Newark Unified School District (PERB 0864E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NEWARK TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
NEWARK UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1276
PERB 	Decision No. 	864
January 	14, 	1991
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Appearances: 	A. 	Eugene Huguenin, 	Jr., Attorney, 	for Newark
Teachers Association, 	CTA/NEA; 	Girard & Griffin by Allen R.
Vinson, 	Attorney, 	for Newark Unified School District.
Before Hesse, 	Chairperson; 	Shank, 	Camilli and Cunningham,
Members.
DECISION
CUNNINGHAM, 	Member: 	This 	case 	is brought before the Public
Employment Relations 	Board 	(PERB 	or Board) 	by the Newark Unified
School 	District 	(District) 	on exceptions 	to a proposed decision
(attached) 	by an administrative law judge 	(ALJ), 	who held that
the District violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA)1 by transferring unit
1EERA is 	codified at Government Code 	section 	3 540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	EERA section 3543.5, 	amended effective
January 1, 	1990, 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
______ )

member Gary Bookout 	(Bookout) 	for his 	exercise of protected
rights, 	and 	for 	subsequently 	refusing 	to 	provide 	staffing
information 	to 	the 	Newark Teachers 	Association 	(Association)
relevant to 	the transfer. 	The ALJ 	further determined that
the 	District did not violate 	EERA when 	it 	issued 	a 	negative
evaluation to Bookout, 	nor when a District official 	made certain
comments 	to a unit member about 	the 	need 	for an Association
member to be present during a 	meeting. 	The Association does 	not
object 	to the ALJ's 	findings 	relative 	to 	the 	evaluation and 	the
meeting 	incident.2
applicant 	for 	employment 	or reemployment.
(b) 	Deny to employee organizations rights
guaranteed to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
We have examined the 	entire record 	in this 	matter, 	the
proposed decision, 	as well as 	the District's exceptions and
the Association's responses thereto, 	and, 	finding the ALJ's
recitation of 	facts 	to be 	free 	from prejudicial 	error, 	we 	adopt
it as bur own. 	Consistent with the 	following discussion, 	we
adopt the ALJ's 	conclusions 	of 	law as well.
FACTS
As 	noted above, 	the 	facts 	in this 	case are 	correctly 	set
forth at 	length in the proposed decision, 	but will be briefly
summarized 	herein.
As 	no exceptions were 	filed as 	to these 	findings, 	we will
nor 	address 	them 	further.
N
	2

Bookout was 	hired by the District 	in 	1970, 	and 	initially
taught at M. 	D. 	Silva Intermediate School 	for 	six years. 	In each
of those 	six years, 	Bookout requested a transfer to the high
school 	level; 	he disliked teaching at the 	junior high 	level 	and
felt he was 	unsuited to do 	so.
Bookout, 	at the time of the events 	that are the 	subject
of 	this 	complaint, 	was 	a certificated employee teaching at
Newark Memorial 	High School 	(high 	school) 	and a member of 	the
Association. 	In the 	1986-87 	school year, 	he served as 	the 	first
chairperson of the 	faculty 	senate, 	a vocal 	group of 	educators
that was 	formed 	to 	facilitate 	communication with management.
Bookout 	also 	filed 	grievances 	and 	represented 	other 	grievants
before District officials during this 	year.
In the 	1987-88 	school year, 	Bookout relinquished his 	role
as 	chairperson of the 	faculty 	senate, 	but 	continued to 	file
grievances 	based on 	alleged 	contract 	violations 	by 	the 	District,
and to 	speak out publicly 	on 	controversial 	school 	policy 	matters
On May 	16, 	1988, 	Bookout received a negative evaluation from his
principal, 	Kaz Mori 	(Mori). 	This 	evaluation reported an incident
wherein 	Bookout 	allegedly 	uttered 	an 	expletive 	in 	an 	English
department 	meeting 	after 	becoming 	upset 	over the 	meeting's
length. 	Also, 	in 	1988, 	Bookout represented another teacher,
Virginia Forgatsch 	(Forgatsch), 	in a meeting with Mori over an
assignment to which Forgatsch objected. 	In this meeting, 	Mori
made 	several 	comments 	which questioned 	the 	need 	for 	the presence
3

