Placer Hills Union School District (PERB 0262E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	PLACER HILLS
CHAPTER NO. 	636,
Charging 	Party,
v.
PLACER 	HILLS 	UNION SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-384
PERB Decision No. 	262
November 30, 	1982
Appearances; 	Gifford D. 	Massey, 	Field Representative 	for 	the
California School Employees Association 	and 	its 	Placer 	Hills
Chapter No. 	636; 	Douglas A. 	Lewis, Attorney for the Placer
Hills 	Union School District.
Before Gluck, Chairperson; Tovar 	and Jaeger, Members.
DECISION
GLUCK, 	Chairperson: 	The California School Employees
Association 	and 	its Placer Hills Chapter No. 	636 	(CSEA) 	except
to 	a 	hearing 	officer's 	dismissal 	of 	charges 	alleging 	that 	the
Placer 	Hills Union School District 	(District) 	violated
subsection 	3543.5(c) 	of 	the Educational Employment Relations
Act 	(EERA)1 by 	unilaterally 	terminating 	Robert 	J. 	Ledbetter,
1EERA 	is 	codified 	at Government 	Code 	section 	3540,
et seq., 	and all 	references 	are 	to the Government Code 	unless
otherwise 	indicated.
Section 3543.5 provides, 	in relevant part:
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.
who 	was 	employed 	under 	the 	federally 	funded 	Comprehensive
Employment Training Act 	(CETA), 	without negotiating 	either 	the
decision or 	the 	effects 	of 	the 	termination with 	the 	exclusive
representative. 	CSEA filed 	no exceptions 	to 	the 	hearing
officer's 	dismissal of 	its other 	charges 	that 	the 	District
violated subsections 	3543.5(a) 	and 	(b) 	by 	taking 	reprisal
against 	Ledbetter 	because 	of 	his 	participation 	in protected
activities.
The 	Public Employment 	Relations 	Board 	(PERB) 	finds 	the
hearing 	officer's 	attached 	statement 	of 	facts 	to 	be 	free 	from
prejudicial error 	and 	adopts 	them as 	its 	own.
DISCUSSION
CSEA excepts 	to 	the 	hearing officer's 	findings 	that 	the
District 	had 	a 	past 	practice 	of 	terminating CETA-funded
employees 	and 	that 	CSEA was 	attempting 	to negotiate 	a change 	in
that practice. 	It contends 	that no general layoff policy
existed 	for 	classified 	employees, 	the 	District 	having 	rejected
CSEA's 	proposals 	for 	layoff 	procedures 	during 	contract
N	
2

negotiations 	which 	took place 	at 	the 	time of Ledbetter's
termination. 	CSEA 	also 	contends 	that 	the District must 	treat
CETA 	employees 	as 	classified 	employees 	under 	the 	California
Education Code, 	and seems 	to 	argue that the past practice, 	if
any, 	for 	terminating CETA employees, 	resulted 	from 	the
District's 	unlawful 	distinction 	between CETA 	and 	classified
employees.
The 	gravamen of CSEA's 	charge 	is 	that 	the District 	violated
subsection 	3543.5(c) 	by 	unilaterally 	changing 	the District's
layoff 	policy 	without 	first 	meeting 	and 	negotiating 	with 	the
employee 	organization when 	it 	terminated Ledbetter.
In Grant Joint Union High School District 	(2/26/82) 	PERB
Decision No. 	196, 	the Board 	held 	that for 	a charging party to
state 	a prima facie violation of 	subsection 	3543.5(c) 	when 	a
unilateral 	change 	is 	charged, 	it must allege facts sufficient
to show: 	(1) 	that 	the District 	breached or 	otherwise altered
the 	parties' 	written agreement or 	its 	own 	established past
practice; 	(2) 	that 	the 	breach or 	alteration amounted 	to a
change of policy 	(i.e., 	that 	it 	had a generalized effect or
continuing 	impact 	upon 	the 	terms 	and 	conditions 	of 	employment
of 	bargaining 	unit members); 	and 	(3) 	that the 	change in policy
concerned matters 	within 	the 	scope 	of 	representation. 	CSEA
failed 	to prove 	that the District, 	in this instance, 	altered or
breached 	its 	established 	practice. 	The 	District 	consistently
terminated 	CETA 	employees 	for 	whom federal 	funding 	ended,
following 	the 	same procedures 	used 	in dealing with Ledbetter.
3	•

We 	do 	not 	consider 	CSEA's 	claim 	that 	the 	District 	practice
contravenes 	Education Code 	provisions 	concerning 	layoff 	of
classified 	employees. 	The question 	before PERB 	is 	not whether
the District's 	practice violates 	the Education Code, 	but
whether 	it was 	changed 	in 	violation of EERA.2
ORDER
Based 	on 	the 	record 	before 	the 	Public 	Employment 	Relations
Board, 	the 	charges 	filed 	by 	the California School Employees
Association 	and 	its 	Placer 	Hills 	Chapter 	No. 	636 	are 	hereby
DISMISSED.
Members 	Tovar 	and Jaeger 	joined 	in 	this Decision.
2Compare 	Jefferson 	School 	District 	(6/19/80) 	PERB
Decision No. 	133 	and Healdsburg 	Union High 	School 	District
(6/19/80) 	PERB Decision No. 	132 where 	the Board reviewed 	the
Education Code 	to 	determine 	whether 	negotiating 	proposals 	were
in 	direct 	conflict with 	it 	and were 	outside of 	scope. 	See 	also
San Bernardino 	City Unified 	School 	District 	(10/29/82) 	PERB
Decision No. 	255.
A4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNI	CALIFORNIA 	SCHOOL EMPLOYEES ASSN.
and 	its 	PLACER HILLS CHAPTER No. 	636,
Charging 	Party,
v.
PLACER HILLS UNION 	SCHOOL 	DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	S-CE-384
PROPOSED 	DECISION
(6/4/81)
Appearances; 	Gifford D. 	Massey, 	Field Representative, 	for 	the
California 	School 	Employees Association 	and 	its 	Placer 	Hills
Chapter No. 	636; 	Douglas A. 	Lewis, 	Attorney, 	for the Placer
Hills Union 	School District.
Before Ronald E. 	Blubaugh, 	Hearing Officer.
PROCEDURAL 	HISTORY
In 	this case 	an 	employee organization contends 	that 	a
public 	school 	employer 	discriminatorily 	laid 	off 	a 	unit 	member
because of 	that member's participation 	in protected
activities. 	The 	organization 	further 	contends 	that 	the
employee, 	who worked under 	a federal 	jobs program, 	was 	several
times 	discriminatorily passed 	over 	for 	a 	regular 	district
position. 	The 	employer 	responds 	that 	the worker 	was 	laid off
in accord 	with 	the 	rules 	of 	the 	federal program and 	that 	his
failure 	to obtain a 	regular 	district 	job was 	due 	to 	the
employer's 	selection of persons 	who 	received 	higher 	scores 	on
civil 	service examinations. 	As an affirmative defense, 	the
employer 	also asserts 	that 	the 	charge was 	not 	filed 	within 	a
A 	SCHOOL EMPLOYEES ASSN.
and 	its 	PLACER HILLS CHAPTER No. 	636,
Charging 	Party,
v.
PLACER HILLS UNION 	SCHOOL 	DISTRICT,
Respondent.

