San Francisco Unified School District (PERB 0573E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN 	FRANCISCO 	SUBSTITUTE
TEACHERS 	ORGANIZATION.
Charging 	Party.
v.
SAN FRANCISCO UNIFIED SCHOOL DISTRICT.
Respondent.
)
)
)
) 	Case No. 	SF-CE-972
PERB Decision No. 	573
May 23, 	1986
)
)
)
)
)
)
Appearances; 	Norma Lee Cook, 	High School Representative, 	for
the 	San Francisco 	Substitute 	Teachers 	Organization;
George Agnost, City Attorney, 	and Jerry J. 	Spain, 	Deputy City
Attorney, 	for 	San Francisco Unified 	School District.
Before Burt, 	Porter and Craib, 	Members.
DECISION
BURT, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on exceptions 	filed 	by 	the
San Francisco 	Substitute 	Teachers 	Organization 	(SFSTO 	or
Charging Party) 	to 	the 	attached 	decision of 	the 	administrative
law judge 	(ALJ). 	In that decision, 	the ALJ 	dismissed 	charges
that 	the 	San Francisco 	Unified 	School 	District 	(District)
violated 	section 	3543.5(a) 	of 	the Educational 	Employment
Relations 	Act 	(EERA)4 by 	barring Norma 	Cook, 	a 	substitute
1EERA 	is 	codified 	at Government 	Code 	section 	3540 	et 	seg.
Unless 	otherwise 	indicated 	all 	statutory 	references 	are 	to 	the
Government Code.
Section 3543.5 	provides, 	in pertinent part:
___ )
,

It 	shall 	be unlawful 	for 	a 	public 	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.
teacher, 	from future 	assignments 	at 	certain District 	schools 	in
retaliation 	for 	her 	organizational 	activity.
The 	District's 	action 	followed 	an 	isolated 	security
incident 	at 	one 	of 	the 	schools. 	Although the memo 	implementing
the 	assignment 	restriction 	stated 	only 	that 	Cook 	had 	proven
"inappropriate" 	in dealing with students 	at 	its 	special
schools, 	the District administrators 	called 	as 	adverse
witnesses 	testified 	at 	hearing 	that 	this 	incident was 	the 	sole
basis 	for 	the 	restriction.
At 	the 	close 	of 	SFSTO's 	case, 	the ALJ 	granted 	the
District's 	motion 	to 	dismiss 	for 	failure 	to 	establish a 	prima
facie 	case 	of 	retaliation. 	The missing element 	in Charging
Party's 	prima 	facie 	case was 	proof 	of 	an anti-union motive 	to
establish 	the 	nexus 	between 	protected 	activity 	and 	adverse
action. 	Charging Party argued 	that 	this 	nexus 	could 	be
inferred 	from the District's 	treatment 	of 	Cook, 	a 	previously
acceptable 	or 	even desirable 	substitute, 	coupled with a
conversation 	in which 	the District 	administrator 	who 	imposed
the 	restriction abruptly assumed 	a 	hostile 	tone 	on 	learning 	of
Cook's 	union activities.
.,

The ALJ 	concluded 	that:
. 	. 	. 	no matter how distasteful the
procedure 	followed 	by 	the District 	in
dealing with a 	security 	breach 	by a
well-intentioned employee, 	this 	conduct,
standing alone, 	does not warrant a
continuation of 	the 	hearing and 	a 	shifting
of 	the 	burden of 	proof.
He 	indicated 	that 	had 	there 	been 	any 	evidence 	of 	anti-union
animus 	in addition to 	the 	evidence 	of 	the District's
"distasteful" 	procedures, 	he 	could 	have 	found 	a 	prima 	facie
case. 	However, 	he 	found 	that Cook's 	testimony about her
conversation with 	the 	administrator 	failed 	to 	establish 	a
hostile 	change 	in 	tone 	related 	to 	her 	disclosure 	of 	union
activities, 	and 	that 	there was 	no 	other 	evidence 	of 	anti-union
animus 	by District 	administrators 	directly 	involved 	or 	by 	the
District 	in general.
DISCUSSION
We 	find 	that 	the ALJ's 	findings 	of 	fact 	are 	free 	from
prejudicial 	error, 	and we 	adopt 	them as 	our 	own.2 Charging
Party's 	exceptions 	were 	prepared 	and 	signed 	by Norma 	Cook
herself 	on behalf 	of 	SFSTO, 	and 	reflect Cook's 	personal
involvement 	in every detail 	of 	this 	dispute with her 	employer.
For 	the most 	part, 	the 	findings 	excepted 	to are not 	actually
adverse 	to 	Charging Party's 	case. 	Even 	if 	these 	exceptions
2 In adopting 	the ALJ's 	findings 	of 	fact 	and 	affirming 	his
decision, 	we do 	not 	adopt 	his 	comments 	about 	the District's
actions which are 	peripheral 	to 	the 	resolution of 	the 	case.
33

were 	upheld. 	Charging Party would 	still 	fail 	to 	establish a
prima 	facie 	case. 	As 	summarized 	below, 	only one 	of 	these
exceptions 	warrants 	serious 	examination.
Her 	exceptions 	consist 	of 	five 	numbered 	paragraphs. 	The
first 	three 	exceptions 	essentially quibble 	with 	the ALJ's
factual 	findings 	concerning 	Cook's 	responsibility 	for 	the
alleged 	security 	breach. 	None 	of 	the 	points 	raised 	by Cook 	are
inconsistent with the ALJ's 	findings, 	which are 	supported 	by
the 	record. 	In any event, 	even 	if 	these exceptions were
well-taken, 	they would 	have 	no 	impact 	on 	the 	outcome 	of 	the
case 	because 	the ALJ's 	findings 	on 	responsibility for 	the
breach are 	not 	adverse 	to Cook's 	case. 	His 	decision
acknowledges 	the District's 	poor 	handling 	of 	the 	incident.
In her 	fourth exception. 	Cook offers 	additional 	evidence
that 	the District's 	reasons 	for 	terminating 	her 	Youth Guidance
Center 	(YGC) 	assignment 	earlier 	than 	she 	had 	anticipated were
pretextual. 	Cook 	claims 	that 	she 	first 	became 	aware 	of
Principal 	Gloria 	Burchard's 	reason 	for 	terminating 	her
assignment when 	she 	testified 	at 	hearing 	that 	Cook's 	assignment
was 	to 	last until 	the 	end 	of 	the year 	"unless 	she 	(Burchard)
was 	able 	to 	fill 	a 	learning specialist 	position." 	Cook would
show by 	the 	testimony of 	additional witnesses 	that 	the
"supposed 	learning 	specialist" 	who 	filled 	her 	position 	did 	the
same 	job 	she 	had 	done.
4