of 	an Association representative. 	Bookout 	later objected 	to
these comments.
In early 	spring of 	1988, 	a teacher was 	transferred to
the high 	school 	from Newark Junior High School 	(junior high),
effective in the fall of 	1988. 	Accordingly, 	Jack Roach 	(Roach),
Director of Personnel 	for the District, 	determined that 	an
English 	teacher would have 	to 	be 	transferred 	from the 	high
school 	to the 	junior high to balance the 	scheduling 	effects
of 	the earlier transfer. 	As 	stated by the ALJ, 	Roach 	first
requested a volunteer for this 	transfer. 	When no 	one 	stepped
forward, 	Roach decided 	that 	Bookout 	should be 	involuntarily
transferred.
Bookout objected vehemently to this 	decision; 	as 	stated
above, 	he had taught at the 	junior high 	level 	for 	several 	years
before his 	transfer 	to 	the high 	school 	and disliked 	teaching 	at
the 	intermediate 	level. 	Bookout 	requested Association assistance
in the 	filing of 	a grievance regarding the transfer.
On June 24, 	1988, 	Bookout met with Roach, 	in the company of
an Association representative. 	At 	this 	meeting, 	the Association
representative 	requested materials 	in the 	District's 	possession
which would verify the need 	for a transfer. 	Roach, 	claiming that
he thought the request to be too broad, 	refused to provide the
information.
PROPOSED 	DECISION
The ALJ 	framed the 	issues 	of this 	case as 	follows:
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(1) 	whether the District transferred Bookout because of his
protected activity; 	(2) 	whether the District unlawfully refused
to provide 	information to 	the Association during 	the 	grievance
proceeding on this transfer; 	(3) 	whether the District 	issued
Bookout 	a 	negative 	evaluation because 	of 	his 	protected 	activity;
and 	(4) 	whether the 	District unlawfully 	encouraged 	another
employee 	to 	refrain 	from 	involving 	the Association 	in her
employment activities. 	As noted above, 	exceptions have been
filed as 	to 	the 	findings 	regarding the 	first and 	second
allegations 	only.
1. 	Bookout's transfer
The 	correct test to apply to determine whether a violation
of 	EERA has 	occurred 	in this 	situation is 	enunciated 	in Novato
Unified School District 	(1982) 	PERB Decision No. 	210 	(Novato)
The 	charging party must demonstrate 	that 	he 	or 	she 	engaged 	in
protected activity, 	that 	the respondent knew of 	such activity,
that 	the 	respondent 	took adverse 	action against 	the 	charging
party 	(Palo Verde 	Unified School 	District 	(1988) 	PERB 	Decision
No. 	689 	(Palo Verde)). 	and that the protected activity was a
motivating 	factor 	in the adverse action. 	The 	employer may 	then
show as 	a defense 	that 	it would have 	taken the 	adverse 	action 	in
the absence of the protected conduct. 	(Novato.) 	An inference
of 	unlawful 	motive may be drawn 	from the 	record as 	a whole.
(Novato.) 	The ALJ 	correctly noted 	that 	Bookout had 	engaged
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in a great deal 	of protected activity 	in the two 	school 	years
preceding his 	transfer and that 	the District was well 	aware 	of
this activity.
The ALJ 	found that the transfer 	constituted 	adverse 	action.
This 	situation is unlike that in Palo Verde, 	according to the
ALJ 	in 	that, 	here, 	Bookout was 	required to relearn 	junior high
school curriculum, 	devise new lesson plans, 	and develop different
learning 	strategies. 	These activities 	constituted a detriment 	to
Bookout 	in that he was 	required to 	spend more 	out-of-class 	time
involved in preparation. 	Furthermore, 	the ALJ determined that
Bookout'B 	temperament made 	it difficult 	for him to control
younger 	students and 	rendered him 	ill-suited 	for the 	junior high
environment.
Next, 	the ALJ 	found 	several 	factors which pointed to 	an
inference of unlawful motivation on the part of 	the District.
Timing indicated the presence of 	such a motive, 	as 	the transfer
came at the end of the 	1987-88 	school year, 	in which Bookout
filed 	several 	grievances 	and 	engaged 	in other protected 	conduct.
The ALJ 	also 	found the 	shifting and vague 	justifications 	given
for the 	transfer 	further 	supported the 	inference of 	unlawful
motivation. 	Roach gave differing explanations 	of the reasons
for the transfer at the June 3, 	1988 meeting, 	in the 	subsequent
written memo to Bookout, 	and 	in his 	testimony at the hearing 	in
this matter. 	Additionally, 	the ALJ pointed to the 	fact that
Roach admitted that he departed 	from a 	"long practice" 	of
allowing involuntary transfer decisions 	to be made 	at 	the 	site
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level by 	site administrators. 	Finally, 	the ALJ 	found 	evidence of
anti-union animus 	in Roach's 	subsequent 	refusal 	to provide
information to 	the Association at 	the 	grievance 	meeting 	about 	the
transfer, 	as well as 	in earlier 	statements made by both Roach and
Mori 	in regard 	to protected 	activities which occurred before 	the
transfer decision was made.
As 	to 	the District's 	defense 	that 	it would have 	chosen
Bookout 	for the transfer 	in the absence of protected 	conduct, 	the
ALJ 	found that 	Roach's 	explanation 	for his 	choice 	of 	Bookout 	as
the 	transfer 	recipient 	did 	not withstand 	scrutiny when viewed 	in
the 	totality of 	the 	evidence.
Next, 	the ALJ 	analyzed the District's 	rationale 	for not
choosing 	each of 	the other members 	of 	the English department 	from
which Roach determined that the 	choice was 	to be made. 	Because
Mary Neri, Adrienne Blackhart, 	Thomas Gulbranson-, 	Mary Kay 	. . . :"
Henderson, 	Barbara Williams 	(Williams) 	and Betty Hollenbeck all
had more 	seniority than Bookout, 	the ALJ 	found,their retention
at the high school 	to be 	supported by the record. 	Also, 	the ALJ
determined that 	Bruce Wasser, 	Ronald 	Johnson and 	Susan Kenneally
were 	retained 	on the 	justifiable 	basis 	of 	their multiple 	or
special credentials. 	However, 	Roach's reasons 	for not
transferring Jeffrey Hallford 	(Hallford), 	Steve Harrington
(Harrington) 	and Christine Hunt 	(Hunt) 	were rejected by the
ALJ as pretextual.
Roach claimed that 	one 	of 	the 	reasons 	Hallford was 	not
chosen for the transfer was 	that he had 	taught 	at 	the 	junior high
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level 	and had 	found 	the 	assignment 	to 	be 	"very undesirable." 	The
ALJ pointed out the 	fact 	that 	Hallford was 	not 	called 	to 	testify,
and 	that 	it would be 	difficult 	to 	imagine 	that 	Hallford's
feelings 	in this 	regard were 	stronger than Bookout's. 	Roach was
aware of Bookout's 	feelings, 	based on his 	knowledge of 	at 	least
two 	of 	Bookout's 	transfer requests 	made during his 	junior high
tenure. 	In regard to Hallford's 	alleged 	"special 	skills" 	in
teaching 	seniors, 	listed by Roach as 	further justification for
his 	retention, 	the ALJ rejected this 	reason based on the 	fact
that Roach admitted that Hallford was 	teaching 	sophomores, 	not
seniors, 	at the time of the hearing. 	Lastly, 	the ALJ rejected
Roach's 	justification that 	Bookout 	had more 	experience 	at 	the
junior high level. 	Although this 	assertion was 	true 	in terms 	of
years, 	Hallford's 	experience was more recent in terms 	of 	time,
with 	recent 	experience being 	one 	of 	the 	considerations 	listed " A
in 	section 	10.5.4 	of 	the voluntary transfer guidelines 	of 	the
parties' 	collective bargaining agreement, 	which Roach claimed
that he 	followed. 	Based on the totality of the evidence, 	the ALJ
found that Bookout 	and Hallford were 	equally qualified and, 	thus,
following Roach's 	testimony 	regarding 	the 	effect 	of 	seniority,
Hallford, 	with 	less 	seniority, 	should have received the transfer.
In considering the retention of 	Harrington, 	the ALJ
initially noted that he was 	far 	less 	senior than Bookout.
Roach's 	principal 	justification 	for 	retaining 	Harrington was 	his
position as 	a drama 	teacher. 	Although Harrington was 	hired 	in
1985, 	he did not teach a drama class until at 	least 	1986-87.
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Also, 	Harrington usually taught no more than two 	sections 	of
drama per semester. 	The ALJ concluded that Williams, 	the other
drama teacher at the high 	school, 	could have been assigned
Harrington's drama 	sections, 	and that Harrington, 	upon transfer,
could have participated 	in the 	junior high drama department.
Lastly, 	the reasons 	given by Roach 	for the retention of
Hunt were 	analyzed 	and 	rejected by 	the ALJ. 	The purported 	need
for 	gender balance 	in the 	junior high English department was
rejected, 	based primarily on the 	fact 	that the 	next vacancy
in this 	department was 	awarded to 	a woman 	in preference 	to a
comparably qualified male. 	The ALJ 	also 	rejected 	Hunt's 	multiple
credential 	and 	journalism experience 	as 	a 	legitimate
justification for her retention over Bookout. 	Hunt had taught
no mathematics 	in recent years, 	and taught no more than one
journalism section per term. 	Further, 	the 	fact that Hunt was
away 	from the high 	school 	during 	the 	1989-90 	year 	teaching 	at 	the
college 	level was 	found by 	the ALJ 	to 	undermine 	Roach's 	statement
that 	she was 	needed to teach 	mathematics 	or 	journalism at 	the
high school.
,,
Based on the pretextual 	reasons 	given 	for the 	retention of
Hallford, 	Harrington and Hunt, 	as well as 	the totality of the
circumstances, 	the ALJ 	found that the District violated 	section
3543.5(a) and (b).
6

2. 	Refusal 	to provide 	information
The ALJ noted that, 	absent a valid defense, 	refusal by the
District 	to provide 	necessary 	and 	relevant 	information 	is 	an
unfair practice. 	(Trustees 	of 	the 	California 	State 	University
(1987) 	PERB Decision No. 	613-H.) 	Because the information
requested by 	the Association 	regarding 	staffing 	and 	enrollment
projections 	was 	relevant 	and 	necessary to 	enable 	the Association
to verify the need 	for a transfer, 	the ALJ 	found 	it 	should have
been provided. 	The ALJ 	rejected Roach's 	contention that he 	did
not provide 	any 	information as 	he 	thought 	the 	request was
overbroad and concluded that, 	if 	Roach believed the 	request 	to
be too broad, 	he could have provided the 	enrollment 	and 	staffing
projections, 	while retaining that material 	in his 	file which was
personal in nature, 	such as notes, 	memoranda, 	etc.
DISTRICT'S 	EXCEPTIONS
The District 	files 	31 	exceptions 	to the proposed decision.
These 	exceptions 	concentrate 	on the 	two 	areas 	in which violations
were 	found, 	specifically the 	transfer and the 	refusal 	to provide
information. 	With respect to the transfer, 	these exceptions
relate to the following findings of the ALJ: 	(1) 	Roach's
utilization of 	certain criteria 	in the transfer decision; 	(2)
the transfer to the 	junior high as 	an adverse action; 	(3) 	the
District's 	actions 	supporting an 	inference 	of 	unlawful 	motive;
(4) 	the existence of a past practice within the District
regarding 	involuntary transfers; 	(5) 	the 	credibility of Roach's
testimony 	in 	regard 	to 	several 	anti-union 	comments 	allegedly 	made
10