statutory 	six-months' 	period of limitation.
This 	charge 	originally was 	filed 	by 	the California 	School
Employees Association and 	its Placer Hills Chapter No. 	636
(hereafter CSEA) 	on December 	12, 	1980. 	The charge alleges 	that
the 	Placer Hills Union School District 	(hereafter District)
violated Government Code section 3543.5(a), 	(b) 	and 	(c)1 by
terminating 	employee 	Robert 	J. 	Ledbetter 	from his 	position 	as 	a
custodian in 	retaliation 	for 	his 	"aggressive 	action 	in pursuing
several 	grievances 	filed 	to protect 	and 	to 	retain 	his 	job."
•'•Government Code 	section 3543.5 provides 	as
follows:
It 	shall 	be 	unlawful 	for 	a public school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose reprisals
on 	employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and 	negotiate 	in
good 	faith 	with 	an exclusive 	representative.
(d) 	Dominate or 	interfere with 	the
formation 	or 	administration of 	any 	employee
organization, 	or 	contribute 	financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join 	any organization 	in
preference 	to another.
(e) 	Refuse 	to participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
22

The 	charge 	alleges 	that 	the 	termination 	occurred 	on
June 12, 	1980, 	and that the unilateral nature of 	the separation
"without 	following 	procedures 	required 	by law" 	and 	without
prior 	negotiating also violated 	section 3543.5(b) 	and 	(c) 	(all
references 	are 	to 	the Government Code 	unless otherwise
indicated).
On December 31, 	1980, 	the District 	responded 	to the charge,
specifically admitting 	that 	"Robert 	J. 	Ledbetter 	was 	employed
by Respondent 	under 	the Comprehensive 	Employment Training Act
(CETA) 	on or 	about December 15, 	1978, 	and that Ledbetter was
terminated on or 	about June 12, 	1980, when his eligibility
under 	CETA 	expired." 	The District makes 	certain other
admissions 	but 	denies 	that 	any of 	its conduct was 	in violation
of 	any provision of 	the Educational Employment Relations Act
(Government Code section 3540 et seq., 	hereafter EERA). 	The
District 	also moved 	to dismiss 	the 	charge 	and/or 	particularize
it. 	The District 	did not 	at 	that 	time 	raise the affirmative
defense 	that 	the 	charge 	concerned 	events 	outside 	the 	statutory
period 	of 	limitations.2
2Government 	Code section 3541.5 provides, 	in 	relevant
part, 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:
3
• 	• 	• 	• 	• 	• 	• 	•
3

(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;
The 	board 	shall, 	in determining 	whether 	the
charge was 	timely filed, 	consider 	the
six-month 	limitation 	set 	forth 	in 	this
subdivision 	to 	have 	been 	tolled 	during 	the
time 	it 	took 	the 	charging 	party 	to exhaust
the 	grievance machinery.
A 	settlement 	conference 	in 	this matter 	was 	conducted on
January 27, 	1981. 	The settlement effort was 	not successful 	and
the 	hearing 	officer, 	apparently 	in 	response 	to 	the District's
request 	for 	an order 	to particularize, 	directed 	the 	charging
party 	to 	file further 	specific factual 	allegations. 	A
complaint 	and 	notice of 	hearing was 	issued 	on February 4, 	1981,
by 	the 	chief 	administrative 	law judge.
On February 10, 	1980, 	the charging party filed 	an amendment
to 	the 	charge. 	The 	amendment 	incorporated 	the 	allegations 	in
the 	original 	charge 	and 	supplemented 	them with 	additional
factual 	allegations 	in support 	of 	the 	underlying contentions.
An amended complaint was 	issued on February 11, 	1981, 	by the
Office of 	the Chief Administrative Law Judge.
The hearing was conducted on February 25, 	1981, 	in Auburn.
During 	the 	hearing, 	the District 	for 	the 	first 	time 	raised 	the
affirmative 	defense 	that 	the 	charge was 	time-barred 	by 	the
statutory period 	of 	limitations. 	A District motion 	for 	summary
• 	• 	• 	• 	• 	• 	• 	• 	•
4

judgment 	was 	denied 	but 	the District was 	given 	the 	option of
renewing 	the motion 	following 	the presentation 	of 	evidence.
Both 	parties 	submitted 	post-hearing 	briefs 	and 	the 	case was
submitted on April 28, 	1981. 	In its brief, 	the District
reasserted 	the 	affirmative defense 	that 	the 	charge was 	not
filed 	within 	the 	statutory period 	of 	limitation.
FINDINGS 	OF FACT
The Placer Hills Union School District 	is 	an elementary
school 	district 	offering 	instruction 	in 	kindergarten 	through
the eighth 	grade. 	The District, 	which enrolls 	approximately
1,000 	students, 	is 	located 	in Placer County. 	The parties
stipulated 	that 	the District 	is 	a public 	school 	employer 	and
that CSEA 	is 	an 	employee organization 	as 	those 	terms 	are
defined 	in the EERA. 	From 1976 	and 	at 	all 	times 	relevant, 	CSEA
has 	been 	the exclusive 	representative 	of 	the 	classified
employee 	unit which 	at 	the 	time of 	the 	hearing had
approximately 70 members.
Robert Ledbetter, 	the aggrieved party in this case, 	went to
work 	in District schools 	as a custodian/groundskeeper 	during
the month of June, 	1978. 	He was 	employed 	under 	the 	federally
funded Comprehensive Employment Training Act 	(hereafter CETA).
Mr. 	Ledbetter 	first 	learned of 	the position when 	he was 	called
by 	the 	Placer County Manpower Office, 	the 	coordinating 	agency
for CETA programs 	in 	that 	county. 	He was 	directed 	to 	report 	to
the Manpower Office 	and 	complete an 	application. 	He 	then was
un	
5

sent 	to 	the 	Placer Hills 	district 	where 	he was 	hired 	by
Pete 	Neese, 	the District 	supervisor 	of 	transportation and
maintenance.
Although 	he worked 	in 	schools 	of 	the Placer 	Hills District
and 	at 	the 	direction 	of 	Placer Hills 	supervisors 	during 1978,
Mr. 	Ledbetter 	actually was 	on the payroll 	of 	the Roseville
Union High School District. 	This 	anomaly 	grew out 	of 	county
arrangements 	to meet CETA funding requirements. 	In
December 	of 1978, Mr. 	Ledbetter 	completed a Placer Hills
employment 	application 	and 	then 	went 	onto 	the 	Placer 	Hills
payroll 	as 	a CETA 	employee.
Under 	federal 	rules, 	there 	is 	a maximum amount of 	time a
CETA-funded worker 	can remain on a 	job. 	Mr. 	Ledbetter
testified 	that 	he was 	informed of 	this 	limitation when 	he went
on the Placer Hills 	payroll 	about December 	15, 	1978. 	The 	time
limitation which pertained 	to Mr. 	Ledbetter was 	18 months.
Mr. 	Ledbetter 	testified 	that 	in 	the spring 	of 1980 he 	knew his
time deadline was approaching. 	On May 19, 	1980, 	the Placer
County CETA 	Program 	office 	notified 	the District 	that
Mr. 	Ledbetter 	had 	reached 	his maximum period of 	benefits 	and
was 	to be 	terminated on June 	7, 	1980. 	The 	county directed 	the
District 	to 	notify him at 	least 	two weeks 	prior 	to 	that 	date.
Edward Vanderpool, 	the District's maintenance 	foreman,
testified that on May 23, 	1980, 	he gave Mr. 	Ledbetter written
6
6