We 	reject 	this 	exception on two 	grounds. 	In 	the 	first
place. 	Charging Party was 	represented 	by counsel 	at 	the
hearing. 	On 	learning of 	this 	new aspect 	of 	the 	case 	during
examination of 	an adverse witness, 	counsel 	could 	have 	arranged
to 	present 	additional 	relevant 	evidence.
Moreover, 	the 	relevance 	of 	the 	early 	termination of 	Cook's
assignment 	to 	the District's 	action restricting 	her 	future
assignments 	was 	never 	established. 	The ALJ 	found 	no 	evidence
indicating 	that 	the 	termination 	of 	the 	assignment was 	a 	factor
in the 	later 	decision to 	restrict 	assignments. 	The ALJ
acknowledged 	that 	his 	view of 	the 	decision 	to 	restrict
assignments 	would 	be 	different 	if 	the 	record 	showed 	that 	other
District 	actions 	had 	improper motivation. 	However, 	there 	is 	no
evidence 	in 	the 	record 	that 	Burchard 	was 	motivated 	by Cook's
activities 	to 	terminate 	her 	assignment 	early, 	notwithstanding
Cook's 	suspicions.
In her 	fifth exception. 	Cook questions 	the ALJ's 	conclusion
that 	her 	union activities were 	of 	no 	concern to Burchard. 	She
also 	expresses 	her 	view that 	both Ana Horta, 	Burchard's
District 	supervisor 	who wrote 	the 	restricting memo, 	and
Burchard wanted 	to 	get 	rid 	of 	her 	because 	of 	her 	activity 	in
speaking on behalf 	of 	teachers 	at 	the YGC.
Her version may well, 	in fact, 	express 	the reality of 	the
case. 	However, 	the difficulty is 	that 	she 	relies upon several
matters, 	most of which were touched on briefly, 	if at all, 	in
5

the 	record. 	In any event, 	this 	exception really challenges 	the
ALJ's 	overall 	decision 	in the 	case.
The 	Board 	established 	its 	test 	for 	discrimination 	in Novato
Unified 	School District 	(1982) 	PERB Decision No. 	210. 	When 	the
allegation 	is 	that 	of 	reprisals 	against 	an employee 	for
protected 	activity, 	charging 	party must 	establish 	that 	the
employee 	was 	engaged 	in 	protected 	activity 	and 	that 	that
activity was 	known 	to 	the 	employer. 	Charging 	party must 	also
introduce 	evidence 	sufficient 	to 	raise 	an 	inference 	that 	the
employer's 	action was motivated 	by 	that 	conduct, 	since unlawful
motive 	is 	the 	nexus 	required 	to 	establish a 	prima 	facie 	case.
Unlawful 	motive 	may 	be 	established 	by 	circumstantial 	evidence
and 	inferred 	from the 	record 	as 	a whole. 	Once 	the Charging
Party has 	made 	a 	prima 	facie 	showing 	sufficient 	to 	raise 	the
inference 	that 	protected 	activity was 	a motivating 	factor, 	the
burden shifts 	to 	the 	employer 	to 	prove 	that 	its 	actions would
have 	been the 	same 	regardless 	of 	the 	protected 	activity. 	This
shift 	in 	the 	burden 	of 	producing 	evidence 	must 	operate
consistently with 	the 	Charging 	Party's 	obligation 	to 	establish
an unfair 	practice 	by a 	preponderance 	of 	the 	evidence.
This 	is 	consistent with 	both California 	and National 	Labor
Relations 	Board 	(NLRB) 	precedent 	(Martori 	Brother 	Distributors
v. 	Agricultural Labor Relations Board 	(1981) 	29 	Cal.3d 	721.
729-730; Wright Line. 	Inc.. 	(1980) 	251 NLRB 150 	[105 LRRM
1169], 	enf., 	in part. 	(1st Cir. 	1981) 	662 F.2d 	899 	[108 	LRRM
2513].
66

V
The 	Board 	has 	considered 	several 	circumstances 	as
indications of unlawful motivation, 	see Novato, 	supra, 	which
are present here, 	including: 	inadequate 	explanation to the
employee. 	Rio Hondo Community College District 	(1982) 	PERB
Decision No. 	226. 	San Diego Community College District 	(1983)
PERB Decision No. 	368; 	inadequate 	investigation. 	Baldwin Park
Unified 	School District 	(1982) 	PERB Decision No. 	221; 	the prior
record of 	the employee, 	Baldwin Park, 	supra. 	San Joaquin Delta
Community College District 	(1983) 	PERB Decision No. 	261;
unusually harsh treatment, 	Baldwin Park, 	supra. 	San Joaquin
Delta, 	supra; 	and 	the fact 	that usual 	procedures were not
followed. 	Santa 	Clara Unified 	School District 	(1979) 	PERB
Decision No. 	104. Novato, 	supra, Baldwin Park, 	supra.
Here, 	Charging Party has 	superficially presented 	a
classical 	outline 	of 	a 	prima 	facie 	case 	of 	retaliation. 	An
acceptable 	or 	even desirable 	employee 	is 	subject 	to 	arbitrary
discipline 	by a 	senior 	administrator 	shortly after 	a
conversation with 	that 	administrator 	in which 	(a) 	the 	employee
reveals 	her 	status 	as 	a union activist and 	(b) 	she 	engages 	in
the 	protected 	activity 	of 	discussing 	teacher 	difficulties 	at 	an
institution under 	that 	administrator's 	control. 	The 	discipline
is 	arbitrary in that 	it 	is excessive. 	It 	is handled
differently 	than usual 	in 	that 	the 	evidence 	indicates 	that 	the
,normal 	course would 	be 	for 	Burchard 	rather 	than Horta 	to 	take
action with 	regard 	to 	an 	incident 	at 	the 	institution 	she
administered. 7

