Cupertino Union Elementary School District (PERB 0572E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 715, AFL-CIO,
Charging 	Party,
v.
CUPERTINO 	UNION 	ELEMENTARY
SCHOOL 	DISTRICT,
Respondent.
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) 	Case 	No. 	SF-CE-990
PERB 	Decision 	No. 	572
May 9, 	1986
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Appearance: 	Van Bourg, 	Weinberg, 	Roger 	& 	Rosenfeld by Vincent A.
Harrington, 	Jr., 	for 	Service 	Employees 	International 	Union, 	Local
715, AFL-CIO.
Before 	Morgenstern, 	Porter 	and Craib, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	comes 	before 	the 	Public
Employment 	Relations 	Board 	(PERB 	or 	Board) 	on 	appeal 	by 	the
Service 	Employees 	International 	Union, 	Local 	715, 	AFL-CIO 	(SEIU
or 	Charging Party) 	of 	a partial 	dismissal 	of 	an 	unfair 	practice
charge 	filed 	against 	the 	Cupertino 	Union 	Elementary 	School
District 	(District).
We 	have 	reviewed 	the 	dismissal 	issued 	by 	the 	Board's 	regional
attorney and 	find, 	in 	accordance 	with 	the 	discussion 	that
follows, 	that 	SEIU 	has 	presented 	factual 	allegations 	sufficient
to 	support 	a 	prima 	facie 	case 	that 	a 	group of 	employees 	was
selected 	for 	layoff 	because 	of 	participation 	in 	protected
activities 	by members 	of 	that 	group.

DISCUSSION
PERB 	Regulation 	326151 sets 	forth 	the 	required 	contents 	of
an 	unfair 	practice 	charge 	and 	obligates 	the 	charging 	party 	to,
inter 	alia, 	set 	forth 	in 	its 	charge 	"a 	clear 	and 	concise
statement 	of 	the 	facts 	and 	conduct 	alleged 	to 	constitute 	an
unfair 	practice." 	PERB Regulation 	32630 	authorizes 	dismissal 	and
refusal 	to 	issue 	a 	complaint 	"ti]f 	the 	Board 	agent 	concludes 	that
the 	charge 	or 	the 	evidence 	is 	insufficient 	to 	establish 	a prima
facie case . 	. 	. 	."
In 	the 	instant 	case, 	SEIU charges 	that 	the 	District
discriminated 	against 	a 	group 	of 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations Act 	(EERA).2 Specifically, 	the 	thrust 	of 	the 	charge
is 	that 	management 	implemented 	a 	layoff 	that 	targeted 	the
maintenance/trades 	department 	because 	of 	a 	high 	number 	of 	union
activists 	in 	that 	department.
In 	Novato 	Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	210, 	rev. 	den. 	(1/10/83) 	1 Civ. 	No. A017764, the Board set
forth 	those 	elements 	necessary 	to 	establish 	a 	charge 	of
discrimination. 	Accordingly, 	we 	have 	examined the 	charge 	to
determine 	whether 	Charging 	Party 	has 	included 	statements 	of 	fact
1PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 	8, 	section 	31001 et 	seq.
2EERA 	is 	codified 	at Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the Government 	Code.
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supporting 	allegations 	that 	the 	targeted 	group 	of 	employees
engaged 	in protected 	activity, 	that 	the 	employer 	had actual 	or
imputed 	knowledge 	of 	the 	protected 	activity, 	and 	that 	the
employer's 	conduct 	was 	motivated 	by 	the 	protected 	activity.
The 	charge 	filed 	on January 	11, 	1985 	states 	that 	those
employees 	laid 	off
. 	. 	. 	included one chief steward, 	four
current 	and 	former 	negotiators, 	five 	current
and 	former 	shop 	stewards, 	two 	chapter
officers, 	eight 	current 	and 	former 	members of
the 	joint 	Union/Management 	Personnel
Committee, 	three members of 	the 	safety
committee, 	and five members 	of 	the
District-sponsored cadre committee. 	. 	. 	.