by him; 	(6) 	the analysis 	of the District's 	reasons 	for the
retention of the 	other 	teachers 	in the 	English department. 	As
noted above, 	the Association has 	not 	filed exceptions 	to the
proposed 	decision.
DISCUSSION
1. 	The transfer
The 	District objects 	to 	the 	finding that the 	transfer was
an adverse action under the Novato analysis. 	Under Palo Verde, 	a
charging party 	alleging discrimination must 	demonstrate 	that 	the
respondent took adverse action3 against 	the 	charging party. 	The
Board applies 	an objective 	test 	in determining whether 	the 	action
taken by 	the 	respondent 	actually resulted 	in harm to 	the 	charging
party. 	(Palo Verde, 	at p. 	12.) 	The test which must be 	satisfied
is 	not whether the 	employee 	found the 	employer's 	action to be
adverse, 	but whether a reasonable person under the 	same
. .
circumstances would 	consider 	the 	action to 	have 	an adverse
3The term, 	"adverse action," 	as used here, 	is not limited
to 	formal 	disciplinary actions 	such 	as 	those 	enumerated 	in
California Government Code 	section 	19570.
11

impact on the 	employee's 	employment. 	Accordingly, 	retaliatory
involuntary 	transfers 	have 	been 	found to 	be unlawful 	even though
the transfers 	or reassignments were 	not 	accompanied by 	loss 	of
pay or benefits. 	(See Pleasant Valley School 	District 	(1988)
PERB Decision No. 	708 	(involuntary reassignment 	from mowing 	to
other groundskeeper duties 	found 	retaliatory despite 	no 	loss 	in
pay or benefits); 	see also Santa Paula School District 	(1985)
PERB 	Decision No. 	505 	(involuntary transfer of 	teacher to 	another
school 	found discriminatory); 	Santa Clara Unified School 	District
(1985) 	PERB Decision No. 	500 	(transfer of teacher from senior
to 	junior high found discriminatory); 	Novato Unified School
District 	supra, 	PERB Decision No. 	210 	(charging party's 	removal
as 	chairperson and transfer to 	another 	school 	found
discriminatory); 	but 	see Riverside Unified School District 	(1985)
PERB Decision No. 	510 	(Board agent 	found reassignment 	to 	other
school did not 	constitute adverse action because hours, 	commute
and duties identical).
In the present case, 	although Bookout 	suffered no 	loss 	of
pay or benefits, 	the evidence demonstrates 	that 	the 	involuntary
4Our 	concurring 	colleagues 	state 	that 	Bookout's 	aversion
to 	teaching 	at 	the 	junior high 	level 	must 	be 	considered 	in
determining whether adverse action exists. 	To minimize 	the
importance of the nature of 	the action taken by the 	employer, 	in
favor of 	focusing primarily on Bookout's 	personal 	feelings 	toward
the action, 	is to obfuscate the clear intent of Palo Verde.
While the 	fact of 	employer awareness 	of 	an employee's 	intense
aversion to 	a 	new assignment may be 	indicative 	of 	the 	employer's
unlawful 	intent, 	under Palo Verde that 	fact would be 	insufficient
to 	state a cause of action if 	the assignment, 	applying an
objective standard, 	was not 	itself adverse.
12

transfer 	constituted 	adverse 	action under 	Palo Verde. 	According
to District witness 	Roach, 	transfers 	from 	junior 	to 	senior 	high
were 	regularly requested by 	junior high teachers 	as 	career moves.
Additionally, 	the evidence indicated that, 	during Bookout's 	six-
year tenure 	at the 	junior high, 	Bookout 	repeatedly attempted to
transfer to the 	senior high. 	Furthermore, 	the ALJ reasonably
determined that 	a 	transfer to 	the 	junior high was 	not 	looked 	upon
as 	a desirable move, 	as 	evidenced by the 	lack of transfer
volunteers 	from the 	senior high 	English department. 	Based 	on
these factors, 	Bookout's 	transfer back to the 	junior high 	school
after 	12 	years of 	successful 	teaching at the high 	school 	level
could reasonably 	be viewed 	as 	a 	negative 	career move 	under 	these,
circumstances and, 	thus, 	constituted adverse action.
5
The ALJ 	determined 	that 	Bookout 	suffered 	an 	adverse 	action
based on the 	increased 	amount 	of 	preparation time 	required 	in his
new position. 	The District argues persuasively that 	Bookout may
have had to develop 	new 	lesson plans 	for 	a newly-assigned 	class
at the high 	school had he remained there. 	In the past, 	schedule
changes 	had 	necessitated that 	Bookout devote 	additional 	time 	to
learn curriculum 	for newly-assigned 	classes. 	Accordingly, 	we
do not find, 	under these 	facts, 	that the potential 	increased
preparation time 	supports 	the 	finding of 	adverse 	action.
5The District objects 	to this 	conclusion by the ALJ, 	which
is 	derived 	from the 	fact that no 	teacher 	in the English
department volunteered 	for the 	transfer. 	Although 	several 	other
inferences 	could be drawn from this 	fact, 	this 	inference 	is
reasonable based on the 	totality of 	the 	evidence. 	(Santa 	Clara
Unified School District 	(1979) 	PERB Decision No. 	104, 	pp. 	14-15.)
13

Additionally, 	the ALJ 	stated:
Bookout's 	demeanor on 	the witness
stand 	clearly demonstrated 	that he 	is
"temperamentally unsuited" 	to 	teach 	the
junior high school age group, 	and as a
result 	he 	has 	difficulty 	controlling younger
s t u d e n t s . . . .
(Proposed Decision, 	p. 	32.)
We do 	not agree 	that 	Bookout's 	demeanor on the witness 	stand
necessarily bears 	on his 	ability to 	teach 	at 	the 	junior high
level. 	Furthermore, 	Palo Verde necessitates an objective 	finding
of adverse action; 	thus, 	as 	stated above, 	the question is not
whether Bookout personally 	found the 	transfer undesirable, 	but
whether 	a 	reasonable person under the 	same 	circumstances 	would
consider the transfer to have 	an adverse 	impact 	on the 	employee's
employment. 	Accordingly, 	we do not adopt this portion of the
ALJ's 	opinion.
As 	to a 	finding of unlawful motive on the part of 	the
District, 	inferences 	of 	such motive may be drawn from the record
as a whole. 	(Novato.) 	There are, 	as 	stated by the ALJ, 	numerous
facts 	supporting the 	inference of 	such a motive. 	The transfer
was 	announced after a period of protected activity, 	including
grievances 	filed in January 	1988, 	vocal 	opposition to 	school
security policy 	in March 	1988, 	and 	criticism by Bookout 	of 	the
handling of 	one of 	Bookout's 	grievances 	by the District 	in May
1988. 	Timing of an adverse action alone, 	however, 	is not
sufficient 	for an inference of unlawful motive. 	(Los Angeles
Community College District 	(1989) 	PERB Decision No. 	748.)
14

