
	other
	state
statutes
1
which
	contain
	two
	related 	unfair 	practice
	provisions:
one
	prohibiting 	interference,
	restraint,
	or 	coercion
	in
	the
exericse 	of
	employee
	rights,
	and 	one
	prohibiting
	employment
discrimination
	to 	encourage
	or 	discourage 	labor 	organization
membership.
	Instead,
	the
	Legislature
	adopted
	one
	section
	which
did 	the 	following:
	(1)
	It
	added
	prohibitions 	against
	imposing
or 	threatening
	to
	impose
	reprisals
	on 	and
	discriminating 	or
threatening 	to 	discriminate 	against
	employees
	to 	prohibitions
against 	interference
	with,
restraint
	or 	coercion 	of
	employees;
and 	(2)
	it
	added
	the 	requirement
	that
	the 	employer's 	conduct
	be
11
because 	of" 	employees'
	exercise 	of 	protected 	rights.
Because
	the 	Legislature 	did not 	follow
	a 	commonly
	accepted
statutory
model,
	I
	believe 	that
	we
	must 	examine
	the 	language 	of
1
19
See,
	e.g.,
	Alaska
	Stats., 	§23.40.110(a)·(l)(3); 	Florida
Stats.,
	§447.SOl(a), (b); 	Indiana
	Code,
	tit.
	20,
	art.
	7.5
§7(a)(l)(3);
	Maine 	Rev.
	Stats., 	tit.
	26, 	Ch. 	9-A,
	§964(l)(A),(C);Mass. 	Gen. 	Law, 	Ch. 	150E;
	§lO(a)(l), 	(3).
Raymond J. Gonzales, Member, concurring:
I concur in the result reached in this case. I differ with
the majority on the test to be applied in section 3543.5(a) cases.
I agree with the majority's finding that a single test is
appropriate. However, I think the statute requires that the
employer's intent play an integral part in determining when
section 3543.5(a) has been violated.
The Legislature chose very specific language in writing this
section. It did not follow the NLRA and most other state
statutes which contain two related unfair practice provisions:
one prohibiting interference, restraint, or coercion in the
exericse of employee rights, and one prohibiting employment
discrimination to encourage or discourage labor organization
membership . 	Instead, the Legislature adopted one section which
did the following: (1) It added prohibitions against imposing
or threatening to impose reprisals on and discriminating or
threatening to discriminate against employees to prohibitions
against interference with, restraint or coercion of employees;
and (2) it added the requirement that the employer's conduct be
"because of" employees' exercise of protected rights.
Because the Legislature did not follow a commonly accepted
statutory model, I believe that we must examine the language of
"See, e. g. , Alaska Stats., $23. 40. 110(a) (1) (3); Florida
Stats., $447. 501(a) , (b) ; Indiana Code, tit. 20, art. 7.5
$7 (a) (1) (3) ; Maine Rev. Stats., tit. 26, Ch. 9-A, $964(1) (A), (C) ;
Mass. Gen. Law, Ch. 150E; $10(a) (1), (3).
19

section 	3543.S(a) 	very 	carefully 	to 	ascertain 	under what
circumstances 	the 	Legislature 	intended 	to 	hold 	employers 	liable
for 	acts 	which may 	affect 	employee 	rights. 	I 	believe 	this
language 	indicates 	the 	employers 	are 	not 	to 	be 	held 	strictly
liable 	for 	any 	act which 	might 	interfere with 	the 	exercise 	of
employee 	rights. 	Instead, 	the 	employer 	must 	have 	some 	intent,
either 	inferred 	or 	actual, 	to 	impose 	reprisals 	on, 	discriminate
against, 	interfere 	with, 	restrain, 	or 	coerce 	employees.
I 	reach 	this 	conclusion 	for 	two 	reasons. 	First, 	the 	language
on 	imposing 	reprisals 	on 	and 	discriminating 	against 	employees
clearly 	seems 	to 	require 	some 	showing of 	intent. 	How 	can 	one
impose 	reprisals 	on 	an 	employee without 	intending 	to 	do 	so? 	The
word 	"reprisal" 	connotes 	a 	purposeful 	act, 	as 	does 	"discrimination."
Also, 	threatening 	to 	impose 	reprisals 	or 	to 	discriminate 	is
obviously 	purposeful 	behavior. 	Therefore, 	employer 	intent 	is 	an
integral 	part 	of much 	of 	the 	behavior 	prohibited by 	section 	3543.S(a).
Second, 	the 	prohibition 	against 	interfering with 	employees
because 	of 	their 	exercise 	of 	guaranteed 	rights 	to 	me 	requires 	more
than 	the 	mere 	"nexus" 	between 	the 	employer's 	act 	and 	the 	exercise
of 	employee 	rights 	required 	by 	the 	majority. 	"Because 	of" 	connotes
a 	causal 	relationship; 	the 	statute 	requires 	that 	the 	employer 	have
acted because 	of 	the 	employees' 	exercise 	of 	their 	rights. 	This,
to 	me, 	indicates 	that 	employer 	intent 	is 	part 	of 	a 	violation 	of
section 	3543.S(a).
The majority minimizes 	the 	significance 	of 	the 	Legislature's
inclusion 	of 	the words 	"because 	of" 	in 	this 	statutory 	section.
However, 	I 	think 	that 	the 	Legislature's 	refusal 	to 	follow 	a 	model
20
section 3543.5(a) very carefully to ascertain under what
circumstances the Legislature intended to hold employers liable
for acts which may affect employee rights. I believe this
language indicates the employers are not to be held strictly
liable for any act which might interfere with the exercise of
employee rights. Instead, the employer must have some intent,
either inferred or actual, to impose reprisals on, discriminate
against, interfere with, restrain, or coerce employees.
I reach this conclusion for two reasons . 	First, the language
on imposing reprisals on and discriminating against employees
clearly seems to require some showing of intent. How can one
impose reprisals on an employee without intending to do so? The
word "reprisal" connotes a purposeful act, as does "discrimination."
Also, threatening to impose reprisals or to discriminate is
obviously purposeful behavior. Therefore, employer intent is an
integral part of much of the behavior prohibited by section 3543.5(a)
Second, the prohibition against interfering with employees
because of their exercise of guaranteed rights to me requires more
than the mere "nexus" between the employer's act and the exercise
of employee rights required by the majority. "Because of" connotes
a causal relationship; the statute requires that the employer have
acted because of the employees' exercise of their rights. This,
to me, indicates that employer intent is part of a violation of
section 3543.5(a).
The majority minimizes the significance of the Legislature's
inclusion of the words "because of" in this statutory section.
However, I think that the Legislature's refusal to follow a model
20

that
	has
	been
	accepted
	by
	virtually
	every
	other
	state 	that
	has
adopted
	collective
	negotiation
	legislation
	for 	public
	employees
is 	entitled
	to
	special 	consideration.
	Therefore,
	I
	find
	that
	the
overall
	language
	of
	section
	3543.5(a)
	requires
	that
	unlawful
intent
	be
	a
	requisite
	factor 	in
	finding
	a
	violation
	of
	that
section.
To
	say
	that
	unlawful
	intent
	is
	a
	necessary
	element
	of
	a
violation
	of
	section
	3543.5(a)
	is
	not 	to
	say
	that
	the 	charging
party 	in
	all
	cases
	must
	prove
	actual
	intent. 	Intent
	can
	be
inferred
	where
	the
	employer
	fails
	to
	justify
	conduct which
	is
likely
	to
	or
	does 	impose
	or
	threaten
	to
	impose
	reprisals
	on,
discriminate 	or 	threaten
	to
	discriminate 	against,
	interfere
	with,
restrain,
	or
	coerce
	employees, 	and
	proves
	that 	act
	is 	likely
	to
or
	does
	result
	in
	some 	harm
	to 	protected
	employee
	rights.
	The
employer 	can
	rebut
	this
	inference 	of
	unlawful
	intent
	with 	an
affirmative
	showing
	of
	a
	legitimate
	and
	substantial
	educational
or
	budgetary
	justification.
	The
	charging
	party
	can 	then
	refute
the 	employer's
	justification
by 	showing
	actual
	unlawful
	intent.
2
Such
	unlawful
	intent
	may
	be
	established
by
	inference
	from
	the
entire
	record
.
.When
	the 	employer's 	conduct
	is
	inherently 	destructive 	of
employee
	rights,
	the
	employer 	can
	justify 	its
	behavior, 	thus
refuting 	the 	inference 	of unlawful
	intent,
	only
	when
	it
	can
	show
that 	the 	conduct
	was
	occasioned by 	circumstances 	beyond
	the
2The
	NLRB
	has 	developed 	a
	similar 	test 	for 	violations 	of
NLRA
	section 	8(a)(3) 	in 	Great 	Dane
	Trailers, 	Inc. 	(1967) 	388 	U.S.
26 	[65
	LRRM
	2465].
21
that has been accepted by virtually every other state that has
adopted collective negotiation legislation for public employees
is entitled to special consideration. Therefore, I find that the
overall language of section 3543.5(a) requires that unlawful
intent be a requisite factor in finding a violation of that
section.
To say that unlawful intent is a necessary element of a
violation of section 3543.5(a) is not to say that the charging
party in all cases must prove actual intent. Intent can be
inferred where the employer fails to justify conduct which is
likely to or does impose or threaten to impose reprisals on,
discriminate or threaten to discriminate against, interfere with,
restrain, or coerce employees, and proves that act is likely to
The	or does result in some harm to protected employee rights.
employer can rebut this inference of unlawful intent with an
affirmative showing of a legitimate and substantial educational
or budgetary justification. The charging party can then refute
the employer's justification by showing actual unlawful intent.
Such unlawful intent may be established by inference from the
entire record.
When the employer's conduct is inherently destructive of
employee rights, the employer can justify its behavior, thus
refuting the inference of unlawful intent, only when it can show
that the conduct was occasioned by circumstances beyond the
The NLRB has developed a similar test for violations of
NLRA section 8(a) (3) in Great Dane Trailers, Inc. (1967) 388 U.S.
26 [65 LRRM 2465].
21

employer's
	control
	and
	that
	no
	alternative
	course
	of 	action
was
	available.
In
	developing
	this
	test,
	I
	am
not 	overruling
	the
	thrust
	of
San
	Dieguito 	Unified
	School
District
	(9/2/77)
	EERB
	Decision
No.
	22, 	which
	was
	that
	unlawful
	intent
	is
	a
	requirement
	for
finding
	a
	violation
	of 	section
	3543.S(a).
	I
	have 	merely
	added
a 	way
	in
	which
	intent
	can 	be
	demonstrated;
	that
	is,
	by
	inference
from
	the 	employer's
	lack 	of
	justification.
	I
	think
	that
	my
	test
clarifies
	rather
	than
	refutes
	San
	Dieguito.
The
	test
	I
	have
	developed
	is
	obviously
	quite 	similar
	to
	that
devised
	by
	the
	majority.
	The
	basic 	difference
	is
	the
	role
	which
unlawful
	intent
	plays
	in 	finding
	a
	violation
	of 	section
	3543.S(a).
The
	majority's
	test
	requires
	no 	showing
	of
	unlawful
	intent.
However, 	I
	find
	the
	majority's
	discussion 	of
	intent
	somewhat
confusing.
	For 	example,
	the 	majority
	states 	that
	its
	interpreta-
tion 	of 	section
	3543.S(a)
	does
	not
	mean
	that 	"intent
	need
	never
	be
proven
	in
	order 	to
	sustain
	a
	charge.
	The
	test
	will
	be
	in
	the
nature 	of 	the
	charge
	and
	of 	the 	response."
	The
	majority 	also
states 	that 	"the matter 	of
	unlawful
	intent
	remains
	significant
where
	the
	employer
	claims 	of
	justification
	for
	its
	conduct."
These
	statements
	imply
	that 	intent
	must 	be
	shown
	in
	some
	circum-
stances 	in 	order 	to
	sustain
	a
	charge.
	I 	would
	agree,
	and
	note
that 	the
	test
	I
	propose 	does
	require
	a 	showing
	of 	unlawful
	intent
when
	the
	employer 	demonstrates
	a
	legitimate 	justification.
	The
majority's 	test,
	contrary 	to 	the 	discussion 	leading
	up
	to
	it,
does
	not.
In 	the 	present 	case, 	the 	evidence 	failed 	to 	substantiate
the 	District's 	claim of 	justification 	for 	the 	transfers 	of
22
employer's control and that no alternative course of action
was available.
In developing this test, I am not overruling the thrust of
San Diegueto Unified School District (9/2/77) EERB Decision
No. 22, which was that unlawful intent is a requirement for
finding a violation of section 3543.5(a) . I have merely added
a way in which intent can be demonstrated; that is, by inference
from the employer's lack of justification. I think that my test
clarifies rather than refutes San Diegueto.
The test I have developed is obviously quite similar to that
devised by the majority. The basic difference is the role which
unlawful intent plays in finding a violation of section 3543.5(a).
The majority's test requires no showing of unlawful intent.
However, I find the majority's discussion of intent somewhat
confusing. 	For example, the majority states that its interpreta-
tion of section 3543.5(a) does not mean that "intent need never be
proven in order to sustain a charge. The test will be in the
nature of the charge and of the response." The majority also
states that "the matter of unlawful intent remains significant
where the employer claims of justification for its conduct."
These statements imply that intent must be shown in some circum-
stances in order to sustain a charge. I would agree, and note
that the test I propose does require a showing of unlawful intent
when the employer demonstrates a legitimate justification. The
majority's test, contrary to the discussion leading up to it,
does not.
In the present case, the evidence failed to substantiate
the District's claim of justification for the transfers of
22

Bongiorni,
	Gill,
	and,
Schurch.
	Since
	the
	District's
	conduct
had
	the
	effect
	of 	discriminating 	against 	these
	employees,
interfering
	with
	their
	rights
	and
	the
	rights
	of 	other
	employees,
I
	would
	infer 	that
	the
	District
	had
	the
	requisite 	intent
	to
discriminate 	against 	these
	employees
	because
	of
	their
	exercise
of
	their
	EERA
	rights,
	and would
	thus
	find
	that
	the
	District
violated 	section
	3543.S(a).
I
	agree 	with 	the
	majority
	that
	0-CFT's
	charge
	was
	timely
filed
	under
	section 	3541.S(a)(l).
	While
	0-CFT may
	have
	been
able 	to
	file
	a
	charge
	when
	the
	District
	announced
	its
	decision
to
	transfer
	the
	employees,
	the
	actual
	transfers
	could,
	and
	in
this
	case 	did,
	constitute
	an
	unlawful
	act,
	and
	0-CFT
	filed
	its
charge
	within
	six
months
	0f
	that 	act.
	I
	disagree 	with
	the
majority's
	contention
	that
	the
	District's
	conduct
	constituted
a
	"continuing
	violation
	of 	section
	3543.S(a)
.
11
The
	unfair
practice
	occurred
	when
	the
	actual 	transfers
	took
	place.
	To
	find
a
	continuing
	violation
	would
	make 	a 	mockery
	of
	the
	six
	months
limitation;
	the 	teachers
	could 	then
	file
	an
	unfair 	practice
charge 	years
	after
	being
	transferred,
	providing 	they 	remain
	in
the
	position 	that
	occasioned 	the 	charge. 	Finding
	a
	continuing
violation
	here
	would mean
	that
	almost 	every
	act
	which
	interfered
with
	employee
	rights
	would 	be
	a
	continuing
	violation 	until
remedied 	by
	the
	District
	or 	the
	Board.
I
	concur 	in 	the 	majority's 	decision 	to 	dismiss 	0-CFT's
charge
	that
	the
	District 	violated 	section 	3543.S(b),
	and
	in 	the
Order.
Raymond J. Gonzales, Member
23
Bongiorno, Gill, and. Schurch. Since the District's conduct
had the effect of discriminating against these employees,
interfering with their rights and the rights of other employees,
I would infer that the District had the requisite intent to
discriminate against these employees because of their exercise
of their EERA rights, and would thus find that the District
violated section 3543.5(a) .
I agree with the majority that O-CFT's charge was timely
filed under section 3541.5(a) (1) . While O-CFT may have been
able to file a charge when the District announced its decision
to transfer the employees, the actual transfers could, and in
this case did, constitute an unlawful act, and O-CFT filed its
charge within six months of that act. I disagree with the
majority's contention that the District's conduct constituted
a "continuing violation of section 3543.5(a) ." The unfair
practice occurred when the actual transfers took place. To find
a continuing violation would make a mockery of the six months
limitation; the teachers could then file an unfair practice
charge years after being transferred, providing they remain in
the position that occasioned the charge. Finding a continuing
violation here would mean that almost every act which interfered
with employee rights would be a continuing violation until
remedied by the District or the Board.
I concur in the majority's decision to dismiss 0-CFT's
charge that the District violated section 3543.5(b), and in the
Order.
23