The 	charge 	also 	details 	certain 	events 	that 	occurred 	in
1982-83 	involving 	Supervisor 	Gerald 	Burch 	and 	District 	Manager
Leroy 	Munoz 	and 	grievances 	and 	employment 	discrimination
complaints 	filed 	against 	them by 	employees, 	with 	the 	assistance
of 	SEIU. 	The 	charge 	further 	specifies:
The 	District, 	by and 	through 	its 	authorized
agents 	and 	representatives 	Munoz 	and 	Burch,
knew 	of 	the 	activism 	of 	the 	affected
maintenance 	department 	employees, 	in that
these 	employees 	acted 	as 	shop 	stewards 	in
dealing with 	both 	Munoz 	and 	Burch, 	met 	with
Burch 	and/or 	Munoz 	and 	other 	representatives
of 	the 	District 	in 	connection with 	the
meetings 	of 	the 	various 	committees 	with 	which
the 	employees worked, 	and 	further, 	that 	the
Union 	regularly 	and 	routinely 	adverted 	to 	the
officer 	or 	steward 	status 	of 	these 	employees
in 	communications 	and 	letters, 	flyers and 	the
like 	which 	were 	regularly 	distributed 	within
the 	School 	District.
In 	our 	view, 	the 	charge 	sufficiently 	establishes 	that 	the 	group
of 	employees 	selected 	for 	layoff 	had 	engaged 	in 	numerous 	protected
activities, 	and 	that 	the 	employer 	had 	knowledge 	thereof.
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Finally, 	in 	order 	to 	satisfy Novato, 	the charge must 	contain
sufficient 	allegations 	that 	link 	the 	layoff 	to 	the 	protected
activity and 	that, 	if 	true, 	would 	support 	an 	inference 	of 	unlawful
motivation. 	Charging 	Party makes 	such 	an 	allegation 	in 	its
charge.
But for 	the Union membership, 	affiliation, 	or
activities 	of 	the 	maintenance 	department
employees, 	they would 	not 	have 	been 	the
subject 	of 	these 	lay offs, 	because 	there were
various 	alternatives 	argued 	for, 	and
presented 	to 	the 	District 	by 	the 	Union, 	all
of 	which 	were 	effectively 	ignored 	by District
representatives 	in 	favor 	of 	the 	Munoz 	plan,
which 	had 	a 	direct 	and 	wholesale 	negative
impact 	on 	the 	blue 	collar 	Union 	leadership.
Moreover, 	a 	letter 	incorporated 	into 	the 	charge, 	dated August 	28,
1984, 	addressed 	to 	the 	District 	governing 	board 	from SEIU, 	refers
to 	the 	proposed 	layoffs 	and 	states:
However, 	our 	concern 	runs 	beyond 	the 	fact
that 	we 	believe 	an 	alternative 	organization
would work. 	It 	seems 	clear 	to us 	that 	the
District's 	proposal 	is 	not 	based 	solely 	on
organizational 	needs, 	but 	is 	being used 	to
"punish" 	or 	retaliate 	against 	a 	number 	of
workers who have, 	over 	the years, 	challenged
Leroy Munoz, 	the department's manager. 	It
seems 	far 	too 	coincidental 	to 	us 	that 	the
effect 	of 	the 	proposed 	organization 	is 	to
completely 	lay off, 	out 	the 	door, 	virtually
every 	Facilities 	member 	of 	the 	Union/District
Personnel 	Committee, 	and 	eliminates 	the
Union's past President, 	4 or 	5 past and
present Negotiators, 	the Chief Steward, 	and
2 	to 3 	current 	or 	former 	Shop Stewards, 	and
the 	[sic] 	all 	but one member 	of 	the
Facilities 	Cadre 	"Committee" 	(including 	the
supervisor).