V
notice 	that 	he 	would 	be 	terminated 	after 	completion 	of 	work 	on
June 	6. 	A copy 	of 	the 	notice 	with 	the 	handwritten 	notation,
"Given to Bob 5-23-80" was 	received 	in evidence. 	Mr. 	Ledbetter
testified 	that 	he was 	not given 	the 	letter 	but 	that 	a 	copy was
shown 	to him by Mr. 	Vanderpool 	sometime 	around June 	1.3
Mr. 	Ledbetter's last day of work was June 6, 	1980. 	At the
June 12, 	1980, 	meeting of 	the District Board of Trustees 	the
board 	approved 	without 	discussion 	the 	termination 	of
Mr. 	Ledbetter. 	The 	reason given 	in 	the minutes was 	"time
limitation 	completed."
Over 	the years 	it participated 	in 	the program, 	the District
had a total 	of 	12 	to 14 CETA workers. 	Of 	these, 	three were
terminated 	when 	their 	eligibility period 	was 	completed, 	four
were 	hired by 	the District 	for 	regular 	jobs 	and 	the 	remainder
quit 	to accept other 	employment. 	On September 	30, 	1980, 	the
District 	ceased 	further 	participation 	in 	the 	CETA program.
Mr. 	Ledbetter 	attempted 	three 	times 	to 	secure 	a 	regular
District position. 	Two of 	those 	attempts 	came 	just 	before 	he
was 	terminated 	and 	the last occurred 	after 	he 	no longer 	was 	in
3This 	evidence 	is 	relevant 	only 	to CSEA's 	contention 	that
the dismissal 	of Mr. 	Ledbetter 	was 	not 	in 	accord with 	the
requirements of 	the 	Education Code, 	whether 	or 	not 	the
dismissal of Mr. 	Ledbetter violated 	the Education Code 	is not 	a
matter 	within 	the 	jurisdiction 	of 	the 	Public 	Employment
Relations Board. 	It 	is not necessary, 	therefore, 	to resolve
the 	factual 	dispute 	about when Mr. 	Ledbetter 	received 	notice 	of
layoff.
7

the District's 	employment. 	Mr. 	Ledbetter's 	unsuccessful
efforts 	began 	in early 1980 when 	the District 	had 	two openings
for 	custodians 	in 	regular District-funded 	positions. 	There
were 	30 	applicants 	for 	the positions. 	A three-member panel was
assembled 	to 	screen 	and 	rank 	the 	candidates 	and 	to make
recommendations 	to 	the District 	administration. 	The members 	of
the panel were Pete Neese, 	District supervisor of maintenance,
Mike Coder, 	the principal of 	a District 	school, 	and Jim Jordan,
operations 	supervisor 	for 	the 	Placer 	Union High School District.
After 	screening 	the applications, 	the panel 	selected 	eight
applicants 	for 	interviews 	to 	be 	held on
February 7 and 8, 	1980. 	Mr. 	Ledbetter was one of 	those
finalists. 	Each member 	of 	the 	panel 	separately graded 	each of
the candidates 	by assigning 	them numerical 	scores. 	Analysis 	of
the 	individual 	score 	sheets 	written by 	the 	panel 	members 	shows
that 	each of 	them ranked Mr. 	Ledbetter 	fifth. 	A composite
score, 	derived 	by adding 	the 	scores 	given by each panel member
also placed Mr. 	Ledbetter 	in 	fifth place with a grade of 	123
out 	of 	a maximum possible 	score of 	210.
The 	candidate 	who 	received 	the 	highest 	composite 	grade was
Thomas Woods 	and he was 	hired 	for 	the position. 	Mr. 	Woods was
a CETA employee who 	first 	had 	gone 	to work 	for 	the District 	in
August of 1978. 	He 	is 	the father-in-law of District
maintenance 	foreman Vanderpool 	but Mr. 	Vanderpool 	had 	no
8

apparent 	role 	in the 	selection process. 	Mr. 	Woods did not
belong 	to CSEA.
Shortly thereafter, 	the District 	used 	the same 	list 	of
applicants 	to hire Kelly Jones 	as a custodian. 	Mr. 	Jones had
been 	ranked 	third 	by 	the February 	8 	screening committee.4
Mr. 	Jones, who like Mr. 	Ledbetter was a CETA worker, 	had been
employed 	by 	the District 	approximately 	three months 	at 	the 	time
he was 	hired 	as a custodian. 	His 	first 	job with 	the District
was 	as 	a carpenter/painter. 	He was 	not a member of CSEA.
On March 	31, 	1980, Mr. 	Ledbetter 	filed a formal grievance
over 	the 	selection of 	Thomas Woods 	rather 	than 	him for 	a
custodial position. 	On April 1, 	1980, Mr. 	Ledbetter 	filed a
formal 	grievance over 	the 	selection of 	Kelly Jones 	rather 	than
him for 	a 	custodial position. 	George Dunham, 	District
superintendent of 	schools, 	denied 	both grievances 	on
June 17, 	1980. 	Neither Mr. 	Ledbetter 	nor CSEA appealed 	the
denial 	of 	the grievances 	to 	the Board of 	Trustees 	within 	the
contractual 	time limits. 	On July 23, 	1980, 	CSEA chapter
president Dale 	Roberts demanded 	that 	the 	grievances 	be 	heard 	by
the 	school 	board. 	However, 	on July 	28 	this 	request was
rejected 	by 	the 	superintendent 	for 	failure 	to 	comply with 	the
time 	limits 	in 	the 	contract 	between the parties.
4 No 	evidence was 	introduced 	about 	the 	candidate 	who
received 	the 	second 	highest 	score. 	The 	record does 	not 	reflect
whether 	or 	not 	that person was 	ever 	offered 	a 	job.
99