Moreover, 	it 	is unclear 	that Burchard 	alone would 	have
taken action with regard 	to 	Cook's 	actions 	at 	the YGC, 	and 	she
had 	no 	authority 	to 	take 	action with 	regard 	to 	other 	schools.
However, 	the Charging Party has 	presented 	a 	more 	complex
picture, 	by virtue 	of 	the adverse witnesses 	called 	to 	establish
various 	aspects of 	its 	own case. 	These witnesses, 	even 	in
their 	conflicting 	testimony, 	show another 	motive 	(although 	it
is 	difficult 	to 	characterize 	that 	motive 	as 	a 	"business
justification"). 	In the face of 	this evidence, 	the ALJ 	found
that 	Charging Party would 	never 	be 	able 	to 	establish 	that 	the
discipline 	of 	Cook was 	more 	likely 	than not 	a 	result 	of 	her
protected 	activity. 	In essence 	the ALJ 	found 	that 	the
testimony 	presented 	by 	the 	adverse 	witnesses 	effectively
rebutted 	her 	case 	that 	the 	action was 	taken 	in 	retaliation 	for
protected 	activity 	rather 	than 	for 	another 	reason. 	He
therefore 	stopped 	the 	hearing, 	and 	entertained 	a motion 	to
dismiss, 	so 	that 	the District's 	case was 	never 	fully presented.
We 	are 	somewhat 	troubled 	by 	the ALJ's 	failure 	to 	go 	forth
with the hearing since, 	as noted above, 	the elements 	of 	a prima
facie 	case 	are arguably there. 	Further, 	because of 	the way the
case was 	presented 	and 	decided, 	the 	distinction 	between 	failure
to 	establish a 	prima 	facie 	case 	by 	the 	Charging Party and
the 	affirmative 	defense 	of 	an 	alternative 	justification 	offered
by the District 	is 	blurred. 	On the whole, 	however, 	after
thorough review of 	the 	record, 	we 	agree with the ALJ 	that 	the
.
8

Charging Party has 	not 	carried 	its 	burden 	of 	establishing 	that
discrimination was 	more 	likely 	than 	not 	the 	reason 	for 	the
adverse 	action--that 	the 	case 	is 	simply 	too 	circumstantial—and
that 	no 	purpose 	would 	have 	been 	served 	by 	continuing 	the
hearing. 	We 	therefore 	affirm the 	decision 	of 	the ALJ.
ORDER
The unfair 	practice 	charge 	in case No. 	SF-CE-972 	is 	hereby
DISMISSED.
Members 	Porter 	and 	Craib 	joined 	in 	this 	Decision.
9

STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN 	FRANCISCO 	SUBSTITUTE
TEACHERS 	ORGANIZATION,
Charging Party,
V.
SAN 	FRANCISCO 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
)
)
) Unfair 	Practice
Case No. 	SF-CE-972
PROPOSED 	DECISION
(6/20/85)
)
)
)
)
)
Appearances: 	Ernest 	Fleischman, 	attorney for 	the 	charging
party; 	Jerry Spain, 	deputy city attorney, 	for 	the respondent.
Before: 	Barry Winograd, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
The 	issue 	to be 	decided 	is 	whether 	the 	charging party has
presented 	a 	prima 	facie 	case 	of 	unlawful 	reprisal 	against 	an
active 	member 	of 	an 	employee 	organization.
On December 	10, 	1984, 	the charging party San Francisco
Substitute 	Teachers 	Organization 	(hereafter 	SFSTO) 	filed 	an
unfair 	practice 	charge 	against 	the 	San 	Francisco 	Unified 	School
District 	(hereafter 	District). 	The charge alleged 	that 	in
June 	1984 	the 	District barred 	Norma Cook, 	a 	substitute 	teacher,
from working 	at 	certain 	schools 	in 	retaliation 	for 	her
organizational activity. 	According to the charge, 	this ban was
discriminatory and 	violated 	section 	3543.5(a) 	of 	the
Educational 	Employment Relations Act 	(hereafter EERA or Act).1
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
' 	.
• '
I
1

et 	seq., 	and 	is 	administered by 	the Public 	Employment 	Relations
Board 	(hereafter 	Board or 	PERB). 	Unless otherwise 	indicated,
all 	statutory 	references 	in 	this 	decision are 	to 	the Government
Code. 	Section 	3543.5 of 	the 	Act provides 	that 	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.
On January 4, 	1985 	a 	complaint was 	issued. 	The 	District's
answer 	was 	filed on 	January 	25, 	admitting 	certain 	facts 	but
generally 	denying 	the 	allegations 	of 	unlawful 	employer
conduct. 	A settlement 	conference on January 25, 	1985 	failed 	to
resolve 	the 	dispute.
The 	formal hearing took 	place on April 4, 	9 	and 16, 	1985.
At 	that 	point, 	after 	presentation of 	the 	charging party's
case-in-chief, 	respondent moved to dismiss 	the case, 	contending
that 	the 	evidence 	did not 	demonstrate 	a 	prima 	facie 	violation
of 	the 	Act. 	The hearing was 	recessed 	to permit 	briefs 	on 	the
issue. 	The matter was 	submitted on June 	12, 	1985.
FINDINGS 	OF 	FACT
A. 	The 	Youth 	Guidance 	Center.
The 	setting 	for 	this 	case 	is 	the 	Youth 	Guidance 	Center
(YGC), 	a short-term youth 	detention 	facility in 	San Francisco
that also contains 	a 	functioning court, 	medical 	clinic and
school. 	The 	District runs 	the educational 	program, 	which
includes 	about 	eight 	teachers 	as well 	as 	several 	instructional
22

aides. 	From time 	to time, 	substitute 	teachers 	also are used.
The principal 	for 	the past 	three years has been
Gloria Burchard. 	In 1983-84, 	her 	supervisor was Ana Horta, 	an
administrator 	based at 	the 	District's 	downtown 	headquarters.
Within 	the YGC 	facility, 	employees 	known 	as 	counselors 	have
main 	responsibility 	for 	security, 	although 	all 	workers 	are
expected 	to 	abide 	by established 	rules 	and 	procedures.
Visitors 	to 	the 	central 	lockup 	are 	required to have 	a 	written
pass 	and 	to 	sign a 	record book. 	The 	procedure 	for 	access 	to
the 	classroom teaching areas 	appears 	to be 	less 	strict, 	as
long-term 	teachers 	are 	given 	keys 	which 	they 	retain 	for 	ongoing
use 	until 	they 	stop 	teaching. 	Day-to-day 	substitutes 	also 	are
given keys, 	but are required 	to return 	them each 	day. 	A
secretary 	in 	the principal's 	office maintains 	a 	log 	to 	regulate
the 	distribution 	and 	return 	of 	keys.
While 	there 	is 	no 	formal 	security orientation 	for
substitute 	teachers working at 	YGC, 	there 	is a 	four-page
"information 	sheet" 	that 	is 	passed out by 	the 	principal's
secretary. 	The 	information 	sheet 	instructs substitutes 	to
return 	their 	key to 	the 	school 	secretary after 	school. 	There
is no guidance, 	however, 	about 	the need for passes 	and
signing-in when 	visiting 	a main 	lockup area. 2
2 The 	evidence 	is 	insufficient 	to 	support 	admission 	of 	the
information 	sheet 	as 	a 	business 	record 	customarily 	disseminated
to incoming substitutes. 	(See Evid. 	Code sec. 	1271, 	1280.) 	The
secretary was 	not 	called as a witness, 	Burchard had no 	checklist
W3

