Los Angeles County Superintendent of Schools (PERB 0263E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES 	COUNTY EDUCATION
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
OFFICE 	OF 	THE 	LOS 	ANGELES 	COUNTY
SUPERINTENDENT 	OF SCHOOLS,
Respondent.
Case No. 	LA-CE-535
PERB Decision No. 	263
December 16, 	1982
Appearances; 	Robert A. 	Siegel, 	Attorney 	(O'Melveny 	& Myers)
for 	Office of 	the 	Los Angeles 	County 	Superintendent 	of 	Schools;
A. 	Eugene Huguenin, 	Jr., 	Attorney 	(California Teachers
Association) 	for 	Los Angeles 	County Education Association,
CTA/NEA.
Before Tovar, Morgenstern and Jensen, Members.
DECISION
MORGENSTERN, Member: 	This 	case 	is 	before the 	Public
Employment Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the Los Angeles County Education Association, 	CTA/NEA
(Association) 	to 	the 	attached 	proposed 	decision of 	a hearing
officer. 	The 	hearing 	officer 	found 	that 	the Office 	of 	the
Los 	Angeles 	County Superintendent 	of Schools 	(Office) 	did not
violate subsections 	3543.5(a) 	or 	(d) 	of 	the Educational
Employment 	Relations Act 	(EERA or 	Act)l 	by 	transferring 	two
counselors 	in 	the Regional
1EERA 	is 	codified at 	Government 	Code 	section 	3540
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Occupational Program 	(ROP) 	to positions as day-to-day
substitutes 	in special schools.
Applying 	the 	test 	stated 	in Carlsbad 	Unified 	School
District2 	(1/30/79) 	PERB Decision No. 	89, 	the hearing officer
et 	seq. 	All 	statutory references 	are 	to the Government Code
unless otherwise specified.
Subsections 	3543.5(a) 	and 	(d) 	provide 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.
(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.
2In Carlsbad, 	the 	Board 	stated, 	at 	pp. 	10 and 	11:
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
2
• 	• 	•
2

found 	that 	the 	transfer 	of Anne 	Haffner 	did 	not 	harm 	employee
rights 	under 	EERA, 	and that 	though 	the 	transfer 	of Alma Viardo
did 	result 	in 	slight 	harm to 	employee 	rights, 	such 	harm was
outweighed 	by 	the 	Office's 	need 	to 	reduce 	staff 	and 	retain 	the
most 	highly 	qualified 	counselors. 	The 	hearing 	officer 	further
found 	that, 	even 	in the 	absence 	of 	their Association
activities, 	Haffner 	and Viardo would 	have 	been 	transferred. 	He
therefore dismissed 	all 	charges.
We find 	the 	hearing officer's 	statement 	of 	facts 	to 	be 	free
of 	prejudicial 	error 	and 	adopt 	that 	portion of 	his 	decision 	as
the 	findings of 	the 	Board.
For 	the 	reasons 	set 	forth 	in 	the 	following discussion, 	we
affirm 	the 	hearing 	officer's 	conclusions 	of 	law 	as modified
herein.
employees 	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 	is 	shown 	that 	the
employer 	would not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an 	unlawful
motivation, purpose or 	intent.
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DISCUSSION
The 	hearing officer's decision 	in this 	case was 	issued
prior 	to 	the 	Board's 	decision 	in Novato Unified 	School District
(4/30/82) 	PERB Decision No. 	210, 	which clarified Carlsbad,
supra. 	Under 	the Novato 	test, 	a 	party 	alleging 	discrimination
within the meaning of 	subsection 	3543.5 (a) 	has 	the 	burden of
showing 	that 	protected 	conduct 	was 	a motivating 	factor 	in 	the
employer's decision 	to take 	adverse 	personnel 	action. 	The
Board 	has 	recognized 	that 	direct 	evidence 	of 	motivation 	is
seldom available and, 	therefore, 	has 	held 	that motivation may
be 	demonstrated 	circumstantially. 	In 	accord 	is Republic
Aviation Corp. v. 	NLRB 	(1945) 	324 U.S. 	793 	[16 LRRM 620]. 	If
the 	charging 	party can raise, 	by direct or 	circumstantial
evidence, 	the 	inference 	that 	there 	is a nexus 	between 	the
employee's 	protected 	activity 	and 	the 	adverse 	personnel 	action,
the 	burden 	shifts 	to the 	employer 	to show 	that 	it would have
taken 	action 	regardless 	of 	the 	employee's 	participation 	in
protected activity. 	Novato, 	supra, 	and Wright Line, 	A Division
of Wright Line, 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM 1169].
The Transfer 	of Anne Haffner
Haffner 	was 	one 	of 	ten 	counselors 	transferred 	to other
positions 	within Los Angeles County school 	districts 	as 	part 	of
a 	general 	ROP budget 	reduction. 	In order 	to determine which 	of
the 	existing 	22 	counselors 	to retain, 	the Office 	developed a
rating 	system, 	applied 	to 	all 	counselors, 	based on evaluations
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regarding 	their 	performance 	from 	immediate 	supervisors 	and 	from
communications 	on 	file 	from 	districts 	where ROP counselors
worked. 	No counselor 	retained 	received 	a 	rating of 	less
than 36. 	Haffner's 	rating was 	26.
Haffner's 	rating was 	based 	in part 	on an evaluation 	by her
supervisor 	at 	Pasadena Unified 	School 	District 	who 	indicated
that 	she 	had problems 	in relating 	to district 	staff, 	in
following ROP and 	district 	procedures 	and 	in 	counseling, 	in
that 	she 	had 	no 	total 	vocational 	counseling 	plan 	and 	did only
one-to-one 	counseling, 	no 	small or 	large 	group counseling.
Haffner's 	rating 	was 	also 	based 	on 	complaints 	received 	by 	the
Office 	about 	her 	performance 	during 	her 	five 	years 	as 	an ROP
counselor. 	Both Montebello 	and 	San Marino 	Unified 	School
Districts 	had 	requested 	her 	transfer 	because 	of 	personality
conflicts 	and 	shortcomings 	in 	her 	counseling 	performance,
namely, 	a 	preference 	for 	quasi-administrative matters 	and a
lack of 	interest 	in her 	job, 	respectively.
The Association 	contends 	that 	Haffner 	was 	transferred
because she, 	along with Alma Viardo, 	were 	the 	two primary
Association activists 	in 	the ROP program. 	However, 	no evidence
in 	the 	record 	suggests 	that Haffner 	was 	singled out 	for
transfer 	because 	of 	her Association 	activity or 	that 	her
transfer 	was 	a result of 	anti-union animus 	by 	the Office.
Haffner 	had 	stopped 	attending 	Association 	meetings 	in 	1978,
nearly a year 	before 	the 	Office's 	staff 	reduction. 	Although
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the Office 	knew 	that Haffner 	was 	critical 	of 	the ROP program
and vocal 	about 	some of 	the Office's policies 	at Board of
Education meetings, 	her 	transfer 	cannot 	be 	viewed 	as 	a
discriminatory or 	disciplinary measure 	by 	the 	Office. 	There
were Association 	members 	retained 	and Association members
transferred. 	Thus, 	no pattern of 	selection 	for 	transfer 	on the
basis 	of 	union membership was 	demonstrated. 	Furthermore, when
an 	ROP 	counseling 	position 	became 	open 	shortly after 	Haffner's
transfer, 	both Haffner 	and 	Viardo were 	invited 	to 	apply 	for
it. 	Neither 	chose 	to do so.
Based on these 	facts, 	we 	find 	that 	the Association 	has
failed 	to 	show 	by 	direct 	or 	circumstantial 	evidence 	that
Haffner's protected 	activity was 	a motivating 	factor 	in 	the
Office's 	decision 	to 	transfer 	her.
The 	Transfer 	of Alma Viardo
Viardo was 	active 	in employee 	organizations 	since 	she 	was
hired 	by 	the Office 	in 1974 	and was 	a negotiator 	for 	the
Association 	in 1978-79. 	The Office 	knew of Viardo's various
protected 	activities. 	While working 	at Santa Monica Unified
School District, 	Viardo was 	frequently absent 	for 	Association
meetings 	and 	other 	reasons. 	A dispute 	arose 	between Viardo 	and
her 	immediate supervisor, Mike Fisher, 	about the 	reason for 	her
absences 	and 	her 	lack 	of 	prior 	notification when she was 	to 	be
absent.
Fisher 	wrote 	a 	highly critical 	interim 	appraisal 	summary of
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Viardo which was 	based 	in 	part 	on 	her 	absence 	from 	her 	job for
Association meetings 	(protected activity). 	The Office 	used
this 	evaluation 	in determining Viardo's 	rating 	of 	14, 	the
lowest of 	any of 	the 	22 counselors. 	Thus, 	the Association has
met 	its 	burden 	of 	raising 	the 	reasonable 	inference 	that
Viardo's 	protected 	activity was 	a motivating 	factor 	in 	her
transfer.
The 	burden 	thus 	shifts 	to the Office 	to show 	that 	it would
have 	acted 	as 	it 	did regardless 	of 	the 	employee's 	protected
activity. 	The Office 	has 	shown that, 	regardless of Viardo's
Association 	activity, 	she would 	have 	been 	among 	those
counselors 	transferred on 	the 	basis 	of 	her 	counseling
performance.
Fisher's 	evaluation 	covered 	eight 	areas 	of 	concern,3 only
3The 	eight 	areas 	of 	concern 	are 	as 	follows:
(1) 	Failure to develop realistic 	enrollment
predictions 	for 	use 	in planning courses;
(2) 	failure to conduct effective, 	in-depth
counseling 	sessions 	with 	students;
(3) 	failure to 	communicate 	and work well
with 	employees 	of 	Santa Monica High 	School
and 	Santa Monica Unified 	School 	District;
(4) 	lack of 	a system for 	self-evaluation of
ROP counseling 	and 	enrollment 	efforts;
(5) 	emphasis on "best efforts" 	rather 	than
"bottom-line 	results" 	regarding 	enrollment,
attendance 	and resultant ADA; 	(6) 	lack of
articulation 	with 	lower 	grade 	feeder 	schools
regarding 	the 	ROP program;
(7) 	noncooperation with Office 	supervisors
and school district staff; 	and 	(8) 	use of
ROP phones 	for 	non-ROP business.
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two 	of 	which 	(failure 	to 	communicate 	and 	noncooperation) 	relate
to Viardo's protected activities. 	Moreover, 	Fisher's
evaluation was 	only one 	of 	several 	factors 	considered 	in
Viardo's 	overall 	ranking. 	The 	Office 	had 	received 	several
complaints 	about Viardo's 	performance 	at 	various 	school
districts 	involving counseling deficiencies, 	including 	lack of
attention to 	counseling, 	preference 	for 	administrative 	tasks,
and 	inability 	to make 	group presentations. 	Administrators 	at
Pasadena 	and 	Santa Monica Unified 	School 	Districts 	requested
her 	transfer. 	Except 	in the 	case of Haffner, 	no school
district 	requested 	the 	transfer 	of 	any 	other 	ROP counselor.
Thus, 	the Office 	has 	demonstrated that, 	because of Viardo's
counseling 	performance 	as 	compared 	to 	that 	of 	the 	counselors
retained, 	she would 	have 	ranked 	lower 	on 	the Office's 	rating
scale 	even 	without 	consideration 	of 	her 	absences 	for
Association 	activities. 	The 	fact 	that 	the Office 	invited
Viardo to 	apply 	for 	a 	vacant 	counseling 	position 	after 	her
transfer 	further 	refutes 	any 	inference 	of 	discriminatory motive,
Interference 	Charge
The Association 	argues 	that 	the 	transfer 	of 	Haffner 	and
Viardo, 	two Association activists, was 	"inherently destructive"
of employee rights 	and, 	therefore, 	interfered with employee
rights 	under 	the 	test 	articulated 	in Carlsbad, 	supra. 	The
Association's contention 	is without merit. 	Though 	we have 	not
as 	yet 	specifically 	defined 	the 	term 	"inherently 	destructive,"
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we find no need for 	a definition here. 	The Association has
presented 	no evidence 	that 	the Office's 	actions 	tended 	to 	have
a chilling effect on the 	exercise of 	employee rights. 	EERA
does 	not 	guarantee employee 	activists 	a 	right 	to be 	insulated
from nondiscriminatory personnel actions. 	We have found that
the 	transfers 	here were nondiscriminatory, 	and we find no
interference with any employee 	right 	guaranteed 	by 	the Act.
We 	affirm the 	hearing officer's 	dismissal of 	the
Association's charge as 	to subsection 3543.5(a). 	No
independent 	evidence of 	a violation of 	subsection 	3543.5(d) 	was
presented. 	Finding no violation of 	subsection 3543.5(a), we
affirm 	the 	hearing 	officer's 	dismissal 	of 	the Association's
charge 	as 	to subsection 3543.5(d).
ORDER
Based 	on 	t h e 	r e c o r d 	before 	the 	P u b l i c 	Employment 	R e l a t i o n s
Board, 	the 	c h a r g e s 	f i l e d 	by 	t h e 	Los 	Angeles 	County 	E d u c a t i o n
A s s o c i a t i o n , 	CTA/NEA, 	in 	Case 	No. 	LA-CE-535 	a r e 	hereby
DISMISSED.
Members 	Tovar 	and 	Jensen 	j o i n e d 	in 	t h i s 	d e c i s i o n .
9

PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
OF THE 	STATE OF 	CALIFORNIA
LOS 	ANGELES 	COUNTY EDUCATION
ASSOCIATION,
Charging 	Party,
v.
LOS 	ANGELES 	COUNTY SUPERINTENDENT
OF SCHOOLS,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-535
PROPOSED 	DECISION
(4/29/81)
Appearances: 	Robert Siegel, Attorney 	(O'Melveny 	& Myers) 	for
L O S Angeles County Superintendent of Schools; A. Eugene
Huguenin, 	Jr., Attorney for Los Angeles County Education
Association.
Before Kenneth A. 	Perea, Hearing Officer.
STATEMENT OF 	THE 	CASE
On October 	9, 	1979 	the Charging Party, 	Los Angeles County
Education Association 	(hereafter Association) 	filed 	an 	unfair
practice 	charge, 	contending 	that 	the 	transfer 	of Ann Haffner 	and
Alma Viardo 	violated 	section 	3543.5(a) 	and 	(d).1 Hearings
were 	held 	before 	the 	above-named 	hearing 	officer 	of 	the 	Public
Employment Relations Board 	(hereafter PERB) 	on June 10, 	11, 	and
12, 1980; July 14 and 15, 1980; 	and August 1, 1980.
1All 	statutory 	references 	are 	to 	the California
Government Code 	unless 	otherwise 	specified.
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At 	the 	commencement 	of 	the 	hearing 	the Respondent, 	Los
Angeles County Superintendent of Schools 	(hereafter Office) ,
moved 	to dismiss 	the 	unfair practice 	charge on 	the 	basis 	of
mandatory 	deferral 	to 	arbitration. 	The Association opposed 	the
motion. 	The 	hearing 	officer 	took 	the motion 	under 	submission
for 	decision 	in 	conjunction with 	his 	decision on 	the merits.
On November 	24, 	1980, 	the Association and the Office
submitted 	simultaneous opening 	briefs. 	On December 	11 	and
December 	15 	the Office and 	the Association, 	respectively, 	filed
closing 	briefs 	and 	the matter 	was 	thereupon 	submitted 	for
decision.
FINDINGS 	OF 	FACT
I. 	General Background
The 	parties 	stipulated 	that 	the Association2 	and 	the
Office are, 	respectively, 	an "employee organization" 	and 	a
"public 	school 	employer" 	within 	the meaning of 	the Educational
Employment Relations Act 	(hereafter EERA). 	The Association 	is
the 	exclusive 	representative 	for 	certificated 	employees 	of 	the
Office, 	including 	counselors 	assigned 	to the Regional
Occupational Program 	(hereafter 	ROP) 	Division.
ROP 	is 	a 	cooperative 	occupational 	training 	program which
the Office 	operates 	on behalf 	of 	25 	school 	districts 	in
2The 	forerunner 	of 	the Association was SETA/ACT-SS
(Special Education Teachers Association/Association 	of
Classroom Teachers-Special Schools). 	Both will be 	referred 	to
as 	the Association.
N2

Los Angeles County. 	Participation 	in ROP by 	the 	districts 	is
voluntary. 	John E. 	Young 	has 	been 	the 	director 	of 	the ROP
since 	its 	inception in 1974.
In cooperation with 	the 	participating districts, 	ROP
provides vocational 	instruction, 	occupational 	training, 	and a
variety of 	curriculum 	and 	guidance 	services. 	The 	director,
assistant directors, 	clerical and accounting 	staff, 	area
coordinators 	and 	counselors 	are 	employed 	by 	the Office. 	The
school districts 	hire 	the 	vocational 	teachers 	and 	technicians,
as 	well 	as provide 	classrooms 	and 	other 	facilities.
Each 	participating district 	also 	supplies 	a part-time
administrator 	to serve 	on 	an ROP 	Steering Committee. 	This
group 	typically meets 	once 	a month 	and 	provides 	recommendations
and 	input 	to 	the Office 	on 	the 	activities 	and 	functions 	of 	the
ROP.
ROP 	is 	funded on 	an 	apportionment 	basis, 	based 	upon
positive 	attendance 	accounting. 	The 	program 	receives 	income
for 	the 	actual 	number 	of 	enrolled 	students 	who 	attend ROP
classes 	each day 	(ADA). 	This differs 	from school district
funding 	which 	is 	based 	upon 	estimated 	attendance.
Because ROP must make 	advance 	commitments 	of 	expenditures
and 	services, 	proper 	screening 	and monitoring of 	students 	to
insure 	that 	those 	enrolled 	in 	classes 	actually 	attend 	them 	is
critical 	to ROP's 	financial 	viability.
W	
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In late 1978, 	responding 	to pressures 	to reduce 	the
quantity of 	expenditures 	for 	the 	1979-80 	fiscal year, 	a 	task
force 	of 	the ROP 	Steering Committee 	was 	formed 	to prepare
recommendations 	on program 	reorganization. 	ROP 	Director 	Young
was 	an 	advisor 	to 	this 	task force. 	The 	need 	for 	the 	reduction
in expenditures 	was 	prompted 	by 	several 	factors. 	The program
had 	originally 	been 	staffed 	for 	a 	goal 	of 	over 	4,000 	ADA 	for
the 	1977-78 	school year. 	ROP had operated, 	however, 	at only
around 	2,700 ADA for 	the 	same 	school year. 	While 	the program
had 	exhibited 	strong 	growth 	in ADA each 	year, 	the State
Department 	of Education 	at 	that 	time 	decided 	to 	limit ROP 	to no
more 	than 	a 10 percent 	increase 	in programming 	for 	the 	next
year 	(1979-80). 	This 	created 	a 	situation where 	the program was
not 	going 	to be 	able 	to generate 	sufficient 	income 	to maintain
the 	current 	number 	and 	variety of 	staff 	on 	board. 	While 	the
County had made 	up 	shortfalls 	in 	the ROP budget 	for 	the 	first
few years, 	the director 	had been 	told 	that 	after 	the 	third
year, 	the program must be 	self-sufficient. 	Finally, Young had
been directed 	by 	the Steering Committee 	to 	reduce 	the 	amount 	of
overhead 	in ROP 	to 	assure 	that 	60-65 percent 	of 	the 	budget
would 	go 	into 	the 	instructional 	area 	and 	vocational 	training.
At 	that 	time, 	only 	46-48 percent of 	the 	budget 	had been going
into these 	areas.
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The 	task 	force 	prepared 	several 	recommendations which 	were
circulated 	in a staff memo on February 20, 	1979. 	On
March 	2, 	1979, 	the Steering Committee 	held a 	hearing 	to receive
input 	and 	comments 	on 	the 	recommendations. 	The 	task force
proposals 	were 	subsequently forwarded 	to 	the Office 	of 	the
Superintendent 	which 	adopted 	a 	recommendation 	for 	a 	substantial
staff 	reduction. 	As 	a result, 	ROP eliminated one of 	two
assistant directors, 	2 of 8 coordinators, 	and 10 of 22
counselors. 	In conjunction with 	this, 	ROP hired 	20 classified
technicians 	to provide 	support 	in the 	area of 	enrollment 	and
attendance processing 	to 	the 	remaining 	12 	counselors.
Prior 	to making 	the 	decision 	as 	to which 	counselors 	would
be retained, 	the Office mailed, on March 6, 	1979, 	a Notice of
Intent 	to Reassign 	to 	each ROP counselor. 	The 	letters 	were
sent out pursuant 	to 	the California Education Code 	requiring
that 	these personnel be 	notified of 	their 	next year's
assignment prior 	to March 	15 of 	the preceding 	year.
Responsibility for 	recommending 	to 	the Office's 	assistant
superintendent which 	12 of 	the 	22 ROP counselors would 	be
retained 	belonged 	to Young. 	In making 	this decision, Young
testified 	that 	the 	two principal 	areas 	of 	input were:
(1) 	communications 	from 	the 	districts 	that 	had been 	served by
individual 	counselors; 	and 	(2) 	input 	from front-line ROP
coordinators.
5