EDUCATIONAL
	EMPLOYMENT
	RELATIONS
	BOARD
OF
	THE
	STATE
	OF
	CALIFORNIA
In
	the
	Matter
	of
OCEANSIDE-CARLSBAD FEDERATION
	OF
TEACHERS,
	LOCAL
	1344,
CFT/AFT,
Charging
	Party,
vs.
CARLSBAD
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
_________________ )
CASE 	NO.
	LA-CE-61
RECOMMENDED
	DECISION
(10/27/77)
Appearances:	
Anne
	Fragasso, 	Attorney,
	California
	Federation 	of
Teachers,
	for
	Oceanside-Carlsbad 	Federation
	of
	Teachers, 	Local
1344;
	Arlene
	Pr~ter,
	Deputy 	County
	Counsel, 	County·of
San
	Diego,
for
	Carlsbad Unified
	School
	District.	
·
Before
	Jeff
	Paule,
	Hearing
	Officer.
STATEMENT OF THE 	CASE
On
	January 	12, 	1977,
	the 	Oceanside-Carlsbad 	Federation
of
	Teachers,
	CFT/AFT, 	AFL-CIO,
	Local
	1344
	(hereinafter 	referred
to 	as
	0-CFT
	or 	charging 	party)
	filed
	an
	unfair 	practice
	charge
against 	the 	Carlsbad Unified
	School
	District 	(hereinafter
referred 	to 	as
	District
	or 	respondent) 	with 	the 	Educational
Employment
	Relations
	Board 	(EERB),
	alleging 	violations
-1-
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of
OCEANSIDE-CARLSBAD FEDERATION OF
TEACHERS, LOCAL 1344, CFT/AFT 	CASE NO. LA-CE-61
Charging Party,
VS .
RECOMMENDED DECISION
CARLSBAD UNIFIED SCHOOL DISTRICT, 	(10/27/77)
Respondent.
Appearances : 	Anne Fragasso, Attorney, California Federation of
Teachers, for Oceanside-Carlsbad Federation of Teachers, Local
1344; Arlene Prater, Deputy County Counsel, County of San Diego,
for Carlsbad Unified School District.
Before Jeff Paule, Hearing Officer.
STATEMENT OF THE CASE
On January 12, 1977, the Oceanside-Carlsbad Federation
of Teachers, CFT/AFT, AFL-CIO, Local 1344 (hereinafter referred
to as 0-CFT or charging party) filed an unfair practice charge
against the Carlsbad Unified School District (hereinafter
referred to as District or respondent) with the Educational
Employment Relations Board (EERB) , alleging violations
-1-

Government 	Code
	Sections 	3543.S(a),
	(b) 	and
	(c) _l,	
2
The
	gist
	of 	the
	unfair 	practice
	charge
	is
	that
	the
respondent
	discriminated
	against,
	or
	otherwise
	interfered
with
or
	restrained
	Harry
	Bongiorni, 	Harry 	Schurch,
	Mary Ann
	Gill
	and
Art
	Giordano,
	because
	of
	their
	exercise 	of
	rights
	guaranteed
by
	the 	Educational
	Employment
	Relations
	Act
	when
	the
	District
transferred
	them from
	Carlsbad
High
	School
	to
	Valley
	Junior
High
	School
	in
	September
	1976. 	The
	charging
	party
	contends
that
	the
	District's
	purpose
	in
	the
	transfer
	of 	these
	members
was
	to
	weaken
	the 	charging
	party's
	support base
	at
	the 	high
school
	and
	thus
	interfere
with 	the
	0-CFT's
	and
	its
	supporters'
organizational
	activities.
On
	February 	5,
	1977,
	the
	respondent
	filed
	its
	answer
to 	the 	unfair 	practice
	charge.
A
hearing
was
	held
	in
	Los
	Angeles 	on
	April
	29,
	1977.
At
	the 	hearing, 	the 	respondent
	moved
	to
	dismiss 	the
	allegation
relating
	to 	Section 	3543.S(c).
	Inasmuch
	as
	the
	parties
stipulated 	that
	the 	charging
	party
was
	not 	the 	exclusive
representative 	at
	the
	time
	the 	alleged violations
	occurred,
this
	motion
was
	granted.
I
All 	section references 	are 	to 	the
	Government 	Code
	unless
otherwise noted.
2
Sections 	3543.S(a),
	(b) 	and 	(c)
	state:
It
	shall
	be unlawful 	for
	a
	public 	school 	employer
	to:
(a) 	Impose
	or 	threaten 	to
	impose
	reprisals
	on 	employees,
to 	discriminate 	or 	threaten 	to 	discriminate 	against
employees, 	or 	otherwise 	to 	interfere with, 	restrain, 	or
coerce 	employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by
	this 	chapter.(b) 	Deny 	to 	employee 	organizations 	rights 	guaranteed
to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and negotiate 	in 	good 	faith
with 	an 	exclusive 	representative.
-2-
Government Code Sections 3543.5(a), (b) and (c) . 1, 2
The gist of the unfair practice charge is that the
respondent discriminated against, or otherwise interfered with
or restrained Harry Bongiorno, Harry Schurch, Mary Ann Gill and
Art Giordano, because of their exercise of rights guaranteed
by the Educational Employment Relations Act when the District
transferred them from Carlsbad High School to Valley Junior
High School in September 1976. The charging party contends
that the District's purpose in the transfer of these members
was to weaken the charging party's support base at the high
school and thus interfere with the 0-CFT's and its supporters'
organizational activities.
On February 5, 1977, the respondent filed its answer
to the unfair practice charge.
A hearing was held in Los Angeles on April 29, 1977.
At the hearing, the respondent moved to dismiss the allegation
relating to Section 3543.5(c) . Inasmuch as the parties
stipulated that the charging party was not the exclusive
representative at the time the alleged violations occurred,
this motion was granted.
All section references are to the Government Code unless
otherwise noted.
2
Sections 3543.5(a), (b) and (c) state:
It shall be unlawful for a public school employer to:
(a) Impose or threaten to impose reprisals on employees,
to discriminate or threaten to discriminate against
employees, or otherwise to interfere with, restrain, or
coerce employees because of their exercise of rights
guaranteed by this chapter.
(b) Deny to employee organizations rights guaranteed
to them by this chapter.
(c) 	Refuse or fail to meet and negotiate in good faith
with an exclusive representative.
-2-

The
	respondent
	also
	moved
	to
	dismiss 	the 	charge
	on
the
	basis
	that
	the
	charging
	party
	did not
	exhaust
	the
	District's
grievance procedure
	as
	allegedly 	required
	by
	Section
	3541.S(a)
and
	that
	the
	charging
	party
	failed
	to
	comply
with 	the
	six-
month
	statute
	of
	limitations
	set
	forth 	in
	Section 	3541.S(a).
3
These motions
	are
	disposed
	of
	in
	accordance
	with 	the 	findings
and
	conclusions
	below. 
ISSUES
1.
	Whether
	the
	charging
	party
	complied
with 	the
statute
	of 	limitations 	set 	forth 	in
	Section 	3541.S(a).
2. 	Whether
	the 	charging
	party
was
	required 	to
exhaust
	the
	District's
	grievance 	procedure 	pursuant 	to
Section 	3541.S(a).
3. 	Whether
	the 	respondent
	violated
	Section
	3543.S(a)
and 	(b) 	when
	it
	transferred 	certain
	0-CFT
	members/supporters
from
	Carlsbad
High 	School
	to 	Valley 	Junior
	High
	School.
3
Section 	3541.S(a)
	states
	as 	follows:(a) 	Any 	employee, 	employee
	organization, 	or
	employer
shall
	have
	the 	right 	to
	file
	an
	unfair 	practice 	charge,
except 	that 	the 	board
	shall not
	do
	either 	of 	the 	following:
(1)
	issue
	a 	complaint 	in respect 	of
	any 	charge based upon
an
	alleged unfair 	practice 	occurring
more
	than 	six
months
prior 	to 	the 	filing 	of 	the 	charge; 	(2)
	issue
	a 	complaint
against 	conduct 	also 	prohibited
	by 	the 	provisions 	of 	the
agreement 	between 	the 	parties 	until 	the 	grievance machinery
of 	the 	agreement,
	if 	it 	exists 	and 	covers 	the matter 	at
issue, 	has 	been 	exhausted, 	either by 	settlement 	or 	binding
arbitration.
-3-
The respondent also moved to dismiss the charge on
the basis that the charging party did not exhaust the District's
grievance procedure as allegedly required by Section 3541.5(a)
and that the charging party failed to comply with the six- 3
month statute of limitations set forth in Section 3541. 5(a).
These motions are disposed of in accordance with the findings
and conclusions below.
ISSUES
1 . 	Whether the charging party complied with the
statute of limitations set forth in Section 3541.5(a) .
2. 	Whether the charging party was required to
exhaust the District's grievance procedure pursuant to
Section 3541.5(a) .
3. 	Whether the respondent violated Section 3543.5(a)
and (b) when it transferred certain 0-CFT members/ supporters
from Carlsbad High School to Valley Junior High School.
3
Section 3541.5(a) states as follows:
(a) Any employee, employee organization, or employer
shall have the right to file an unfair practice charge,
except that the board shall not do either of the following:
(1) issue a complaint in respect of any charge based upon
an alleged unfair practice occurring more than six months
prior to the filing of the charge; (2) issue a complaint
against conduct also prohibited by the provisions of the
agreement between the parties until the grievance machinery
of the agreement, if it exists and covers the matter at
issue, has been exhausted, either by settlement or binding
arbitration.

FINDINGS
	OF
	FACT
The
	Carlsbad 	Unified
	School
	District
	is
	located
	in
San Diego
	County.
	The
	District
	has
	one
	high 	school,one
continuation
	high 	school,
	one
	junior
	high 	school,
	and
	four
elementary
	schools.
	The
	District
	serves
	approximately
	4,232
students
	and 	employs
	approximately
	205
	teachers.
4
The 	0-CFT
	organized
	and
	became 	a
	local
	of 	the
	American
Federation
	of
	Teachers
	(AFT)
	in
	1959.
	For
	many
	years
	there-
after,
	however,
	the
	union
was 	a
	dormant
	organization. 	In
	1975,
the 	charging
	party's
	organizational
	activities
	intensified 	in
anticipation
	of 	the
	enactment
	of 	the 	Educational
	Employment
Relations
	Act
	(EERA). 	The
	membership
	elected
	as
	its
	president
Harry 	Bongiorni,
	who
	had
	served
	as
	president
	on
	prior
	occasions.
The
	California
	Teachers
	Association
	(CTA)
	chapter
is
	the
	dominant
	certificated
	employee
	organization 	in 	the
District
	with
	its
	major 	source 	of 	strength 	centered
	at
	the
junior
	high 	school
	and
	the
	elementary 	schools.
	The 0-CFT
has
	a
	small
	membership
	with
	most
	of
	its
	members
	located
	at
the 	high 	school.
	An
	independent 	high 	school
	faculty 	associa-
tion 	also 	exists.
44
This 	information
	is
	obtained
	from
	the
	1977
	California
	School
Directory
	and
	the
	EERB
	representation 	files
	involving
	this
	-
school
	district.
	The
	hearing 	officer
	takes
	official noticeof 	these
	documents. 	The
	representation 	files 	also 	indicate
that
	a
	dispute 	as 	to 	the 	appropriate 	unit 	exists
	which 	has
not 	yet 	been resolved.
	As
	of 	the 	date 	of 	this
	recommended
decision
	no
	representation 	election has 	been 	conducted
	inthe 	the 	Carlsbad Unified 	School
	District.
-4-
FINDINGS OF FACT
The Carlsbad Unified School District is located in
San Diego County. The District has one high school, one
continuation high school, one junior high school, and four
elementary schools. The District serves approximately 4, 232
students and employs approximately 205 teachers.
The O-CFT organized and became a local of the American
Federation of Teachers (AFT) in 1959. For many years there-
after, however, the union was a dormant organization. In 1975,
the charging party's organizational activities intensified in
anticipation of the enactment of the Educational Employment
Relations Act (EERA) . The membership elected as its president
Harry Bongiorno, who had served as president on prior occasions.
The California Teachers Association (CTA) chapter
is the dominant certificated employee organization in the
District with its major source of strength centered at the
junior high school and the elementary schools. The 0-CFT
has a small membership with most of its members located at
the high school. An independent high school faculty associa-
tion also exists.
This information is obtained from the 1977 California School
Directory and the EERB representation files involving this
school district. The hearing officer takes official notice
of these documents. The representation files also indicate
that a dispute as to the appropriate unit exists which has
not yet been resolved. As of the date of this recommended
decision no representation election has been conducted in
the the Carlsbad Unified School District.
-4-

On
	April
	2,
	1976,
	the
	local
	CTA
	chapter
	filed
	a
request 	for 	exclusive
representation 	of
	the
	certificated
	personnel
of
	the
	District.
	Mr.
	Harry
	Bongiorni,
	current
	0-CFT
	president,
and
	a 	few
	ardent 	supporters
	of
	the
	AFT
	commenced
	an
	intense
organizational
	campaign
	to 	obtain
	enough
	signatures 	to
	qualify
the
	0-CFT
	as
	an
	intervenor.
	The
	campaign
was
	successful
	and
on
	April
	30,
	1976,
	the 	charging
	party
	filed
	its
	intervening
petition
with 	the
	EERB,
	thus
	setting
	in
	motion
	the
	machinery
for
	a
	representation 	election.
The
	charging
	party's
	"strategy" 	for
	winning
	the
representation 	election
was
	best 	stated 	at
	the 	hearing
	by
Mr.
	Bongiorni:
	"I
	felt
	we
	had
	a
	strong 	core
	of
	people
	at
	the
high 	school.
	It
	was
	our
	plan 	to 	get 	the 	high 	school
	teachers
together
	as
	a
	solid 	unified
	group. 	[T]hen 	once
	we
	[did]
	this,
organize
	them, 	and
	get
	workers
	in 	that,
	we
	could
work
	into
the 	other 	schools."
The
	charging
	party 	did not 	intend Valley 	Junior
High 	School
	to
	be
	a
	primary
	target 	for 	organization
	and
campaign
	purposes 	because 	the 	teachers 	there
	overwhelmingly
support 	the 	local
	CTA
	chapter. 	Several 	past 	presidents, 	the
current 	president
	and
	the 	president-elect 	of 	the
	CTA
	chapter
teach
	at
	Valley 	Junior
	High 	School.
	Additionally, 	the 	charging
party 	felt 	that
	Valley Junior
	High
	School's 	physical 	structure
was
	not 	conducive 	to 	usual 	organizing 	techniques. 	Valley
-5-
On April 2, 1976, the local CTA chapter filed a
request for exclusive representation of the certificated personnel
of the District. Mr. Harry Bongiorno, current 0-CFT president,
and a few ardent supporters of the AFT commenced an intense
organizational campaign to obtain enough signatures to qualify
the 0-CFT as an intervenor. The campaign was successful and
on April 30, 1976, the charging party filed its intervening
petition with the EERB, thus setting in motion the machinery
for a representation election.
The charging party's "strategy" for winning the
representation election was best stated at the hearing by
Mr. Bongiorno: "I felt we had a strong core of people at the
high school. It was our plan to get the high school teachers
together as a solid unified group. [T]hen once we [did] this,
organize them, and get workers in that, we could work into
the other schools."
The charging party did not intend Valley Junior
High School to be a primary target for organization and
campaign purposes because the teachers there overwhelmingly
support the local CTA chapter. Several past presidents, the
current president and the president-elect of the CTA chapter
teach at Valley Junior High School. Additionally, the charging
party felt that Valley Junior High School's physical structure
was not conducive to usual organizing techniques. Valley
-5-