or 	sign-off 	system 	that 	would 	confirm 	receipt 	of 	the 	document,
and 	Cook 	claimed 	she had not 	seen 	the 	instructions. 	Nonethe-
less, 	since PERB, 	with limited exceptions, 	is not bound by the
rules of evidence 	(see Cal. 	Admin. Code, tit. 	8, sec. 	32176),
some weight 	can be 	given 	to 	the material 	as evidence 	of 	security
consciousness at YGC. 	Also, 	distribution by the school 	secre-
tary would 	be 	consistent 	with 	testimony 	about 	other 	functions
performed by 	that 	employee, 	namely, 	key 	control 	and 	signing
substitutes' 	time sheets 	for 	payroll 	use.
B. 	Cook's 	employment 	and 	organizational 	activity.
Norma 	Cook 	has been 	a 	District 	substitute 	since 	the 	late
1960's. 	In 	the past several 	years 	she has worked mostly 	in 	the
general high 	schools, 	but also has 	worked occasionally at 	the
YGC 	school. 	In 	March 	1984 her 	service 	at YGC 	increased
following 	Burchard's 	specific 	request 	for 	Cook's 	assignment 	to
an 	extended 	substitute 	position. 	Burchard 	expected 	the
assignment 	would 	last 	until 	the 	end of 	the 	school 	year 	unless
she was 	able 	to 	fill 	a 	learning specialist 	position 	that was
vacant. 	Cook worked as a 	continuous 	substitute 	for 	32 	days,
from March 23 	until May 14, 	1984.3
The 	SFSTO was 	formed 	in 	the 	early 1980's, 	and Cook 	has been
an 	active 	member 	since 	1982. 	Following 	certification by 	the
PERB, 	Cook 	has been 	on 	the 	negotiating 	team and participated 	in
more 	than 	two years 	of 	talks with 	the 	District. 	She 	also has
3Continuous service 	beyond 	20 	days 	entitled Cook 	to 	a 	per
diem bonus. 	She did not, 	however, 	meet the District's standards
for 	long-term 	status 	that 	would have 	placed her 	on 	the 	regular
teacher 	salary schedule. 	There 	is 	evidence 	that 	payment 	status
is 	a major 	concern 	for 	substitute employees, 	but 	there 	is no
indication 	that 	it 	was 	a 	factor 	affecting 	the 	District's
limitation 	on Cook's 	employment 	that 	is 	at 	issue 	in 	this 	case.
4

served 	as 	the 	organizational 	representative 	for 	high 	school
teachers. 	Burchard was aware of 	Cook's activities, 	at 	least by
summer 	1983 	when Cook 	had 	informal 	contacts 	about 	substitute
employee 	concerns. 	Once 	in a while, 	Cook and 	Burchard also
discussed 	the 	protracted negotiations, 	with 	Burchard 	even
suggesting 	a mileage 	reimbursement 	idea 	at 	one 	point.
The 	only 	indication 	of 	possible 	union 	animus 	by 	Burchard
concerned her 	denial 	of 	Cook's 	request 	to be 	released 	from one
class hour 	to attend a 	factfinding session on April 	11, 	1984.
The 	request, 	which was made 	either 	the afternoon before or 	the
morning of 	the meeting, 	was personal 	in nature, 	and was not
based 	on 	any 	released 	time 	arrangement 	that 	had 	been 	negotiated
with 	SFSTO. 	In any event, 	Cook 	attended 	the 	session 	during a
preparation 	period and 	over 	her 	lunch hour. 	There 	is 	no
evidence 	that 	Burchard 	objected 	to 	this 	particular 	use 	of
non-class 	working hours 	for 	an 	organizational 	purpose.
Although 	Cook's 	extensive 	SFSTO 	involvement 	was 	known 	to
Burchard, 	and also to 	Albert Cheng, 	the 	District's personnel
coordinator 	who had 	duties 	related 	to negotiations, 	there 	is 	no
evidence that Ana Horta, 	Burchard's supervisor, 	knew of Cook's
activities, 	except 	as Cook 	herself 	allegedly 	told 	Horta 	about
them during a meeting on 	May 25, 	1984. 	The conflicting
evidence 	about 	that 	meeting will 	be 	reviewed 	below.
C. 	Events 	related 	to the 	May 	15 	incident.
On 	May 14, 	1984, 	Burchard told Cook 	that she would no
longer 	be 	needed 	as 	a 	continuous 	substitute because 	a 	vacancy
55