To 	assess 	the 	first 	factor, 	Young 	reviewed 	each 	counselor's
file 	for 	pertinent 	communications 	as 	well 	as 	relying on his 	own
knowledge 	and personal 	contacts 	with 	certain 	district
administrators. 	Regarding 	the 	second 	factor, Young 	testified
that 	formal 	evaluations 	from prior 	years 	were 	not 	useful 	in his
decision 	since 	the 	evaluators 	tended 	to 	rate 	all 	counselors 	as
"satisfactory" 	without 	sufficient 	differentiation 	among 	them.
Because 	formal 	evaluations 	for 	1978-79 would 	not 	be prepared 	in
time, Young 	requested 	the 	coordinators 	to 	rank their 	current
counselors 	on 	a 0-10 basis 	for 	4 criteria 	that 	he had
personally 	selected. 	These 	criteria were 	as 	follows:
(1) 	ability to relate to students; 	(2) 	ability to make large
group presentations; 	(3) 	ability to work as 	a team member; 	and
(4) 	self-direction 	and motivation. 	Although Young 	testified
that 	comparison 	of 	these 	numerical 	rankings 	accounted 	for
approximately one-third 	of 	the 	ultimate 	decision, 	it 	is
significant 	that 	no 	counselor 	involuntarily 	removed 	from ROP
had 	a numerical 	score 	as 	high 	as 	the 	lowest 	score of 	any of 	the
retained 	counselors.
In June 	1979 	the Office 	transferred Ann Haffner 	and
Alma Viardo, 	counselors 	in 	the ROP Division of 	the Office, 	to
assignments 	as 	day-to-day 	substitutes 	in 	the Special Schools
Division of 	the Office. 	Shortly thereafter, 	both Haffner 	and
Viardo 	filed 	grievances 	pursuant 	to 	the 	grievance 	procedure
contained 	in 	the 	collective 	bargaining 	agreement 	between 	the
6
6

Office 	and 	the Association. 	The 	grievance 	procedure 	called 	for
arbitration. 	A hearing was 	held on January 	21, 	1980 before
Arbitrator 	Robert Leventhal 	who 	subsequently 	issued 	an 	award
recommending 	that 	the Office 	had 	not 	violated 	the 	transfer 	and
reassignment provisions 	of 	the 	collective 	bargaining 	agreement
by 	transferring Haffner 	and Viardo. 	Neither 	party 	sought
review of 	the 	arbitration 	award 	by 	the Office's Board 	of
Education, 	and 	thus 	under 	the 	express 	terms of 	the 	collective
bargaining agreement, 	within 10 days 	it became 	"final and
binding on 	all parties."
II. 	Ann Haffner
A. 	Employment History 	in ROP
Haffner 	was 	first 	employed 	by 	the Office 	on
September 	10, 	1974 as 	an ROP counselor 	for 	the Montebello
School District. 	In December 	of 	that 	year, 	she was 	reassigned
to 	a 	joint position 	servicing 	both 	the South 	Pasadena 	and San
Marino School Districts. 	Following 	the 	1976-77 	school 	year,
Haffner 	was 	removed 	from 	the San Marino School 	District 	and 	in
its place 	was 	assigned 	duties 	at Pasadena Unified School
District, 	during 	which 	time 	she 	retained 	the South 	Pasadena
School District. 	On June 30, 	1979, 	Haffner was 	reassigned out
of 	ROP as part of 	the 	general 	staff 	reduction. 	She 	is
presently 	a 	day-to-day 	substitute 	in 	the 	Special 	Schools
Division of 	the Office.
V7

B. 	Union Activity
Prior 	to 	the 	representation 	election 	in 	the 	spring of 	1977,
Haffner, 	along with other ROP counselors, 	formed 	the ROP
Counselors Association 	(ROPCA). 	Haffner 	served 	as 	secretary of
the 	organization. 	She 	requested permission 	from Young 	to make
ROPCA 	announcements 	following Young's 	ROP 	staff 	meetings.
After 	the election 	for 	exclusive 	representative, 	she became
a CTA member 	and 	attended 	meetings 	until 	1978. 	She 	also 	stayed
in 	contact with 	nearby ROP counselors, 	informing 	them about 	the
activities 	of 	the Association. 	Haffner 	attended 	an Association
workshop on grievances 	as 	well 	as 	some meetings 	of 	the County
Board 	of Education. 	In 1978, 	on an 	issue of 	summer pay for 	the
counselors, 	Haffner 	personally 	called 	each member 	of 	the Board
and wrote 	a 	letter 	to Assistant Superintendent 	of Schools Ross
in opposition 	to Young's 	recommendation 	that 	counselors 	be
placed 	upon 	a 	two-month 	unpaid 	leave 	during 	the 	summer. 	In
1979, 	Haffner 	responded 	in opposition 	to 	the 	recommendations
for 	an ROP 	staff 	reduction by writing 	a memo 	to 	the Steering
Committee Task Force 	and 	attending 	the March 	3 	hearing 	where
she 	spoke 	with Task Force 	members 	and ROP 	Director 	Young. 	At 	a
subsequent meeting 	of 	the County Board of Education, 	at which
time 	the 	Board 	approved 	a 	recommendation 	to 	transfer 	10 	ROP
counselors 	and 	replace 	them with 	technicians, Haffner 	and
Viardo 	spoke 	individually 	to members 	of 	the Board 	in 	an 	attempt
to dissuade 	them from 	taking 	this 	action.
8

C. 	Decision To Reassign; 	Numerical Rating
The 	lowest 	total 	numerical 	rating given 	to one 	of 	the 	12
retained 	counselors 	was 	a 	36. 	Haffner 	received 	a 	rating 	of 	26
from her 	ROP coordinator, 	F. 	Honsberger. 	Although 	the 	evidence
reflects 	that Honsberger 	was 	aware 	of Haffner's prior 	position
in ROPCA, 	he 	testified 	that 	he was 	not 	aware 	that 	she was
active 	in 	the Association when 	he 	compiled 	her 	rating 	in 1979.
The Association presented 	no 	contrary 	evidence. 	Additionally,
those 	problems 	with Haffner 	which Honsberger 	personally
testified 	to were 	consistent 	with 	complaints 	of 	District
administrators 	from 	the 	areas 	she 	had 	serviced.
Honsberger 	identified 	these problems 	as primarily her
relationship with District 	staff 	and 	her 	difficulties 	following
ROP 	and District procedures. 	With 	regard 	to her 	actual
counseling, 	Honsberger 	testified 	that 	she 	had no 	total
vocational 	counseling 	guidance plan 	and 	that 	he 	didn't 	see 	any
evidence 	of 	anything 	but 	one-to-one 	counseling—no 	small 	or
large 	groups. 	Haffner 	did 	not 	deny the 	latter 	and 	as 	to 	the
former, 	testified 	that 	she was 	never 	asked 	to formulate 	such 	a
plan.
D. 	District Input
The 	Office presented 	testimony by Young 	as 	to 	the
complaints 	he 	received 	from 	various 	district 	administrators
throughout Haffner's 	tenure 	as 	an ROP counselor. 	As 	rebuttal,
the Association 	both 	attempted 	to 	show Haffner's 	lack 	of 	blame
9

or 	responsibility 	for 	the 	specific 	incidents mentioned 	as 	well
as 	introduced 	letters, 	primarily 	from 	school principals 	and
Pasadena Unified School District 	administrators, 	indicating
that Haffner 	had 	been 	a dedicated 	and 	desirable ROP 	counselor.
However, 	there 	was 	no 	evidence presented 	to support 	a 	finding
that 	either 	(1) 	the 	circumstances 	underlying 	the 	complaints
from 	the 	districts 	were 	tied 	to Haffner's participation 	in
protected 	activity, 	or 	(2) 	that Young 	knew or 	had 	reason 	to
know 	at 	the 	time 	he 	used 	the 	complaints 	about Haffner 	in making
his 	decision, 	that Haffner 	might 	have 	been without blame or
responsibility 	for 	some 	or 	all 	of 	the 	incidents 	underlying
those complaints. 	This being 	the 	case, 	the 	accuracy with which
district 	personnel 	interpreted 	certain 	incidents 	goes more 	to
an 	issue 	of 	whether 	the Office made 	a 	sound 	decision 	in
deciding 	not 	to 	retain Haffner 	rather 	than 	the 	issue 	here 	of
whether 	it made 	a discriminatory decision.
The major 	complaint Young 	received 	about Haffner 	was 	her
problem 	in getting 	along 	with others 	in 	the 	districts 	she
serviced. 	Young 	testified 	that Montebello 	Director of
. ..
Vocational 	Education 	B. 	Stetler had verbally requested
Haffner's 	transfer 	from his 	district 	for 	just 	such 	a 	reason.
Stetler's 	role 	in her 	transfer 	was 	challenged 	by Haffner 	who
testified 	that Stetler 	had 	told 	her, 	"I 	had 	nothing 	to do with
it. 	I 	told 	them I 	would have 	nothing 	to do with 	it." 	This
first 	transfer 	pre-dated 	any Association 	activity 	by Haffner.
10
I

Young 	received 	similar 	critical 	comments 	from 	district
personnel 	in San Marino. 	The 	evidence 	reflects 	that Haffner's
problems 	there 	stemmed primarily 	from 	a 	personality 	conflict
with San Marino High School 	Career 	Center 	Supervisor 	Barbara
Bice. 	Although 	there 	was 	conflicting 	testimony 	as 	to which 	of
the 	two women was 	to blame for 	the 	conflicts, 	the 	evidence
suggests 	that Bice 	had 	been 	an 	employee 	trusted 	and 	valued 	by
San Marino High School Principal J. 	Rankin 	and 	that, 	in 	the
face of 	this 	severe personality conflict, 	Bice was 	in the eyes
of 	the principal, 	regardless of blame, 	simply the more
valuable, 	less expendable 	individual.
Young 	also 	received 	input 	from W. 	Dingus, 	superintendent 	of
San Marino Unified School District, 	that Haffner 	exhibited 	a
lack of 	interest 	in her 	job 	and 	a preference 	for
quasi-administrative matters. 	Haffner 	generally denied 	this.
Young 	requested 	that Dingus put 	something 	in writing, 	and
Dingus 	consequently 	sent Young 	a 	letter 	dated May 	5, 	1977
requesting 	a change 	in ROP personnel. 	Young 	testified 	that
with 	the 	exception of Alma Viardo 	he 	never 	received 	any 	letters
requesting 	the 	transfer 	of 	any other 	ROP 	counselor.
Young's 	final 	source 	of 	district 	input on Haffner 	was 	from
E. Waller, 	director 	of Career 	and Vocational Education for
Pasadena Unified 	School 	District 	which Haffner 	serviced 	for 	the
1977-78 	and 	1978-79 	school years. 	Young 	received 	calls 	from
Waller 	where Waller 	discussed problems 	such 	as Haffner's
11

concentration on 	quasi-administrative 	concerns, 	not
concentrating on 	the 	students, 	and 	not 	screening 	the 	students
for 	classes. 	Young 	also 	received 	a 	letter 	dated 	nearly 	three
weeks 	after 	Haffner 	had 	been 	notified 	of 	her 	reassignment 	out
of 	the ROP, 	that Waller preferred 	that 	another ROP counselor,
K. Moore, 	be 	retained 	rather 	than Haffner. 	Although 	the 	letter
said 	nothing 	really 	negative 	about Haffner, 	it did 	express 	a
comparative 	preference 	for 	Moore. 	The Association 	introduced 	a
letter 	from Waller 	to Young 	written 	in 	response 	to 	the Task
Force's February 	20 	request 	for 	input on 	their 	recommendations
where 	he 	stated 	that 	he 	was 	"very pleased 	with 	the 	counselors
as 	assigned 	to Pasadena 	Unified School 	District 	at 	the present
time." 	These 	were Moore 	and Haffner. 	This 	evidence 	supports
the 	conclusion 	that Waller 	would 	have 	preferred 	not 	to 	reduce
the number of counselors, 	but 	if 	that was the decision, 	he
favored Moore 	over 	Haffner.
III. 	Alma Viardo
A. 	Employment History 	in ROP
Viardo 	was 	first 	employed 	by 	the 	Office 	as 	an ROP 	counselor
in December 	1974. 	She was 	assigned 	to 	the Pasadena Unified
School District 	to 	service Blair 	and John Muir High Schools.
Following 	the 	1976-77 	school year, Viardo was 	transferred 	to
the 	Santa Monica School 	District where 	she 	worked 	until 	the 	end
of November 	1978. 	At 	that 	time, 	she was 	reassigned 	to the
Monrovia School 	District. 	She 	remained 	there 	until June 	1979
12