The ALJ 	correctly points 	out 	the 	shifting 	justifications
presented by Roach, 	beginning with those 	advanced 	in the 	June 	3,
1988 	meeting with Bookout 	and 	ending with 	those 	reasons 	listed by
Roach at the hearing in this matter, 	as 	further evidence of
unlawful motive. 	(Pleasant Valley School District, 	supra. 	PERB
Decision No. 	708.) 	The District argues that the different
reasons 	given for the transfer by Roach are 	not 	inconsistent.
However, 	this objection is misguided, 	for the different reasons
do evidence a 	shifting in emphasis, 	which the Board has
determined 	in the past 	to 	support the 	inference of 	unlawful
motive. 	(Ibid.)
Lastly 	record 	evidence 	indicates 	that 	involuntary 	transfers
within the District were 	rare. 	Roach admitted this 	fact 	in his
testimony. 	A common practice 	existed at 	the high 	school which
allowed 	for 	the 	movement 	of 	multiple-credentialed 	teachers 	among
departments as 	the need arose. 	However, 	that practice did not
occur in this 	case. 	The 	simple 	fact that Bookout was 	the
recipient 	of 	an 	involuntary 	transfer 	supports 	the 	inference 	of
unlawful motive, 	based on the disparate nature of 	the treatment
exercised by the District 	in this 	circumstance. 	(Id. 	at p. 	16.)
When this 	evidence 	is 	viewed 	in conjunction with the 	other
factors 	cited by the ALJ, 	the 	totality of 	the 	evidence 	supports
a 	finding of 	unlawful 	motive.
The District, 	to avoid a 	finding of discrimination based on
the 	evidence above, 	must 	show that Bookout would have been chosen
for the transfer 	even if he had not 	engaged 	in protected
15

activity. 	(Novato.) 	The ALJ 	carefully analyzed 	each of 	the
reasons 	given by Roach 	for the 	retention of 	the other teachers 	in
the English department.6 The 	District 	claims 	that 	the 	analysis
utilized by 	the ALJ 	here 	violates 	its 	managerial 	prerogative 	to
make 	staffing decisions; 	however, 	the District may not base 	its
managerial decisions 	on unlawful motivations. 	The ALJ's 	analysis
was 	correct 	in this 	circumstance, 	and merely requires 	the
District 	to 	offer reasonable 	justification 	for 	the 	retention of
the other English teachers, 	consistent with the District's 	burden
under Novato 	to 	show that 	Bookout would have been 	chosen 	for 	the
transfer even absent his protected activity. 	(See 	Santa Clara
Unified School 	District 	supra, 	PERB Decision No. 	500; 	but 	see
State of California 	(Department of Youth Authority) 	(1985) 	PERB
Decision No. 	535-S, 	p. 	36, 	adopting the decision of the ALJ.)
The ALJ 	correctly 	concluded that 	the 	District's
justifications 	for the 	retention of 	nine 	teachers were 	supported
in the record. 	Teachers Neri, 	Blackhart, 	Gulbranson, 	Henderson,
Williams 	and Hollenbeck were retained based on 	seniority; 	Wasser
and Johnson, 	based on the ability to teach 	split assignments;
6 The 	evidence demonstrated 	that 	a 	transfer was 	necessary
based o
' n the predicted number 	of 	English 	sections 	needed 	at
the high 	school 	for the 	1988-89 	school year, 	as well as 	the
vacancy at the 	junior high created by the 	earlier transfer. 	The
District 	objects 	to 	the ALJ's 	finding that 	Roach 	appeared 	to
utilize 	a very narrow approach 	in his decision making process.
Also, 	the District objects 	to the ALJ's 	statement that Roach was
aware of 	the ability to be 	flexible 	in the manipulation of
assignments within the English department. 	Both 	conclusions 	are
supported by 	the 	evidence 	and 	are 	based 	on reasonable 	inferences
drawn by the ALJ.
16

and Kenneally, 	based on an English-as-a-second-language 	special
(Credential. 	The remaining teachers 	in the department,
Harrington, 	Hallford and Hunt, 	were determined by the ALJ to
have been retained 	for pretextual 	reasons.
Harrington teaches 	drama and English at the high 	school 	and
was 	fifteen years 	less 	senior than Bookout. 	Roach claimed that
he 	retaine,
d Harrington due 	to his 	ability to teach drama. 	The
ALJ's 	conclusion in regard to 	the 	District's 	ability to
manipulate William's 	schedule 	to allow her to take 	all 	the
school's 	drama 	sections 	does 	not 	find 	support 	in the 	record.
Although there was 	evidence 	that 	schedule 	manipulation was
frequently utilized as 	the need arose, 	there was 	no 	evidence 	in
regard to the ability of Williams 	to 	teach drama 	sections 	all
day, 	which she had not done in several years. 	Furthermore, 	as
the District 	states, 	there was 	no 	evidence 	indicating the 	status
of 	the 	junior high drama 	department 	from which 	the ALJ 	could
have 	concluded Harrington would have been able 	to teach 	in that 	.
department had he 	been transferred. 	Discounting these 	two
findings 	by the ALJ 	leads to the 	conclusion that 	the 	record
evidence does 	support the 	retention of 	Harrington over Bookout.
The District has failed to show, 	however, 	a reasonable
justification as 	to why Bookout was 	transferred 	in lieu of
Hallford or Hunt. 	Accordingly, 	as the Association has 	shown
that 	Bookout 	engaged 	in protected activity, 	the 	District was
aware 	of 	this 	activity and the 	District 	took adverse 	action
against Bookout because 	of 	that protected activity, 	the ALJ was
17

correct 	in his 	conclusion that 	the 	District violated EERA 	section
3543 .5(a) . 	Furthermore,, because this conduct against Bookout
acted to deny the Association rights 	guaranteed under EERA, 	in
that Bookout was 	acting 	in the role of 	a union activist, 	the
District also violated section 3543.5(b), 	(El Dorado Union High
School District 	(1986) 	PERB Decision No. 	564.)
2. 	The denial of 	information
The ALJ 	correctly 	analyzes 	the 	District's 	failure 	to provide
information. 	The Association was 	entitled to 	staffing and
enrollment projections prepared 	for the 	District 	so 	as 	to be 	able
to 	verify Roach's 	claim 	that 	a 	teacher had to 	be 	transferred 	from
trie high school to the junior high. 	This information was,. thus,
both 	necessary and relevant. 	(Modesto City 	Schools 	and 	High
School District 	(1985) 	PERB Decision No. 	518.) 	The employer's
refusal 	to provide 	such 	information 	constitutes 	bad 	faith
bargaining unless 	the 	employer 	can demonstrate 	adequate 	reasons
why it cannot provide the 	information. 	(Los 	Rios 	Community
College District 	(1988) 	PERB Decision No. 	670, p. 	10; 	Stockton
Unified School District 	(1980) 	PERB Decision No. 	143, 	pp. 	18-19.)
The District 	contends 	that Roach did not refuse to provide 	the
projections, 	but only refused to provide his personal notes,
which he 	believed were 	encompassed 	in the Association's 	demand.
However, 	Roach admitted at the hearing that he did have 	other
documents regarding class assignments, 	besides his personal
notes, 	in his possession at the June 24 meeting. 	The ALJ appears
to discredit 	Roach's 	assertion that 	he believed 	the Association's
18

request to be overbroad, 	and this 	finding 	is 	reasonable based on
the 	record. 	(Santa Clara Unified School 	District, 	supra. 	PERB
Decision No. 	104.)
Even assuming Roach's 	assumption to be 	credible, 	he had the
obligation to provide 	the 	relevant 	information 	in his 	possession
at the meeting; 	'The District has provided no reason why 	it 	could
not provide this 	information. 	Accordingly, 	the District violated
section 3543.5(c) 	by its 	conduct. 	The District's 	refusal to
provide 	information 	necessarily 	denied 	the Association 	its
statutory right to bargain on behalf of unit members, 	and thus
also constitutes 	a violation of 	section 3543.5(b). 	Although a
violation of 	section 	3543.5(c) 	does 	not 	automatically give 	rise
to a violation of 	section 3543.5(a) 	(see Tahoe-Truckee Unified
School District 	(1988) PERB Decision No. 	668, p. 	13), 	here the
District's 	action denied 	Bookout 	the 	right 	to have 	representation
on a 	contract grievance and thus 	also violated 	section 	3543.5(a).
(See Modesto City Schools 	and High School District, 	supra. 	PERB
Decision No. 	518.)
Under section 3541.5(c),7 PERB is given the power to issue
7Section 3541.5(c) 	states:
(c) 	The board 	shall have the power to 	issue
a 	decision and 	order 	directing 	an 	offending
party to 	cease 	and desist 	from the unfair
practice 	and to 	take 	such 	affirmative
action, 	including but not 	limited to the
reinstatement 	of 	employees with 	or without
back pay, 	as will 	effectuate the policies
of this 	chapter.
19

a 	decision and an order directing 	an offending party 	to 	take 	such
action as will 	effectuate the policies 	of 	the EERA. 	As 	to the
appropriateness 	of 	the proposed remedy, 	the only 	substantive
alteration to 	the 	remedy provided by 	the ALJ 	relates 	to 	the
timing 	for the reinstatement of Bookout 	at the high 	school. 	The
ALJ 	ordered 	reinstatement 	for the 	beginning 	of 	the 	1990-91 	school
year, 	now an impossible 	situation. 	Disruption in the educational
process 	through reinstatement 	is 	to be avoided. 	(San Leandro
Unified School District 	(1983) 	PERB Decision No. 	288, 	p. 	14.)
San Leandro 	involved 	a 	reinstatement 	as 	a remedy 	for a
discrimination violation. 	The decision 	issued on February 	24,
1983 	with 	the 	transfer ordered to 	occur at 	the beginning 	of 	the
1983-84 	school year, 	which constituted the beginning of 	the next
school 	semester. 	Accordingly, 	it 	is appropriate to order the
District to reinstate Bookout, 	upon request, 	at the beginning of
the 	spring semester, 	in or about January 	1991.
ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in this 	case, 	it has been found that
the District violated section 3543.5(a), 	(b) 	and 	(c). 	It is
hereby ORDERED that 	the Newark Unified 	School 	District 	and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against employees, 	particularly
20