had been 	filled. 	Cook 	was 	disappointed with 	the news, 	but 	it
was 	not 	entirely 	unexpected 	given 	previous 	conversations 	on 	the
subject. 	Burchard did believe, 	however, 	that 	Cook 	would return
at 	some point as 	a 	day-to-day substitute.
The 	prospect 	of 	Cook 	teaching 	again 	at 	YGC 	was 	conceded 	in
Burchard's 	testimony, 	despite her 	misgivings 	based 	on 	two
work-related 	areas. 	One 	involved 	the 	principal's 	earlier
notice 	to 	Cook 	about procedures 	to 	follow when 	checking 	in 	each
day. 	The 	second 	concerned 	Cook's 	possibly 	excessive 	two-day
suspension of 	a 	disruptive student. 	Since, 	by the admission 	of
District 	witnesses, 	these 	facets 	of 	Cook's 	work 	did not 	form
the 	basis 	for 	the 	later 	disciplinary 	limitation 	imposed by 	the
District, 	further 	analysis of 	them is 	unwarranted.
When 	Burchard 	notified 	Cook 	on 	May 	14 	about 	the 	end 	of 	the
extended 	assignment 	she 	did 	not 	ask 	Cook 	to 	return 	the 	school
key. 	Nor 	did 	Cook 	give 	the 	key back 	when 	she picked 	up her
time 	sheet 	from 	the 	school 	secretary 	at 	the 	end 	of 	the 	day.
After 	school was 	over 	on May 14, 	Cook 	visited a 	female
detainee 	who 	had 	recently been 	sentenced 	and 	with 	whom Cook 	had
developed a 	rapport. 	The detainee 	introduced Cook 	to her
public 	defender, 	who was 	trying to place 	the detainee 	in a
halfway house 	rather 	than 	in 	the 	prison-like 	facility 	of 	the
California 	Youth Authority. 	The 	public 	defender 	expressed
interest 	in 	ongoing visits by 	Cook with 	the 	detainee 	to help on
her 	case, 	particularly a pending rehearing on 	the 	sentencing.
The next 	day, 	May 15, 	Cook 	returned 	in mid-morning 	to 	see
6
6

the 	detainee. 	Cook 	met 	first 	with 	a 	probation 	officer 	working
on 	the 	case and was 	given permission 	to 	go 	into 	the 	lockup
receiving area. 	Cook 	still 	had her 	key and, 	perhaps 	for 	this
reason, 	was not given a pass. 	Once 	inside, 	after 	Cook had been
talking to the detainee 	for 	a few minutes, 	a 	counselor 	asked
Cook 	to 	leave because 	she had no authorization pass. 	When 	Cook
did 	not 	depart, 	the 	counselor 	telephoned her 	supervisor 	who
also 	directed 	Cook 	to 	leave. 	Cook 	complied with 	the 	request.
Cook's visit 	inside 	the 	lockup without a pass, 	and her
initial 	failure 	to 	follow 	the 	counselor's 	instruction, 	prompted
immediate 	interagency 	concern 	at 	the 	YGC. 	Burchard was
informed while 	the event 	unfolded, 	but 	Cook, 	who was 	in 	a hurry
to 	go elsewhere, 	failed to answer 	Burchard's 	page until 	a phone
call 	that 	night. 	Burchard 	spoke with 	probation 	officials
during the morning of May 15, 	and, 	in the afternoon, 	the issue
was 	discussed 	at 	a 	YGC 	administrative 	meeting of 	key 	staff
officials 	from different 	departments. 	Burchard 	also 	informed
Horta of 	the 	day's 	events, 	promising 	to 	follow up with 	an
investigation 	report.
That 	night, 	Cook 	explained her 	view of what 	occurred when
she 	spoke with 	Burchard. 	Burchard 	instructed 	Cook 	about 	the
need 	for 	a pass 	and 	for 	signing-in 	for 	visits. 	The 	next 	day
Cook 	returned 	the 	school 	key to 	the 	principal's 	office.
Burchard 	also 	confirmed 	Cook's 	account 	of 	having 	received 	the
probation 	officer's 	permission 	to 	enter 	the 	lockup. 	In 	a
letter 	Burchard 	later 	wrote 	to 	the 	chief 	probation 	officer
77

summarizing her 	findings, 	there was 	no 	recommendation 	for
discipline. 	In 	the same 	letter, 	Burchard did observe 	that 	Cook
was 	no 	longer 	in 	a 	school 	employee 	capacity when 	she 	visited 	on
May 15, 	or thereafter.
Cook 	visited 	the detainee 	a 	few 	times 	after 	May 	15, 	using
passes 	issued by 	the public 	defender, 	and without 	any
infraction of YGC 	rules. 	This 	series 	of 	encounters by Cook
with 	the detainee, 	although permissible, 	seemed 	to 	create
tension 	with 	the 	probation 	office 	and 	perhaps 	with 	Burchard
over 	the appropriate role 	for 	teachers. 	However, 	even 	if 	Cook
may 	have 	overstepped 	the 	preferred 	boundary 	for 	teacher
involvement, 	there 	is no 	direct 	evidence 	that 	this 	contributed
to her 	later 	discipline.
D. 	The 	May 25 	meeting.
Cook 	testified 	that on 	May 25, 	1984 	she had a 	lengthy
discussion with 	Horta 	on 	a 	variety of 	topics. 	Cook 	stated 	that
she 	visited 	Horta 	at her 	downtown 	office 	in 	order 	to borrow
language 	tapes 	to help a 	foreign-born 	student. 	Cook 	said 	she
had 	previously borrowed 	tapes 	from 	Horta 	the 	year 	before 	for
the same purpose. 	According 	to Cook, 	Horta said she was no
longer 	in 	charge 	of 	that 	resource 	material 	and 	told Cook 	where
to 	get 	it. 	The 	conversation 	turned 	to other 	subjects, 	among
them were whether 	finances 	was 	the 	basis 	for 	the 	end 	of 	Cook's
continuous 	assignment on 	May 	14, 	unspecified problems 	at 	YGC,
Cook's 	organizational 	involvement 	as 	a high 	school
8

representative, 	and 	the 	District's 	emphasis on hiring
minorities.
From the 	context and references 	in Cook's 	testimony, 	it 	can
be 	inferred 	that 	she visited 	Horta, 	known 	to be 	the 	YGC
supervisor, 	at 	the suggestion of other 	teachers, 	to determine
why 	the 	substitute 	assignment 	had 	been 	ended 	before 	conclusion
of 	the school year, 	contrary to Cook's hopes. 	(See Reporter's
Transcript 	(R.T.), pp. 	21, 159-160.) 	If Cook suspected that
the 	District's 	financial 	concerns 	to 	avoid higher 	pay 	to
long-term 	substitutes 	was 	the 	true 	reason 	her 	assignment 	ended,
the 	stated 	reason 	of her 	visit 	to 	Horta—to borrow 	language
tapes--was 	an 	unrelated 	purpose 	that 	provided 	an 	opportunity 	to
raise 	the 	financial 	issue.
The 	factual 	statement 	accompanying 	the 	unfair 	practice
charge 	alleged 	that 	during 	the 	May 25 	meeting, 	Horta's 	tone 	of
voice 	abruptly 	changed 	when 	Cook 	referred 	to 	her 	organizational
activities on behalf of SFSTO. 	However, 	Cook's 	testimony at
the 	hearing 	did 	not 	support 	this 	crucial 	aspect 	of 	her 	charge.
At one point, 	Cook 	stated 	"I 	don't know if 	it was when we
were on this topic" 	(R.T. 	25), 	referring to her organizational
status. 	At 	another 	point, 	Cook 	suggested 	that 	Horta 	reacted
when 	Cook 	mentioned 	the 	minority 	recruitment 	emphasis 	allegedly
preferred by personnel official Cheng. 	(R.T. 	23.) 	Cook, 	it
may be noted, 	is white; 	Horta of Hispanic background.
Cook 	also 	testified 	that 	Horta's 	change 	of 	tone
99