at which 	time, 	pursuant 	to the ROP 	staff 	reduction, 	she was
removed 	from 	the 	ROP 	and 	reassigned 	to 	a 	teaching position 	in
special 	schools 	as 	a day-to-day substitute.
B. 	Union Activity
Prior 	to 	the 	election of 	an 	exclusive 	representative,
Viardo was 	a founder 	and 	active member 	of 	the ROPCA. 	She was
also 	a participant 	by 	invitation 	in SEERG 	(Superintendent's
Employee-Employer Relations Group), 	convened by Los Angeles
Superintendent 	of Schools Clowes. 	After 	the 	representation
election 	in 	the 	spring of 	1977, 	participation 	in 	these 	groups
ended.
Viardo 	was 	invited 	to 	attend 	all 	executive 	board meetings
of 	the Association 	and, 	while 	the 	record 	is 	somewhat 	unclear,
it 	seems 	she 	was 	an observer 	at 	three 	negotiation 	sessions
while 	a counselor 	in Pasadena. 	She 	has 	served on 	the 	grievance
committee 	since 	1976 	(initially 	through ROPCA) 	and was 	a member
of 	the 	negotiation 	team 	in 1978 	and 	1979. 	She attended
numerous 	negotiation 	sessions 	with 	release 	time while 	a
counselor 	at Santa Monica.
Viardo 	was 	also 	involved 	in drafting 	remarks 	for 	the
Association 	presentations 	before 	the Board 	of Education 	which
were 	critical 	of 	ROP administration policies. 	And 	she
conducted 	research 	for 	an Association 	job 	description 	project.
13

Each of 	her ROP coordinators, 	Honsberger 	in Pasadena, 	and
Fisher 	in Santa Monica, 	as well 	as ROP Director Young,
testified 	that 	they 	were 	quite 	familiar 	with 	the 	fact 	that
Viardo was 	an 	active Association member.
C. 	Absence 	for Negotiations
Testimony 	appears 	throughout 	the 	record 	that Viardo's
frequent 	absences 	from 	her 	job 	site 	generated 	numerous
complaints 	from both 	district 	and 	ROP 	staff. 	Viardo 	testified
that 	these 	absences 	were primarily because 	of 	her 	participation
in negotiations. 	Fisher 	testified 	to 	the 	contrary, 	stating
that 	very 	few of 	the 	absences 	related 	to 	union 	activity. 	The
amount was 	apparently sufficient, 	however, 	to warrant a
suggestion 	by Fisher 	that Viardo 	ought 	to 	consider 	giving 	up
the 	negotiations 	team 	in order 	to 	spend more 	time on
relationships with 	the district 	and ROP personnel. 	Thus,
regardless 	of 	the 	credibility 	resolution 	here, 	absences due 	to
negotiations 	had 	an 	impact 	on 	her 	overall 	relations 	with 	the
staff, 	at 	least 	from 	the 	perspective 	of 	coordinator Fisher.
Problems 	were 	generated 	by 	three 	facets 	of Viardo's
absences: 	frequency, 	lack of 	notice, 	and 	lack of 	site coverage.
The 	only 	specific 	testimony 	regarding 	frequency was Viardo"s
that 	she 	attended 	at 	least 	10 	negotiation 	sessions 	during 	the
months 	of May 	and June 	1978.
14

Each 	party's 	testimony 	regarding 	notice 	went 	essentially
uncontroverted. 	For 	the Office, 	Fisher 	testified 	that he
rarely, 	if 	ever, 	received prior personal 	notice 	from Viardo
that 	she 	was 	going 	to be 	absent 	from her 	work 	station. 	He 	also
testified 	that 	on 	several 	occasions 	this 	situation was
discussed 	with Viardo 	without 	result.
None 	of 	this 	was 	contradicted 	by 	the Association. 	Although
Viardo 	testified 	that 	she 	"sent 	[Fisher] 	memos 	every 	time 	[she]
was 	away 	at 	negotiations," 	the 	record 	is 	insufficient 	to
determine 	whether 	this 	was 	notification prior 	to or 	subsequent
to the 	event. 	However, 	it was uncontroverted that 	the Office
itself 	sent 	out prior 	official 	notice 	of 	persons 	accorded
release 	time 	to participate 	in 	negotiation 	sessions, 	and 	that
these 	notices 	were 	received 	by both 	Young 	and Fisher. 	Fisher
testified 	that 	although 	the 	notices 	may 	have 	been on 	his 	desk
prior 	to 	the 	event, 	since 	he 	spent considerable 	time 	in the
field, 	he 	didn't actually 	see 	the notices 	until 	after 	the
event. 	The 	sample Official Notice produced by 	the Association,
however, 	casts 	doubt 	upon 	this 	impracticability 	argument. 	That
notice was 	dated May 	31, 	announcing 	negotiations 	two weeks
hence 	on June 	14. 	While Viardo 	apparently made 	little 	effort
to personally 	notify 	her 	ROP 	coordinator, 	neither 	did 	the 	ROP
apparently 	respond 	to 	the 	situation 	by 	doing 	anything 	to
expedite 	its processing of 	the Official Notices.
15

The Official Notices 	additionally 	indicated 	that 	if
substitutes 	were 	needed, 	they were 	to be provided 	in 	the 	usual
manner. 	ROP 	never 	provided 	for 	nor 	requested 	any 	substitutes
to cover Viardo's 	station. 	While Fisher 	testified 	that 	he
himself 	would 	have 	been 	the 	ROP 	substitute 	had 	he 	had 	prior
notice of 	an 	absence, 	another 	of Fisher's counselors,
Michael Pines, 	testified 	that 	on 	an occasion when Fisher 	had
prior 	notice, 	he did not, 	in fact, 	fill 	in as a substitute
counselor 	for Pines. 	Finally, 	as partial coverage 	for 	her
site, Viardo, when absent, would always leave a note on her
window 	along 	with 	a 	sign-up 	sheet 	for 	students.
The Office's 	own 	testimony 	indicated 	that 	this 	problem
regarding 	absences 	was 	the 	biggest problem with 	the 	district
and 	high 	schools 	in Santa Monica. 	And 	in his 	Interim Appraisal
Summary 	(IAS) 	of Viardo, 	Fisher 	indicated 	that 	this 	situation
influenced 	the 	letters 	written 	by Santa Monica District
Supervisor 	of 	Secondary Education Karadenas, 	and Santa Monica
High School Principal Pearson, 	(requesting her 	removal 	from
Santa Monica School District) 	which made 	up 	approximately
three-sevenths 	of 	the 	written 	district 	input 	in 	the 	record 	on
Viardo.
The 	evidence 	from both parties 	reflects 	that 	the 	subject 	of
absences 	due 	to 	negotiations 	was 	discussed 	several 	times
between Viardo 	and Fisher, 	especially during 	the 	last 	six
months 	she was 	in Santa Monica. 	For 	example, 	it went 	unrefuted
16

that Fisher, 	at these 	times, 	apprised Viardo of Young's concern
about 	this matter. 	Where 	the 	testimony differs 	greatly,
however, 	is 	in regard 	to the 	tenor 	of 	these discussions.
Essentially, 	Viardo 	testified 	that Fisher 	told 	her 	on
several 	occasions 	that he 	wanted 	her 	to give 	up being on 	the
negotiation 	team 	and 	that 	she 	had 	to 	choose 	between
negotiations 	and ROP. 	Fisher 	denied 	these 	statements.
The 	focus of 	this 	conflicting 	testimony was 	a much
controverted 	private meeting 	between 	these 	two 	on
August 28, 1978. 	There, Fisher 	testified that:
The 	district 	was 	very 	disappointed 	in
particularly 	the 	area 	of 	employee
relationships, 	district 	and 	high 	school
level, 	and 	the 	staff of 	this 	career 	center.
And 	I 	suggested 	to Alma prior 	to 	the 	year
getting 	going on 	that 	perhaps 	she 	should
consider 	whether 	it 	is worthwhile 	that 	she
represent 	the 	union or 	perhaps 	with 	the
light of 	the 	district 	dissatisfaction the
need 	to 	spend more 	time on 	relationships, 	et
cetera, 	that maybe 	she ought 	to consider
giving 	it 	up.
Viardo 	introduced 	her 	notes 	of 	the meeting 	indicating
Fisher 	stated, 	among other 	things, 	that 	(1) 	her 	efforts were
O.K.; 	(2) 	her performance was never 	the 	issue; 	(3) 	the problem
was 	the 	concern of 	he 	and Young 	about 	her 	union activities; 	(4)
that 	he 	wasn't 	going 	to 	stand 	for 	anymore 	of 	that 	negotiations
"crap"; 	(5) 	that he was giving her a choice, 	union activities
or ROP and 	there were no 	two ways 	about 	it; 	and 	(6) 	that 	in
17

exchange 	for 	her 	cooperation, 	he would 	get Young 	off 	her 	back.
This 	conflict 	in 	testimony 	is 	resolved 	in 	favor 	of Viardo 	since
her 	testimony, 	from 	notes 	taken 	shortly 	after 	the meeting,
appears much more 	specific 	as 	to precisely what Fisher 	said 	in
contrast 	to 	the more 	general 	testimony of Fisher 	as 	to what 	he
"suggested" 	to Viardo.
D. 	Interim Appraisal 	Summary
In order 	to provide 	some 	kind of 	a 	final 	evaluation as 	well
as 	a guide for Viardo's new coordinator, 	Fisher 	prepared 	an
Interim Appraisal Summary 	(IAS) 	of Viardo on January 	2, 	1979,
covering 	the 	final period 	of 	her 	term 	at Santa Monica,
May 2, 	1978 to November 	29, 	1978. 	On January 17, 	1979, Viardo,
Young, 	and Ed Romeo, CTA Consultant, met 	to review the IAS
because 	it was highly critical 	of Viardo's performance.
The IAS 	covered 	eight 	items 	of 	concern. 	These 	areas 	of
concern 	included 	(1) 	Viardo's 	failure 	to develop 	realistic
enrollment predictions 	for 	use 	in planning courses; 	(2) 	her
failure 	to conduct effective, 	in depth counseling 	sessions with
students; 	(3) 	her 	failure 	to communicate and work well with
employees 	of 	the 	Santa Monica High School 	and Santa Monica
Unified School District; 	(4) 	her 	lack of 	a system for
self-evaluation 	of 	ROP 	counseling 	and 	enrollment 	efforts;
(5) 	her 	emphasis on 	"best efforts" 	rather 	than "bottom line
18