The 	third position unsuccessfully 	sought 	by Mr. 	Ledbetter
came open 	in 	the 	summer 	of 1980. 	A notice 	announcing 	the
position was posted 	for 	"in-house" 	applicants on
July 14, 	1980. 	Interviews were conducted on August 1, 	1980,
among 	the 	four 	applicants. 	The members of 	the panel were
maintenance Supervisor Neese, 	Eric Steele, 	a District
maintenance worker 	who at 	the 	time was acting 	foreman, 	and
Pete Keesler, 	the principal of a District school. 	The
applicants were Mr. 	Ledbetter, 	two District CETA workers and 	a
long-term substitute custodian, 	Anita Kolitsch. 	Mr. 	Steele
testified 	that 	following 	the 	interviews, 	Mr. 	Neese 	stated 	in
reference 	to Ms. 	Kolitsch, 	"This 	is who I want." 	Although he
was not told to do so, 	Mr. 	Steele 	took 	it on himself as a
result 	of 	his 	comment 	to 	raise 	the 	score he 	assigned 	to
Ms. 	Kolitsch. 	He 	testified 	that he 	took this action on 	the
basis of his 	"knowledge of 	the whole 	situation." 	Mr. 	Steele
testified 	that 	he was 	not 	threatened 	or 	coerced 	in 	any way 	into
raising Ms. 	Kolitsch's test score. 	The 	testimony of Mr. 	Steele
is credited.
Analysis 	of 	the 	individual 	score 	sheets 	written 	by 	the
panel members 	shows 	that 	individually 	they 	ranked Mr. 	Ledbetter
third or 	fourth 	and collectively he was 	third. 	Ms. 	Kolitsch,
who ultimately 	received 	the 	job, 	was 	ranked 	second 	but her
10

composite 	score 	was 	twice 	as 	high 	as 	that given 	to
Mr. Ledbetter.5
Both 	in his grievances 	and 	in 	the present charge,
Mr. 	Ledbetter 	attributes 	his 	failure 	to receive one of 	these
jobs 	to retaliation against 	him 	for 	the 	filing 	of grievances.
During his 	time with 	the District, 	Mr. 	Ledbetter 	did 	file
several grievances. 	At least one of 	these - 	a grievance 	in
which 	he 	alleged 	he was 	improperly docked 	in pay 	for 	two days
of 	sick 	leave 	- was 	settled 	to his 	satisfaction. 	The
superintendent 	directed 	that 	the money 	be 	repaid.
The most 	serious matter 	raised 	by Mr. 	Ledbetter 	was 	not
actually 	a grievance 	but 	a complaint 	against 	conduct 	by
Mr. 	Neese. 	Mr. 	Ledbetter charged Mr. 	Neese with being
intoxicated 	on 	school 	property 	and 	of 	acting 	abusively 	toward
Mr. 	Ledbetter, 	his fiancee and her brother. 	The 	incident
occurred on November 30, 	1979, 	at 	the school where
Mr. 	Ledbetter 	was employed 	as 	a custodian. 	With 	the permission
of his 	immediate 	supervisor, 	Mr. 	Ledbetter 	left work 	that day
to 	select 	an engagement ring. 	At 	about 7:30 	p.m., 	his 	fiancee
came down 	to 	the 	school 	to see 	the 	ring. 	The 	fiancee brought
her 	brother, 	who was about 20, 	along with her.
5The 	person 	who 	scored 	first 	on 	his 	civil 	service
examination 	resigned 	his position with 	the District 	to accept 	a
non-CETA 	job 	elsewhere.
11

Mr. 	Ledbetter's 	fiancee 	and her 	brother 	remained 	for 	a
while 	in 	the classroom where Mr. 	Ledbetter 	was working. 	The
brother 	then decided 	to leave 	and he went 	out of 	the 	classroom
where he was 	intercepted by Mr. 	Neese. 	Mr. 	Neese brought him
back 	into 	the 	classroom 	and 	then demanded 	to 	know 	the 	identity
of 	the 	two visitors. 	The parties 	had words with each other 	and
Mr. 	Neese 	stated 	that he was going 	to have 	the 	two visitors
arrested 	as 	trespassers.
At 	that point, 	Mr. 	Ledbetter 	called CSEA chapter president
Roberts 	and 	told him what was going 	on. 	Mr. 	Neese 	took 	the
phone 	from Mr. 	Ledbetter, 	stating 	that 	the 	incident was not a
union affair. 	Mr. 	Neese 	then spoke 	for 	a time with
Mr. 	Roberts. 	After 	the telephone conversation, Mr. 	Neese
continued 	to 	insist he would 	have 	the 	pair 	arrested 	and
directed 	them to 	follow him. 	Mr. 	Ledbetter 	told 	his 	fiancee 	to
come with him rather 	than Mr. 	Neese. 	Her 	brother, 	on his own,
left 	school property. 	During 	the course of 	this 	incident,
angry words were 	exchanged between Mr. 	Neese 	and Mr. 	Ledbetter.
The 	following Monday Mr. 	Ledbetter 	filed 	the complaint with
the 	superintendent 	about Mr. 	Neese's conduct. 	The
superintendent 	investigated 	the 	charge 	but 	took 	no 	action,
initially. 	Under 	the continued prodding 	of Mr. 	Ledbetter 	and
the CSEA the District 	school board on April 	1, 	1980, 	conducted
a hearing on Mr. 	Ledbetter's charge 	that Mr. 	Neese had violated
District policies. 	The 	specific policies of which Mr. 	Neese
12

was 	accused 	of 	violating 	were 	prohibitions 	against 	"wantonly
offensive 	conduct or 	language 	toward other 	employees, 	pupils or
the public" 	and 	"habitual 	intoxication, 	intoxication or
drinking 	of 	alcoholic 	beverages 	while on 	duty." 	On April 	2,
the members 	of 	the 	school 	board dismissed 	the 	allegations
against Mr. Neese.
Fear 	about 	the 	attitudes 	of 	administrators 	toward 	unions
has caused 	some District 	employees 	to 	be 	cautious 	in
approaching 	union membership. 	It 	is 	the 	credited 	testimony of
Mr. 	Ledbetter 	that he was 	advised 	by coworkers 	when 	first 	hired
that 	he 	should not 	join CSEA. 	The 	coworkers 	told 	him 	that
supervisors 	did not care 	for 	union activists. 	Mr. 	Ledbetter
took this 	advice and 	did not at 	first 	join CSEA. 	He did not
join CSEA 	until September 	of 1979 or 	later. 	After 	he 	did 	join,
Mr. 	Ledbetter, 	by his own choice, was not an organization
activist. 	He was 	not 	a CSEA officer 	and 	he 	did not 	regularly
attend 	CSEA 	meetings.
One of 	those who 	advised Mr. 	Ledbetter 	against 	joining CSEA
was Eric Steele, 	a District maintenance worker. 	Mr. 	Steele 	is
a 	sometime-member 	of 	CSEA. 	Originally employed 	by 	the District
in 1974, 	he 	belonged 	at 	first 	to the now defunct Placer Hills
School Employees Association. 	After CSEA 	formed 	a 	Placer 	Hills
chapter, 	he 	joined 	the organization and 	remained a member 	until
about 	1977 when 	he dropped out 	for 	about 	six months. 	He
rejoined later 	in 1977 and 	remained 	a member 	until 	1978 when 	he
13