It 	would 	take many pages 	to 	detail 	all 	the
possible 	reasons 	for 	such 	action 	on
Mr. 	Munoz's part. 	Several 	of 	the more
outstanding 	confrontations 	and 	differences
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of 	opinion 	are 	described 	in 	Attachment 	D.
Suffice 	it 	to 	say 	here 	that 	there 	is 	a
history 	of 	Unfair 	Labor 	Practice 	Charges
against 	Mr. 	Munoz 	and his 	subordinates;
ongoing 	complaints 	in 	Personnel 	Committee
about 	clear 	errors 	in 	judgment; 	an 	EEOC
suit; 	and a 	letter 	to 	this Board 	18 months
ago 	detailing 	areas 	where 	we 	believed 	Mr.
Munoz 	and 	Mr. 	Belote 	had 	badly mismanaged
summer 	scheduling 	and 	relationships 	with
contractors. 	All 	these 	could well 	create 	a
desire 	to 	retaliate 	against 	us 	when 	the
opportunity 	presents 	itself.
Indeed, 	as 	SEIU 	suggests, 	there 	are many pages 	of documents
attached 	to 	the 	charge 	itself 	detailing 	the 	possible 	motivational
link 	between 	the 	protected 	activity 	and 	the 	layoff. 	Incidents
beginning 	in 	1982 	characterize 	an 	antagonistic 	relationship
between 	management 	and 	the 	employees 	and 	their 	representative.
From 	our 	review 	of 	the 	allegations 	and 	the 	documents 	attached 	to
the 	charge,3 we 	find 	sufficient 	circumstantial 	evidence 	from
which 	an 	inference 	can 	be 	drawn 	that 	there 	may be 	a 	link 	between
past 	aggressive 	union 	activity 	and 	the 	decision 	to 	lay 	off 	the
maintenance 	group. 	In so concluding, 	however, 	no final
determination 	of 	these 	charges 	is made 	or 	inferred. 	The matter
before 	the 	regional 	attorney 	and 	before 	the 	Board 	at 	this
juncture 	is 	only 	the 	adequacy 	of 	Charging 	Party's 	prima 	facie
case. 	The 	proving of 	the 	elements of 	the 	prima 	facie case, 	and
the 	issue 	of whether 	the 	employer 	would 	have 	acted 	as 	it 	did
3 The 	allegations 	in a 	charge 	are 	presumed 	true 	for 	the
purpose 	of 	reviewing 	a 	dismissal 	prior 	to 	hearing. 	San 	Juan
Unified 	School 	District 	(1977) 	EERB Decision No. 	12. 	(Prior 	to
January 	1, 	1978, 	PERB was 	known as 	the 	Educational 	Employment
Relations 	Board 	or 	EERB.)
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but 	for 	the 	employees' 	union 	activities, 	are properly 	the
subjects 	of 	an 	evidentiary 	proceeding 	before 	an 	administrative
law 	judge.
In 	reaching 	this 	conclusion, 	we 	are mindful 	of 	the 	fact 	that
the 	regional 	attorney's 	task 	of 	evaluating 	the 	charge 	would 	have
been 	facilitated 	had 	SEIU 	named 	the 	individuals 	affected 	and
supplied 	other 	requested 	information. 	However, 	in 	our 	view, 	the
gravamen 	of 	SEIU's 	charge 	is 	that 	the 	layoff 	discriminatorily
targeted 	a 	group 	of 	employees 	that 	included 	numerous 	union
activists. 	Where 	an 	employer's 	decision 	to 	lay 	off 	a 	group 	of
employees 	is 	unlawfully motivated 	by 	the 	union 	activism 	of 	some
members 	of 	the 	group, 	the 	layoff 	is 	unlawful 	as 	to 	the 	entire
group.444
In 	addition 	to 	the 	charge 	alleging 	discrimination 	against 	the
maintenance 	group, 	we 	also 	find 	the 	facts 	set 	forth 	in 	the 	charge
are 	sufficient 	to 	state 	a prima 	facie 	case 	that 	the 	employer
interfered with 	the 	employees' 	rights 	to 	engage 	in 	protected
activity 	and with 	the 	employee 	organization's 	rights 	as 	well.Ur	5
4 Thi 4
This conclusion is in accord with federal case law. 	See,
e.g., 	REA Trucking Company, 	Inc. 	(1969) 	176 NLRB 520 	[72 LRRM
1449] 	enfd. 	(9th Cir. 	1971) 	439 F.2d 	1065 	[76 LRRM 3018];
Hedison 	Manufacturing 	Company 	(1980) 	249 	NLRB 	791 	[104 	LRRM
1506]; 	and Howard Johnson Company 	(1974) 	209 	NLRB 	1122 	[86 	LRRM
1148].