results" 	regarding 	enrollment, 	attendance 	and 	resultant ADA;
(6) 	a 	lack of 	articulation with 	lower 	grade 	feeder 	schools
regarding 	the ROP program; 	(7) 	her 	non-cooperation with Office
supervisors 	and 	school district 	staff; 	and 	(8) 	her 	use of ROP
phones 	for 	non-ROP business 	use.
Two 	of 	the 	eight 	items 	discussed 	focused 	on Viardo's
relationship 	with 	the 	district 	and ROP 	staff. 	A 	significant
factor 	used 	to 	appraise 	each of 	the 	two 	items was 	the problems
generated 	by Viardo's 	absences.
In both 	the 	case 	in chief 	and 	in rebuttal, Viardo 	testified
that 	at 	the 	conference, 	she 	and Romeo 	rebutted 	and 	clarified
all 	the 	items 	of 	the 	IAS, 	had 	brought documentation 	to support
their 	rebuttal, 	had pointed out 	that 	the period of 	time 	stated
as 	being 	covered 	by 	the 	IAS 	was 	erroneously 	long 	and 	actually
covered 	one 	and 	one-half months; 	that Young 	agreed 	at 	that 	time
that 	this 	IAS 	was 	not 	to go 	into Viardo's 	personnel 	file 	and
would 	not be 	used 	in 	any way; 	and 	that Viardo 	should prepare 	a
memorandum 	to 	him 	to 	that 	effect. 	The Association produced
that memo 	dated January 	23, 	1979 	confirming 	any agreement
reached 	in 	the January 17 	conference. 	The Association also
introduced Young's 	response 	dated January 	31, 	which 	said 	that
his 	decision, 	except 	as 	to one 	item suggesting misuse of
19

ROP 	telephones, 	was 	not 	to 	recall or 	consider 	nonexistent 	the
IAS.3
3whether 	Viardo 	and Romeo 	rebutted 	and 	clarified 	all 	the
items 	in 	the 	IAS 	is a matter 	upon which 	the parties 	disagree.
In any event, 	there 	is 	insufficient 	evidence 	in 	the 	record 	from
which 	the 	hearing 	officer 	can 	conclude whether 	in 	fact 	the
items 	in 	the 	IAS 	were 	rebutted 	and 	classified.
The Association 	urges 	that Young 	agreed 	to 	not 	use 	the 	IAS
in 	any way 	and 	then 	subsequently 	reneged 	on 	his 	agreement.
This, 	the Association alleges, 	is further 	evidence of Young's
discriminatory 	treatment 	of Viardo. 	The Association's 	own
exhibits, 	however, 	betray 	its contention that Young agreed not
to use 	the 	IAS 	in any way at 	the January 17, 	1979 meeting.
On January 23, 	1979, Viardo wrote to Young:
In 	accordance with 	the 	agreement made 	during
a conference last January 17, 1979. 	. 	. 	I am
sending 	you 	the 	memo 	requesting 	that 	all
copies of 	the 	"interim appraisal 	summary"
and 	the 	accompanying 	attachments 	dated
January 	4, 	1979 	. . . 	be 	recalled 	and
considered 	non-existent 	on 	the 	following
grounds'!
Please 	notify me 	by memo of 	your 	action 	on
the matter 	as 	early as possible. 	Thank
you. 	[Emphasis 	added.]
On January 31, 	1979, Young wrote to Viardo:
. 	. 	. There seems to be ample support
documentation 	for 	the 	appraisal 	and 	the
documents 	or 	copies 	of 	the 	documents were
[sic] 	attached 	to 	the 	appraisal 	that was
presented 	to you.
The 	information 	and 	recommendation 	referred
to 	in Item 8 of 	the Appraisal will be
removed 	from 	the 	Appraisal 	and 	handled 	as 	a
separate 	item.
My 	decision 	based 	on 	the 	information 	above
is 	not 	to 	recall or 	consider 	nonexistent 	the
Interim Appraisal 	Summary presented 	to 	you.
20
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

E. 	Decision 	to Reassign; 	Numerical Rating
The 	lowest 	total 	score 	received 	by one 	of 	the 	12 	retained
counselors was 	a 	36. 	Viardo's 	total was 	the lowest of 	any
counselor, 	a 14. 	For 	the 	relevant period, Viardo had 	two
different 	coordinators, 	Fisher 	in Santa Monica and Sparks 	in
Monrovia. 	Although 	no 	specific 	rating was 	introduced, 	Young
testified 	for 	the Office 	that Sparks 	was 	"very pleased with 	the
work 	that 	was being done 	in Monrovia 	at 	that 	time." 	Viardo's
ultimate 	numerical 	rating, 	however, 	was a composite of
information 	from both Sparks 	and Fisher.
Witnesses 	for 	the 	Office 	presented 	contradictory 	testimony
as 	to 	how Viardo's 	ultimate 	score 	of 	14 was derived. 	Young
testified 	that Fisher 	and 	Sparks 	each 	completed 	an 	individual
numerical 	rating 	on Viardo. 	Weighing 	them equally, 	he 	averaged
the 	ratings 	by 	adding 	them 	together 	and 	dividing by 	two.
Fisher, 	however, 	testified 	that when 	asked by Young 	to do a
numerical 	rating 	on Viardo 	he 	replied 	that 	the 	Interim
It 	is 	therefore 	concluded, 	based 	upon Viardo's
January 	23, 	1979 memo 	to Young 	"requesting" 	that 	the IAS be
recalled 	and 	considered 	nonexistent 	and 	Young's
January 	31, 	1979 memo 	denying 	that 	request 	that 	Young 	did 	not
agree 	at 	the January 17, 	1979 conference 	that 	the 	IAS 	would 	not
be 	used 	in 	any 	way.
21

Appraisal 	Summary 	spoke 	for 	his 	time with Viardo. 	He 	testified
that 	the 	IAS 	was 	the 	only written 	input 	he 	gave 	Young.4
F. 	District 	Input
Young 	testified 	that 	his 	District 	input 	came 	from 	three
sources.
The 	first 	source was E. 	Waller, 	director 	of Career 	and
Vocational Education 	for 	Pasadena Unified 	School 	District,
Viardo's first assignment. 	In an April 	25, 	1977 	letter 	to
Young, 	Waller 	requested Viardo be 	transferred 	from Pasadena
citing 	her 	lack of 	in-depth 	counseling, 	lack of 	vocational
guidance, 	and preoccupation as a paper-producer. 	There were
also 	attendant 	discussions 	between Young 	and Waller 	on 	a
similar 	vein. 	In 	rebuttal, 	Viardo 	testified 	that 	in a
May 19, 	1977 meeting 	about Waller's 	letter 	attended 	by
E. 	Lambert, 	assistant 	superintendent 	of Pasadena Unified School
District, Waller, Honsberger and Viardo, 	"Mr. Waller admitted
that 	he only got 	verbal 	input 	from 	two of 	the 	staff. 	And one
of 	the 	staff which he claimed he got verbal 	input 	[from], 	had
written a letter on 	[her] 	behalf.. 	. 	. And Mr. 	Lambert at,
4In resolving 	the 	Office's 	inconsistent 	testimony, 	it 	is
reasonable 	to conclude 	that 	the 	testimony of Fisher, 	the person
who prepared 	the 	IAS 	and 	presented 	Young with whatever 	data of
his was 	used 	in determining Viardo's 	numerical 	rating,
would be 	the more 	accurate. 	Accordingly, 	Fisher's 	testimony on
this point 	is 	credited 	and Young's 	testimony 	is not.
22

during 	our 	confrontation 	asked, 	actually 	reprimanded Mr. 	Waller
for 	doing 	this." 	Viardo 	subsequently 	summarized 	the meeting 	in
a memo 	to Lambert 	and 	requested 	that Young 	be 	apprised 	of 	the
outcome.
Young 	also 	received 	input 	from Mr. 	Pearson, 	principal 	of
Santa Monica High School. 	He 	requested Viardo's transfer 	in 	a
November 	15, 	1978 	letter 	to Young, 	although he gave no specific
reasons. 	As 	stated before, 	Fisher 	testified 	that Viardo's
absences 	without 	coverage 	caused 	the 	biggest problems 	with 	the
high 	school, 	and 	that 	that 	situation 	influenced 	the November 	15
letter.
Finally, Young 	received 	input from M. 	Karadenas, 	supervisor
of 	Secondary Education 	for 	Santa Monica Unified 	School
District. 	Young 	testified 	as 	to personal 	discussions where
Karadenas 	complained 	about Santa Monica 	not 	getting 	sound
vocational 	guidance 	and 	the 	considerable 	friction between
Viardo 	and 	the district 	staff. 	Fisher, 	testifying 	about his
frequent 	discussions 	with Viardo 	about 	her 	role 	on 	the
negotiating 	team, 	stated 	that 	a 	source of 	problems was 	that
when Viardo was 	absent, 	the 	other 	career 	center personnel were
aggravated 	that 	they 	had 	to 	continually 	field 	her 	phone 	calls
when 	they didn't 	know 	where 	she 	was. 	He 	testified 	that 	these
complaints 	worked 	their 	way 	up 	to Karadenas.
23

Young 	testified 	that 	Karadenas 	threatened 	to 	withdraw 	the
entire 	district 	from ROP unless Viardo was 	transferred. 	In 	a
November 	16, 	1978 letter, 	he formalized that request.
ISSUES
1. 	Should 	the 	unfair 	practice 	charge 	in 	the
above-captioned 	matter 	be 	deferred 	to 	the 	grievance-arbitration
procedure 	contained 	in 	the 	collective 	bargaining 	agreement
between 	the Association 	and 	the 	District pursuant 	to 	section
3541.5(a)?
2. 	Was 	the 	involuntary 	transfer 	of 	Haffner 	from her
position 	as 	an ROP 	counselor 	to a position 	as 	a Special Schools
day-to-day 	substitute 	in violation of 	sections 	3543.5(a) 	and/or
3543.5 (d)?
3. 	Was 	the 	involuntary 	transfer 	of Viardo 	from her position
as 	an ROP counselor 	to a position of 	a Special Schools
day-to-day 	substitute 	in violation of 	sections 	3543.5(a) 	and/or
3543.5 (d)?
4. 	If 	the answer(s) 	to issues numbered 2 or 3 	is 	in the
affirmative, 	what 	is 	the appropriate remedy?
CONCLUSIONS 	OF 	LAW AND 	DISCUSSION
1. 	The Unfair Practice Charge 	In The Above-captioned Matter
Should Not 	Be 	Deferred 	To The 	Grievance-Arbitration
Procedure Contained 	In The Collective Bargaining Agreement
Between The 	Association And The 	District Pursuant To
Section 	3541.5(a)
The Office 	argues 	that 	the 	above-captioned 	matter 	should 	be
deferred 	to 	the 	grievance-arbitration 	procedure 	contained 	in
24