quit 	for 	financial 	reasons. 	He 	remained out 	of CSEA until 1980
when 	he rejoined. 	He was 	a member 	on 	the date of 	the 	hearing.
During 	the 	various 	periods 	when he was 	not 	a member 	of 	CSEA,
Mr. 	Steele was 	promoted 	to better positions. 	Although he
expressed 	a 	belief 	that 	the promotions 	were 	due 	to 	his 	status
as 	a nonmember, 	no District 	official 	told him such.
Mr. 	Steele 	testified 	that on one occasion he was 	told 	by
Mr. 	Neese 	and 	by Fred Machado, 	the supervisor 	of
transportation, 	that 	being 	a member 	of CSEA was 	not 	in 	his
"better 	interest." 	He also testified 	that Mr. 	Machado, 	two
weeks 	prior 	to the 	hearing, 	said 	to him:
Eric, 	this union stuff 	is going 	to get you
in 	trouble 	because 	you're 	too gung-ho 	for
this 	union 	and 	it's 	going 	to 	cause you
trouble 	around here.
Mr. 	Machado denied 	that 	he had made 	such 	a 	statement. 	The
testimony of Mr. 	Steele on this 	point 	is credited. 	Although
still 	employed 	by the District, 	he was 	not afraid 	to 	testify
adversely 	to 	his 	employer's 	interests.6 During 	extensive
questioning 	and 	cross-examination, 	he 	answered 	questions
forthrightly. 	He 	did 	not 	appear 	prone 	to 	exaggerate 	events 	and
was 	not 	hesitant 	in giving 	answers 	not 	favorable 	to himself.
6See generally, 	Southern Paint & Waterproofing Co., 	Inc.
(1977) 	230 NLRB 429 	[95 LRRM 1446] ; 	UNARCO 	Industries 	(1972)
197 NLRB 489 	[80 LRRM 1621].
14

The 	administrator 	about 	whom CSEA 	witnesses 	appeared 	to
have 	the most concern was Mr. 	Neese. 	Mr. 	Neese's approach 	to
employee organizations 	can 	be 	seen 	in an 	incident where CSEA
President Roberts 	was 	denied 	permission 	to 	be 	absent 	from work
one 	evening 	to 	attend 	a CSEA meeting. 	The meeting was held
during a 	time when 	the parties 	were 	in negotiations. 	Even
though 	it was 	the previous 	practice 	that Mr. 	Roberts could 	be
excused 	from his 	evening duties 	as 	a 	custodian 	in order 	to
attend CSEA meetings, 	on 	that 	particular 	day when Mr. 	Roberts
called 	the District 	office 	and 	requested 	permission 	to 	attend 	a
meeting, Mr. 	Neese denied 	it. 	He told Mr. 	Roberts 	that 	because
the right 	to be 	absent 	from work for 	such meetings 	was 	not 	in
the 	contract, 	he could not 	attend. 	Mr. 	Roberts did not 	attend
the meeting. 	Subsequently, 	CSEA 	filed 	an unfair 	practice
charge 	about 	the 	incident 	and 	the 	parties 	settled 	the 	case
without 	the necessity of 	a 	hearing.7 under 	the 	terms 	of 	the
settlement, 	the District 	agreed 	to grant 	released 	time 	for 	the
CSEA president 	to 	attend 	chapter 	meetings.
'The prior 	charge, 	S-CE-344, 	was 	withdrawn by CSEA on
June 11, 1980.
Mr. 	Roberts 	also testified 	that Mr. 	Neese has 	told him he
was 	a 	union 	"disorganizer" 	from his 	previous 	employment and
that he 	frowned 	upon 	union 	activity. 	Mr. 	Neese denied 	that he
made 	such 	a 	statement 	and 	contended 	that 	he was 	a 	union
15

organizer 	in 	his 	previous 	job 	at McClellan Air 	Force 	Base. 	The
testimony of Mr. 	Roberts 	is 	credited 	and 	the denial 	of
Mr. 	Neese 	is not. 	Considered 	in the 	context of 	the other
evidence 	and 	on the basis 	of 	observing 	both witnesses 	on 	the
stand, 	it 	is easier 	to believe that Mr. 	Neese made derogatory
comments 	about 	participation 	in 	union 	affairs 	than 	to 	believe
his denials.
Finally, 	CSEA presented 	evidence 	about 	a grievance meeting
in February 	of 1979 	where 	the 	superintendent 	allegedly 	became
so 	angry 	that 	he 	started 	kicking 	furniture 	and 	throwing 	books
against 	the wall. 	CSEA President Roberts 	testified 	that 	at 	the
start of 	the meeting 	the 	superintendent 	called 	the grievance,
which 	involved 	the New Year's Holiday, 	"goddamn mickey-mouse"
and 	then 	commenced 	throwing 	notebooks 	against 	the wall. 	When
he 	became a witness, 	Supt. 	Dunham acknowledged 	that he had
probably called 	the grievance 	"mickey-mouse." 	During direct
examination he 	did not deny 	that he 	had 	thrown 	books or 	kicked
furniture 	but 	responded 	to 	questions 	with 	conditional,
rhetorical 	answers. 	On 	cross-examination when he was 	asked
directly whether 	he threw books or 	binders, Mr. 	Dunham denied
that he 	had done 	so.
The testimony of Mr. 	Roberts about 	the grievance meeting 	is
credited and 	the 	superintendent's 	account 	is not. 	The
superintendent was 	evasive 	in 	his 	initial 	answers 	about 	the
16

incident 	and 	he 	appeared 	less 	than 	forthright 	while 	answering
questions 	about 	it.
At 	a grievance meeting 	on June 9, 	1980, 	and 	during 	a break
at an 	unfair 	practice charge 	settlement conference on June 	11,
CSEA demanded 	that 	the 	District meet 	and 	negotiate 	about 	the
layoff of Mr. 	Ledbetter. 	At 	the June 9th meeting, 	CSEA fully
set 	forth 	its position, 	although not 	in writing. 	At 	the 	time
CSEA made 	its demand 	to negotiate, 	the parties were 	in
negotiations 	for 	a new contract. 	The prior 	agreement expired
on June 30, 	1979, 	and 	the 	successor 	agreement was not entered
into until September 11, 	1980.
LEGAL 	ISSUES
1. 	Is CSEA's 	charge 	time-barred 	under 	the 	six-months'
limitation 	in 	section 3541.5?
2. 	If the charge 	is 	not 	time-barred, 	did 	the District
violate section 3543.5 (a) 	and/or 	(b) 	and/or 	(c) 	by:
A) 	Terminating 	the 	employment of 	Robert 	Ledbetter 	on
or 	about June 12, 	1980?
B) 	Failing 	to hire 	Robert 	Ledbetter 	for 	a regularly
funded District position 	after 	interviews 	in 	February
and 	August of 	1980?
C) 	Refusing 	to negotiate 	about 	the 	layoff of
Robert 	Ledbetter?
17