Junior
	High
	School
	is
	a
	modern,
	innovative
	"pod-type"
	school.
-6-
Each 	"pod"
	operates
	like
	a
	separate
	mini-school;
	there 	are
five
	or
	six
	teachers
	in
	each
	pod
	who
	generally
	have
	contact
only
	with
	each
	other.
	Some
	of 	the
	pods
	operate 	year-round,
and
	thus
	vacations
	occur
	at
	all
	times
	of 	the 	year.
	Because
of 	the
	"pod-type"
	structure,
	the 	teachers
	at
	Valley
	Junior
High 	School
	are
more
	isolated
	from
	each
	other
	than
in
	a
	regular
	school.
On
	or
	about
	May
	20, 	1976,
	subsequent
	to
	District-
wide
	administrative
	reassignments, 	the
	District 	notified
	37
teachers,
	approximately
	17
	percent 	of 	the
	District's
	teaching
staff,
	that
	they
	were
	to
	be
	transferred
	to
	new
	teaching 	assign-
ments
	at 	different
	schools
	commencing
	September 	1976. 	Seven
teachers
	were
	selected
	to
	be
	transferred
	from
	Carlsbad
	High
School, 	which has 	approximately
	75
	teachers, 	to 	Valley
	Junior
High 	School.
	Two
	of 	the
	transfers
	were
	voluntary. 	All
	five
of 	the 	involuntary 	transferees
	were
	signatories
	on
	the
	AFT
petition
	for 	intervention.
	The
	five 	are:
	Harry 	Bongiorni,
Harry 	Schurch,
	Mary Ann
	Gill,
	Art
	Giordano 	and Mr.
	Albierco.
At
	the 	hearing,
	Mr.
	Albierco
	was
	dropped by
	the 	charging
party
	as
	a
	subject 	of 	this 	action.
(1) 	Harry 	Bongiorni
Harry 	Bongiorni 	taught 	geometry, 	algebra
	and
	basic
mathematics 	for
	19
	years
	at
	Carlsbad High 	School. 	During 	the
1976-77 	school 	year,
	Mr. 	Bongiorni 	taught 	basic 	arithmetic
and 	an 	algebra 	course 	at 	Valley 	Junior 	High 	School. 	He 	had
Junior High School is a modern, innovative "pod-type" school.
Each "pod" operates like a separate mini-school; there are
five or six teachers in each pod who generally have contact
only with each other. Some of the pods operate year-round,
and thus vacations occur at all times of the year. Because
of the "pod-type" structure, the teachers at Valley Junior
High School are more isolated from each other than
in a regular school.
On or about May 20, 1976, subsequent to District-
wide administrative reassignments, the District notified 37
teachers, approximately 17 percent of the District's teaching
staff, that they were to be transferred to new teaching assign-
ments at different schools commencing September 1976. Seven
teachers were selected to be transferred from Carlsbad High
School, which has approximately 75 teachers, to Valley Junior
High School. Two of the transfers were voluntary. All five
of the involuntary transferees were signatories on the AFT
petition for intervention. The five are: Harry Bongiorno,
Harry Schurch, Mary Ann Gill, Art Giordano and Mr. Albierco.
At the hearing, Mr. Albierco was dropped by the charging
party as a subject of this action.
(1) Harry Bongiorno
Harry Bongiorno taught geometry, algebra and basic
mathematics for 19 years at Carlsbad High School. During the
1976-77 school year, Mr. Bongiorno taught basic arithmetic
and an algebra course at Valley Junior High School. He had
-6-

no
	prior
	teaching 	experience
	at 	this
	grade
	level
	except
	for
student
	teaching
	in
	1956.
	Mr.
	Bongiorni's 	educational
background
	includes
	a
	Masters
	Degree
	in
	mathematics
	and
five
	National
	Science 	Foundation 	Grants
	in
	mathematics.
Mr.
	Bongiorni
	was
	the
	only
mathematics
	teacher
	transferred
to
	the
	junior
	high 	school.
	The
	evidence
	indicates
	that
Mr.
	Bongiorni
	was
	replaced
	at
	the
	high 	school
	by
	a
	physical
education 	teacher
	from
	Valley
	Junior
	High
	School
	who
	last
taught
	mathematics
15
	years
	ago.
Mr.
	Bongiorni
	is
	closely
	identified
with 	the 	charging
party
	and
	is
	known 	among
	the
	faculty
	as
	the
	"union
	person".
He
	has
	assisted 	certificated
	personnel with 	grievances
	and
other
	employment
	complaints
	for
	much
	of 	his
	19
	years
	at
	the
high 	school.
	Mr.
	Bongiorni's 	posture
	as
	an
	AFT
	activist 	is
well
	known 	among
	District
	administrators.
(2) 	Harry 	Schurch
Harry 	Schurch
	taught
	psychology, 	sociology
	and
anthropology 	for 	nine 	years
	at
	Carlsbad
	High
	School. 	His
last
	teaching 	assignment
	at
	the 	high 	school,
	however, 	was
English.
	During
	the
	1976-77
	school 	year,
	Mr.
	Schurch
	taught
U.S.
	History
	and 	geography
	at
	Valley 	Junior
	High
	School.
During 	the 	year
	just 	prior
	to 	his 	junior high 	school
	assign-
ment, 	Mr. 	Schurch was 	on
	sabbatical 	leave
	and
	prior 	to 	that
he was 	on
	personal 	leave 	for
	two
	years 	teaching
	at
	a
	high
school 	in
	a
	foreign 	country.
	Mr.
	Schurch's 	teaching 	experience
has 	always 	been 	on 	the 	high 	school 	level.
Mr. 	Schurch 	has 	been 	an 	active
	AFT
	supporter 	since
the 	early 	1960's. 	In 	1964, 	he 	participated 	in 	an 	attempted
- 7-
no prior teaching experience at this grade level except for
student teaching in 1956. Mr. Bongiorno's educational
background includes a Masters Degree in mathematics and
five National Science Foundation Grants in mathematics.
Mr. Bongiorno was the only mathematics teacher transferred
to the junior high school. The evidence indicates that
Mr. Bongiorno was replaced at the high school by a physical
education teacher from Valley Junior High School who last
taught mathematics 15 years ago.
Mr. Bongiorno is closely identified with the charging
party and is known among the faculty as the "union person".
He has assisted certificated personnel with grievances and
other employment complaints for much of his 19 years at the
high school. Mr. Bongiorno's posture as an AFT activist is
well known among District administrators.
(2) Harry Schurch
Harry Schurch taught psychology, sociology and
anthropology for nine years at Carlsbad High School. His
last teaching assignment at the high school, however, was
English. During the 1976-77 school year, Mr. Schurch taught
U.S. History and geography at Valley Junior High School.
During the year just prior to his junior high school assign-
ment, Mr. Schurch was on sabbatical leave and prior to that
he was on personal leave for two years teaching at a high
school in a foreign country. Mr. Schurch's teaching experience
has always been on the high school level.
Mr. Schurch has been an active AFT supporter since
the early 1960's. In 1964, he participated in an attempted

work
	stoppage
	against
	the
	District,
	and
	in
	1969
	and 	1970,
Mr.
	Schurch
	served
	as
	the
	charging
	party's
	president.
(3)
	Mary Ann
	Gill
Mary Ann
	Gill
	taught 	English 	courses
	for 	nine 	years
at
	Carlsbad
High
	School.
	During
	the
	1976-77
	school
	year,
Ms.
	Gill
	was
	transferred
	to 	Valley
	Junior
	High
	School
	to
	teach
seventh
	and
	eighth
	grade
	reading.
	The
	individual
	who Ms.
	Gill
replaced,
	a
	reading
	specialist,
	was
	tranferred
	to 	Carlsbad
High
	School
	to
	assume Ms.
	Gill's
	former
	English 	assignment.
Ms.
	Gill
	has
	only
	eight 	units 	in
	reading
which 	she
	earned
	by
taking 	extension 	courses
	and
	attending
	conferences.
	Ms.
	Gill
prefers
	teaching
	older 	students,
	and
	prior
	to 	her 	Valley
	Junior
High
	School 	assignment, 	had
	no
	experience 	teaching
	junior
high
school 	s·tudents.
Ms.
"Gill
	is
	a
	strong
	and
	vocal 	supporter 	of 	the
	AFT
and
was
	highly 	instrumental
	in
	arousing 	the
	interest,
	mustering
the 	support,
and
	obtaining 	the
	n~cessary
	signatures 	of 	the
teachers
	at
	Carlsbad
	High
	School 	to
	qualify
	the
	0-CFT
	as
	an
intervenor.
	Although
	the
	District's
	witness
	testified 	that
	the
administration 	generally
	was
	unaware
	of
Ms.
	Gill's 	active
	support
of 	the
	0-CFT,
	the 	contrary 	evidence,
	that 	the
	District
	was 	aware,
is
	more
	credible.
	It 	is
	found
	that 	the
	Respondent 	knew
	of
Ms.
	Gill's 	activities
	on
	behalf of 	the
	0-CFT.
(4)
	Art 	Giordano
The
	evidence with 	respect 	to
	Mr. 	Giordano
	is 	nil.
He
	did not 	testify 	at 	the hearing nor
	was 	any
	deposition 	or
affidavit 	submitted on
	his 	behalf.
	The 	only 	testimony 	regarding
Mr. 	Giordano 	is 	that 	he 	is
	a 	member 	of 	the 	AFT, 	and was 	trans-
ferred 	from 	Carlsbad High 	School 	to 	Valley 	Junior High 	School.
-8-
work stoppage against the District, and in 1969 and 1970,
Mr. Schurch served as the charging party's president.
(3) Mary Ann Gill
Mary Ann Gill taught English courses for nine years
at Carlsbad High School. During the 1976-77 school year,
Ms. Gill was transferred to Valley Junior High School to teach
seventh and eighth grade reading. The individual who Ms. Gill
replaced, a reading specialist, was tranferred to Carlsbad
High School to assume Ms. Gill's former English assignment.
Ms. Gill has only eight units in reading which she earned by
taking extension courses and attending conferences. Ms. Gill
prefers teaching older students, and prior to her Valley Junior
High School assignment, had no experience teaching junior high
school students.
Ms. Gill is a strong and vocal supporter of the AFT
and was highly instrumental in arousing the interest, mustering
the support, and obtaining the necessary signatures of the
teachers at Carlsbad High School to qualify the O-CFT as an
intervenor. Although the District's witness testified that the
administration generally was unaware of Ms. Gill's active support
of the O-CFT, the contrary evidence, that the District was aware,
is more credible. It is found that the Respondent knew of
Ms. Gill's activities on behalf of the 0-CFT.
(4) Art Giordano
The evidence with respect to Mr. Giordano is nil.
He did not testify at the hearing nor was any deposition or
affidavit submitted on his behalf. The only testimony regarding
Mr. Giordano is that he is a member of the AFT, and was trans-
ferred from Carlsbad High School to Valley Junior High School.
- 8-

Mr. 	Rexford Hartle, 	a 	former 	principal, 	testified
for 	the 	charging 	party 	that 	during 	a 	meeting 	of 	school 	admin-
istrators 	in 	January 	1976 	he 	allegedly 	overheard 	the 	superin-
tendent 	say 	to 	a 	group 	of principals, 	"let's 	break up the 	clique
at 	the 	high 	school 	-- 	let's 	send Harry 	down 	to 	Valley." 	The
charging 	party urges 	in 	its 	brief 	that 	Mr. 	Hartle's 	testimony
"should be 	given 	great 	weight." 	Mr. 	Hartle's 	testimony 	is 	very
confusing. 	He 	did 	not 	remember 	exactly when he 	heard 	the
remark, 	who made 	the 	remark 	or what was 	meant 	by 	the word 	"clique".
Therefore, 	no weight 	is 	given 	to Mr. 	Hartle's 	testimony.
CONCLUSIONS OF LAW
Six-Month 	Statute 	of Limitations
The 	respondent contends that 	the 	unfair 	practice 	charge
should be 	dismissed on 	the 	ground 	that 	the 	charging 	party
failed 	to 	comply with 	the 	statute 	of 	1•imitations 	provided 	for
in Section 	3S41.5(a)(l). 	This 	section 	states 	that, 	"Any
employee 	organization. shal. 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the 	[EERB] 	shall not
issue 	a 	complaint 	in 	respect 	of 	any 	charge based upon 	an
alleged unfair 	practice 	occurring more 	than 	six months 	prior
to 	the 	filing 	of 	the 	charge. 	"
In 	the 	instant 	case, 	the 	charging 	party 	and 	its
members 	who 	were 	transferred were 	notified 	of 	the 	transfers
in May 	1976. 	The 	transfers 	took 	place when 	school 	cormnenced
in 	September 	1976. 	The 	unfair 	practice 	charge was 	filed 	in
January 	1977. 	The 	respondent 	contends 	that 	the 	sending 	of
the 	transfer notices 	in May 	1976 	constitutes 	the 	alleged
unfair 	practice whereas 	the 	charging 	party 	insists 	that 	the
actual 	transfer 	forms 	the 	basis 	for 	the 	charge.
-9-
Mr. Rexford Hartle, a former principal, testified
for the charging party that during a meeting of school admin-
istrators in January 1976 he allegedly overheard the superin-
tendent say to a group of principals, "let's break up the clique
at the high school -- let's send Harry down to Valley. " The
charging party urges in its brief that Mr. Hartle's testimony
"should be given great weight." Mr. Hartle's testimony is very
confusing. He did not remember exactly when he heard the
remark, who made the remark or what was meant by the word "clique".
Therefore, no weight is given to Mr. Hartle's testimony.
CONCLUSIONS OF LAW
Six-Month Statute of Limitations
The respondent contends that the unfair practice charge
should be dismissed on the ground that the charging party
failed to comply with the statute of limitations provided for
in Section 3541.5(a) (1). This section states that, "Any
employee organization . . . 	l have the right to file an
unfair practice charge, except that the [EERB] shall not .
issue a complaint in respect of any charge based upon an
alleged unfair practice occurring more than six months prior
to the filing of the charge
In the instant case, the charging party and its
members who were transferred were notified of the transfers
in May 1976. 	The transfers took place when school commenced
in September 1976. The unfair practice charge was filed in
January 1977. The respondent contends that the sending of
the transfer notices in May 1976 constitutes the alleged
unfair practice whereas the charging party insists that the
actual transfer forms the basis for the charge.
-9-