the 	collective 	bargaining 	agreement 	between 	the 	Association 	and
the 	Office 	pursuant 	to 	section 	3541.5(a).5 The 	grievance
5Sec. 	3541.5 (a) 	states:
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:
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
(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.
The 	District 	orally 	raised 	the 	issue 	of 	deferral 	to
arbitration 	for 	the 	first 	time on June 	1 0 , 	1980, 	the 	first 	day
of 	the 	administrative 	hearing 	in 	the 	above-captioned 	matter.
The 	Public 	Employment 	Relations 	Board 	itself 	promulgated
Rule 	32654 	on 	the 	subject 	of 	Board Deferral 	and 	the 	Question 	of
Repugnancy 	and 	filed 	same 	with 	the 	Secretary 	of 	State 	on
June 	1 8 , 	1980 	which 	thereupon 	became 	effective 	on
July 18, 	1980. 	Rule 	32654 provides 	as 	follows:
Board 	Deferral 	and 	the 	Question 	of 	Repugnancy
(a) 	Objections 	to 	the 	issuance 	of 	a
complaint 	pursuant 	to 	a 	prima 	facie 	charge
may 	be 	made 	on 	the 	ground 	that 	issuance 	of
said 	complaint 	is 	prohibited 	pursuant 	to
section 	3514.5(a)(2) 	or 	3541.5(a)(2) 	of 	the
Government Code. 	Objections 	shall 	be 	in 	the
form 	of 	a motion 	to 	deny 	issuance 	of
complaint 	and 	must 	be 	filed 	with 	the Board
within 	the 	time 	limits 	applicable 	to 	the
filing 	of 	an 	answer 	to 	the 	charge 	pursuant
to Section 32635(a).
(b) 	Upon 	such motion, 	the Board 	shall 	set
the 	matter 	for 	hearing, 	except 	that 	in 	cases
where 	there 	are 	no 	factual 	disputes, 	the
Board 	may 	limit 	the 	parties 	to 	submission 	of
briefs 	or 	oral 	argument.
25

(c) 	If 	it 	is 	determined 	that 	the Board 	must
defer, 	the Board 	agent 	shall 	refuse 	to 	issue
a 	complaint 	and 	dismiss 	the 	charge pursuant
to Section 	32630.
(d) 	If 	it 	is 	determined 	that 	the Board 	is
not 	required 	to 	defer, 	the Board 	agent 	shall
issue 	a complaint 	pursuant 	to Section 	32652,
including 	a 	written 	statement 	of 	the 	reasons
therefor.
(e) 	The 	decision 	to 	issue 	a complaint
pursuant 	to 	this 	Section may 	be 	appealed 	to
the 	Board 	itself 	within 	20 	days 	following
the 	issuance 	of 	the 	complaint 	by 	filing 	an
original 	and 	four 	copies 	of 	the 	appeal 	with
the Executive Assistant 	to 	the Board. 	The
appeal 	shall 	be 	in writing, 	signed 	by 	the
party 	or 	its 	agent, 	and 	contain 	the 	facts
and 	arguments 	upon 	which 	the 	appeal 	is
based. 	Service 	and 	proof 	of 	service 	of 	the
appeal pursuant 	to Section 	32140 	are
required.
(f) 	If 	the 	appealing 	party files 	a 	timely
appeal, 	any 	other 	party may 	file 	with 	the
Board 	itself 	an 	original 	and 	four 	copies 	of
a 	statement 	in 	opposition 	within 	20 	days
following 	the 	date 	of 	service 	of 	the
appeal. 	Service 	and proof 	of 	service 	of 	the
statement 	pursuant 	to Section 	32140 	are
required.
(g) 	An 	unfair 	practice 	charge 	originally
dismissed 	under 	the 	deferral 	requirement may
be 	refiled 	within 	applicable 	statutes 	of
limitation, 	based on 	a 	claim 	that 	the
grievance 	award 	resolution 	is 	repugnant 	to
the Act.
(h) 	The Board 	shall 	conduct 	a hearing on
the 	repugnancy 	claim. 	After 	the 	close 	of
the 	hearing, 	a Board 	agent 	shall 	issue 	a
recommendation 	to 	the Board 	itself 	regarding
the 	repugnancy 	claim. 	The 	recommendation
shall 	be 	concurrently 	served 	on 	all
parties. 	Each 	party may 	file 	with 	the Board
itself 	a 	response 	to 	the 	recommendation of
the 	Board 	agent 	within 	20 	days 	following 	the
date of 	service 	of 	the 	recommendation.
26

procedure 	contained 	in Article V, 	Section 	I 	of 	the 	agreement
between 	the Association 	and 	the Office provides 	in pertinent
part as 	follows:
The 	decision of 	the 	arbitrator 	within 	the
limits 	herein 	described 	shall 	be 	in 	the 	form
of 	a 	recommendation 	to 	the Board 	of
Education. 	If 	neither 	party files 	a request
to 	the Board 	[Board 	of Education] 	to
undertake 	review of 	the 	advisory 	decision
within ten 	(10) 	working days of 	its
issuance, 	or 	if 	the Board declines 	such 	a
request, 	then 	the 	decision 	shall be deemed
adopted 	by 	the Board 	and 	become 	final 	and
binding on 	all parties. 	If 	a 	timely 	request
for 	review 	is 	filed with 	the Board 	and
accepted by 	the Board, 	it 	shall 	then
undertake 	review of 	the 	entire 	hearing
records and briefs. 	The Board may also, 	if
it deems 	it appropriate, permit oral
arguments 	by 	representatives of 	the parties,
but only 	in 	the presence 	of 	one 	another.
Within 	thirty 	(30) 	working days 	after
receiving 	the 	record, 	the Board 	shall 	render
its 	decision on 	the matter, 	which decision
shall be 	final 	and 	binding 	on 	all
parties. . ..
response 	shall 	be 	filed 	with 	the Executive
Assistant 	to 	the Board. 	Service 	and proof
of 	service 	of 	the 	response pursuant 	to
Section 	32140 	are 	required. 	The
recommendation 	of 	the 	Board 	agent 	together
with 	any 	responses 	filed 	pursuant 	to 	this
Section 	and 	the 	case 	record 	shall 	be
submitted 	to 	the Board 	itself 	for 	a decision.
(i) 	If 	the 	grievance 	award 	is 	found 	to be
repugnant, 	the Board 	itself 	shall 	remand 	the
case, 	ordering 	the 	issuance of 	a complaint
and 	the processing 	of 	the 	charge 	accordingly.
(j) 	If 	the 	award 	is 	found 	not 	to be
repugnant, 	the Board 	itself 	shall 	refuse 	to
issue 	a complaint 	and 	dismiss 	the 	charge.
27

Pursuant 	to 	the 	grievance-arbitration 	procedure 	described
above, 	a hearing was 	held on January 	21, 	1980 	before Arbitrator
Robert M. 	Leventhal 	who 	subsequently 	issued 	an 	award
recommending 	that 	the 	Office 	had 	not 	violated 	the 	transfer 	and
reassignment provisions 	of 	the 	agreement 	by 	transferring
Haffner 	and Viardo. 	Neither 	party 	sought 	review by 	the
Office's Board of Education of 	the 	arbitration 	award, 	and 	thus
under 	the 	terms 	of 	the 	collective bargaining 	agreement, 	within
10 	days 	it became 	"final 	and binding on 	all parties."
In 	the 	hearing officer's opinion, 	the Office's deferral
argument places 	too much 	reliance 	on 	the phrase 	"final 	and
binding 	on 	all parties" 	as 	contained 	in 	the 	above-quoted
portion of Article V, 	Section 	I. 	Careful 	examination of 	the
entire 	section 	in 	question 	reveals 	a classic 	advisory
arbitration 	clause 	whereby 	the 	arbitrator 	makes 	a
"recommendation" 	to 	the Board of Education, 	after 	which 	either
party may 	request 	the Board 	to 	undertake 	a 	review of 	the
recommendation, 	and 	thereafter 	the Board 	"shall 	render 	its
decision on 	the matter, 	which decision 	shall be 	final 	and
binding on all parties," 	or 	"if neither party files 	a request 	to
the Board 	to 	undertake 	review of 	the 	advisory decision
Because 	the 	effective 	date 	of 	Regulation 	32654 	occurred
subsequent 	to 	the Office's motion 	to defer, 	Regulation 	32654
has 	not 	been 	applied 	in 	deciding 	said motion.
28

within 	ten 	(10) 	working days of 	its 	issuance, or 	if the Board
declines 	such 	a 	request, 	then 	the 	decision 	shall be 	deemed
adopted 	by 	the Board 	and 	became 	final 	and 	binding 	on 	all
parties." 	[Emphasis 	added.]
When Arbitrator 	Leventhal 	issued 	his 	"recommendation" 	to
the Board 	of Education 	regarding 	the 	grievances 	of 	Haffner 	and
Viardo, 	the Board was 	not 	bound 	by his 	award. 	Since 	neither
party 	requested 	the Board 	of Education 	to 	review 	the 	"advisory"
decision within 	10 working days of 	its 	issuance, 	the 	decision
was deemed "adopted by the Board 	[of Education]." 	Thus, 	in
reviewing 	the 	award 	for 	purposes 	of 	the Office's motion 	to
defer, 	the 	hearing officer 	is 	actually 	reviewing 	the Board 	of
Education's 	award.
The 	PERB 	itself 	has 	had 	opportunity 	to pass 	upon 	the
question 	of 	post-arbitral 	deferral 	in Dry Creek 	Teachers
Association v. 	Dry Creek Joint Elementary School 	District
(7/21/80) 	PERB Decision No. AD-81a. 	In holding that the
Spielberg6 	standards 	are 	well 	within 	the 	contemplation of 	the
Educational Employment Relations Act's 	language, 	PERB 	itself
announced 	that 	"PERB 	is 	required 	to defer 	to a mutual
settlement 	or 	a 	'binding 	arbitration' 	award pursuant 	to 	a
negotiated procedure,. 	. 	.."
6Spielberg Manufacturing Co. 	(1955) 	112 NLRB 1080 	[36
LRRM 	1152].
29