was related, 	at least 	in part, 	to Cook's 	description of
problems 	at 	the YGC 	school, 	an 	institution under 	Horta's
supervision. 	(R.T. 	163.) 	Hence, based on this uncertain,
shifting and equivocal 	record, 	there 	is 	insufficient 	evidence
to 	find 	that 	a 	reaction 	or 	change 	of 	expression 	by Horta 	during
the 	meeting was 	based on 	Cook's 	reference 	to her 	protected
organizational 	affairs.
Horta's 	recollection 	of 	the 	encounter 	with 	Cook 	differed
dramatically 	from 	Cook's 	version. 	Horta 	remembered 	only 	that
Cook 	visited 	seeking 	to 	borrow 	language 	tapes 	and was 	directed
elsewhere. 	Horta 	did not 	recall 	discussion of 	any of 	the 	other
topics 	described 	by Cook 	and 	noted 	above. 	She 	specially 	denied
that 	Cook's 	SFSTO 	involvement was 	mentioned.
Overall, 	although Cook's 	memory of 	the meeting suffered
from some 	uncertainty and 	confusion 	about 	the 	order, 	scope 	and
relationship of 	topics 	discussed, 	it was 	a more credible
account 	in 	its detail. 	In contrast, 	Horta's memory was very
poor. 	She believed, 	for 	example, 	that the meeting took place
in 	fall 	1984 	and not 	in the preceding spring. 	But, 	curiously,
she 	also 	could 	not 	recall 	whether 	the 	disciplinary 	action 	taken
against 	Cook 	following 	the 	May 	15 	detainee visit 	came before 	or
after 	their 	encounter 	about 	the 	language 	tapes.
E. 	The June 6 memo.
On 	June 	6 	Horta wrote 	a memo barring 	Cook's 	future
assignment 	as 	a 	substitute 	at 	YGC 	or 	at 	five other 	special,
10

non-detention 	facilities 	run by 	the 	District. 4 The 	memo
stated:
Ms. 	Cook 	has 	proven 	very 	inappropriate when
dealing with 	students 	in 	our 	court 	system or
special 	schools.
Beyond 	this 	comment, 	and 	the 	listing of 	schools 	covered, 	there
was 	no 	explanation 	at 	all 	of why 	the action was 	taken. 	Before
sending 	the 	memo, 	there had been 	no 	conversation 	by Horta with
Cook 	about 	any 	inappropriate behavior, 	nor 	had 	there been 	any
adverse written inquiry, 	warning, 	or 	evaluation. 	(Cook, 	it
will 	be 	recalled, 	had been 	viewed by 	Burchard 	as 	a 	satisfactory
teacher 	for 	future reassignments, 	at 	least 	up to 	May 14.)
The 	reason 	given by 	Horta 	(and 	confirmed by 	Burchard) 	for
the 	disciplinary 	restriction 	at 	the 	YGC 	was 	that 	Cook 	had
visited 	the 	central 	lockup on 	May 	15 	without 	a 	pass 	and had 	not
followed 	the 	counselor's 	initial 	instruction 	to 	leave. 	There
is 	no 	evidence 	that 	any other 	employee was 	disciplined 	in
connection 	with 	the 	incident.
Horta 	testified 	that 	the 	assignment 	bar 	was 	implemented 	at
4circumstantial 	evidence 	suggests 	that 	issuance 	of 	the
memo 	was 	sparked by an 	erroneous 	double-assignment 	of
substitutes 	to 	YGC 	on June 	6 	during 	the 	absence 	of 	the 	regular
assignment 	clerk 	downtown. 	Cook was 	one of the 	two 	employees
assigned. 	This 	surprised 	Burchard, 	perhaps 	because 	two
assignments were made, 	but perhaps 	also because 	she 	didn't
expect 	to see Cook, 	based on 	Burchard's 	talks 	with Horta after
May 15. 	After 	the double-assignment was 	discovered, 	Horta was
informed 	that 	substitute 	restrictions 	had 	to be 	in writing.
The June 	6 	memo 	followed. 	Although 	Cook 	was 	informed of 	the
limitation 	over 	the phone 	that 	same 	day, 	she did not 	receive a
copy until 	later 	in 	the month, 	after 	it had been 	processed
through 	another 	District 	office.
11

Burchard's 	request 	following 	the 	May 	15 	security breach.
Burchard's 	testimony 	confirmed 	that 	there 	was 	consultation,
although 	Burchard 	claimed 	she 	expressed 	concern 	only 	about 	YGC
and not 	the 	other 	facilities. 	Horta 	explained 	that 	she 	applied
the ban 	to 	all 	of 	the 	special 	schools 	under 	her 	authority
because 	of 	their 	unique 	functions 	and because 	other 	public
agencies 	also 	are 	involved 	in 	their 	operations. 5
On July 3, 	1984, 	Cook 	submitted her 	formal 	reply to 	the
memo 	restricting her 	assignments. 	Personnel 	official 	Cheng,
who 	received Cook's 	letter, 	never 	responded. 	This 	unfair
practice 	charge 	followed 	several 	months 	later.
CONCLUSIONS 	OF 	LAW
By its 	terms, 	section 3543.5(a) 	of the Act prohibits
discriminatory action 	against 	an 	employee 	for 	engaging 	in
conduct 	protected by the 	EERA, 	including,
. 	. 	. 	the right to form, 	join, and
participate 	in 	the 	activities 	of 	employee
organizations 	of 	their 	own 	choosing 	for 	the
purpose 	of 	representation 	on 	all 	matters 	of
employer-employee relations. 	(Sec. 	3543.)
5 The 	only 	evidence 	of 	another 	teaching 	restriction 	for
security 	reasons 	involved 	a 	YGC 	ban 	imposed by 	Burchard 	about
three months before 	the hearing in 	this 	case, 	after 	an employee
left a key 	in a YGC door. 	(R.T. 	221.) 	Another 	teacher was
excluded 	from YGC assignments 	in 	1983, 	but 	there 	is 	no evidence
tying the restriction to a security violation. 	(R.T. 	263.) 	On
the basis 	of 	the 	abbreviated 	testimony 	introduced 	by 	the
charging party, 	neither 	example 	supports 	a 	factual 	finding of
disparate treatment. 	In particular, 	the more relevant
security-related 	incident 	took 	place after 	Cook's, 	and 	there 	is
no 	indication 	that 	it was 	coupled with 	a 	refusal 	to 	abide by a
direct 	counselor 	request.
12