Gary Bookout, for participation 	in 	employee 	organization
activities 	of 	their own choosing 	for the purpose of
representation of matters 	of 	employer-employee relations;
2. 	Interfering with the right of 	the Newark Teachers
Association, 	CTA/NEA to represent 	its members 	in their employment
relations with the public 	school 	employer;
3. 	Failing to negotiate 	in good faith with the
exclusive 	representative by refusing to provide 	the Newark
Teachers Association, 	CTA/NEA with relevant 	information needed to
prosecute 	contract 	grievances 	on behalf 	of 	certificated 	employees
of the District.
B: 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Upon request, 	restore Gary Bookout to his 	former
position, 	or its equivalent, 	at Newark Memorial High School
effective the beginning of the 	spring 	semester, 	in or about
January 	1991, 	without prejudice to his 	seniority and other rights
and privileges.
2. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is no 	longer 	subject to reconsideration, 	post at
all work locations where 	notices 	to 	employees 	customarily are
placed, 	copies of the Notice attached as 	an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall be maintained 	for a period of thirty 	(30) 	consecutive
workdays. 	Reasonable steps 	shall be taken to 	insure that this
Notice is not reduced in size, 	defaced, 	altered or covered by any
21

material.
3. 	Written notification of 	the actions 	taken to 	comply
with this 	Order 	shall be made 	to 	the 	San Francisco 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with 	her 	instructions.
Member Shank 	joined 	in this 	Decision.
Member Camilli's 	concurrence begins 	at page 	23.
Chairperson Hesse's 	concurrence begins 	at page 	26.
22

Camilli, 	Member, 	concurring: 	Although I agree, 	as does the
majority, 	with the ALJ's 	analysis 	concerning the Newark Unified
School District's 	(District) 	refusal 	to provide 	information and
the 	issues of protected activity, 	District knowledge thereof, 	and
unlawful motive regarding the transfer of Gary Bookout 	(Bookout),
I 	strongly disagree with 	the majority opinion's 	discussion of 	the
issue of 	adverse action, 	and 	its 	interpretation of Palo Verde
Unified School District 	(1988) 	PERB Decision No. 	689 	(Palo
Verde). 	I, 	therefore, 	write separately to address the portion of
the 	opinion which discusses 	the 	issue of 	adverse 	action.
I 	agree with the Board's 	statement 	in Palo Verde 	that 	there
must be 	an; adverse<action in order to 	find that an unlawful 	act
of discrimination occurred, 	however, 	I 	am wary of magnifying the
issue of 	"adverse action" 	so as 	to be out of perspective when
viewed 	in terms 	of 	carrying out 	the purposes 	of 	the 	statutes
which the Public 	Employment Relations 	Board 	(PERB) 	enforces.
The 	statutes 	administered by 	PERB 	grant 	to 	employees 	certain
rights, 	i.e., 	to 	join organizations of their own choice and be
represented by 	such 	in their 	employment 	relationships with 	their
employers. 	The 	statutes 	go on to protect those rights by making
it unlawful 	for an employer to discriminate, 	retaliate or
interfere with 	employees 	because of 	their 	exercise of 	these
rights.
In order to 	ensure that the 	statutory rights 	granted to 	all
employees 	are meaningful, 	primary 	consideration 	should not be
given to 	the degree 	or 	extent 	of 	an action's 	adverse 	nature 	or
23

impact, 	but to motive. 	However, 	concerning the issue of adverse
action, 	it must be 	shown that the conduct would be adverse to a
reasonable person 	standing 	in the 	shoes 	of 	the 	recipient 	of 	the
conduct, 	or would reasonably be viewed as 	such by those with whom
the recipient works. 	This 	serves 	the purpose of the 	statutes,
which protect 	an 	employee 	from 	retaliation because 	of 	protected
activity.1
In the 	instant case, 	I 	find that the 	showing of anti-union
animus, 	as 	analyzed under the 	factors 	enunciated 	in Novato
Unified School District 	(1982) 	PERB Decision No. 	210, 	is very
strong. 	The 	employer was 	aware 	of 	Bookout's protected 	activity,
and 	it 	is 	clear 	from the record that 	Jack Roach 	(Roach) 	was 	aware
. .
of 	Bookout's 	intense 	aversion to 	the 	assignment 	of working 	at 	the
junior high. 	The action taken against 	Bookout would be 	adverse to
a 	reasonable person 	standing 	in the 	shoes 	of Bookout.2 Finally,
1It 	is 	important to bear 	in mind that 	although our
discussion here 	concerns 	solely adverse 	action, 	a violation 	could
never be 	found without 	sufficient 	evidence 	of 	unlawful 	motive 	or
nexus.
2This requires 	us 	to 	take 	into 	consideration Bookout's
aversion to 	teaching at 	the 	junior high 	school. 	Bookout 	taught
English at the 	junior high 	school 	level 	from 	1970 	to 	1976. 	He
requested a transfer each of the 	six years 	he taught at that
level. 	Roach 	served as 	a 	cite administrator in the District 	from
1974 	through 	1987. 	Bookout's unrebutted testimony 	is 	that Roach
acknowledged 	locating at 	least 	two of 	these 	transfer requests.
When, 	on June 	3, 	1988, 	Roach called Bookout to a meeting to
announce 	the transfer, 	Bookout told Roach that he had had a 	very
bad experience teaching at 	the 	lower 	level 	for those 	six 	years,
and 	explained to 	Roach that 	he 	had 	requested a 	transfer 	in 	each
of 	those 	six years. 	He 	further told Roach that he 	felt he was
"temperamentally 	unsuited" 	to 	teach 	at 	the 	junior high 	school
level; 	To 	ignore this 	evidence would be to make 	it 	lawful 	for an
employer, to discriminate against 	employees 	for protected activity
as 	long as 	the 	employer 	tailored the adverse action to 	that
particular 	employee.
24

the 	employer did, not provide 	sufficient business 	justification or
evidence 	showing that 	the 	action would have 	been taken 	regardless
of anti-union animus. 	I would, 	therefore, 	find a violation.
25