It 	appears 	that Spielberg 	requires 	that 	the parties 	agree
to 	be 	bound 	by 	the 	arbitrator's 	or 	arbitration panel's 	award
rather 	than by an 	award of 	one of 	the parties, 	as 	in this
case. 	As 	the National Labor 	Relations Board 	(hereafter NLRB)
held 	in 	Spielberg;
In 	summary, 	the proceedings 	appear 	to have
been fair 	and 	regular, 	all parties 	had
agreed 	to be bound, 	and 	the 	decision of 	the
arbitration panel 	is 	not 	clearly 	repugnant
to 	the 	purposes 	and policies of 	the Act.
[Emphasis 	added.]
It 	is 	therefore 	concluded 	that 	a 	requirement 	for
post-arbitral 	deferral 	is 	that 	all parties 	to the 	arbitration
proceedings must 	have 	agreed 	to be 	bound 	by 	the 	arbitral 	award
of 	the 	arbitrator 	or 	arbitration panel. 	Since 	the 	award 	in
question 	was 	"deemed 	adopted 	by 	the Board 	[of Education]" 	and
only 	thereafter 	became 	"final 	and 	binding," 	deferral 	to 	the
Board 	of Education's 	award 	would 	not 	be 	keeping 	with 	the
Spielberg 	doctrine 	as 	affirmed 	by 	the 	PERB 	itself 	in Dry Creek,
supra.
The Office 	further 	contends 	that 	the 	Association 	should 	not
be 	permitted 	to 	relitigate 	the 	factual 	issue 	of 	whether Viardo
and Haffner 	were 	equal 	to 	the 	12 	counselors 	who were 	retained
with 	regard 	to 	"educational program needs," 	"student welfare,"
and 	"other 	qualifications" 	under 	the 	doctrine 	of 	collateral
estoppel. 	The 	hearing officer 	concludes 	that 	the 	factual 	issue
litigated 	in 	the 	unfair practice 	case 	is 	somewhat different,
30

however, 	since 	the 	criteria 	used by Young with 	respect 	to
rating 	the 	counselors 	numerically were 	(1) 	ability 	to 	relate 	to
students; 	(2) 	ability to make large group presentations; 	(3)
ability to work as 	a team member; 	and 	(4) 	self-direction and
motivation. 	Furthermore, 	to deny the Association 	its 	right 	to
litigate 	the 	factual 	issue 	of 	whether Viardo 	and Haffner 	were
equal 	in 	counseling 	abilities 	to 	the 	12 	retained 	counselors
would, 	in effect, 	partially defer 	to 	the 	advisory award
subsequently 	adopted 	by 	the Office's Board 	of Education.
Deferral 	to 	such 	a grievance-arbitration process, 	as discussed
earlier, 	is inappropriate.
2. 	The 	Involuntary Transfer 	Of 	Haffner 	From Her Position As An
ROP 	Counselor 	To A Position As A Special 	Schools 	Day-To-Day
Substitute 	Teacher Was Not 	In Violation Of 	Sections
3543.5(a) 	And/Or 	3543.5(d)
The 	test 	applicable 	for 	alleged 	violations 	of 	section
3543.5(a) 	was 	announced 	by 	the PERB 	itself 	in Carlsbad Unified
School District 	(1/30/79) 	PERB Decision No. 	89 as 	follows:
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
31
,

granted 	under 	the 	EERA a prima 	facie 	case
shall 	be 	deemed 	to 	exist;
3. 	Where 	the 	harm to 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 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 	is 	shown 	that 	the
employer 	would 	not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an 	unlawful
motivation, purpose or 	intent.
* * * * * * * * * * * * * * * * * *
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.
The 	above-quoted 	test 	shall 	be 	applied 	in 	examining 	the
allegations 	of 	section 3543.5(a) 	violations 	in both Haffner's
and Viardo's 	cases.
Application 	of 	the Carlsbad 	test 	as 	described 	above 	leads
the 	hearing 	officer 	to 	conclude 	that Charging Party 	has 	failed
to 	establish 	that 	the Office's 	conduct 	in 	transferring
32

Haffner 	from her 	position 	as 	counselor 	to a position 	as 	a
day-to-day 	substitute 	in 	special 	schools 	"tends 	to or 	does
result 	in 	some 	harm 	to employee 	rights 	granted 	under 	the
EERA." 	The 	evidence 	shows 	that Haffner, 	although 	active 	in
Association 	activities, 	had been 	the 	subject of 	several
complaints 	regarding 	getting 	along 	with personnel 	at 	the
districts 	she 	serviced. 	While 	the Association presented
evidence 	to 	the 	effect 	that Haffner's 	personality 	conflicts
with district 	staff 	was 	not 	the blame of Haffner, 	there 	is
insufficient 	evidence 	to 	support 	a finding 	that either 	(1) 	the
circumstances 	underlying 	the 	complaints 	from 	the 	districts 	were
tied 	to Haffner's participation 	in protected 	activity, 	or 	(2)
that 	Young 	intentionally 	utilized 	inaccurate 	information 	in
comparatively 	ranking Haffner 	with 	other 	counselors. 	This
being 	the 	case, 	the 	accuracy with which District personnel
interpreted 	certain 	incidents 	goes more 	to 	the 	issue 	of 	whether
the Office made 	a 	sound 	decision 	in 	deciding 	not 	to 	retain
Haffner 	rather 	than 	the 	issue 	before PERB of 	whether 	it made 	a
discriminatory 	decision 	within 	the meaning 	of 	section
3543.5 (a). 	The 	soundness of 	the decision made by Young, 	in the
absence of 	discrimination 	for 	reasons of protected 	activity, 	is
simply a matter 	outside 	the 	jurisdiction of PERB. 	In 	reaching
this 	conclusion, 	no 	finding 	is made 	that Haffner 	was 	anything
less 	than 	a competent 	counselor. 	It 	is 	therefore 	concluded
that, 	based 	upon 	the 	criteria 	used by Young 	in 	ranking 	all
33

counselors, 	and 	due primarily 	to personality conflicts with
District personnel, 	Haffner 	ranked 	lower 	than 	those 	counselors
retained.
Even 	assuming 	one 	could 	conclude 	that 	the 	evidence 	supports
a 	finding 	that 	the 	Charging Party 	has 	established 	that 	the
Office's 	conduct 	in 	transferring Haffner 	"tends 	to or 	does
result 	in 	some 	harm 	to employee 	rights 	granted 	under 	the EERA,"
pursuant 	to Carlsbad, 	supra, 	it 	is 	concluded 	that 	the harm to
employees' 	rights 	is 	slight 	and 	that 	the Office's operational
necessity 	defense 	outweighs 	the 	slight 	harm occasioned
employees' rights.
The 	record 	evidences 	several 	instances 	of 	complaints 	by
districts 	regarding Haffner 	throughout 	her 	tenure 	as 	an ROP
counselor 	including 	complaints 	from Montebello 	and 	San Marino
School 	Districts 	requesting 	her 	transfer 	and 	the 	expressed
preference 	that 	another ROP counselor, 	K. 	Moore, 	be retained
rather 	than Haffner 	as 	counselor 	at Pasadena Unified 	School
District. 	This 	input 	from school districts, 	taken 	in
conjunction with Haffner's 	relative 	numerical 	rating 	of 	26
compared 	to 	the 	lowest 	rating given 	to one 	of 	the 	12 	retained
counselors of 	36, 	outweighs 	any perceived 	harm to employee
rights 	which might 	ensue 	as 	a 	result of 	an 	active Association
member's 	transfer 	from her 	position as 	a counselor 	to a
position 	as 	a day-to-day 	substitute 	teacher 	for 	special 	schools,
34

No 	independent 	evidence of 	a 	section 	3543.5(d) 	violation
having 	been presented 	and 	no 	violation 	of 	section 	3543.5(a)
having been established, 	no violation of 	section 3543.5 (d) 	is
found.
3. 	The 	Involuntary Transfer 	Of Viardo From Her 	Position As An
ROP 	Counselor 	To 	A Special 	Schools 	Day-To-Day 	Substitute
Teacher 	Was Not 	In Violation Of Sections 	3543.5(a) 	And/Or
3543.5 (d)'
The 	question 	of 	whether Viardo's 	transfer 	from her
counselor 	position 	to 	a position 	as 	a day-to-day 	substitute
teacher 	for 	special 	schools was 	in violation of 	section
3543.5(a) 	is 	complicated by 	the 	fact 	that Viardo's 	transfer was
clearly, 	in part, 	a direct result of her 	exercise of 	rights
guaranteed 	by 	the EERA. 	Much of Viardo's 	problems 	at Santa
Monica High 	School 	stemmed 	from 	her 	absences 	while
participating 	on behalf 	of 	the Association 	in negotiating
sessions 	between 	the Association and 	the Office. 	These
absences 	caused 	friction 	between Viardo 	and 	district 	personnel
as 	they had 	to 	field 	her 	phone 	calls 	during Viardo's 	absences.
This 	tension 	ultimately 	led 	to 	administrators 	for 	the 	district
writing 	to 	the 	Office 	and 	requesting 	that Viardo 	be 	transferred
from Santa Monica Unified 	School 	District.
It 	is 	also 	clear 	that 	the Office's 	decision 	to not 	include
Viardo 	as 	one of 	the 	12 	counselors 	to be 	retained was motivated
by several other 	factors. 	On April 	26, 	1977, Waller 	had
requested 	in 	writing 	that Viardo be 	transferred 	from Pasadena
35

Unified 	School 	District, 	citing 	her 	lack 	of 	in-depth
counseling, 	lack of 	vocational 	guidance, 	and preoccupation 	as 	a
paper-producer. 	There were 	similar 	verbal 	complaints 	from
Waller 	to 	Young 	concerning Viardo.
Viardo's 	numerical 	ranking 	was 	the 	lowest 	of 	any 	counselor,
a 	14, 	whereas 	the 	lowest 	score 	received 	by one 	of 	the 	12
retained 	counselors 	was 	a 	36. 	Viardo's 	low 	ranking 	was 	a
result, 	in part, 	of 	input 	from Santa Monica Unified School
District 	since 	the 	interim 	appraisal 	summary 	was 	apparently
used 	in 	compiling Viardo's 	numerical 	rating. 	The 	IAS, 	however,
covered 	a 	total of 	eight 	areas 	of 	deficiency, 	two of which
stemmed 	from 	her 	problems 	at 	Santa Monica Unified 	School
District: 	failure 	to 	communicate 	and work well with
employees 	of 	the 	Santa Monica High 	School 	and 	Santa Monica
Unified 	School 	District 	and non-cooperation with 	Office
supervisors 	and 	school 	district 	staff. 	As 	previously
discussed, 	these problems 	appear 	to have 	developed 	in large
part 	due 	to Viardo's 	absences 	for negotiations. 	Other 	areas
of 	criticism 	contained 	in 	the 	IAS 	were Viardo's 	failure 	to
develop 	realistic 	enrollment 	predictions 	for 	use 	in planning
courses, 	her 	failure 	to 	conduct 	effective, 	in-depth counseling
sessions 	with 	students, 	her 	lack of 	a 	system 	for
self-evaluation of 	ROP 	counseling 	and 	enrollment 	efforts, 	her
emphasis 	on 	"best 	efforts" 	rather 	than 	"bottom 	line 	results"
regarding 	enrollment, 	attendance 	and 	resultant ADA, 	her 	lack 	of
36