The
	charging
	party's
	reasoning
	is
	more
	convincing
and
	is
	supported
	by
	National
	Labor
	Relations
	Board
	(NLRB)
precedent.
	The
	physical
	transfer
	of 	teachers
	from
	Carlsbad
High
	School
	to
	Valley
	Junior
	High
	School,
	and
	not 	the
	mere
expression 	of
	an
	intent
	to
	transfer,
	is
	the
	act
	upon
which
the
	charge
	is
	based.
	Thus,
	the
	six-month
	limitation
	period
began
	to
	run
when
	the
	District
	actually 	transferred
	the
employees,
	not
	when
	the
	employer
	advised 	the
	employees
	that
they
	would
	be
	transferred.
	See
	Swift 	Service
	Stores,
	Inc.,
169
	NLRB
	359,
	67
	LRRM
	1181
	(1968).
Exhaustion
	of 	the
	District's
	Grievance 	Procedure
The
	respondent
	also
	argues
	that
	the
	EERB
	does
	not
have
	jurisdiction
	over
	the
	instant
	case because
	the 	charging
party 	failed
	to 	exhaust 	the
	District's
	grievance 	procedure 	as
allegedly 	required
	by
	Section 	3541.S(a)(Z). 	This
	section
states 	that,
	"Any 	. 	employee
	organization.
	.
	shall
	have
the
	right
	to
	file
	an
	unfair 	practice
	charge, 	except
	that
	the
[EERB]
	shall
	not
	...
	issue
	a
	complaint
	against
	conduct
	also
prohibited
	by
	the 	provisions 	of 	the
	agreement 	between
	the
parties 	until
	the 	grievance machinery
	of 	the
	agreement,
	if
it
	exists
	and 	covers 	the 	matter
	at 	issue,
	has 	been 	exhausted	
"
The
	charging 	party maintains 	that 	Section 	3541.5(a)(2)
applies 	only 	to
	a
	situation
	where
there 	is
	a
	contract 	in
existence 	between 	a
	school
	district
	and 	an
	exclusive 	represent-
ative
	and 	the 	contract 	provides 	for
	a
	grievance 	procedure.
-10-
The charging party's reasoning is more convincing
and is supported by National Labor Relations Board (NLRB)
precedent. 	The physical transfer of teachers from Carlsbad
High School to Valley Junior High School, and not the mere
expression of an intent to transfer, is the act upon which
the charge is based. Thus, the six-month limitation period
began to run when the District actually transferred the
employees, not when the employer advised the employees that
they would be transferred. See Swift Service Stores, Inc.,
169 NLRB 359, 67 LRRM 1181 (1968) .
Exhaustion of the District's Grievance Procedure
The respondent also argues that the EERB does not
have jurisdiction over the instant case because the charging
party failed to exhaust the District's grievance procedure as
allegedly required by Section 3541.5(a) (2). This section
states that, "Any . 	employee organization . 	shall have
the right to file an unfair practice charge, except that the
[EERB] shall not . . . issue a complaint against conduct also
prohibited by the provisions of the agreement between the
parties until the grievance machinery of the agreement, if
it exists and covers the matter at issue, has been exhausted
The charging party maintains that Section 3541.5(a) (2)
applies only to a situation where there is a contract in
existence between a school district and an exclusive represent-
ative and the contract provides for a grievance procedure.
-10-

In
	the
	instant
	case,
	there
	is
	no
	exclusive 	representQtive
and
	no
	contract.
The
	charging
	party's 	interpretation
	of 	Section
3541.5(a)(2)
	is
	correct.
	The
	charging
	party
	is
	required 	to
exhaust
	a
	grievance 	procedure 	only
	if
	such
	grievance 	procedure
is
	.
	part
	o f 	a
	contract
	b
etween
	t h e
	parties.
	· 5
Section
	3543.5(a)
Government
	Code
	Section
	3543.5(a)
	provides:
It
	shall
	be
	unlawful
	for
	a
	public
	school
	employer
	to:
(a)
	Impose
	or
	threaten
	to
	impose
	reprisals
on
	employees,
	to 	discriminate 	or
	threaten 	todiscriminate 	against
	employees,
	or 	otherwise
to
	interfere
	with,
	restrain,
	or
	coerce
employees
	because
	of
	their
	exercise 	of
rights
	guaranteed
	by
	this
	chapter.
The
	main
	thrust
	of 	the 	charging
	party's 	allegation
of
	a
	Section 	3543.5(a)
	violation 	is 	that
	the
	District 	inter-
fered 	with,
	restrained
	and
	discriminated 	against
	certain
employees
	because
	of
	their
	AFT
	affiliation
	and/or 	vigorous
AFT
	organizing
	activities.
	The 	0-CFT
	contends
	that
	its
members'
	rights
	to 	organize
	and 	campaign
	for 	exclusive 	rep-
resentation
	have 	been 	abridged
	by
	the
	District's
	conduct.
(See
	Sections
	3540, 	3543, 	and
	3543.l(b) .)
5
This 	reasoning
	is 	buttressed
	by
	the 	following 	proviso 	inSection 	3541.5(a)(2):
	"However, 	when
	the 	charging 	partydemonstrates
	that 	resort 	to 	[the] 	contract 	grievance
procedure would 	be
	futile,
	exhaustion 	shall 	not 	be
necessary."
	(Emphasis 	added)
-11-
In the instant case, there is no exclusive representative
and no contract.
The charging party's interpretation of Section
3541. 5(a) (2) is correct. The charging party is required to
exhaust a grievance procedure only if such grievance procedure
is part of a contract between the parties.
Section 3543 . 5 (a)
Government Code Section 3543.5(a) provides:
It shall be unlawful for a public school employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
The main thrust of the charging party's allegation
of a Section 3543.5(a) violation is that the District inter-
fered with, restrained and discriminated against certain
employees because of their AFT affiliation and/ or vigorous
AFT organizing activities. The 0-CFT contends that its
members' rights to organize and campaign for exclusive rep-
resentation have been abridged by the District's conduct.
(See Sections 3540, 3543, and 3543.1(b).)
This reasoning is buttressed by the following proviso in
Section 3541.5 (a) (2) : 	"However, when the charging party
demonstrates that resort to [the] contract grievance
procedure would be futile, exhaustion shall not be
necessary. " 	(Emphasis added)
-11-
5

Section
	3543.S(a)
	of 	the
	EERA
	appears
	to
	combine
the
	protections
	of
	Sections
	8(a)(l)
	and
	8(a)(3)
	of 	the
National
	Labor
	Relations
	Act.
	These
	sections
	state 	that:
It
	shall
	be 	an
	unfair
	labor
	practice
	for
an
	employer,
	(1)
	to
	interfere
	with,
	restrain,
or
	coerce
	employees
	in
	the
	exercise
	of
	the
rights
	guaranteed
	in
	Section
	7;
...
	(3)
	by
discrimination
	in
	regard 	to
	hire
	or 	tenure
of
	employment
	or
	any
	term
	or 	condition 	of
employment,to 	encourage
	or 	discourage
membership
	in
	any
	labor 	organization
...
The
	United
	States
	Supreme
	Court 	has
	held
	that
	the
finding 	of
	a
	Section 	8(a)(3)
	violation will
	normally
	turn
on
	the
	employer's
	motivation.
	See American
	Ship
	Building
	Co.
vs.
	NLRB,
	380
	U.S. 	300,
	58
	LRRM
	2672,
	2676
	(1965).
	Section
8(a)(l)
	makes
	it
	unlawful 	simply
	to
	interfere
with 	the
	employees
in
	the 	exercise 	of
	their
	organizing
	rights;
	there
	is
	no
	language
of
	motive
	or
	purpose.
	However,
	the
	use
	of 	the
	words
"discrimination"
	and
	"discouragement"
	in
	NLRA
	Section 	8(a)(3)
suggests
	that
	motivation
	is
	a
	key
	factor 	in
	any
	Section 	8(a)(3)
violation.
The 	EERB's
	interpretation
	of
	Government 	Code
	Section
3543.5(a)
	and
	its
	relationship 	to
	NLRA
	Sections
	8(a)(l)
	and
8(a)(3)
	may
	be 	found
	in 	the 	recent 	case 	of
	San
	Dieguito 	Faculty
Association 	vs.
	San
	Dieguito
	Union High 	School
	District,
	EERB
Decision
	No. 	22, 	(September 	2, 	1977). 	In 	that 	case, 	the
	Board
concluded
	that 	for
	a
	violation 	to
	be 	found
	it
	must 	be 	shown
"at
	minimum"
	that
	an 	employer 	acted 	either with 	"the 	intent
-12-
Section 3543.5(a) of the EERA appears to combine
the protections of Sections 8(a) (1) and 8(a) (3) of the
National Labor Relations Act. These sections state that:
It shall be an unfair labor practice for
an employer, (1) to interfere with, restrain,
or coerce employees in the exercise of the
rights guaranteed in Section 7; . 	. (3) by
discrimination in regard to hire or tenure
of employment or any term or condition of
employment, to encourage or discourage
membership in any labor organization.
The United States Supreme Court has held that the
finding of a Section 8(a) (3) violation will normally turn
on the employer's motivation. See American Ship Building Co.
VS. NLRB, 380 U.S. 300, 58 LRRM 2672, 2676 (1965). Section
8(a) (1) makes it unlawful simply to interfere with the employees
in the exercise of their organizing rights; there is no language
of motive or purpose. However, the use of the words
"discrimination" and "discouragement" in NLRA Section 8(a) (3)
suggests that motivation is a key factor in any Section 8 (a) (3)
violation.
The EERB's interpretation of Government Code Section
3543.5(a) and its relationship to NLRA Sections 8(a) (1) and
8(a) (3) may be found in the recent case of San Diegueto Faculty
Association vs. San Diegueto Union High School District, EERB
Decision No. 22, (September 2, 1977). In that case, the Board
concluded that for a violation to be found it must be shown
"at minimum" that an employer acted either with "the intent
-12-

the
	to
	interfere
with 	the
	rights
	of
	the
	employees"
	or
	that
employer's
	conduct 	"had
	the
	natural
	and
	probable
	consequence"
of
	interfering
with 	the
	rights
	of
	the
	employees.
	Additionally,
the
	Board
	held
	that
	the
	interference
	by
	the
	employer
	must
be
	shown
	to
	have 	been
	"because
	of" 	the
	employees'
	exercise
of
	rights
	guaranteed
	by
	the
	EERA.
	The
	Board
	said
	that
	the
phrase
	"because
	of"
	"seems
	to
	make
	motive
	or
	purpose
	a
requirement
	for
	a
	[Section 	3543.S(a)]
	violation."
	With
	respect
to 	the
	"because 	0£
1 '
	language
	in
	Section
	3543. 5
(a)
,
	the
	Board
concluded:
Interference
	"because
	of"
	is
	quite
different
	from mere
	"interference
	in."
"Because
	of"
	connotes
	purposeful 	or
intentional
	behavior;
	"interference
in"
	connotes
	interference
with 	or
-withqut
	an
	unlawful
	intent.
Thus,
	in
	order
	to
	find
	a
	violation 	of
	Section
3543.S(a)
	the 	charging
	party
must
	prove
	that
	the 	respondent
interfered
with,
	restrained,
	coerced,
	or
	discriminated·
against
	employees 	and
	that 	this
	conduct
	was
	taken
	against
employees
	because
	of
	their
	exercise 	of 	rights
	guaranteed
by
	the
	EERA.
The 	EERB's
	"test" 	is
	not 	inconsistent with 	the
United
	States
	Supreme
	Court's 	decision 	in
	NLRB
	v. 	Great
	Dane
Trailers, 	Inc.,
	388 	U.S. 	26, 	65
	LRRM
	2465
	(1967),
	a
	case
this
	both parties 	rely
	on
	extensively 	in 	their briefs.
	Under
decision, 	the
	law
	pertaining 	to motive 	and 	burden of 	proof
in
	NLRA
	Section 	8(a)(3) 	cases 	may be 	summarized as 	follows:
-13-
to interfere with the rights of the employees" or that the
employer's conduct "had the natural and probable consequence"
Additionally,	of interfering with the rights of the employees.
the Board held that the interference by the employer must
be shown to have been "because of" the employees' exercise
of rights guaranteed by the EERA. The Board said that the
a
phrase "because of" "seems to make motive or purpose
requirement for a [Section 3543. 5(a) ] violation." With respect
to the "because of" language in Section 3543.5(a) , the Board
concluded:
Interference "because of" is quite
different from mere "interference in."
"Because of" connotes purposeful or
intentional behavior; "interference
in" connotes interference with or
. without an unlawful intent.
Thus, in order to find a violation of Section
3543.5(a) the charging party must prove that the respondent
interfered with, restrained, coerced, or discriminated .
against employees and that this conduct was taken against
employees because of their exercise of rights guaranteed
by the EERA.
The EERB's "test" is not inconsistent with the
United States Supreme Court's decision in NLRB v. Great Dane
Trailers, Inc. , 388 U.S. 26, 65 LRRM 2465 (1967), a case
both parties rely on extensively in their briefs. Under this
decision, the law pertaining to motive and burden of proof
in NLRA Section 8(a) (3) cases may be summarized as follows:
-13-

Where
	the
	employer's
	conduct
	results 	in
severe
	harm
	to,
	or
	is
	inherently
	destructive
of
	employee
	rights,
	evidence
	of
	union
	animus
need
	not
	be
	shown
	and
	an
	unfair 	practice
	may
be 	found
	to
	have 	been
	committed
	regardless 	of
any
	legitimate
	business
	justification.
	Where,
however,
	the 	employer's
	conduct
	results 	in
only
	slight
	harm
	(i.e.,
	some
	harm)
	to
	employee
rights,
	the
	employer must
	affirmatively
	show
a
	legitimate
	and
	substantial
	business
	justifi-
cation 	for
	its
	conduct.
	If
	employer
	justifi~
cation
	is
	established,
	then 	independent
evidence
	of 	anti-union motivation
	is
	an
essential
	element
	for
	a
	finding 	of
	an
	unfair
practice.
	Thus,
	regardless 	of
	whether
	the
employer's 	conduct
	results 	in
	severe
	harm
	or
slight
	harm
	to
	employee
	rights,
	the
	employer
must
	come
	forward 	and
with 	evidence
	of
legitimate
	and
	substantial 	business 	purposes.
The
	Great
	Dane
	criteria
	are 	applicable,
	however, 	only
after
	the 	charging 	party
	meets
	its
	burden 	under 	the 	Board's
San
	Dieguito 	decision.
Interference 	or 	Restraint
In 	order 	to 	satisfy 	the 	criteria 	established by 	the
Board 	in
	San 	Dieguito, 	the 	charging 	party must 	prove, 	at
minimum,
	that 	the 	Respondent's 	conduct 	in 	transferring
-14-
Where the employer's conduct results in
severe harm to, or is inherently destructive
of employee rights, evidence of union animus
need not be shown and an unfair practice may
be found to have been committed regardless of
any legitimate business justification. Where,
however, the employer's conduct results in
only slight harm (i. e. , some harm) to employee
rights, the employer must affirmatively show
a legitimate and substantial business justifi-
cation for its conduct. If employer justifi-
cation is established, then independent
evidence of anti-union motivation is an
essential element for a finding of an unfair
practice. Thus, regardless of whether the
employer's conduct results in severe harm or
slight harm to employee rights, the employer
must come forward and with evidence of
legitimate and substantial business purposes.
The Great Dane criteria are applicable, however, only
after the charging party meets its burden under the Board's
San Diegueto decision.
Interference or Restraint
In order to satisfy the criteria established by the
Board in San Diegueto, the charging party must prove, at
minimum, that the Respondent's conduct in transferring
-14-