HESSE, 	Chairperson, 	concurring: 	I 	concur with Member
Camilli's 	discussion on Palo Verde 	Unified 	School 	District 	(Palo
Verde) 	(1988) 	PERB Decision No. 	689 regarding the analysis of a
discrimination claim. 	I 	write 	separately to 	further 	emphasize
Palo Verde's 	inaccurate 	interpretation of 	the proper 	test.
There 	is 	no argument that, 	in determining whether there has
been a violation of Government Code section 3543.5(a), 	the
employee must demonstrate 	that he 	or 	she participated 	in
protected activity, 	the 	employer knew of 	such activity, 	and the
employer would not have taken the 	actions 	it did 	"but 	for" 	the
employee's 	protected activity. 	Novato 	Unified 	School 	District
(1982) 	PERB Decision No. 	210. 	The Board summarized this 	test 	in
California 	State University. 	Sacramento 	(1982) 	PERB Decision
No. 	211-H, as follows:
. 	. 	.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
established, 	the burden shifts to the
employer to demonstrate 	that 	it would have
taken the 	same action even 	in the 	absence 	of
protected conduct . 	. 	.
(Id. 	at pp. 	13-14.)
In that case, 	the employee's 	employment was terminated,
therefore, 	the action taken by the 	employer was 	not 	in 	issue.
Under the National Labor Relations Act 	(NLRA), 	the question
of whether the 	employer 	in fact 	changed the 	employee's 	tenure 	or
terms and conditions of employment 	is rarely, 	if ever, 	disputed.
(See Morris, 	The Developing Labor Law 	(2d ed. 	1983) 	chapter 	7.)
26

In most 	cases, 	the employer's 	reason for discriminating will
determine whether or not 	it has 	committed 	an unfair 	labor
practice, 	i.e., 	the keystone of proving a violation is
determination of unlawful motive. 	(Morris, 	Id. 	at p. 	208.) 	In
discussing Wright Line. 	A Division of Wright Line, 	Inc. 	(1980)
251 NLRB No. 	150"[105 LRRM 169], 	Morris states:
The 	initial 	focus 	under Wright Line 	is 	on the
elements 	of 	the General 	Counsel's prima 	facie
case, 	i.e., 	the existence of protected
activity, 	knowledge of that activity by the
employer, 	and union animus.
(See Morris, 	5th supp. 	(2d ed.) p. 	93.)
From this discussion, 	it 	is quite apparent that the nature
of 	the action of 	the Wright Line 	employer is 	not of major
-
concern. 	However, 	since the Board's decision in Palo Verde, 	the
initial 	focus, 	in some cases, 	has been on whether or not the
employer's 	conduct 	constituted 	"adverse 	action." 	As 	a 	result,
this type of analysis may, 	in some instances, 	require unnecessary
efforts 	to describe 	the 	employer's 	discriminatory 	conduct within
the 	confines 	of a 	formal personnel 	action.1 This 	can be
attributed to Palo Verde's 	lack of 	definition of what 	type 	of
harm 	is 	required to 	establish 	a prima 	facie 	case of
discriminatory treatment, 	and to Palo Verde's 	use of 	such phrases
as 	"adverse action," 	"adverse consequences," 	"adverse 	injury,"
"actual 	injury," 	and 	"harm" 	to describe 	a 	standard of 	required
employer action. 	Further, 	that decision inferred that an
employee's working 	conditions 	must 	be 	substantially 	changed 	as 	a
Isee 	footnote 	3 	at page 	11 	of the majority opinion.
27

result of 	the 	employer's 	actions 	before 	it 	can be 	considered
adverse to the 	employee.2
. .. .
Notwithstanding 	Palo Verde's 	emphasis 	on the 	harm 	suffered
by an employee, 	a number of 	cases decided by the Board, 	both
prior and 	subsequent to Palo Verde. 	have 	not 	limited the
employer's 	action against 	the 	employee 	to 	substantial 	changes,in
working conditions, 	loss 	in pay or benefits, 	or discharge.3
Therefore, 	the 	focus 	should not be on the 	employee's 	"injury" 	but
on whether or 	not 	the discriminatory 	action was 	motivated 	because
of 	the 	employee's 	protected activities.
On the 	facts presented in the case before us, 	I 	find the
District's 	actions 	are 	sufficient 	to 	support the 	inference 	of 	an
2I 	agree with the majority's 	discussion 	(see majority 	.
opinion pp. 	11-13) 	regarding the adversity of 	involuntary
transfers, 	applying the analysis of pages 	18 and 	19 of Palo
Verde. 	which does result 	in a violation.
For example, 	see Novato Unified School District, 	supra.
PERB Decision No. 	210 	(charging party's 	removal 	as 	chairperson
and transfer to another 	school 	found discriminatory); 	Santa Clara
Unified School District 	(1985) 	PERB Decision No. 	500 	(transfer of
teacher 	from senior to 	junior high 	school 	found discriminatory);
Santa Paula School District 	(1985) 	PERB Decision No. 	505
(involuntary 	transfer of 	teacher to 	another 	school 	found
discriminatory); 	Pleasant Valley School District 	(1988) 	PERB
Decision No. 	708 	(involuntary reassignment 	from mechanized mowing
to other groundskeeper duties 	found discriminatory); 	and Woodland
Joint Unified School District 	(1990) 	PERB Decision No. 	808, 	petn.
pending 	(employer unlawfully 	required 	employee 	to 	obtain doctor's
excuse in retaliation for protected activity). 	Similarly, 	the
NLRB has 	also 	found 	employer action 	short 	of discharge 	or 	other
formal 	"adverse/disciplinary action" 	to be discriminatory where
there was 	little impact on wages, 	hours, 	or other working
conditions. 	(See Armour Con-Aara 	(1988) 	291 NLRB No. 	134 	[131
LRRM 	1320]) 	(employee was 	unlawfully 	transferred 	to 	third 	shift
for isolation as a union activist) 	and Inductive Components. 	Inc.
(1984) 	271 NLRB No. 	209 	[117 LRRM 1207] 	(employee's work
assignment unlawfully changed 	even though 	it was 	a 	less 	onerous
assignment).)
'
28

unlawful motive, 	and the transfer to Newark Junior High School 	is
a violation of Government Code 	section 3543.5.
29

APPENDIX NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-1276,
Newark Teachers Association, 	CTA/NEA v. 	Newark Unified School
District. 	in which all parties haId the right to participate, 	it
has 	been 	found 	that 	the Newark Unified 	School 	District 	violated
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations 	Act 	(Act).
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice 	and we will:
A. 	CEASE AND 	DESIST FROM:
1. 	Retaliating against employees, 	particularly
Gary Bookout, 	for participation 	in employee 	organization
activities 	of 	their own choosing 	for the purpose of
representation of 	matters 	of 	employer-employee 	relations;
2. 	Interfering with 	the 	right 	of 	the Newark Teachers
Association, 	CTA/NEA to represent 	its members 	in their employment
relations with the public 	school 	employer;
3. 	Failing to 	negotiate 	in good 	faith with the
exclusive 	representative 	by refusing 	to provide 	the 	Newark
Teachers Association, 	CTA/NEA with relevant 	information needed 	to
prosecute 	contract 	grievances 	on behalf 	of 	certificated 	employees
of the District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE 	THE 	POLICIES 	OF 	THE
ACT:
1. 	Upon request, 	restore Gary Bookout to his 	former
position, 	or its 	equivalent, 	at Newark Memorial High School
effective the beginning of the 	spring 	semester, 	in or about
January 	1991, 	without prejudice to his 	seniority and other rights
and privileges.
Dated: 	NEWARK 	UNIFIED 	SCHOOL 	DISTRICT
By Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
(t

STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NEWARK TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
NEWARK UNIFIED SCHOOL DISTRICT,
Respondent.
)
) 	Unfair 	Practice
Case No. 	SF-CE-1276
PROPOSED 	DECISION
(6/15/90)
)
)
)
)
)
)
)
)
Appearances! 	A. 	Eugene Huguenin, 	Jr., Attorney, 	for the Newark
Teachers Association, 	CTA/NEA; 	Girard and Griffin, 	by Allen R.
Vinson, 	Attorney, 	for the Newark Unified School District.
Before Fred D'Orazio, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	unfair practice 	charge was 	filed by the Newark 	Teachers
Association, 	CTA/NEA, 	(hereafter Charging Party, 	NTA or
Association) 	against 	the Newark Unified School 	District
(hereafter Respondent or District) 	on September 	13, 	1988. 	The
charge was amended on March 	1, 	1989.
The General 	Counsel 	of 	the 	Public 	Employment 	Relations 	Board
(hereafter PERB 	or Board) 	issued a 	complaint 	on September 	6,
1989. 	The complaint alleges 	that the District unlawfully: 	(1)
transferred a 	teacher because of his 	protected activity; 	(2)
issued a 	negative 	evaluation to the 	same teacher because 	of his
protected activity; 	(3) 	refused to provide the Association with
information necessary and relevant 	to the processing of 	a
grievance 	challenging the transfer; 	and 	(4) 	encouraged an
employee 	to 	refrain 	from 	involving the Association in her
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)

employment-related activities.1 It 	is 	alleged that 	these 	actions
violated 	the 	Educational 	Employment 	Relations Act 	(hereafter 	EERA
or Act), sections 3543.5(a), (b) and (c).2
The District's 	answer was 	filed on September 22, 	1989,
denying that 	it violated the Act. 	A 	settlement 	conference was
conducted by a PERB administrative 	law judge on October 	6, 	1989,
but 	the matter was 	not 	settled.
A 	formal 	hearing was 	conducted 	by 	the 	undersigned
administrative 	law judge on January 8-11, 	1990, 	in Newark,
California. 	The final brief was 	submitted on April 	30, 	1990, 	and
the 	case was 	submitted for decision.
1 The 	complaint 	also 	alleges 	that 	the 	District 	unilaterally
changed evaluation procedures. 	As 	a result of 	a post-hearing
settlement, 	this part of the complaint was withdrawn.
2The 	EERA 	is 	codified at Government Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	in the
decision are to the Government Code. 	Sections 3543.5(a), 	(b) ,
and 	(c) 	state 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.
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with an exclusive 	representative.
22

INTRODUCTION
The 	District 	is 	a public 	school 	employer within the 	meaning
of 	section 3540.l(k). 	The Association is an employee
organization within the meaning of 	section 3540.l(d), 	and the
exclusive 	representative 	of 	an appropriate bargaining unit 	of 	the
District's 	certificated 	employees within the 	meaning 	of 	section
3540.l(e). 	Gary Bookout 	is 	a public 	school 	employee within the
meaning of 	section 3540.l(j). 	He is 	an English teacher and a
member 	of 	the 	certificated bargaining unit.
FINDINGS 	OF 	FACT
I. 	Bookout'B 	Protected Conduct
A. 	The 	1986-87 	School Year
The 	faculty 	senate was 	started 	on 	the Newark Memorial 	High
School 	(NMHS) 	campus during the 	1986-87 	school year. 	Established
by the 	collective bargaining agreement, 	the 	senate was designed
to 	facilitate 	communication between teachers 	and management
regarding policy and procedures. 	Bookout 	served as 	faculty
senate 	chairperson during the 	1986-87 	school year, 	adopting a
highly visible role on such issues as 	class 	size, 	parent
complaints, 	and 	forced teacher participation in extra-curricular
activities. 	These were 	subjects 	covered by the 	collective
bargaining 	agreement.
Kaz Mori, 	NMHS principal, 	testified that meetings with
Bookout during 	the 	1986-87 	school 	year were 	frequently 	"vigorous
and 	intense." 	In one 	such meeting 	in November 	1986, 	according to
Bookout's 	unrebutted testimony, 	Mori displayed 	"extreme 	anger."
W	3

He 	told 	Bookout 	"I'm getting tired 	of 	this 	faculty 	senate
business." 	Mori 	claimed the 	senate was 	"manufacturing problems
where 	they do not 	exist." 	He 	said, 	"I'm the person who runs 	this
school. 	If there are difficulties 	that occur in this 	school, 	I'm
the one who gets 	called on the carpet, 	not you."
In October 	1986, 	Bookout 	filed a grievance against Mori 	for
refusing 	to 	recognize and deal with the 	faculty 	senate. 	After a
prolonged series 	of meetings, 	described by Bookout as 	an
"exacting 	and 	exhausting process," 	the parties 	reached agreement
on the grievance 	in February 	1987.
In March 	1987, 	then NTA President Gerald Turney 	spoke at a
board of 	education meeting. 	Bookout 	learned that Mori 	later
called 	several 	newly hired 	teachers 	to his 	office 	and 	informed
them that 	Turney's 	comments 	enhanced 	their 	chances 	to be 	laid
off. 	Bookout 	immediately 	sent 	an angry note to Mori 	asking him
"in the name of common decency, 	as well as 	in the interests 	of
professional harmony, 	to not further damage Mr. 	Turney's
professional 'reputation by 	suggesting to 	teachers 	facing 	layoff
that our NTA president is 	responsible 	for this 	crisis."
In May 	1987, 	Bookout 	represented Ilse Meyer during a meeting
with Mori. 	Meyer, 	a teacher who had received parent complaints,
felt Mori had not 	supported her 	in responding to 	the 	complaints.
According to 	Bookout's 	unrebutted testimony, 	Mori 	launched 	an
"unprovoked tirade" 	at him. 	He accused Bookout of 	interfering
with the 	settlement 	of the 	issue and 	stated his 	(Bookout's) 	input
was 	not welcome. 	After the meeting, 	Meyer wrote to the 	faculty
44

senate publicly thanking 	Bookout 	for 	"hammering 	out" 	a 	solution
with Mori.
In the 	spring of 	1987, 	Bookout and other teachers 	became
upset 	at what 	they perceived to be unfair 	treatment 	of 	a 	teacher
by 	the 	student 	newspaper. 	They 	submitted 	a 	letter of protest 	to
the advisor of the newspaper. 	The Argusf 	a local daily
newspaper, 	published a story about the incident. 	This upset
Mori, 	who 	asked Bookout to convene a 	faculty 	senate meeting 	so he
(Mori) 	could express his 	concern.
Bookout 	testified that Mori was 	"very angry" 	at 	the 	meeting.
Mori's 	face became 	red and he raised his 	voice. 	Essentially,
Mori 	informed 	those 	in attendance 	that he 	didn't want 	outsiders
involved 	in NMHS problems. 	Mori 	said he didn't 	like Association
representatives 	on campus. 	According to Bookout, 	Mori's 	tendency
to want 	everything resolved within the high 	school 	"family" 	was 	a
frequent topic of discussion in the past. 	Mori testified, 	but
could not recall the 	incident. 	Therefore, 	Bookout's recollection
stands 	as 	unrebutted testimony.
B. 	The 	1987-88 School Year
During the 	1987-88 	school year, 	Bookout relinquished his
role as 	chairperson of the 	faculty 	senate, 	but continued to 	serve
as 	a member of that body. 	He also 	served on the NTA board of
directors 	as 	the high 	school director.
Doss 	Welsh 	succeeded Bookout 	as 	faculty 	senate 	chairperson.
Consistent with Bookout, 	Welsh testified Mori dealt with the
senate 	in hostile 	terms. 	Mori 	grudgingly responded to 	senate
5

inquiries. 	It was not uncommon, 	according to Welsh, 	for Mori to
say things 	like 	"I'm tired of you taking pot 	shots 	at us." 	When
the 	senate raised issues 	- 	such as parent complaints, 	in-house
substitution, 	uniform cheating policy 	- 	Mori 	accused the 	senate
of being 	"negative." 	At the 	end of one meeting, 	Mori 	told Welsh
"I 	can't work like this. 	I 	can't work with you."
In January, 	1988, 	Bookout filed two grievances. 	The first
grievance 	concerned 	an English department 	meeting which 	lasted
longer than permitted by the 	contract. 	Bookout 	testified 	that
there was 	an ongoing problem 	in the 	English department with
excessively 	long meetings. 	When Bookout 	found himself 	in 	such a
meeting he objected. 	Lou Haga, 	English department chairperson,
ignored the objection. 	Bookout 	then left 	the meeting briefly to
retrieve a copy of the contract. 	Upon returning, 	he pointed out
the 	section of 	the 	contract 	limiting 	the 	length of 	department
meetings 	and 	loudly threatened to 	file a 	grievance. 	According to
Bookout, 	Haga made an 	"amusing pleasantry," 	but 	continued to
ignore him. 	Shortly thereafter, 	the meeting 	ended 	and Bookout
filed 	a 	grievance 	complaining about the 	length of 	the meeting.
Iris 	Berke, 	NMHS vice principal, 	was present but said nothing.
On May 	16, 	1988, 	Bookout received his written evaluation
from Mori. 	The 	evaluation, 	alleged as 	an independent violation
in the complaint, 	stated that 	"Mr. 	Bookout was observed at 	[an
English department] 	meeting to utter an expletive and 	leave 	the
meeting abruptly." 	Bookout objected to 	this 	aspect 	of 	the
otherwise 	favorable 	evaluation. 	He denied uttering the 	expletive
6