articulation 	with 	lower 	grade 	feeder 	schools 	regarding 	the 	ROP
program 	and 	her 	use 	of 	ROP phones 	for 	non-ROP business 	use.
Thus, 	approximately one-fourth of 	the 	areas of 	criticism were
affected 	by Viardo's 	absences 	due 	to negotiations, 	although 	it
should be 	noted 	that 	absences 	for 	negotiations 	was 	a concern,
in part, 	due 	to Viardo's 	lack of 	notice 	to district personnel
which 	is 	not 	a protected 	activity.
The National 	Labor 	Relations Board 	(hereafter NLRB) 	has
recently 	promulgated 	a causation 	test 	for 	mixed motive 	cases 	in
Wright Line 	and Lamoureux 	(1980) 	251 NLRB No. 	150 	[105 LRRM
1169]:
Thus, 	for 	the 	reasons 	set 	forth above, we
shall 	henceforth 	employ 	the 	following
causation 	test 	in all 	cases 	alleging
violations of Section 8(a)(3) 	or 	violations
of Section 8(a)(l) 	turning on 	employer
motivation. 	First, 	we shall 	require that
the 	General Counsel make 	a prima 	facie
showing 	sufficient 	to 	support 	the 	inference
that 	protected 	conduct 	was 	a 	"motivating
factor" 	in 	the employer's decision. 	Once
this 	is 	established, 	the burden will 	shift
to 	the 	employer 	to demonstrate 	that 	the 	same
action 	would 	have 	taken place 	even 	in 	the
absence of 	the protected 	conduct.
Since 	the 	PERB 	itself 	has 	established 	as part 	of 	the
Carlsbad 	test 	that 	a violation of 	section 	3543.5(a) 	occurs
"where 	it 	is 	shown 	that 	the 	employer 	would 	not 	have 	engaged 	in
the 	complained-of 	conduct 	but 	for 	an 	unlawful motivation,
purpose or 	intent," 	it 	is 	concluded 	that 	the Wright Line test
of 	the NLRB 	is 	an 	appropriate mechanism 	for 	deciding 	"mixed
motive" 	cases 	under 	the EERA where 	the 	issue becomes whether
37

the 	employer 	would 	have 	engaged 	in 	the 	complained-of 	conduct
"but for" 	an 	unlawful motivation, purpose or 	intent. 	To hold a
violation of 	section 	3543.5(a) 	occurs when 	the 	employer's
conduct was 	"in part" 	motivated 	by 	an 	unlawful purpose or
intent 	would place 	an employee 	in 	a better 	position as 	a 	result
of 	the 	exercise 	of 	a 	right 	guaranteed 	by 	the EERA than he would
have 	occupied 	had 	he 	done 	nothing. 	While 	a borderline 	or
marginal 	employee 	should 	not 	be 	transferred 	because 	of 	the
exercise of 	rights 	guaranteed 	by 	the EERA, 	that 	same 	employee
should 	not 	be 	able, 	by engaging 	in protected activity, 	to
prevent 	his 	employer 	from 	assessing 	his 	performance 	record 	and
reaching 	a decision 	not 	to 	rehire 	on 	the 	basis 	of 	that 	record,
simply because 	the 	protected 	conduct makes 	the 	employer 	more
certain of its 	decision. 	Furthermore, 	the
Wright Line 	test 	represents 	a 	recognition of 	the 	practical
reality 	that 	the 	employer 	is 	the 	party with 	the 	best 	access 	to
proof 	of 	its motivation. 	This 	fact 	is 	underscored by 	the lack
of 	discovery mechanisms 	afforded 	to 	charging parties 	from which
they may 	investigate 	the 	employer's motivation.
Application 	of 	the 	above-stated 	principles 	leads 	the
hearing 	officer 	to 	conclude 	that 	the Association 	has
established 	a prima 	facie 	showing 	sufficient 	to 	support 	the
inference 	that protected 	conduct 	was 	a 	"motivating 	factor" 	in
the Office's 	decision 	to 	transfer Viardo. 	References 	to
38

Viardo's 	problems 	at 	Santa Monica 	are 	contained 	in 	the 	IAS 	used
to 	compute Viardo's 	numerical 	rating 	and 	several 	letters 	from
Santa Monica Unified 	School 	District 	administrators 	were
considered 	as 	input 	from 	the 	District's 	serviced 	by Viardo.
Since Viardo's problems 	at Santa Monica 	stemmed primarily 	from
her 	absences 	for 	negotiations, 	it must be concluded 	that
Viardo's 	attendance 	at 	negotiation 	sessions 	was 	a 	"motivating
factor" 	in 	the Office's 	decision 	to 	transfer Viardo 	and 	that
the Office 	had 	knowledge 	of 	the 	specific 	reason 	for Viardo's
absences 	and 	resultant problems.
As described 	above, 	however, 	several 	legitimate performance
deficiencies 	were 	also considered 	by 	the Office 	in making 	its
decision 	to 	transfer Viardo: 	the 	letter 	from Waller 	at
Pasadena 	to Young 	dated April 	25, 	1977 	requesting 	that Viardo
be 	transferred 	to 	another 	school district, 	the memo 	from
Honsberger 	to Young 	dated April 	25, 	1977 	regarding Viardo's
performance 	at Pasadena 	and 	the 	areas of 	concern 	outlined 	in
the 	IAS 	(Viardo's 	failure 	to develop 	realistic 	enrollment
predictions, 	lack of 	in-depth counseling, 	lack of 	a
self-evaluation 	system, 	excessive 	emphasis on "best 	efforts"
rather 	than 	"bottom line 	results," 	lack 	of 	articulation with
feeder 	schools 	and 	use of 	ROP phones 	for 	non-ROP business).
Therefore, 	examining 	the motivating 	factors 	which 	stemmed
from Viardo's 	participation 	in negotiations 	(and were 	therefore
unlawful] 	and 	the 	Office's 	legitimate motivating 	factors
stemming 	from 	school 	district 	input 	at Pasadena 	and 	the 	six
39

before-described factors 	contained in the 	IAS, 	it 	is 	concluded
that while Viardo's 	exercise 	of protected rights 	was 	a
motivating 	factor 	the Office has 	shown 	that 	several 	lawful
areas 	in which Viardo was 	deficient were 	also 	considered 	and
that 	the 	Office would not 	have 	retained Viardo 	as 	one 	of 	the
12, 	out of a total of 22, 	counselors 	to be retained in the
absence of protected conduct. 	This 	being the case, 	it 	cannot
be 	concluded 	that it has 	been 	shown 	that 	the 	Office would not
have 	engaged 	in the 	complained-of 	conduct but 	for 	an unlawful
motivation, 	purpose or intent pursuant to Carlsbad, 	supra.777
Having so concluded, 	however, 	the hearing officer must
still 	examine 	the harm to 	employee rights, 	or 	determine
whether 	there 	is 	"slight harm" 	or 	"inherently 	destructive harm"
and resolve 	the 	charge 	accordingly pursuant 	to 	the 	second
prong 	of 	the 	Carlsbad 	test.
It 	is 	concluded 	that 	the Office's 	conduct 	in 	this 	case
tends 	to or 	does 	result 	in 	at 	least 	some 	harm 	to employee
rights 	granted 	under 	the EERA 	since, 	as 	concluded 	above, 	the
Office 	was 	motivated 	in part 	by 	an 	illegal purpose 	or 	intent.
77 In Belridge Teachers Association, 	CTA/NEA v. 	Belridge
School District 	(12/31/80) PERB Decision No. 	157 the PERBB	lB
itself 	considered 	a mixed 	motive 	case. 	Being 	unable 	to
determine 	what portion 	of 	a 	disciplinary 	action 	against 	an
employee 	was 	based 	on 	unprotected 	activity, 	the 	Board 	held 	that
the 	entire 	reprimand must 	fall. 	See 	also San Ysidro School
District 	(6/19/80) 	PERB Decision No. 	134.
40

It 	is 	further 	concluded 	that 	the 	harm 	to employee 	rights 	under
the 	facts 	of 	this 	case 	are 	"slight" 	rather 	than 	"inherently
destructive" 	since both 	the 	employer's 	action 	in 	this 	case,
transfer, 	and Viardo's protected 	activity, 	nondescript
participation 	on 	the 	negotiating 	team, 	appear 	similar 	in 	scope
to 	the 	employer's 	actions 	and 	activities 	considered 	by 	the PERB
itself 	in Carlsbad, 	supra, 	and 	implicitly found 	therein 	to be
"slight 	harm." 8
Balancing 	the 	competing 	interests 	of 	the Office 	and 	the
rights of 	the employees weighs 	in favor 	of 	the Office. 	The
Office's 	operational 	defense 	shows 	that Viardo 	had 	legitimate
criticism 	directed 	against 	her 	by Waller 	at 	Pasadena 	requesting
her 	transfer 	to 	another 	school 	district. 	This 	criticism
stemmed 	from 	specific 	deficiencies 	in Viardo's 	work 	product,
not Association 	activities, 	and 	included 	lack 	of 	in-depth
counseling, 	lack of 	vocational guidance, 	and preoccupation as 	a
paper-producer. 	with 	the 	exception of Haffner, 	the Office
received 	no 	other 	letters 	from districts 	requesting 	the
transfer 	of 	counselors. 	Additionally, 	after 	being 	transferred
to Santa Monica, Viardo's 	absences due 	to negotiations
generated 	criticism 	from district 	staff, 	in part, 	because
Viardo 	failed 	to 	keep 	district 	staff 	advised 	of 	her 	whereabouts
when 	absent. 	Finally, 	the 	IAS 	prepared 	by Fisher 	indicates
deficiencies 	in 	six 	areas 	unrelated 	to Association 	activities
as 	described 	above. 	Weighing 	the Office's 	defense 	that 	it
8 It 	is 	concluded 	that 	the 	PERB 	itself 	implicitly 	found
the 	harm 	in Carlsbad 	to be 	"slight 	harm" 	since 	it balanced the
harm 	to 	employees 	against 	the District's 	operational 	need
defense.
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considered 	the 	above 	factors 	and 	that 	Viardo 	compared 	less
favorably 	than 	any 	of 	the 	retained 	counselors 	against 	the 	harm
to 	employee 	rights 	due 	to perceived 	discrimination 	against
Viardo because of her Association activities, 	it 	is 	the hearing
officer's 	opinion 	that 	the Office's 	operational 	defense
outweighs 	the 	harm 	to 	employee 	rights 	and 	that 	the 	charge
should 	be 	accordingly 	dismissed.
No 	independent 	evidence 	of 	a 	section 	3543.5(d) 	violation
having 	been presented 	and 	no 	violation 	of 	section 	3543.5(a)
having been 	established, 	no violation of 	section 	3543.5(d) 	is
found.
PROPOSED 	ORDER
Based on 	the 	findings of 	fact, 	conclusions of 	law, 	and 	the
entire 	record 	in this 	case, 	the 	unfair 	practice 	charge 	against
the Los Angeles 	County Superintendent 	of Schools 	is 	hereby
DISMISSED.
Pursuant 	to California Administrative Code, 	title 8, 	part
III, 	section 	32305, 	this Proposed Decision and Order 	shall
become 	final on May 	19, 	1981 	unless 	a party files 	a 	timely
statement of 	exceptions within 	twenty 	(20) 	calendar 	days
following 	the 	date 	of 	service 	of 	the 	decision. 	Such 	statement
of 	exceptions 	and 	supporting 	brief 	must 	be 	actually 	received 	by
the 	executive 	assistant 	to 	the Board 	at 	the 	headquarters 	office
in Sacramento before 	the 	close of business 	(5:00 p.m.) 	on
May 19, 	1981 	in order 	to be 	timely 	filed. 	(See California
42

Administrative Code, 	title 8, part III, 	section 32135.) 	Any
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 Board
itself. 	(See Administrative Code, 	title 8, part III, 	sections
32300 	and 	32305, 	as amended.)
DATED; 	April 29, 	1981
Kenneth A. 	Perea
Hearing 	officer
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