CONCLUSIONS 	OF LAW
Statute 	of 	Limitations
Section 3541.5 (a) 	provides 	that 	the PERB 	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 	. 	. 	. 	." 	Section 3541.5 (a) 	is similar to and
apparently modeled 	after 	section 	10(b) 	(29 	U.S. 	section 	160(b))
of 	the National Labor 	Relations Act which 	establishes 	a
six-month 	limitation 	for 	complaints 	issued 	by the 	general
counsel. 	Cases 	interpreting 	section 10(b) 	hold 	that 	the
section 	is 	a 	"statute of 	limitations 	and 	is 	not
jurisdictional." 	Chicago Roll Forming Corp. 	(1967) 	167 NLRB
961 	[66 LRRM 1228], enf. 	sub. nom. 	NLRB v. Chicago Roll
Forming Corp. 	(7th cir. 	1969) 	418 F.2d 346 	[72 LRRM 2683]. 	The
National Labor Relations Board 	(hereafter NLRB) 	has 	been
reversed 	by a 	federal 	circuit 	court 	where 	it dismissed 	a charge
on 	its own 	initiative, 	the court holding 	that 	the time
limitation "is an 	affirmative defense, 	and 	if not 	timely
raised, is waived 	. 	. 	. 	." 	Shumate v. NLRB 	(4th cir. 1971) 	452
F.2d 	717 	[78 	LRRM 	2905].
The 	issue 	in the present case 	is 	not, 	as 	the District would
state, 	whether CSEA 	timely filed 	its charge. 	Rather, 	the 	issue
is 	whether 	the District 	timely 	raised 	the 	statute of
limitations. 	The PERB's 	rules 	provide 	at title 	8, California
Administrative Code 	section 32635 (a) 	that 	the respondent 	"shall
18

file with 	the Board an answer 	within 	20 	calendar 	days or 	at 	a
time 	set 	by the Board 	agent 	following 	the date of 	service of
the 	charge by 	the Board Agent." 	The 	rules 	further 	provide 	at
title 	8, 	California Administrative 	Code 	section 32640 	that 	the
answer 	shall 	contain 	"(f) 	A 	statement 	of an 	affirmative
defense."
The 	charge 	in 	the present 	case was 	filed with 	the PERB on
December 	12, 	1980. 	It alleged 	in principal part 	that
Robert Ledbetter 	had 	been 	terminated 	in 	retaliation 	for 	his
"aggressive 	action 	in pursuing 	several 	grievances 	filed 	to
protect 	and 	retain 	his 	job." 	The 	date of 	the 	alleged 	unlawful
termination was 	tied 	in 	the charge 	to a meeting 	of 	the District
school board on June 12, 	1980. 	In 	its answer, 	the District
admitted 	that 	"Mr. 	Ledbetter was 	terminated on or 	about
June 12, 	1980" 	and 	it did not raise 	the time limitations 	in
section 	3541.5.
Having 	admitted 	the 	charging 	party's 	contention 	that
Mr. 	Ledbetter was dismissed on or 	about June 12, 	1980, and
having failed 	to 	raise 	the time limits defense 	in 	its answer,
the District 	is 	barred 	from 	subsequently 	asserting 	that
contention.
As 	to CSEA's 	contention 	that 	the District 	unlawfully
refused 	to 	hire Mr. 	Ledbetter 	in 	a District-funded 	position,
the District 	could not prevail 	on 	a 	time 	limitation 	defense
even 	had 	it 	been 	timely 	raised. 	The 	record 	establishes 	that
19

Mr. 	Ledbetter's grievances about the hiring of Messrs. 	Woods
and 	Jones 	were 	not 	denied 	by 	the 	superintendent 	until
June 17, 	1980. 	Section 3541.5 provides that the six-month
limitation 	shall 	be 	tolled 	during 	the 	time 	it 	took 	the 	charging
party to exhaust 	the grievance machinery. 	At minimum, 	the 	time
limitation 	therefore 	did 	not 	begin 	to run 	until 	June 	17 	and 	a
December 	12 	filing 	was within 	the 	six-month period.
For 	these 	reasons, 	it 	is concluded 	that 	the 	time limitation
of 	section 	3541.5 	did 	not 	bar 	the 	issuance 	of 	a complaint 	on
the present charge. 	Accordingly, 	the charge must be 	addressed
on its merits.
Termination of 	Robert 	Ledbetter
It is unlawful, 	under 	section 3543.5(a) 	for 	a public school
employer 	to make 	threats, 	impose reprisals, 	discriminate
against or 	otherwise 	interfere with, 	restrain or 	coerce
employees 	because 	of 	their 	exercise 	of protected 	rights. 	These
include 	the 	right 	to 	form, 	join and participate 	in 	the
activities 	of 	employee organizations 	for 	the purpose 	of
representation on matters 	of 	employer-employee 	relations.8
8 In relevant part, 	section 3543 provides:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee organizations 	of
their 	own choosing 	for 	the purpose 	of
representation on all matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also have 	the 	right 	to
20

refuse 	to 	join or 	participate 	in 	the
activities 	of 	employee organizations and
shall 	have 	the right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the public 	school 	employer, 	except 	that
once 	the 	employees 	in an 	appropriate 	unit
have 	selected 	an 	exclusive 	representative
and 	it has 	been 	recognized pursuant 	to
section 3544.1 	or 	certified 	pursuant 	to
section 	3544.7, 	no 	employee 	in that unit may
meet 	and 	negotiate 	with 	the public 	school
employer.
The 	PERB has 	found 	a 	violation when an 	employer's 	acts
interfere 	or 	tend 	to 	interfere with 	the 	exercise of 	these
rights and 	the 	employer 	is 	unable 	to justify its 	actions 	by
proving 	operational 	necessity. 	See Carlsbad Unified 	School
District 	(1/30/79) 	PERB Decision No. 	89. 	In Carlsbad, 	the PERB
further 	decided 	that 	a charge will 	be 	sustained whenever 	it 	is
proven that 	but 	for 	the exercise 	of 	protected 	rights, 	the
employer 	would 	not 	have 	acted.9
9The Carlsbad 	test 	reads 	as 	follows:
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
21

will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
4. 	Where 	the harm is 	inherently destructive
of 	employee rights, 	the employer's conduct
will 	be 	excused only on proof 	that 	it was
occasioned 	by circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course of 	action was available;
5. 	Irrespective of 	the foregoing, 	a charge
will 	be 	sustained where 	it 	it shown that 	the
employer 	would not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an unlawful
motivation, purpose or 	intent.
When an 	employer 	disciplines or 	dismisses an 	employee 	for
unlawful purposes, 	the actual motive will 	seldom be 	revealed 	in
direct evidence. 	For 	this 	reason, 	the 	illegal purpose may be
inferred 	from 	the 	circumstances 	surrounding 	the 	discipline 	or
discharge. 	"These may include 	anti-union animus exhibited 	by
the employer or 	its agents; 	the pretextual nature of 	the
ostensible 	justification 	for 	the 	employer's 	action; 	or other
failure 	to 	establish a 	business 	justification." 	Marin
Community College District 	(11/19/80) 	PERB Decision No. 	145.
Unexplained 	disparate 	treatment 	of 	an 	employee 	is 	a 	factor
which may 	be 	considered 	in evaluating 	the 	employer's motive.
Marin Community College District, 	supra. 	"The 	imposition of
discipline 	on 	an 	employee organization 	representative which 	is
in 	excess 	of 	what would normally be 	imposed 	clearly 	tends 	to
result 	in 	at 	least some harm to 	employee 	rights 	by
demonstrating 	that 	participation 	in 	organizational 	activities
22