In 	Carlsbad Unified 	School 	District 	(1979) 	PERB Decision
No. 	89, 	and in Novato 	Unified School District 	(1982) 	PERB
Decision 	No. 	210, 	the 	Board 	set 	forth 	the 	standard by which
charges 	alleging 	discriminatory 	conduct 	under 	section 	3543.5(a)
are 	to be decided. 	The Board 	summarized 	its 	test 	in 	a 	decision
issued 	the 	same 	day as 	Novato:
. . . 	a party alleging a violation 	. 	. 	. 	has
the burden 	of 	making 	a 	showing 	sufficient 	to
support 	the 	inference 	that 	protected 	conduct
was a 	"motivating 	factor" 	in 	the employer's
decision 	to engage 	in 	the 	conduct 	of which
the employee complains. 	Once this 	is estab-
lished, 	the burden 	shifts 	to the 	employer 	to
demonstrate 	that 	it 	would have 	taken 	the
same 	action 	even 	in 	the 	absence 	of protected
conduct. 	As noted in Novato, 	this shift 	in
the burden 	of 	producing 	evidence 	must 	operate
consistently with 	the 	charging 	party's 	obli-
gation 	to 	establish 	an 	unfair 	practice 	by 	a
preponderance 	of 	the 	evidence. 	(California
State University, 	Sacramento 	(1982) 	PERB
Decision No. 	211-H at pp. 	13-14.)
The 	test 	adopted by 	the 	Board 	is 	consistent 	with 	precedent
in 	California 	and 	under 	the 	National 	Labor 	Relations 	Act 	(NLRA)
requiring 	the 	trier 	of 	fact 	to weigh 	both 	direct 	and
circumstantial 	evidence 	in 	order 	to 	determine whether 	an 	action
would 	not 	have been 	taken 	against 	an 	employee 	but 	for 	the
exercise of protected rights. 	(See, 	e.g., 	Martori 	Brothers
Distributors v. 	Agricultural 	Labor 	Relations 	Bd. 	(1981)
29 Cal.3d 721, 	729-730; Wright Line, 	Inc. 	(1980) 	251 NLRB 150
[105 LRRM 1169] 	enf., 	in part 	(1st Cir. 	1981) 	662 F.2d 899
[108 LRRM 2513]; 	NLRB v. 	Transportation Management Corp.
13

(1983) 	U.S. 	[76 L.Ed.2d 667].)6
At 	this 	stage of the proceeding, 	although 	the 	charging
party 	called 	District 	officials 	Burchard 	and 	Horta 	as
witnesses, 	in addition 	to Cook, 	it 	is not 	the charging party's
burden 	to 	prove by 	a 	preponderance 	of 	the 	evidence 	the 	ultimate
issue of 	discrimination. 	It 	is 	sufficient 	to 	state 	a prima
facie 	case 	if 	the 	evidence 	presented 	shows 	that 	protected
activity was 	a 	substantial 	or 	motivating 	factor 	for 	the
employer's 	action. 	(See 	California 	State 	University,
Sacramento, 	supra; 	NLRB v. 	Transportation Management Corp.,
supra, 	76 	L.Ed.2d at 	674-675.) 	If 	the evidence does 	not
support 	a 	conclusion 	that 	discrimination 	was 	more 	likely 	than
not 	the 	reason 	for 	the 	employer's 	decision, 	the burden 	does 	not
shift 	to the District 	to 	explain or 	justify its 	conduct. 	(Cf.
Texas 	Department 	of 	Community Affairs v. 	Burdine 	(1981)
450 U.S. 	248.)
Based on 	the 	evidence 	introduced by 	the 	charging party, 	it
is 	concluded 	that 	a 	prima 	facie 	case 	of 	likely 	discrimination
6The 	construction of 	similar 	or 	identical 	provisions 	of
the NLRA, 	as amended, 	29 U.S.C. 	151 et seq., may be used to
guide 	interpretation of 	the EERA. 	(See, 	e.g., 	San Diego
Teachers Assn. 	v. 	Superior Court 	(1979) 	12 Cal.3d 1, 	12-13;
Fire Fighters 	Union v. 	City of Vallejo 	(1974) 	12 	Cal.3d 608,
616.) 	Compare 	section 	3543.5(a) 	of 	the Act with
section 	8(a)(3) 	of 	the NLRA, 	also prohibiting discrimination
for 	the 	exercise 	of 	protected rights. 	The 	Supreme Court
analysis 	in 	Transportation 	Management 	has 	been 	applied 	by 	the
PERB 	in 	Santa Clara 	Unified 	School 	District 	(1985) 	PERB
Decision No. 500.
14

has 	not 	been 	presented, 	that 	the 	charging party 	could 	not
prevail 	even 	if 	the 	District 	declined 	to 	present 	evidence 	of
its 	own, 	and 	that 	there 	is no need to 	continue 	the hearing and
shift 	the burden 	to 	the 	employer.
The 	theory of 	the 	charge 	is 	that 	Horta's June 	6 	memo was a
retaliatory 	response 	to 	Cook's 	disclosure 	of 	her 	organizational
activity 	during 	the 	May 	25 	discussion. 	To buttress 	this 	theory
of 	proximate 	cause, 	the 	charging party 	claims 	that
discrimination 	can 	be 	inferred because 	the 	District 	disciplined
Cook, 	an 	otherwise satisfactory employee, 	without 	good 	cause.
A vital 	feature 	of 	the 	charge 	is 	the 	claim that 	Horta's
tone 	abruptly 	changed 	on 	May 	25 	when 	informed 	of 	Cook's 	SFSTO
connection, 	thus 	providing a 	link 	with 	the memo 	two weeks
later. 	But 	the 	testimonial 	evidence not only fails 	to 	support
this 	allegation, 	it 	suggests 	that 	Cook 	herself was 	uncertain
about when 	and why an abrupt 	change occurred. 	Indeed, 	Cook
never 	directly 	connected 	her 	organizational 	comment 	with 	the
change 	in 	tone. 	Instead, 	other 	reasons were 	suggested by her
account, 	including her 	references 	to minority employment
practices 	and 	to 	unspecified 	problems 	in 	the 	administration 	of
YGC.
Absent 	an 	evidentiary 	showing 	of 	actual 	animus 	on 	the part
of 	Horta, 	the 	only remaining 	discriminatory 	inference 	rests 	on
the 	asserted 	absence 	of 	good 	cause 	for 	her 	assignment
limitation, 	focusing on both 	procedural 	and substantive
15