Harry
	Bongiorni,
	Harry 	Schurch,
	Mary
	Ann
	Gill
	and
	Art
Giordano
	from
	Carlsbad
	High
	School
	to 	Valley
	Junior
	High
So.hool
	had
	"the 	natural
	and
	probable
	consequence"
	of
	inter-
ferring
	with
	these
	employees'
	organizing
	and 	campaign
	rights.
"To
	interfere
	with"
	generally
	is
	defined
	as
	"to
	hinder
	or
prevent,"
and
	"to
	restrain"
	as
	"to
	limit,
	suppress
	or
	restrict.
16	1
For
	the
	following 	reasons
	it
	is
	found
	that
	the
	transfer 	of
Harry 	Bongiorni,
	Harry 	Schurch,
	Mary
	Ann
	Gill
	and
	Art
Giordano
	interferes
	with
	and
	restrains
	these
	employees 	from
organizing
	and 	campaigning
	on
	behalf 	of
	0-CFT.
The
	transferees 	in
	question 	are
	active
	supporters
and
	organizers 	of
	the
	0-CFT. 	They
	had
	taught
	at
	the 	high
school
	for
	many
	years
	and
	were
	well 	acquainted with
most
	of
their
	colleagues.
	The
	0-CFT
	president 	himself
	stated,
	and
the
	District
	did not 	controvert,
	that
	he
	was
	the
	individual
whose
	assistance
	was
	generally
	sought
	by
	certificated
	personnel
at
	the 	high 	school,
	and
	that
	for
	much
	of his 	nineteen 	years
	at
the 	high 	school
	he
	was
	the 	person
	primarily 	responsible 	for
processing 	teachers' 	grievances.
	Given
	the 	reputation
	that
Harry 	Bongiorni, 	Harry 	Schurch,
	Mary
	Ann
	Gill
	and
	Art
Giordano 	have
	in 	the 	District
	for 	espousing 	the
	"AFT
	platform,"
and
	the 	fact 	that 	the 	charging 	party
	had
	just
	completed 	an
intense 	organizational
	campaign
	to 	qualify
	itself
as 	an
intervenor,
	it
	seems
	clear 	that 	the 	transfer 	of
	0-CFT's
leaders 	to
	a
	school
	distinctly 	inhospitable 	to
	AFT
	organi-
zational 	efforts,
	and
	at
	a
	crucial 	time 	in 	the 	organizing
6
Webster 	New World 	Dictionary, 	Second 	edition, 	1976.
-15-
Harry Bongiorno, Harry Schurch, Mary Ann Gill and Art
Giordano from Carlsbad High School to Valley Junior High
School had "the natural and probable consequence" of inter-
ferring with these employees' organizing and campaign rights.
"To interfere with" generally is defined as "to hinder or
prevent," and "to restrain" as "to limit, suppress or restrict."
For the following reasons it is found that the transfer of
Harry Bongiorno, Harry Schurch, Mary Ann Gill and Art
Giordano interferes with and restrains these employees from
organizing and campaigning on behalf of 0-CFT.
The transferees in question are active supporters
and organizers of the O-CFT. They had taught at the high
school for many years and were well acquainted with most of
their colleagues. The 0-CFT president himself stated, and
the District did not controvert, that he was the individual
whose assistance was generally sought by certificated personnel
at the high school, and that for much of his nineteen years at
the high school he was the person primarily responsible for
processing teachers' grievances. 	Given the reputation that
Harry Bongiorno, Harry Schurch, Mary Ann Gill and Art
Giordano have in the District for espouseng the "AFT platform,"
and the fact that the charging party had just completed an
intense organizational campaign to qualify itself as an
intervenor, it seems clear that the transfer of 0-CFT's
leaders to a school distinctly inhospitable to AFT organi-
zational efforts, and at a crucial time in the organizing
Webster New World Dictionary, Second edition, 1976.
- 15-

campaign
	for 	exclusive
	representative,
	"hinders
	and
	restricts"
these
	individuals'
	organizational
	activities.
Clearly, 	the
	charging
	party
has
	met
	the
	first
	part
of
	its
	burden:
	The
	transfer
	of
	Harry
	Bongiorni,
	Harry 	Schurch,
Mary Ann
	Gill
	and
	Art
	Giordano 	from
	Carlsbad
High
	School
	to
Valley
	Junior
	High
	School
	interferes
	with
	the 	free 	exercise 	of
important
	employee
	rights.
	The
	next
	inquiry, 	therefore,
	is
whether
	the
	District's
	decision
	to
	transfer
	these
	employees
from
	Carlsbad
	High
	School
	to
	Valley
	Junior
	High
	School
	was 	made
"because
	of
	their
	exercise 	of
	rights
	guaranteed
	by
	the
	EERA."
The
	District's
	Intent
The
	charging
	party's
	burden
	that
	the
	transfers
in
	question
	were
	effectuated
	because
	of 	the
	transferees'
exercise 	of 	organizing
	rights
	is
	more
	difficult
	to
	sustain.
It
	is
	axiomatic
	that
	the
	transfer
	of
	a
	union
	president
	from
a
	school
where
	teachers
	would be most
	receptive 	to 	his
proselytizing 	efforts
	to
	a 	"new
	and.unfamiliar
	milieu,"
J.W. 	Mays,
	Inc.,
	supr~,
	147
	NLRB
	at
	pg.
	943, 	impedes
further
	organizing
	activities.
	The
	crux
	of
	this
	case,
	however,
turns on the answer
to this
question: were Harry Bongiomi, Harry Schurch,
Mary Ann
	Gill
	and
	Art
	Giordano
	transferred
	because 	of
	their
AFT
	affiliation
	and/or 	vigorous 	organizing
	efforts
	on
	behalf
of
	O-CFT
	or 	because
	of 	legitimate
	and
	substantial 	educational
considerations?
	See Howard Johnson 	Co. 	209
	NLRB
	1122, 	86
	LRRM
1148 	(1974);
	NLRB
	v. 	Atkins
	Saw
Division,
	395
	F.2d 	907,
69
	LRRM
	2200
	(5th 	Cir. 	1968); 	and
	NLRB
	v. 	Great 	Dane
	Trailers,
Inc. 	supra.
With 	respect 	to 	two 	of 	the 	employees, 	Art 	Giordano
and 	Harry 	Schurch, 	the 	charging 	party has 	failed 	to 	meet 	its
-16-
campaign for exclusive representative, "hinders and restricts"
these individuals' organizational activities.
Clearly, the charging party has met the first part
of its burden: The transfer of Harry Bongiorno, Harry Schurch,
Mary Ann Gill and Art Giordano from Carlsbad High School to
Valley Junior High School interferes with the free exercise of
important employee rights. The next inquiry, therefore, is
whether the District's decision to transfer these employees
from Carlsbad High School to Valley Junior High School was made
"because of their exercise of rights guaranteed by the EERA."
The District's Intent
The charging party's burden that the transfers
in question were effectuated because of the transferees'
exercise of organizing rights is more difficult to sustain.
It is axiomatic that the transfer of a union president from
a school where teachers would be most receptive to his
proselytizing efforts to a "new and unfamiliar milieu,"
J.W. Mays, Inc., supra, 147 NLRB at pg . 943, impedes
further organizing activities. The crux of this case, however,
turns on the answer to this question: were Harry Bongiorno, Harry Schurch,
Mary Ann Gill and Art Giordano transferred because of their
AFT affiliation and/ or vigorous organizing efforts on behalf
of 0-CFT or because of legitimate and substantial educational
considerations? See Howard Johnson Co. 209 NLRB 1122, 86 LRRM
1148 (1974) ; NLRB v. Atkins Saw Division, 395 F. 2d 907,
69 LRRM 2200 (5th Cir. 1968); and NLRB v. Great Dane Trailers
Inc. supra.
With respect to two of the employees, Art Giordano
and Harry Schurch, the charging party has failed to meet its
-16-

burden
	of
	proving
	by
	a
	preponderance
	of
	the
	evidence
	that
these
	two
	individuals
	were
	transferred
	because
	of
	their
	exercise
of
	rights
	guaranteed
	by
	the
	EERA.
	The
	charging
	party
	failed
to
	produce
	any
	evidence
	with
	respect
	to
	Art
	Giordano
	other
than
	the
	fact
	he
	is
	an
	AFT
	member
	and he
	was
	transferred
from
	Carlsbad
	High
	School
	to
	Valley
	Junior
	High
	School.
Without
	more,
	the
	District
	cannot
	be
	held 	to
	have 	committed
an
	unfair 	practice
	with
	respect 	to
	this
	employee.
Mr.
	Harry
	Schurch's
	situation
	requires
	a 	more
extensive
	analysis.
	While
	it
	is
	true
	that
	Mr.
	Schurch
was
an
	active
	AFT
member
	in
	the
	early
	1960's,
	and
	in
	1969
	and
1970
	he
	was
	0-CFT's
	president,
	the
	critical
	time
	frame
	with
respect 	to 	the
	unfair 	practice
	charge
	is
	1976.
	Full-fledged
o!ganizing
	rights
	under
	the
	EERA.were
	not 	awailable 	to
employees
	until
	Aprill,
	1976, 	and 	from
	this
	date
	until 	late
May,
	1976,
	Mr.
	Schurch
was
	in
Africa
	on 	a
	sabbatical 	leave.
The
	charging
	party 	asserts 	that
	Mr.
	Schurch
was
transferred
	because
	of his 	anticipated 	exercise 	of
	EERA
organizing
	rights.
	Although given
	Mr.
	Schurch's
	background
and 	image
	as
	an
	AFT
	supporter,
	it
	is
	reasonable 	to
	infer
that
	he would 	resume
	his
	"activist
	posture"
	upon
	his 	return
from
	his 	sabbatical 	leave, 	the
	nexus 	between
	the
	transfer 	of
Mr. 	Schurch 	and
	his 	alleged
	0-CFT
	organizing
	activities 	is
too 	tenuous.
	To
	find 	the 	District 	guilty 	of
	an
	unfair 	practice
based
	on mere
	conjecture
would be manifestly 	unfair.
With
	respect 	to 	Harry 	Bongiorni 	and Mary Ann
	Gill,
however, 	there 	are 	several 	factors 	which, 	when 	considered
in 	the 	aggregate, 	show 	that 	the 	transfer 	of 	these 	two
-17-
burden of proving by a preponderance of the evidence that
these two individuals were transferred because of their exercise
of rights guaranteed by the EERA. The charging party failed
to produce any evidence with respect to Art Giordano other
than the fact he is an AFT member and he was transferred
from Carlsbad High School to Valley Junior High School.
Without more, the District cannot be held to have committed
an unfair practice with respect to this employee.
Mr. Harry Schurch's situation requires a more
extensive analysis. While it is true that Mr. Schurch was
an active AFT member in the early 1960's, and in 1969 and
1970 he was 0-CFT's president, the critical time frame with
respect to the unfair practice charge is 1976. Full-fledged
organizing rights under the EERA were not available to
employees until April 1, 1976, and from this date until late
May, 1976, Mr. Schurch was in Africa on a sabbatical leave.
The charging party asserts that Mr. Schurch was
transferred because of his anticipated exercise of EERA
organizing rights. Although given Mr. Schurch's background
and image as an AFT supporter, it is reasonable to infer
that he would resume his "activist posture" upon his return
from his sabbatical leave, the nexus between the transfer of
Mr. Schurch and his alleged O-CFT organizing activities is
too tenuous. 	To find the District guilty of an unfair practice
based on mere conjecture would be manifestly unfair.
With respect to Harry Bongiorno and Mary Ann Gill,
however, there are several factors which, when considered
in the aggregate, show that the transfer of these two
-17-

employees
	was
	not
	based
	on
	educational 	considerations,
but
rather
was
because
of
	their
	organizing
	efforts
	on
	behalf 	of
the
	0-CFT.
The
	organizing
	activities
	of
	Harry
	Bongiorni
	and
Mary Ann
	Gill
	are well
	documented.
	Mr.
	Bongiorni's
	image
	as
an
AFT
	activist
	for 	the
	past
	19
	years
	at
	Carlsbad
High
	School
is
	well
	known among
	both 	the
	faculty
	and
	the
	administration.
Ms.
	Gill
	is
	a
	strong
	and
	vocal
	AFT
	advocate
	and
was
	highly
instrumental
	during
	0-CFT's
	organizing
	campaign
	in
	April
	1976
in
	obtaining 	the necessary 	signatures 	of 	the 	teachers
	at
Carlsbad
	High
	School
	to
	qualify
	0-CFT
	as
	an
	intervenor.
-18-
It
	is
	well
	established 	that
	proof
	of
	an
.employer's
unlawful
	intent
	or
	motive
	in
	discharging 	or
	transferring
employees
	can be
	shown by
	circumstantial
	evidence.
	NLRB
	v.
Lanev & Duke
	Co.,
	63
	LRRM
	2552, 	2557
	(5th 	Cir.
	1966);
	NLRB
v.
	Putnam
Tool 	Co.,
	48
	LRRM
	2263, 	2265
	(6th 	Cir.
	1961);
NLRB
	v. 	Like
	Belt
	Co.,
	311 	U.S. 	584, 	7
LRRM
	297, 	306
	(1941).
In 	determining whether 	an 	employer's
	action
was
	justified
on
	the
	grounds
	assigned
	by
	the
	employer
	or
	was
	the
	result 	of
an 	improper motive, 	the 	following
	factors 	are 	considered:
The
	entire
	background,
	including
	any 	employer
	anti-union
activity;
	the 	percentage 	of
	union
members
	or 	leaders
	among
the
	employees
·affected,
	NLRB
	v. 	Bachelder,
	120 	F. 2d 	574
(7th 	Cir. 	1941); 	Harold Baker, 	71
	NLRB
	44 	(1946); 	the
	failure
to 	call
	as 	a
	witness
	management
	representatives 	having 	personal
knowledge 	of 	the 	reason 	assigned; 	the 	effect
	on
	unionization
whether 	or not 	the 	leading 	organizers 	of 	the 	union 	have 	been
employees was not based on educational considerations,
but rather was because of their organizing efforts on behalf of
the 0-CFT.
The organizing activities of Harry Bongiorno and
Mary Ann Gill are well documented. Mr. Bongiorno's image as
an AFT activist for the past 19 years at Carlsbad High School
is well known among both the faculty and the administration.
Ms. Gill is a strong and vocal AFT advocate and was highly
instrumental during 0-CFT's organizing campaign in April 1976
in obtaining the necessary signatures of the teachers at
Carlsbad High School to qualify 0-CFT as an intervenor.
It is well established that proof of an employer's
unlawful intent or motive in discharging or transferring
employees can be shown by circumstantial evidence. NLRB v.
Laney & Duke Co. , 63 LRRM 2552, 2557 (5th Cir. 1966) ; NLRB
v. Putnam Tool Co. , 48 LRRM 2263, 2265 (6th Cir. 1961);
NLRB v. Like Belt Co. , 311 U.S. 584, 7 LRRM 297, 306 (1941) .
In determining whether an employer's action was justified
on the grounds assigned by the employer or was the result of
an improper motive, the following factors are considered:
The entire background, including any employer anti-union
activity; the percentage of union members or leaders among
the employees affected, NLRB v. Bachelder, 120 F. 2d 574
(7th Cir. 1941) ; Harold Baker, 71 NLRB 44 (1946); the failure
to call as a witness management representatives having personal
knowledge of the reason assigned; the effect on unionization
whether or not the leading organizers of the union have been
- 18-