may 	result 	in 	discriminatory 	treatment." 	Belridge School
District 	(12/31/80) 	PERB Decision No. 	157.
Consideration 	of 	these 	various 	criteria does 	not 	begin,
however, 	unless a 	threshold requirement 	is met. 	There must 	be
some 	nexus 	between 	protected 	conduct 	in which an 	employee 	has
engaged 	and 	the 	imposition of 	the reprisal. 	Santa Monica
Community College District 	(9/21/79) 	PERB Decision No. 	103;
Grossmont Community College District 	(3/19/80) 	PERB 	Decision
No. 	117; 	Cerritos Community College District 	(10/14/80) 	PERB
Decision No. 	141. 	If the charging party fails 	to establish
this 	nexus, 	the 	contention that 	the 	employer 	violated 	the
statute must 	fall.
Here, 	there 	is 	no apparent connection between 	the discharge
of Mr. 	Ledbetter 	and 	his 	participation 	in protected
activities. 	Mr. 	Ledbetter was 	employed 	under 	a program which
had, 	by operation of federal law, 	a definite time 	for
termination. 	He was 	aware of 	this 	fact 	from 	the date 	he was
hired and 	in 	the 	spring 	of 1980 he 	knew, 	even prior 	to
receiving 	official 	notice, 	that his 	termination date was
approaching. 	Mr. 	Ledbetter was 	employed 	in a 	job of 	limited,
fixed 	duration. 	The 	termination date 	was 	fixed 	by an outside
agency over 	which 	the District had no 	control.
Under 	these circumstances, 	it cannot be 	said 	that
Mr. 	Ledbetter's 	termination was 	connected 	to his 	filing 	of
grievances. 	There 	simply was 	no relationship between 	the two.
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The 	termination of Mr. 	Ledbetter 	as 	a CETA worker 	was 	an event
apart 	from anything 	within 	the 	District's 	control.
CSEA argues, 	nonetheless, 	that 	in the manner 	in which 	it
terminated Mr. 	Ledbetter 	the 	District violated 	various
provisions of 	the 	Education Code. 	The 	District 	responds 	that
the 	Education Code 	is not 	relevant 	to 	this proceeding 	and 	even
if it were, 	the District applied 	it properly.
The District 	is 	correct 	that 	whether 	or 	not 	the 	termination
violated provisions of 	the 	Education Code 	is 	not 	a matter 	for
consideration by 	the 	PERB. 	The 	PERB enforces 	the EERA and has
no authority to enforce 	the 	Education Code. 	CSEA's 	argument
is, therefore, without merit.
For 	these reasons, 	the contention 	that 	the 	termination of
Mr. 	Ledbetter was 	in violation of 	section 3543.5(a) 	must be
dismissed. 	There 	is 	no other 	evidence 	to 	suggest 	that 	the
termination was 	a violation of 	section 3543.5(b) 	and 	so 	that
contention 	also must 	be 	dismissed.
Failure 	to Hire Mr. 	Ledbetter 	for 	Regularly Funded 	Job
CSEA next contends 	that Mr. 	Ledbetter 	was denied 	three
District-funded 	jobs because 	of his 	union activities. 	CSEA
argues 	that 	the District has 	an anti-union attitude. 	This
attitude, 	CSEA continues, 	is reflected 	in the conduct of the
superintendent 	at 	a grievance meeting, 	the 	various promotions
of 	Eric 	Steele 	during 	periods 	when he was 	not 	a member 	of CSEA
and 	the conduct of 	Pete 	Neese 	and 	other 	supervisors.
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The District 	responds 	that 	the 	employment process 	used 	to
hire Messrs. 	Woods and Jones and Ms. 	Kolitsch was an 	impartial
civil 	service procedure. 	Mr. 	Ledbetter 	did not 	receive 	any of
the three 	jobs, 	the District continues, 	because he was not the
best qualified 	person.
It cannot 	be denied 	that Mr. 	Ledbetter 	engaged 	in protected
activities. 	The 	PERB has 	held 	that 	"Section 3543 protects 	the
right of an individual employee to present a grievance 	. 	. 	.
." 	South 	San Francisco Unified 	School 	District 	(1/15/80) 	PERB
Decision No. 	112; 	Mount Diablo Unified 	School District
(12/30/77) 	EERB Decision No. 	44. 	Doubtlessly, Mr. 	Ledbetter
likewise 	was 	engaged 	in protected 	activity when 	he 	instituted 	a
complaint 	about 	the 	alleged 	drunkenness 	and misconduct 	of
Mr. Neese.
Shortly after 	exercising 	his 	rights 	to participate 	in
protected 	activity, 	Mr. 	Ledbetter was 	three 	times 	rejected 	for
a 	regularly 	funded 	District position. 	One 	of 	the persons 	on
both 	interview panels was Mr. 	Neese who was 	known among
District 	employees 	as 	a person who disliked 	unions. 	This
connection of circumstantial 	facts 	is 	sufficient 	to establish 	a
prima facie case 	for 	violation of section 3543.5 (a). 	The
burden 	then 	shifts 	to 	the 	District 	to offer 	operational
justification for 	its decision not 	to hire Mr. 	Ledbetter 	for
one of 	the permanent positions.
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The District's 	justification 	is 	a 	simple one:
Mr. 	Ledbetter 	did not 	score 	as highly on 	the civil 	service 	exam
as 	did 	the persons who obtained 	the 	jobs. 	The 	record
abundantly demonstrates 	that 	this 	is 	true. 	All 	three members
of 	the 	February committee 	rated Mr. 	Ledbetter 	fifth 	among 	eight
applicants. 	Even 	if 	it were 	concluded 	that panel member 	Neese
acted 	with 	retaliatory motivations 	toward Mr. 	Ledbetter 	and 	his
score were 	thrown out, 	Mr. 	Ledbetter 	would 	fare no better. 	He
still would come out 	in fifth place, 	well 	below the 	two
candidates who were hired. 	Mr. 	Jordan, 	a panel member who was
not a District 	employee, 	ranked Mr. 	Ledbetter no higher 	than
did 	the 	two District 	employees on 	the 	interview panel.
In the August competition, Mr. 	Ledbetter was 	third among
four 	candidates. 	The position went 	to Anita Kolitsch, 	who
placed 	second on 	the 	examination. 	The 	evidence 	establishes
that Mr. 	Neese 	remarked that Ms. 	Kolitsch was 	the candidate he
wanted and because of 	this remark, 	Mr. 	Steele gave her 	a higher
score. 	In changing his score, 	Mr. 	Steele acted on his own.
Mr. 	Neese 	does not 	remember 	making 	the 	remark 	and 	there 	is 	no
evidence 	to establish 	that 	the 	remark was 	intended 	to 	be
anything more 	than a 	statement of preference. 	Mr. 	Steele's
independent act, 	therefore, 	cannot be used 	to establish some
unlawful 	motivation on 	the part 	of 	the 	District.
It should be noted, moreover, 	that despite Mr. 	Neese's
statement of preference, 	Ms. 	Kolitsch placed 	second 	in the
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over-all 	ranking. 	This 	fact 	alone 	raises 	a 	doubt 	about 	how
much 	attention 	the 	other 	panel 	members 	actually 	paid 	to
Mr. 	Neese's 	comment. 	All 	panel 	members 	rated Mr. 	Ledbetter 	far
below 	the 	top 	two 	finalists. 	If 	the 	grade 	given 	by Mr. 	Neese
were 	discounted 	and 	allowances 	are 	made 	for 	the 	inflated 	score
given 	by Mr. 	Steele, 	it 	is 	apparent 	that Mr. 	Ledbetter 	s t i l l
would 	have 	finished 	no 	higher 	than 	third 	among 	the 	four
candidates.
The 	District 	has 	an 	important 	business 	interest 	in 	hiring
the 	persons 	determined 	to 	be 	the 	most 	competent. 	Hiring 	the
persons 	who 	receive 	the 	highest 	scores 	on 	examinations 	is 	the
fairest 	way 	to 	treat 	competitors 	and 	the 	best 	way 	to 	build 	a
high 	quality 	work 	force. 	It 	is 	true 	that 	oral 	interviews 	are
subjective 	and 	susceptible 	to manipulation 	and 	CSEA 	alleges 	in
effect 	that 	the 	District 	manipulated 	the 	test 	scores. 	However,
the 	evidence 	simply does 	not support 	such 	a 	contention. 	The
use 	of 	three-member 	panels 	attenuated 	the 	influence 	of 	any one
member 	and 	the 	consistently low scores 	given 	to Mr. 	Ledbetter
by 	all 	panel 	members 	make 	it 	apparent 	that 	he 	would 	not 	have
gotten 	the 	job 	had 	he 	engaged 	in 	no 	protected 	activities.
Moreover, 	the 	evidence 	of 	anti-union 	attitudes 	among 	some
District 	administrators 	is 	not 	sufficiently 	convincing 	to 	show
that 	but 	- 	for 	unlawful 	motivation Mr. 	Ledbetter 	would 	have
been 	hired 	in 	a 	regular 	job. 	The 	conduct 	of 	the 	superintendent
at 	a 	grievance 	meeting 	in February of 	1979 	establishes 	l i t t l e
27