deficiencies. 	From 	the 	detailed 	testimony 	offered 	by 	Cook,
Burchard and 	Horta, 	it 	is apparent 	that 	the District acted
irresponsibly 	in 	disciplining 	cook 	without 	stating 	verbally 	or
in writing any explanation 	for 	its 	decision. 	This 	was
compounded 	by 	Cheng's 	later 	refusal 	to 	offer 	even 	the 	courtesy
of 	a 	reply 	to 	a 	long-time 	employee presumably known 	to him
through 	the 	extensive negotiations. 	In 	this 	light, 	given
Cook's 	prior 	satisfactory teaching 	service 	and 	the 	absence 	of
any direct 	inquiry or 	evaluation by Horta, 	the June 	6 	memo was
plainly unfair 	and 	one-sided, 	and perhaps misdirected. 	If, 	as
the 	evidence 	suggests, 	Cook 	actually breached 	established
security procedures 	to some 	degree, 	the blame was 	not
necessarily hers 	to bear 	alone. 	The 	record 	indicates 	that
there was 	probably 	a 	lax 	attitude 	about 	orientation 	and
monitoring 	shared by higher 	District 	officials 	as 	well 	as 	by
some personnel 	from other 	agencies. 	In addition, 	it 	is 	less
than 	clear 	why 	she 	was 	barred 	from 	teaching 	at 	non-detention
facilities, 	especially because 	the 	alleged 	security breach 	was
a 	single modest 	infraction 	that 	was 	not 	repeated.
In regard to the 	issue of cause, 	however, 	the lack 	of
procedural 	or 	substantive 	justification 	is 	not 	the 	equivalent
of anti-union motivation. 	(See, 	e.g., 	University of California
(Berkeley) 	(1983) 	PERB Decision No. 	305-H at p. 	12.) 	It 	is not
the 	PERB's 	function 	to 	render 	decisions 	about 	the wisdom of
personnel 	decisions 	unless 	protected 	organizational 	activity 	is
16

implicated, 	a 	conclusion 	that 	cannot be 	inferred 	on 	this
evidentiary 	record. 	(Moreland 	Elementary 	School 	District
(1982) 	PERB Decision 	No. 	227 	(neither 	timing nor 	lack 	of 	just
cause 	prove 	discriminatory 	discharge).)
Ironically, 	what 	the 	charging party demonstrated was 	not
the 	substantial 	likelihood of an anti-union reprisal, 	but
rather 	prima 	facie 	evidence 	of 	an administrative 	decision 	to
find 	a 	scapegoat 	for 	a mistake 	shared by others 	and 	for 	tension
that 	existed 	between 	agencies 	that 	had 	to work 	together 	at 	the
YGC. 	Thus, 	in 	the process 	of 	discrediting 	the manner 	and basis
for 	the 	District's 	decision 	to 	discipline Cook, 	the 	charging
party exposed 	the 	District's 	decision as, 	more 	likely 	than 	not,
a 	narrow-minded 	bureaucratic 	punishment 	that 	avoided 	a 	deeper
probing 	of 	fault 	and 	a wider 	allocation 	of 	responsibility 	for 	a
security 	breach.
If 	the 	charging party had 	presented 	any 	other 	evidence
suggesting anti-union 	discrimination, 	a prima 	facie 	finding
might 	be warranted 	because 	of 	the 	disciplinary 	shortcomings.
However, 	there was 	no evidence of 	disparate 	treatment 	or 	animus
by Horta, 	the 	District agent accused of 	discrimination. 	Nor
was 	there 	evidence 	of 	prior 	discriminatory acts 	at 	YGC 	that
might 	indicate 	an 	underlying hostility 	to 	organizational
activities.7 In 	the final analysis, 	no matter how
7Burchard's 	denial of one hour 	off 	in April 	1984, 	to
allow Cook 	to attend a 	factfinding session, 	does not 	sustain an
17

adverse 	inference when 	viewed 	in 	the 	context 	of 	the 	long-term,
continuous 	contacts 	between 	the 	two 	regarding 	organizational
affairs 	and 	the 	absence 	of 	any wrongful 	employer 	conduct 	during
that 	period.
distasteful 	the 	procedure 	followed by 	the 	District 	in 	dealing
with 	a 	security breach 	by a well-intentioned 	employee, 	this
conduct, 	standing alone, 	does not warrant a continuation of 	the
hearing 	and a 	shifting 	of 	the burden 	of 	proof.
For 	the 	foregoing reasons, 	it 	is 	concluded 	that 	the
charging party has 	failed 	to 	establish a 	prima 	facie 	case. 	The
unfair 	practice 	charge 	and 	the 	complaint 	shall 	be 	dismissed.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and the 	entire record 	in 	the 	case, 	it 	is hereby ordered 	that
the 	complaint 	is 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed 	Decision and 	Order 	shall
become 	final 	on July 10, 	1985, 	unless a party files 	a 	timely
statement of exceptions. 	In accordance with 	the rules, 	the
statement 	of 	exceptions 	should 	identify by page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California 	Administrative Code 	title 	8,
part 	III, 	section 32300. 	Such statement of exceptions and
supporting brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	at 	its 	headquarters 	office 	in
Sacramento before 	the 	close 	of 	business 	(5:00 	p.m.)
18

on July 10, 	1985, 	or sent by telegraph or 	certified United
States 	mail, 	postmarked not 	later 	than 	the last 	day 	for 	filing
in 	order 	to be 	timely 	filed. 	See 	California 	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 	California
Administrative Code, 	title 8, part III, sections 32300.
Dated: 	June 20, 	1985
BARRY 	WINOGRAD
Administrative 	Law 	Judge
19
J