transferred
	or
	discharged; 	the
	extent
	to
	which
	the
	transferred
or 	discharged
	employee
	engaged
	in
	union
	activity;
	the
	re1ation
in
	point 	of
	time
	of
	the
	employer's
	action
	to 	the 	employee's
	union
activity,
	Marx-Haas
	Clothing
	Co.,
	211
	NLRB
	350,
	87
	LRRM
	1054
(1974);
	Howard
	Johnson
	Co.,
	209
	NLRB
	1122,
	86
	LRRM
	1148
	(1974);
and
	the
	location 	of 	the
	employee's
	new
work
	location,
	J.W.
Mays
	Inc.,
	147
	NLRB
	942,
	56
	LRRM
	1339
	(1964),
	enf'd
	356
	F.2d
693,
	61
	LRRM
	2538
	(2nd
	Cir.
	1966);
	NLRB
	v.
	Varo
	Inc.,
	425
	F.2d
293, 	74
	LRRM
	2096
	(5th 	Cir.
	1970).
In 	the
	instant
	case, 	the
	notices 	of
	transfers
	were
mailed
	in
	May
	1976, 	and
	the
	transfers
	took
	effect 	in
	September
of
	the
	1976-77
	school
	year,
	just
	shortly
	after
	the 	charging
party's
	successful 	gathering 	of
	thirty
	percent 	support
	for
intervenor
	status 	in April
	1976.
With
	respect 	to 	the
	transferees'
	new work
·location,
the
	junior
high 	school 	to
	which
	the 	transferees
	were
	sent
	is
distinctly
	unreceptive 	to
	AFT
	organizational
	efforts.
	The
pod
	arrangement
	at
	Valley 	Junior
	High, 	where
	teachers
	work
in 	separate buildings
	and
	are
	organized
	into
	small
	units 	of
five 	or 	six 	teachers
	each, 	obviously
	hampers 	AFT's
	attempts
to
	expand
	its
	base 	of 	support. 	Additionally, 	the 	teaching
staff 	at
	the 	junior
	high 	school
	is
	predominately 	supportive
of 	the
	CTA.
The
	charging 	party places 	considerable 	reliance
	on
the 	alleged 	lack 	of 	evidence 	presented by 	the 	respondent 	with
respect 	to 	legitimate
	and
	substantial 	education
	justification
for 	the 	transfers.
	The 	charging 	party 	contends 	that
	it
	has
proved 	improper 	intent 	because 	the 	transfers 	were 	not 	made,
-19-
transferred or discharged; the extent to which the transferred
or discharged employee engaged in union activity; the relation
in point of time of the employer's action to the employee's union
activity, Marx-Haas Clothing Co. , 211 NLRB 350, 87 LRRM 1054
(1974) ; Howard Johnson Co. , 209 NLRB 1122, 86 LRRM 1148 (1974) ;
and the location of the employee's new work location, J. W.
Mays Inc., 147 NLRB 942, 56 LRRM 1339 (1964), enf'd 356 F. 2d
693, 61 LRRM 2538 (2nd Cir. 1966); NLRB v. Varo Inc. , 425 F. 2d
293, 74 LRRM 2096 (5th Cir. 1970) .
In the instant case, the notices of transfers were
mailed in May 1976, and the transfers took effect in September
of the 1976-77 school year, just shortly after the charging
party's successful gathering of thirty percent support for
intervenor status in April 1976.
With respect to the transferees' new work location,
the junior high school to which the transferees were sent is
distinctly unreceptive to AFT organizational efforts. The
pod arrangement at Valley Junior High, where teachers work
in separate buildings and are organized into small units of
five or six teachers each, obviously hampers AFT's attempts
to expand its base of support. Additionally, the teaching
staff at the junior high school is predominately supportive
of the CTA.
The charging party places considerable reliance on
the alleged lack of evidence presented by the respondent with
respect to legitimate and substantial education justification
for the transfers. The charging party contends that it has
proved improper intent because the transfers were not made,
- 19-

according
	to 	the
	charging
	party, 	for
	legitimate
	and
	substantial
educational 	considerations.
	In
	this
	regard 	the
	charging
	party
presented
	evidence
	that
	Mr.
	Bongiorni
	was
	the 	only
mathematics
teacher
	transferred
	to
	Valley
	Junior
	High
	School,
	and
	further,
that
	he
	was
	replaced
	at
	the
	high 	school
	by
	a
	physical
	education
teacher
	who
	last
	taught
	mathematics
	fifteen
	years
	ago.
	With
respect 	to
	Ms.
	Gill,
	the
	evidence
	shows
	that
	for 	nine 	years
she
	taught 	English 	courses
	at
	Carlsbad
	High
	School.
	Her
assignment
	at
	Valley
	Junior
	High
	School
	is
	seventh
	and
	eighth
grade
	reading.
	Ms.
	Gill's
	replacement
	at
	the
high 	school
	is
the
	former
	reading
	specialist 	at
	the
	junior
	high
	school.
Ms.
	Gill
	testified
	that
	her 	educational 	preparation 	for
teaching 	reading
	consists
	only
	of
	extension 	courses
	and
conferences
	she 	has
	attended 	and.that
	this
	background
	is
inadequate 	to 	teach 	reading 	courses.
While
	the 	Board's 	"because 	of" 	requirement
	is
difficult
	to
	prove, 	the 	evidence 	presented
by
	the
	0-CFT,
when
	considered
	in 	the 	aggregate,
	is 	sufficient
	to
	satisfy
the 	Board's 	standard.
	Evidence
	of
which
	teachers
	were
selected 	for 	transfer
	from
	the 	high 	school 	to 	the
	junior
high 	school, 	the 	timing
	of 	the
	transfers,
	the
	transferees'
new work
	location
	and most
	importantly, 	the
	failure 	of 	the
respondent 	to
	call
	as 	witnesses 	the 	individuals
	who
	could
best 	explain 	the 	reason 	for 	these 	particular 	transfers,
raises
	more
	than 	an
	inference 	that 	the
	District
	was
	motivated
by 	improper 	considerations.
-20-
according to the charging party, for legitimate and substantial
educational considerations. In this regard the charging party
presented evidence that Mr. Bongiorno was the only mathematics
teacher transferred to Valley Junior High School, and further,
that he was replaced at the high school by a physical education
teacher who last taught mathematics fifteen years ago. With
respect to Ms. Gill, the evidence shows that for nine years
she taught English courses at Carlsbad High School. Her
assignment at Valley Junior High School is seventh and eighth
grade reading. 	Ms. Gill's replacement at the high school is
the former reading specialist at the junior high school.
Ms. Gill testified that her educational preparation for
teaching reading consists only of extension courses and
conferences she has attended and that this background is
inadequate to teach reading courses.
While the Board's "because of" requirement is
difficult to prove, the evidence presented by the 0-CFT,
when considered in the aggregate, is sufficient to satisfy
the Board's standard. Evidence of which teachers were
selected for transfer from the high school to the junior
high school, the timing of the transfers, the transferees'
new work location and most importantly, the failure of the
respondent to call as witnesses the individuals who could
best explain the reason for these particular transfers,
raises more than an inference that the District was motivated
by improper considerations.
-20-

Accordingly,
	where, 	as
	here, 	there
	is
	evidence
	of
	at
least 	"slight
	harm"
	to
	employee
	rights,
	then
	as 	aforemen-
tioned
	under 	Great
	Dane,
	supra, 	the
	employer must
	come
	forward
with
	evidence
	of 	"legitimate
	and
	substantial
	business 	purposes."
It
	is
	necessary,
	therefore,
	to
	examine
	the
	District's
	defense
that
	when
	making
	the 	decision
	to
	transfer
	Mr.
	Bongiorni
	and
Ms.
	Gill
	it
	was
	motivated
	by
	substantial
	educational 	consider-
ations.
According
	to 	the
	District,
	transfers
	of
	principals
and
	other 	administrators
	were
	made
	to
	effect
	!!changes
	in
relationship
	to 	the 	operation 	of 	the
	District's
	schools"
	and
to
	facilitate
	"general
	curriculum
,ehange
	policies
	being
implemented
	in
	the
	District."
	The
	subsequent
	teacher
	transfers
purportedly
were
	necessitated
because
	"the
	new
	principals
	were
involved with
	new
	ideas
	and
	things 	they
	wanted
	to
	implement
at 	their
	new
	locations
	..
	which
	in
	some
	cases
	required
different
	personnel.
11
The
	District 	failed
	to
	produce
	the witnesses,
	however,
who, 	by
	its
	own
	admission,
	would have 	been most
	crucial 	in
establishing 	that 	the 	transfers of
	Mr.
	Bongiorni
	and Ms.
	Gill
were
necessary 	to 	"implement
	new
	ideas
	which
	required 	different
personnel,"
	and were
not, 	therefore, 	motivated 	for 	proscribed
reasons.
	The
	sole 	District witness
	was 	Dr. 	Lynn
	Davies,
	prior
principal 	at 	Carlsbad High 	School. 	Dr. 	Davies 	was
	reassigned
to 	an 	elementary 	school 	position pursuant 	to 	the 	overall
administrative 	transfers 	and 	so was 	not 	going 	to 	be working
-21-
Accordingly, where, as here, there is evidence of at
least "slight harm" to employee rights, then as aforemen-
tioned under Great Dane, supra, the employer must come forward
with evidence of "legitimate and substantial business purposes."
It is necessary, therefore, to examine the District's defense
that when making the decision to transfer Mr. Bongiorno and
Ms. Gill it was motivated by substantial educational consider-
ations .
According to the District, transfers of principals
and other administrators were made to effect "changes in
relationship to the operation of the District's schools" and
to facilitate "general curriculum change policies being
implemented in the District." The subsequent teacher transfers
purportedly were necessitated because "the new principals were
involved with new ideas and things they wanted to implement
at their new locations . 	. which in some cases required
different personnel."
The District failed to produce the witnesses, however,
who, by its own admission, would have been most crucial in
establishing that the transfers of Mr. Bongiorno and Ms. Gill
were necessary to "implement new ideas which required different
personnel, " and were not, therefore, motivated for proscribed
reasons . 	The sole District witness was Dr. Lynn Davies, prior
principal at Carlsbad High School. Dr. Davies was reassigned
to an elementary school position pursuant to the overall
administrative transfers and so was not going to be working
-21-

at 	the 	high 	school 	or 	the 	junior high 	school 	during 	the 	1976-77
school 	year. 	Thus, 	Dr. 	Davies 	was 	not 	the 	principal who
selected 	these 	individuals 	to 	transfer 	from his 	school 	to 	the
junior 	high 	school. 	Moreover, 	neither 	Dr. 	Doug 	Deason, 	the
new principal 	at 	the 	high 	school, 	who 	according 	to 	the 	District
rationale, 	might 	have wanted 	these 	teachers 	transferred 	out
of 	the 	high 	school 	so 	as 	to 	institute 	changes 	in 	the 	high
school 	curriculum 	that 	he 	felt 	were 	not 	compatible with 	the
transferees' 	skills, 	nor the 	new 	junior high 	school 	principal,
Mr. 	Clark Vollbrecht, 	who 	might 	have 	desired 	these 	teachers
in 	his 	school 	because 	they were 	compatible with 	the 	junior
high 	school's 	new 	curriculum program, 	were 	called 	to 	testify
at 	the 	hearing.
Repeatedly 	during 	the 	hearing, 	Dr. 	Davies' 	testimony
proved 	inadequate 	in 	providing 	a 	substantial 	answer 	as 	to
how 	or why 	the 	transfers 	were 	"good 	for 	the 	District."
Typical 	of 	Dr. 	Davies' 	knowledge with 	respect 	to 	the 	particular
transfers 	and 	the 	curriculum 	changes 	at 	the 	junior high 	school
are 	the 	following excerpts 	from 	the 	transcript:
Q: 	You were 	principal 	of 	the 	High 	School.
Could 	you 	tell 	us 	where 	curriculum 	changes
were made 	in 	the 	High 	School?
A: 	I 	can 	give 	you 	an 	overall 	view 	of 	that,
I 	am 	-- 	because 	I 	immediately 	turned my
attention 	to 	working 	out 	problems 	in my
-22-
at the high school or the junior high school during the 1976-77
school year. Thus, Dr. Davies was not the principal who
selected these individuals to transfer from his school to the
junior high school. Moreover, neither Dr. Doug Deason, the
new principal at the high school, who according to the District
rationale, might have wanted these teachers transferred out
of the high school so as to institute changes in the high
school curriculum that he felt were not compatible with the
transferees' skills, nor the new junior high school principal,
Mr. Clark Vollbrecht, who might have desired these teachers
in his school because they were compatible with the junior
high school's new curriculum program, were called to testify
at the hearing.
Repeatedly during the hearing, Dr. Davies' testimony
proved inadequate in providing a substantial answer as to
how or why the transfers were "good for the District."
Typical of Dr. Davies' knowledge with respect to the particular
transfers and the curriculum changes at the junior high school
are the following excerpts from the transcript:
Q: You were principal of the High School.
Could you tell us where curriculum changes
were made in the High School?
A: I can give you an overall view of that,
I am -- because I immediately turned my
attention to working out problems in my
-22-

newly
	assigned 	school,
	my
	new
responsibilities;
	I
	don't
	have
finite
	detail.	
* * *
Q:
	And 	do
	you
	have
	any 	knowledge
	of
	the
curriculum
	changes
	that
	were
	made
	in
the 	Junior
	High 	School?
A:
	No. 	I 	was
	not 	associated
	with
	that.
So 	I
	couldn't
	give
	you 	any
	real
	feedback
on
	that
	change.
Q:
	Who
	came
	in
	to 	replace 	these
	people
	that
went
	to 	varying 	places? 	[at 	the
	High 	School]
A:
	I
	would 	have
	to 	consult 	notes 	to 	get
	any
closer
	than
	that
	on
	exactly
what
	the
	new
schedule
	was
	for
	this
	year,
	because
	I 	was
not 	running 	the 	school,
	and
	did not
	really
pay
	that
	much
	attention 	-- 	that
	close
	attention
--
	to 	the
	ne,1J
master 	schedule.
Q: 	Are 	you 	aware
	of 	the 	position 	that
Mr.
	Bongiorni
	was
	transferred 	to
	at
	the
Junior
	High 	School?
A: 	Only 	from
	the 	standpoint 	that
	it
	is
	a
math 	assignment.
-23-
newly assigned school, my new
responsibilities; I don't have
finite detail. * * *
* * * *
Q: And do you have any knowledge of the
curriculum changes that were made in
the Junior High School?
A: No. I was not associated with that.
So I couldn't give you any real feedback
on that change.
* * * *
Q: Who came in to replace these people that
went to varying places? (at the High School]
A: I would have to consult notes to get any
closer than that on exactly what the new
schedule was for this year, because I was
not running the school, and did not really
pay that much attention -- that close attention
-- to the new master schedule.
* * * *
Q: Are you aware of the position that
Mr. Bongiorno was transferred to at the
Junior High School?
Only from the standpoint that it is a
math assignment.
* * * *
-23-