more 	than 	that he was 	angry about 	what 	he 	considered 	to 	be 	a
trivial grievance. 	The venting of 	anger 	is 	a not uncommon
occurrence 	in labor-management 	relations. 	That a person was
angry, 	kicked a chair, 	threw and 	book 	and 	used 	swear 	words,
does not prove 	that he 	is anti-union. 	There 	is no evidence he
threatened 	anyone, 	promised 	to retaliate or 	engaged 	in 	any
other 	untoward 	conduct.
Mr. 	Machado evidenced 	an anti-union attitude 	in warning
Mr. 	Steele 	that engaging 	in union conduct was going 	to cause
him 	trouble. 	However, 	he had no role 	in 	the hiring process.
The 	only person 	whose 	anti-union 	attitude 	could 	have 	been
translated 	into action was Mr. 	Neese 	and, 	for 	the reasons
discussed 	above, 	it 	is concluded 	that he did not have a
sufficient 	impact on 	the 	hiring 	process 	to change 	the 	result.
Mr. 	Ledbetter 	would 	not have gotten 	any of 	the 	three 	vacant
positions even 	if Mr. 	Neese had not participated 	at all.
For 	all of 	these 	reasons, 	it 	is concluded that the
District's 	failure 	to hire Mr. 	Ledbetter 	for 	one of 	the 	three
regularly 	funded 	custodial positions was 	not 	in violation of
section 3543.5(a). 	There 	is no other 	evidence 	to suggest 	that
the 	refusal 	to hire was a violation of 	section 3543.5(b) 	and 	so
both 	contentions must 	be 	dismissed.
Alleged 	Refusal 	to 	Negotiate
CSEA 	argues 	that 	on at 	least 	two 	different 	occasions 	it
requested 	to meet 	and 	negotiate 	with 	the 	District 	about 	the
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termination of Mr. 	Ledbetter. 	The District, 	CSEA continues,
refused 	to honor 	this demand. 	In 	response, 	the District 	argues
that 	it had 	no duty 	to negotiate 	about 	the dismissal 	of
Mr. 	Ledbetter. 	The 	termination was 	in accord with past
practice, 	the District asserts, 	and 	in accord with what was
told to Mr. 	Ledbetter 	at 	the time he was hired. 	Moreover, 	the
District 	continues, 	CSEA had waived 	its 	right to negotiate 	in
the prior 	contract. 	Finally, 	the District concludes, 	CSEA
never 	presented 	a specific proposal, 	a 	fact which 	should be
fatal 	to a failure 	to negotiate charge.
Section 3543.5(c) 	obligates 	a public 	school 	employer 	to
negotiate 	in 	good 	faith 	with 	an 	exclusive 	representative 	about
any matter within the 	scope of 	representation. 	It 	is
well-established 	that 	the 	unilateral 	change of 	a matter 	within
scope 	is per 	se 	a violation of 	the duty 	to negotiate 	in good
faith. 	Davis Unified School District et 	al. 	(2/22/80) 	PERB
Decision No. 	116.
In this case, 	however, 	there was no unilateral change. 	In
laying 	off 	a CETA-funded 	employee 	at 	the 	end 	of 	that 	employee's
eligibility period, 	the District 	acted 	in 	accord 	with past
practice. 	Other 	CETA workers 	earlier 	had 	been 	laid off 	at 	the
end of 	their 	eligibility period. 	The parties were 	in
negotiations 	at 	the 	time 	the demand 	to negotiate was made. 	The
District 	properly 	treated 	the proposal 	as 	a demand 	to change
the status quo, 	i.e., 	to remove 	the District's 	then unfettered
29

right 	to 	lay off CETA workers 	at 	the end 	of 	their 	eligibility
period. 	CSEA 	treats 	this 	case 	as 	if 	the 	District 	by 	the 	lay
off had changed 	the 	status quo. 	In 	fact, 	just 	the opposite was
the case. 	It was CSEA which was 	attempting 	to change 	the
status quo with 	its proposal.
For 	these 	reasons, 	it 	is concluded 	that 	the District did
not violate 	section 3543.5(c) 	by 	terminating Mr. 	Ledbetter
without 	first 	negotiating 	with CSEA. 	The 	charge must,
therefore, 	be dismissed.
PROPOSED ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact, 	conclusions of
law and 	the 	entire 	record of 	this matter, 	the unfair 	practice
charge 	filed 	by 	the 	California 	School 	Employees 	Association 	and
its 	Placer 	Hills Chapter 	No. 	636 	against 	the 	Placer 	Hills Union
School District 	is 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final on June 	24, 	1981 unless 	a party files a 	timely
statement 	of exceptions. 	See California Administrative Code,
title 8, part 	III, 	section 32300. 	Such statement of exceptions
and 	supporting 	brief must 	be 	actually 	received 	by 	the 	executive
assistant 	to 	the 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento before 	the close of business 	(5:00 p.m.) 	on
June 	24, 	1981 	in order 	to be 	timely 	filed. 	See California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Any
30

statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	served
concurrently with 	its 	filing 	upon each party 	to 	this
proceeding. 	Proof of 	service 	shall 	be 	filed with 	the 	PERB
itself. 	See California Administrative Code, 	title 8,
sections 32300 and 32305, 	as amended.
DATED: 	June 4, 	1981
Ronald 	E. Blubaugh
Hearing 	Officer
31