5Should 	Charging 	Party's 	theory 	change 	to 	one 	alleging
retaliation 	or 	interference 	directed 	at 	specific 	individual
employees, 	then 	Charging 	Party 	should move 	to 	amend 	its 	charge
accordingly.
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Thus, 	the 	complaint 	that 	will 	issue 	shall 	include 	an alleged
violation of section 3543.5(a) 	and 	(b).6 6
One 	final 	note. 	Charging 	Party 	has 	treated 	this 	as 	a 	test
case 	of 	the 	authority 	of 	the 	regional 	attorney. 	Some 	of 	the
arguments 	made 	in 	support 	of 	the 	appeal 	stray 	from 	the 	mark. 	For
example, 	no effort 	was made 	by the 	regional 	attorney 	to make
policy 	determinations, 	as 	Charging 	Party 	suggests. 	Nor 	does 	the
fact 	that 	the 	general 	counsel's 	office 	does 	not 	prosecute 	unfair
practice 	charges 	undercut 	the 	agency's 	right, 	through
investigation, 	to 	screen 	out 	nonmeritorious 	charges. 	While 	the
public may 	not 	be 	paying 	Charging 	Party's 	attorney, 	it 	is 	paying
for 	administrative 	law 	judges, 	Board members, 	Board 	counsel 	and
facility 	and 	support 	staff 	involved 	in 	processing 	charges 	once
complaints 	have 	issued. 	School 	district 	reimbursement 	for
EERA-generated 	costs 	is 	another 	statewide 	public 	expense. 	In
sum, 	the 	regional 	attorney 	has 	good 	reason 	to 	attempt 	to 	get 	as
much 	information 	as 	possible, 	and 	charging parties 	jeopardize
their 	cases 	by 	refusing 	to 	cooperate.
6Section 	3543.5 	provides, 	in pertinent 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.
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All 	that 	aside, 	however, 	District animosity towards 	the
employees 	of 	the 	maintenance/trades 	department, 	based 	on 	the
extensive 	union 	activities 	of 	some 	employees 	of 	that 	department,
is 	inferable 	from 	the 	facts 	alleged 	in 	the 	charge, 	and 	that
alleged 	animosity may 	have 	been 	a 	factor 	in 	making 	the 	broad
scale 	maintenance 	layoff 	decision. 	We 	do 	not 	believe 	that 	the
information 	requested 	by 	the 	regional 	attorney 	in 	this 	instance
was 	essential 	to 	reach 	a 	conclusion 	that 	a 	prima 	facie 	case 	of
discriminatory 	layoff 	and/or 	interference 	involving 	the
maintenance/trades 	department 	has 	been 	stated.
ORDER
Based 	on 	the 	foregoing, 	we 	REVERSE 	the 	regional 	attorney's
partial 	dismissal 	of 	the 	charge 	and 	ORDER 	that 	a 	complaint 	issue
and 	the 	case 	proceed 	to 	hearing 	under 	the 	direction 	of 	the 	chief
administrative 	law 	judge.
Members 	Porter 	and 	Craib 	joined 	in 	this 	Decision.
88