decided
It
	evident
	really
	is
	that
	the
	individual
	who 	upon
the
	transfers
	was 	Dr. 	Deason,
	who was
	the
	principal
	at
	Valley
High
	School
	at
	the
	time
	of 	the
	transfer
	announcements,
	and
Junior
was
	to
	be
	the
	new
	principal
	at
	Carlsbad
High
	School.
	The
	District
that
	Dr. 	Deason
has
	known
	the
	transferees 	personally 	for
admits
behest
	that
	they
were
	selected
many
	years
	and
	that
	it
	was
	at
	his
for
	removal.
	The
	failure
	to
	call
	Dr. 	Deason,
	who, 	by
	the
	District's
rationale
	and
	repeated
	assertions
	during
	the 	hearing
	had
	the
own
clearest
	knowledge
	of
why
	these
	particular
	employees
	were
selected 	for
	transfers,
	is
	a
	fatal
	defect 	in
	the
	District's
	case.
7
7
courts,	In 	addition
	to 	the
	NLRB
	and
	the 	federal 	several
	state
courts
	have 	found
	unfair
	labor
	practices
	based
	on
	similar
facts.
	In Massachusetts, 	the
	Massachusetts
	Labor
	Relations
Commission 	found
	that
	a
	public
	employee who was
	president 	of
his
	union had 	been
	unlawfully
	transferred
	from
	the
	day
	shift
had
to 	the 	night
	shift,
	even 	though
	the
	employer 	come
	forward
with
	a number
	of 	reasons
	necessitating
	the
	transfer.
	Town
	of
Sharon 	and
	Joseph
	B.
	Puchalski,
	3
MLC
	1052
	(1976).
	After
noting
	that
	the
	employer 	had
	failed
	to
	satisfy
	its
	burden
	of
the
	Commission
	stated:
	"We
	note
	that
	even
	the 	existenceproof,
of
	a
	legitimate 	reason 	to 	discipline
	an 	employee
	is
	no
	defense
in
	if
	the 	action
was
	motivated
	in
whole
	or 	part
	by
	intent
	to
discourage 	union
	activity."
Appeals 	a
another 	the 	of 	upheld
In 	case,
	New
	York
	CourtEmployment
	Relations
	Board 	(PERB)
	finding
New
	York
	Public
in 	order 	to
that 	three 	firefighters
	had 	been
	transferred
discourage
	their 	organizational 	activities.
	City 	of Albant
Permanent
	Firefighters' 	Association,
	3 PERB 	3 12
Professional(1970),
	enf'd 	City 	of Albany v.
	New York PERB, 	29 	N.Y. 	2d 	433
conduct 	unlawful(1972). 	The New York PERB
	declared 	this of
even 	the 	record 	showed
	that 	the 	transfers 	were
	part
though
(con't)
-24-
It is evident that the individual who really decided upon
the transfers was Dr. Deason, who was the principal at Valley
Junior High School at the time of the transfer announcements, and
was to be the new principal at Carlsbad High School. The District
admits that Dr. Deason has known the transferees personally for
many years and that it was at his behest that they were selected
for removal. The failure to call Dr. Deason, who, by the District's
own rationale and repeated assertions during the hearing had the
clearest knowledge of why these particular employees were
selected for transfers, is a fatal defect in the District's case.
In addition to the NLRB and the federal courts, several state
courts have found unfair labor practices based on similar
facts. In Massachusetts, the Massachusetts Labor Relations
Commission found that a public employee who was president of
his union had been unlawfully transferred from the day shift
to the night shift, even though the employer had come forward Town ofwith a number of reasons necessitating the transfer. After
Sharon and Joseph B. Puchalski, 3 MLC 1052 (1976).
noting that the employer had failed to satisfy its burden of
proof, the Commission stated: "We note that even the existence
of a legitimate reason to discipline an employee is no defense
if the action was motivated in whole or in part by intent to
discourage union activity."
In another case, the New York Court of Appeals upheld a
New York Public Employment Relations Board (PERB) finding
that three firefighters had been transferred in order to City of Albany	discourage their organizational activities.
Professional Permanent Firefighters' Association, 3 PERB 3612
(1970), enf'd City of Albany v. New York PERB, 29 N. Y. 2d 433
(1972). 	The New York PERB declared this conduct unlawful
even though the record showed that the transfers were part of ( con't)
-24-
7

The
	District's
	"for
	the
	good
	of 	the
	District"
defense
	is
	based
	on
	Education
	Code
	Section
	35035(c). 	This
section
	provides
	that:
7
	(con't)
The
	superintendent 	of
	each
	school
district
	shall, 	in
	addition
	to
	any
other
	powers 	and
	duties
	granted 	to
or
	imposed upon 	him:
	Subject
to 	the
	approval
	of 	the
	governing
board,
	assign
	all
	employees
	of 	the
district
	employed
	in positionsrequiring
	certification
	qualifica-tions,
	to 	the
	positions 	in
which
they
	are 	to 	serve.
	Such power
	to
assign 	includes 	the
	power
	to
	trans-
fer
	a
	teacher
	from one
	school
	to
another 	school
	at
	which
	the 	teacher
is 	certificated
	to 	serve within 	the
district
	when
	the 	superintendent
concludes
	that
	such
	a
	transfer
	is
in
	the
	best
	interest
	of 	the
	district. 
the
	an
	overali 	transfer
	program.
	In 	affirming 	the 	decision
New
	York
	Court
	of
	Appeals 	concluded:
	"
...
the
	[Employer]
cannot, 	under
	the 	guise 	of 	exercising
ministerial
	or
	manage-
ment
	prerogative,
	deprive
	its
	employees
	of
	their 	statutory
rights
	to
	form,
	join
	or
	participate 	in
	an 	employee
	organization.
In
	transfer
	who	a
	case 	involving 	the
	recommended
	of
	a
	teacher
was
	also
	a
	vocal 	union 	spokesperson, 	the
	Wisconsin
	Supreme
Court
	in
Muskego-Norway
	Consolidated 	Schools
	Joint
	District
No.
9
	vs.
	Wisconsin
	Em
	lo 	ent 	Relations
	Board,
	35 Wis. 	2d 	540,
IsoN.W.
	19 	7 	, 	uphe 	d
	the 	inding 	of 	unlawful
	employer
conduct
	in 	the 	face 	of 	considerable 	proof
	that
	numerous
legitimate
	reasons 	for 	the
	transfer
	might
	exist.
	The
	court
declared 	that
	if
	illegal
	discrimination
	is
	even 	an 	element
m9tivating
	a
	transfer,
	the 	employer's 	conduct
	is
	prohibited.
Lastly, 	in 	International Association 	of 	Fire 	Fighters 	v.
County
	of
Merced, 	204 	Cal.App. 	2d 	387
	(1962),
	a
	retrial
	was
ordered
	on 	a
	questioned 	discharge 	of
	a
	fireman
	allegedly 	for
his 	union
	activities.
	The 	Court noted 	that 	the 	failure 	of
the 	employer 	to
	call
	a
	crucial witness 	to 	substantiate
	its
claim that 	the 	discharge
	was
	justified
was 	a
	serious 	flaw 	in
the 	employer's 	defense.
-25-
The District's "for the good of the District"
defense is based on Education Code Section 35035(c) . This
section provides that:
The superintendent of each school
district shall, in addition to any
other powers and duties granted to
or imposed upon him: 	Subject
to the approval of the governing
board, assign all employees of the
district employed in positions
requiring certification qualifica
tions, to the positions in which
they are to serve. Such power to
assign includes the power to trans-
fer a teacher from one school to
another school at which the teacher
is certificated to serve within the
district when the superintendent
concludes that such a transfer is
in the best interest of the district.
7 (con't)
an overall transfer program. In affirming the decision the
New York Court of Appeals concluded: "... the [Employer]
cannot, under the guise of exercising ministerial or manage-
ment prerogative, deprive its employees of their statutory
rights to form, join or participate in an employee organization.
In a case involving the recommended transfer of a teacher who
was also a vocal union spokesperson, the Wisconsin Supreme
Court in Muskego-Norway Consolidated Schools Joint District
No. 9 vs. Wisconsin Employment Relations Board, 35 Wis. 2d 540,
150 N. W. 2d 617 (1967), upheld the finding of unlawful employer
conduct in the face of considerable proof that numerous
legitimate reasons for the transfer might exist. The court
declared that if illegal discrimination is even an element
motivating a transfer, the employer's conduct is prohibited.
Lastly, in International Association of Fire Fighters v.
County of Merced, 204 Cal . App. 2d 387 (1962), a retrial was
ordered on a questioned discharge of a fireman allegedly for
his union activities. 	The Court noted that the failure of
the employer to call a crucial witness to substantiate its
claim that the discharge was justified was a serious flaw in
the employer's defense.
-25-

The
	questioned
	transfers,
	it
	is
	argued,
	fall
	squarely
within
	the
	District's
	managerial
	prerogative
	and
	are
	immune
to
	charges
	by 	employees
	that
'the
	transfers
	are
	unfair.
	This
contention
	is
	not 	persuasive.
In
	support
	of
	its
	argument
	that
	Section
	35035(c)
	of
the
	Education
	Code 	immunizes
	the 	questioned
	transfers
	from
EERB
	scrutiny,
	the
	District
	places 	considerable
	reliance 	in
its
	brief
	on Macy's
	Missouri-Kansas
	Division
	v.
	NLRB,
389
	F.2d
	835,
	67
	LRRM
	2563
	(8th 	Cir.
1968).
	In
	Macy's
	the
court
	determined
	that
	an 	employer
had
	transferred
	a
	union
activist
	for 	legitimate
	business
	reasons
	rather
	than
	out
	of
union
	animus
	as 	the
	NLRB
	had 	found.
	The
	court
	stated 	that
	an
"employer has
	a
	fundamental
	right
	to 	assign
	employees
	to
.
positions
	the
	employer
	deems,
	in
	the 	exercise 	of
	its
	managerial
discretion,
	most
	expedient."
	Macy's
	is
	not
	particularly
	helpful
to 	the
	District's
	argument, 	however. 	For 	one
	thing, 	following
the
	above-quoted 	passage
which
	the
	District 	cites
	in
	its
	brief,
the 	court 	enunciates 	the
	rule 	that
	managerial
	immunity 	from
NLRB
	and
	court 	inspection
	is
	suspended
	if
	the
	employer
	acts
in order 	to
	interfere
with 	or 	discriminate 	against
	its
employees'
	organizational 	rights.
	67
	LRRM
	at
	2565. 	Thus,
though
	the 	court
	found 	on
	the
	particular 	set 	of 	facts 	before
it
	that 	the
	employer had
	not 	acted unlawfully,
	Macy's
certainly
	does
	not 	stand 	for 	the 	proposition 	that
	an 	employer'
-26-
The questioned transfers, it is argued, fall squarely
within the District's managerial prerogative and are immune
This
to charges by employees that the transfers are unfair.
contention is not persuasive.
In support of its argument that Section 35035 (c) of
the Education Code immunizes the questioned transfers from
EERB scrutiny, the District places considerable reliance in
its brief on Macy's Missouri-Kansas Division v. NLRB,
389 F. 2d 835, 67 LRRM 2563 (8th Cir. 1968) . In Macy's the
court determined that an employer had transferred a union
activist for legitimate business reasons rather than out of
union animus as the NLRB had found. The court stated that an
"employer has a fundamental right to assign employees to
positions the employer deems, in the exercise of its managerial
discretion, most expedient." Macy's is not particularly helpful
to the District's argument, however. For one thing, following
the above-quoted passage which the District cites in its brief,
the court enunciates the rule that managerial immunity from
NLRB and court inspection is suspended if the employer acts
in order to interfere with or discriminate against its
employees' organizational rights. 67 LRRM at 2565. Thus,
though the court found on the particular set of facts before
it that the employer had not acted unlawfully, Macy's
certainly does not stand for the proposition that an employer
-26-

may 	"pick 	the 	time, 	place, 	and manner 	of 	employment," 	as 	the
District 	suggests 	in 	its 	brief, 	absent 	any 	restrictions 	at 	all.
Moreover, 	there 	are 	several 	crucial, 	factual 	differences
between 	the 	situation 	in Macy's 	and 	the 	instant 	case.
The 	court 	in Macy's 	found 	that 	the 	NLRB 	had 	based
its 	finding 	of 	an unfair 	labor 	practice 	primarily 	on 	the mere
coincidence between union 	activity 	and 	the 	transfer. 	However,
in Macy's 	the 	employer 	decided 	on 	the 	need 	for 	a 	new position
in 	a 	different 	department 	long 	before 	the 	union 	organization
drive 	had begun. 	The 	employer 	requested help 	from 	the 	union
in 	finding 	an 	appropriate 	person 	and 	finally 	selected 	the
particular 	transferee 	because 	she had 	the 	requisite 	qualifi-
cations 	and had previously requested 	a 	transfer 	to 	the 	depart-
mertt 	in which 	the 	vaca~cy now 	existed. 	Only 	after 	other
employees 	were 	offered 	the 	new position 	and 	refused 	and 	the
employer was 	therefore 	unable 	to 	fill 	the 	vacancy was 	the
employee 	activist 	transferred. 	This 	set 	of 	facts 	is 	clearly
distinguishable 	from 	those 	in 	the 	instant 	case.
In 	summary, 	the 	absence 	of 	an 	exclusive 	representative
does 	not 	confer 	on 	a 	public 	school 	employer 	the 	absolute 	power 	to
transfer 	its 	employees. 	With 	advent of 	the 	EERA, 	Education 	Code
Section 	35035(c) 	must 	be 	read 	and 	interpreted 	in 	light 	of
.
-27-
may "pick the time, place, and manner of employment," as the
District suggests in its brief, absent any restrictions at all.
Moreover, there are several crucial, factual differences
between the situation in Macy's and the instant case.
The court in Macy's found that the NLRB had based
its finding of an unfair labor practice primarily on the mere
coincidence between union activity and the transfer. However,
in Macy's the employer decided on the need for a new position
in a different department long before the union organization
drive had begun. The employer requested help from the union
in finding an appropriate person and finally selected the
particular transferee because she had the requisite qualifi-
cations and had previously requested a transfer to the depart-
ment in which the vacancy now existed. Only after other
employees were offered the new position and refused and the
employer was therefore unable to fill the vacancy was the
employee activist transferred. This set of facts is clearly
distinguishable from those in the instant case.
In summary, the absence of an exclusive representative
does not confer on a public school employer the absolute power to
transfer its employees. With advent of the EERA, Education Code
Section 35035(c) must be read and interpreted in light of
-27-

the 	provisions 	of 	the 	EERA. 	That 	is, 	although 	a 	public 	school
employer 	has 	the 	power 	to 	transfer 	its 	employees 	''for 	the 	best
interest 	of 	t~e 	District," 	it 	cannot 	do 	so with 	the 	proscribed
intent 	to, 	inter 	alia, 	interfere with, 	restrain, 	coerce 	or 	dis-
criminate 	against 	employees 	becausie 	of 	their 	exercise 	of 	rights
guaranteed by 	the EERA. 	Thus, 	if 	it 	is 	apparent 	that 	a 	public
school 	employer was 	motivated by 	anti-union 	feelings 	of 	an 	intent
to 	interfere with 	the 	protected 	organizing 	activities 	of 	its
emvloyees, 	then 	an 	otherwise 	lawful 	act 	may 	become 	an 	unfair 	labor
practice, 	regardless 	of 	the 	power 	to 	transfer 	granted 	under
the 	Education 	Code. 	See 	NLRB 	v. 	Atkins 	Saw Division, 	399 	F.2d
907, 	69 	LRRM 	2200, 	2204 	(5th 	Cir. 	1968); 	NLRB 	v. 	Varo, 	Inc.,
425 	F.2d 	293, 	74 	LRRM 2096, 	2102 	(5th 	Cir. 	1970); 	NLRB 	v.
White 	Superior 	Division, 	404 	F.2d 	1100, 	69 	LRRM 	2903, 	2904
(6th 	Cir, 	1968); 	~. v. 	J.W. 	Mays, 	Inc., 	356 	F.2d 	693,
61 	LRRM 	2538, 	2541 	(2nd 	Cir. 	1966); 	American 	Ship 	Building 	Co.,
v. 	NLRB, 	380 	U.S. 	300, 	58 	LRRM 2672, 	2676 	(1965); 	NLRB 	v.
Lowell 	Sun 	Publishing 	Go. , 	320 	F. 2d 	835 ., 	53 	LRRM 2480, 	2484
(1st 	Cir. 	1963); 	NLRB. v. 	Hertz 	Gorp., 	449 	F.2d 	711, 	70 	LRRM
2569, 	2571 	(5th 	Cir. 	1971).
The 	District 	further 	defends 	its 	transfer 	of
Mr. 	Bongiorni 	and Ms. 	Gill 	by 	asserting 	that 	the 	substantial
and 	legitimate 	educational 	goals 	requiring 	large 	numbers 	of
transfers 	throughout 	the 	District 	also 	necessitated 	and
legitimized 	the 	transfer 	of 	these 	particular 	employees 	from
the 	high 	school 	to 	the 	junior high 	school.
-28-
the provisions of the EERA. That is, although a public school
employer has the power to transfer its employees "for the best
interest of the District," it cannot do so with the proscribed
intent to, inter alia, interfere with, restrain, coerce or dis-
criminate against employees because of their exercise of rights
guaranteed by the EERA. Thus, if it is apparent that a public
school employer was motivated by anti-union feelings of an intent
to interfere with the protected organizing activities of its
employees, then an otherwise lawful act may become an unfair labor
practice, regardless of the power to transfer granted under
the Education Code. See NLRB v. Atkins Saw Division, 399 F. 2d
907, 69 LRRM 2200, 2204 (5th Cir. 1968) ; NLRB v. Varo, Inc.,
425 F. 2d 293, 74 LRRM 2096, 2102 (5th Cir. 1970) ; NLRB v.
White Superior Division, 404 F. 2d 1100, 69 LRRM 2903, 2904
(6th Cir, 1968) ; NLRB v. J. W. Mays, Inc. , 356 F. 2d 693,
61 LRRM 2538, 2541 (2nd Cir. 1966); American Ship Building Co.,
V. NLRB, 380 U. S. 300, 58 LRRM 2672, 2676 (1965) ; NLRB v.
Lowell Sun Publishing Co. , 320 F. 2d 835, 53 LRRM 2480, 2484
(Ist Cir. 1963); NLRB v. Hertz Corp. , 449 F. 2d 711, 70 LRRM
2569, 2571 (5th Cir. 1971) .
The District further defends its transfer of
Mr. Bongiorno and Ms. Gill by asserting that the substantial
and legitimate educational goals requiring large numbers of
transfers throughout the District also necessitated and
legitimized the transfer of these particular employees from
the high school to the junior high school.
-28-

It
	is
	not
	enough, 	however,
	for
	an
	employer
	to
	assert
business
	justification
	or
	even
	to
	show
	that
	some
	legitimate
business
	reasons
	existed 	for
	it
	to
	layoff,
	transfer,
	reassign,
or
	discipline~~
	employees. 	Merely
	showing
	that
	the
District
	acted
	legally
	toward
	some
	employees 	does
	not
	indepen-
dently
	prove
	that
	it
	acted 	lawfully
	toward
	the
	employees
	in
question.
	The
	NLRB
	and
	the
	federal 	courts
	have
fo~nd 	an
	unfair
	labor
	practice 	in 	instances
	where
	substantial
and
	legitimate
	business 	reasons
	existed 	for 	the
	employer
	to
layoff,
	transfer
	or 	discharge
	some
	employees
	but 	the
	employer
selected
	particular
	employees
	for 	discharge,
	layoff
	or
	transfer
because
	of
	its
	desire 	to
	impede
	their
	union
	and
	organizational
activities.
	The
	NLRB
	found
	in
	one
	case
	that
	an 	employer 	had
attempted 	to
	cani.oufl_ag_e
	the 	discriminatory
	layoff of
	union
activists
	by
	the
	simultaneous
	layoff
	of
	employees
	uninvolved
in
	union
	activity.
	In
	Howard
	Johnson 	Co.,
	209
	NLRB
	1122,
86
	LRRM
	1148
	(1974),
	the
	NLRB
	noted:
The
	point
	is
	not
	who
	could 	the 	respondenthave 	chosen
	to 	layoff
	once
	deciding
	a
layoff
	was
	economically necessary, 	but
upon what
	criterion
was
	their 	selection
made.
	We
	have
	already 	seen
	that
	both
logic
	and
	the 	underlying 	record
	compel
the 	conclusion
	that
	the
	criterion
	used
was
	connected 	to 	the
	aim
	of 	defeating 	theUnion's
	efforts
	to 	organize 	the
	employees.
86
	LRRM
	at
	1149, 	fn. 	5.
In 	the 	instant 	case,
	even 	assuming
	the 	transfers 	of
all
	other
	employees
were
necessary, 	the
	District 	failed
to
	show
	that 	the 	transfer 	of
	Mr.
	Bongiorni 	and
	Ms.
	Gill
	was
motivated by
	substantial 	and 	legitimate 	educational 	goals.
-29-
It is not enough, however, for an employer to assert
business justification or even to show that some legitimate
business reasons existed for it to layoff, transfer, reassign,
or discipline some employees. Merely showing that the
District acted legally toward some employees does not indeper
dently prove that it acted lawfully toward the employees in
question. The NLRB and the federal courts have
found an unfair labor practice in instances where substantial
and legitimate business reasons existed for the employer to
layoff, transfer or discharge some employees but the employer
selected particular employees for discharge, layoff or transfer
because of its desire to impede their union and organizational
activities. The NLRB found in one case that an employer had
attempted to camouflage the discriminatory layoff of union
activists 	by the simultaneous layoff of employees uninvolved
in union activity. In Howard Johnson Co. , 209 NLRB 1122,
86 LRRM 1148 (1974), the NLRB noted:
The point is not who could the respondent
have chosen to layoff once deciding a
layoff was economically necessary, but
upon what criterion was their selection
made . 	We have already seen that both
logic and the underlying record compel
the conclusion that the criterion used
was connected to the aim of defeating the
Union's efforts to organize the employees.
86 LRRM at 1149, fn. 5.
In the instant case, even assuming the transfers of
all other employees were necessary, the District failed
to show that the transfer of Mr. Bongiorno and Ms. Gill was
motivated by substantial and legitimate educational goals.
-29-

In
	conclusion,
	after
	examining
	the
	totality
	of 	the
District's
	conduct,
	including 	the
	timing
	of 	the
	transfer,
the
	District's
	awareness
	of
	internal
	AFT
	organizing, 	the
selection
	of
	Valley
	Junior
	High
	School 	as
	the
	transferees'
new
work
	location,
	and
most
	importantly, 	the 	lack 	of
	convincing
evidence
	of
	an
	adequate
	business
	justification
	for 	the
	District's
conduct,
	there
	exists
	more
	than
	sufficient
	evidence
	to
	find
that
	Mr.
	Bongiorni
	and
	Ms.
	Gill
	were
	transferred
	because
	of
their
	union
	activities
	and
not 	for 	legitimate
	and
	substantial
education 	reasons.
	As
	the
	United
	States
	Supreme
	Court
	noted:
[A]s
	often
	happens,
	the
	employer
may
	[claim]
	that
	his 	actions
	were
taken
	in
	the
	pursuit
	of 	legitimatebusiness
	ends 	and
	that 	his
	dominant
purpose
	was
	not 	to
	...
	invade
union
	rights
	but 	to
	accomplish
business 	objectives 	acceptable
	under
the
	Act.
	Nevertheless,
	his
	conductdoes
	speak
	for
	itself
...
	and
what-
ever 	the 	claim
of 	overriding
	justifi-
cation
may
	be,
	it
	carries
	with
	it
unavoidable
	consequE:_nces
which 	the
the
	employer
	not
	only 	foresaw
	but
which 	he 	must 	have
	intended.
	NLRB
	v.
Erie 	Resistor
	Corz.,
	373
	U.~S
.-221
?~ 1:,Rlll1
	~J21,
~~12~	
(l~b3).	
.
..
	'
The
	District 	is
	found
	to
	have
	violated 	Section 	3543.S(a).
by
	restraining
	and
	interfering
	with Harry 	Bongiorni 	and
Mary
	Ann
	Gill
	because 	of
	their
	exercise 	of 	rights
	guaranteed
by
	the
	EERA.
Section 	3543.S(b)
Government 	Code
	Section 	3543.S(b) 	provides 	that:
It 	shall 	be 	unlawful 	for
	a
	public 	school
employer 	to 	(b) 	deny 	to 	employee 	organiza-
tions 	rights 	guaranteed 	to 	them by 	thischapter.
-30-
In conclusion, after examining the totality of the
District's conduct, including the timing of the transfer,
the District's awareness of internal AFT organizing, the
selection of Valley Junior High School as the transferees'
new work location, and most importantly, the lack of convincing
evidence of an adequate business justification for the District's
conduct, there exists more than sufficient evidence to find
that Mr. Bongiorno and Ms. Gill were transferred because of
their union activities and not for legitimate and substantial
education reasons. As the United States Supreme Court noted:
[A]s often happens, the employer
may [claim] that his actions were
taken in the pursuit of legitimate
business ends and that his dominant
purpose was not to . 	. invade
union rights but to accomplish
business objectives acceptable under
the Act. Nevertheless, his conduct
does speak for itself. 	and what-
ever the claim of overriding justifi-
cation may be, it carries with it
unavoidable consequences which the
the employer not only foresaw but
which he must have intended. NLRB v.
Erie Resistor Corp. , 373 U.S. 221,
53 LRRM 2121, 2124 (1963) .
The District is found to have violated Section 3543.5(a).
by restraining and interfering with Harry Bongiorno and
Mary Ann Gill because of their exercise of rights guaranteed
by the EERA.
Section 3543. 5 (b)
Government Code Section 3543.5 (b) provides that:
It shall be unlawful for a public school
employer to (b) deny to employee organiza-
tions rights guaranteed to them by this
chapter.
-30-

Having 	found
	that
	the
	respondent
	violated
	Section
3543.S(a)
	by
	discriminating 	against
	the
	president
	of
	0-CFT
and 	one
	of
	its
	members
	because
	of
	their
	exercise
	of
	rights
guaranteed
	by
	the
	EERA
	it
	follows
	that
	the
	employer 	has
	denied
to 	the 	organization
	itself
	organizing
	rights
	guaranteed
	by
	the
EERA.
	The
	respondent's 	discriminatory
	conduct,
	when
	examined
in
	the 	aggregate,
	could 	only
	have 	been
	intended
	to
	weaken
the 	charging
	party's
	base
	of
	support
	in 	the
	District
	which,
of
	necessity,
	serves 	to
	undermine 	and
	thwart
	0-CFT's
legitimate
	organizing
	efforts.
A
violation
	of 	Section
	3543.S(b)
	exists.
REMEDY
Section
	3541.S(c)
	authorizes 	the
	EERB
	to 	issue
	a
decision
	and
	order
	in
	an
	unfair 	practice
	case
	directing
	an
offending
	party 	to 	cease
	and
	desist
	from
	the
	unfair 	practice
and
	to 	take
	such
	affirmative 	action
	as
	will 	effectuate 	the
policies
	of 	the
	EERA.
In 	cases
	where
	unlawful
	transfers
	have
	occurred
under
	the
	NLRA,
	the
	NLRB
	has
	required 	the
	employer
	to
	reinstate
the
	employees
	at 	their
	option 	to 	the 	positions
	occupied 	by
them
	prior 	to 	the
	transfer.
	See 	J.W. 	Mays,
	Inc.,
	147
	NLRB
	942,
56
	LRRM
	1339,
	enf'd.
	356
	F.2d 	693, 	61
	LRRM
	2538 	(2nd
	Cir.
	1966).
Such 	a 	remedy
	is 	appropriate 	in 	this
	case.
-31-
Having found that the respondent violated Section
3543.5(a) by discriminating against the president of 0-CFT
and one of its members because of their exercise of rights
guaranteed by the EERA it follows that the employer has denied
to the organization itself organizing rights guaranteed by the
EERA. The respondent's discriminatory conduct, when examined
in the aggregate, could only have been intended to weaken
the charging party's base of support in the District which,
of necessity, serves to undermine and thwart 0-CFT's
legitimate organizing efforts.
A violation of Section 3543.5(b) exists.
REMEDY
Section 3541.5(c) authorizes the EERB to issue a
decision and order in an unfair practice case directing an
offending party to cease and desist from the unfair practice
and to take such affirmative action as will effectuate the
policies of the EERA.
In cases where unlawful transfers have occurred
under the NLRA, the NLRB has required the employer to reinstate
the employees at their option to the positions occupied by
them prior to the transfer. See J. W. Mays, Inc. , 147 NLRB 942,
56 LRRM 1339, enf'd. 356 F. 2d 693, 61 LRRM 2538 (2nd Cir. 1966).
Such a remedy is appropriate in this case.
- 31-

ORDER
Upon
	the 	foregoing
	findings 	of
	facts,
	conclusions
of
	law, 	and
	the
	entire
	record
	of
	this
	case,
	and
	pursuant
	to
Government 	Code
	Section 	3541.S(c),
	it
	is
	hereby
	ordered
	that
the
	Carlsbad Unified
	School
	District
	and
	its
	representatives
shall:
1.	
CEASE
	AND
	DESIST
	FROM:
(a)	
In
	any 	manner
	discriminating 	against 	or
	interfering
with
	employees
	because
	of
	their
	exercise 	of
	rights
guaranteed
	by
	the
	EERA;
(b)	
In
	any manner
	denying
	to 	the
	Oceanside-Carlsbad
Federation 	of
	Teachers
	rights
	guaranteed
	by
	the
	EERA.
2.
	TAKE 	THE
	FOLLOWING
	AFFIRMATIVE'
ACTIONS 	DESIGNED'
TO
	EFFECTUATE
	THE
	POLICIES
	OF THE
	ACT:
(a}	
Offer
	Harry 	Bongiorni
	and
	Mary Ann
	Gill 	reinstatement
to
	their
	former
	or
	substantially
	equivalent 	positions
at
	Carlsbad
High
	School
	at
	the
	commencement
	of 	the
next 	school 	year 	or 	the 	next 	school 	semester, 	which-
ever 	occurs
	first;
(b)	
Prepare
	and
	post 	copies 	of 	this 	order
	at
	each
	of
its
	schools
	and work
	sites
	for
	twenty 	(20) 	workdays
in
	conspicuous 	places, 	including
	all
	locations
	where
notices 	to
	employees
	are 	customarily 	posted;
(c) 	At
	the
	end
	of 	the 	posting 	period, 	notify 	the
	Los
Angeles 	Regional 	Director 	of 	the 	Educational
Employment 	Relations 	Board 	of 	the 	actions
	it
	has
taken 	and 	intends 	to 	take 	to 	comply with 	this 	order.
-32-
ORDER
Upon the foregoing findings of facts, conclusions
of law, and the entire record of this case, and pursuant to
Government Code Section 3541.5(c), it is hereby ordered that
the Carlsbad Unified School District and its representatives
shall :
1. CEASE AND DESIST FROM:
(a) In any manner discriminating against or interfering
with employees because of their exercise of rights
guaranteed by the EERA;
( b ) 	In any manner denying to the Oceanside-Carlsbad
Federation of Teachers rights guaranteed by the EERA.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO EFFECTUATE THE POLICIES OF THE ACT :
(a) 	Offer Harry Bongiorno and Mary Ann Gill reinstatement
to their former or substantially equivalent positions
at Carlsbad High School at the commencement of the
next school year or the next school semester, which-
ever occurs first;
(b ) 	Prepare and post copies of this order at each of
its schools and work sites for twenty (20) workdays
in conspicuous places, including all locations where
notices to employees are customarily posted;
(c) At the end of the posting period, notify the Los
Angeles Regional Director of the Educational
Employment Relations Board of the actions it has
taken and intends to take to comply with this order.
- 32-

It 	is 	further 	ordered 	that 	the 	charges 	shall 	be
dismissed with 	respect 	to 	Art 	Giordano 	and Harry 	Schurch.
Pursuant 	to 	Title 	8, 	Cal. 	Admin. 	Code, 	Section 	35029,
this 	recommended 	decision 	and 	order 	shall 	become 	final 	on
November 	8, 	1977, 	unless 	a 	party 	files 	a 	timely 	statement 	of
exceptions. 	See 	Title 	8, 	Cal. 	Admin. 	Code, 	Section 	35030.
Any 	statement 	of 	exceptions 	must 	be 	accompanied by 	proof
of 	service 	on 	the 	other 	party.
Dated: 	October 	27, 	1977
-33-
Jeff 	Paule
Hearing 	Officer
It is further ordered that the charges shall be
dismissed with respect to Art Giordano and Harry Schurch.
Pursuant to Title 8, Cal. Admin. Code, Section 35029,
this recommended decision and order shall become final on
November 8, 1977, unless a party files a timely statement of
exceptions. See Title 8, Cal. Admin. Code, Section 35030.
Any statement of exceptions must be accompanied by proof
of service on the other party.
Dated: October 27, 1977
Jeff Paule
Hearing Officer
-33-