"damn." 	He 	apologized to 	Haga 	for the 	loud manner 	in which he
reacted, 	but not 	for the content of what he 	said or 	for 	leaving
the meeting. 	Bookout 	said 	it was 	not unusual 	for teachers 	to
leave department meetings 	for short periods 	of time, 	even to
retrieve 	copies 	of 	the 	collective bargaining agreement.
Mori 	had based the 	evaluation on 	information he 	received
from Berke. 	He verified the 	information with Haga before
including 	it 	in the evaluation. 	Mori did not discuss 	the
evaluation with 	Bookout before 	doing 	so.
Upon investigating the matter, 	Bookout 	learned that 	the
source of 	the 	comment was 	Berke. 	Berke told Bookout that 	she had
not discussed 	it with him 	(Bookout) 	because 	she was 	not the
official 	evaluator. 	Subsequent meetings 	did not resolve the
dispute.
On June 2, 	1988, 	Mori proposed removing the comment 	from the
evaluation and reducing it to 	a memo to be placed 	in Bookout's
personnel 	file. 	Bookout 	objected and refused to 	sign the
evaluation. 	He threatened to 	file another grievance, 	but did not
do 	so because 	the 	next day he 	learned of his 	transfer and
immediately turned his 	attention turned to 	that matter. 	The
comment was 	left 	in Bookout's personnel 	file.
The second grievance, 	filed on January 27, 	1988, 	concerned
the 	elimination 	of 	Bookout's 	contractually 	guaranteed preparation
period. 	Berke 	and Mori demanded that 	Bookout attend a meeting to
discuss 	student placement. 	The meeting was 	scheduled during
Bookout's 	preparation period 	at a 	time when Bookout was 	preparing
7
7

for 	final 	exams. 	He 	suggested holding the meeting after 	school,
but-.. Berke refused. 	Ultimately, 	the meeting was 	held during
Bookout's preparation period, 	prompting him to 	file a grievance.
This 	grievance was 	resolved 	in May, 	after what Bookout described
as a 	"rather drawn out, 	ongoing process."
In March 	1988, 	Bookout 	spoke at a city council meeting
opposing a 	change 	in 	school 	security policy. 	He objected 	to 	the
placement of 	armed, 	uniformed police officers 	on a high 	school
campus. 	He 	complained that the 	change was 	suddenly announced
without notice to 	faculty. 	He also 	signed a 	faculty 	senate-
sponsored petition, 	submitted later to the 	city council, 	opposing
the 	security policy.
According to Bookout, 	Jack Roach, 	who had taken over as
director of personnel 	in August 	1987, 	became 	irritated by
Bookout's 	speech. 	Roach told Bookout that he 	(Bookout) 	had
overstepped his 	bounds 	by 	identifying himself 	as 	a 	representative
of 	the 	faculty 	senate. 	Bookout disagreed that he had done 	so.
The 	text 	of 	the 	speech delivered to 	the 	city council 	does
not 	indicate Bookout overstepped his 	bounds. 	It 	indicates
Bookout merely 	identified himself 	as 	a 	teacher who 	held 	offices
in the 	faculty 	senate 	and on the NTA board of directors. 	There
is 	no 	evidence 	that 	Bookout purported to 	speak for any body.
In April 	1988, 	an incident occurred which forms 	another
independent 	allegation in the 	complaint. 	Bookout represented
Virginia Forgatsch, 	a librarian, 	in a meeting with Mori.
Forgatsch was 	upset 	because Vice 	Principal 	Berke 	had 	ordered 	her
8

to perform clerical 	duties 	during an open house. 	She 	requested a
meeting with Mori 	to discuss 	the 	assignment with Bookout as 	her
representative.
The meeting was 	unremarkable. 	It 	lasted between ten and
twenty minutes. 	Shortly after the meeting, 	Mori 	granted the
request to change the assignment. 	However, 	Bookout became
concerned 	that 	during 	the 	meeting Mori 	twice 	mildly 	questioned
the need to 	"[involve] 	the Association." 	Bookout did not object
at 	the meeting. 	He admitted that the tone of Mori's 	comments was
"pleasant, 	it wasn't antagonistic." 	After the meeting, 	Mori
approached 	Forgatsch 	and 	again 	questioned 	the 	need 	for
Association representation at 	such meetings.
On April 	26, 	Bookout wrote to Mori 	complaining that 	such
messages 	may 	"intimidate 	teachers" 	and 	"may give 	a 	false
impression of 	attempting 	to 	undermine 	the 	legitimate 	business 	of
the 	organization." 	The 	letter also 	conceded that under 	some
circumstances 	it may be appropriate 	for Mori 	to 	invite 	employees
to 	see him 	(Mori) 	"privately anytime." 	Also on April 	26, 	Bookout
wrote 	to Association officials 	complaining about Mori's 	conduct.
As 	for the underlying issue 	concerning Berke's directive, 	Bookout
said 	in the 	letter that he 	"felt all parties 	did an exemplary 	job
in 	solving this 	difficulty."
During the 	1987-88 	school year, 	there were approximately
five 	contract 	grievances 	filed at NMHS. 	Mori 	testified that he
"normally" 	seeks 	advice 	from Roach on grievances. 	It 	is 	"general
practice," 	according to Mori, 	to 	inform Roach when a grievance is
9

filed. 	Roach typically represents 	the 	District at 	step 	two of
the grievance procedure. 	Thus, 	Roach either participated
directly 	or was 	consulted 	regarding 	the 	grievances 	filed 	at 	NMHS
during the 	1987-88 	school year.
Roach was 	apparently 	annoyed at having to 	spend 	time 	dealing
with 	grievances 	and 	contract 	administration. 	Welsh 	testified
that 	Roach 	seemed 	"pretty disturbed" 	at 	the 	amount of 	time he was
spending 	in 	contract 	administration. 	At the beginning of 	a 	step
two grievance meeting 	in the 	spring of 	1988, 	according to Welsh,
Roach 	stated 	that 	this 	situation 	"had to 	stop." 	Bookout was 	also
in attendance.
Roach 	first denied that he was 	concerned 	about 	the 	number of
cases 	at NMHS. 	Yet he testified that he did not have a 	clear
recollection 	of 	how the meeting 	referred 	to by Welsh 	started.
Asked directly 	if 	he 	made 	the 	statement 	attributed 	to him by
Welsh, 	Roach 	said he did not recall. 	Then Roach testified 	"I
honestly don't know that 	I 	said that. 	. . . 	If 	I 	made a
statement 	like that, 	and I were 	irritated and meant it, 	I'm
almost certain I would 	[recall]."
This 	conflict 	in testimony 	is 	resolved 	in favor of Welsh.
Welsh was 	a 	convincing witness who 	recalled with 	clarity 	not 	only
that 	Roach made the 	statement, 	but also the precise time 	in the
meeting the 	statement was made. 	In contrast, 	Roach's 	testimony
was 	far 	less 	clear. 	Roach 	first denied any concern about 	the
amount 	of 	time he was 	spending 	in contract administration. 	Welsh
recalled that the 	comment was 	made 	at the 	outset of 	the meeting,
10

but 	Roach 	could 	not 	remember how the meeting 	started. 	Especially
significant 	in resolving this 	conflict 	is 	the 	fact 	that 	Roach
could 	not 	unequivocally 	rule 	out 	the possibility 	that 	he was
"irritated" 	with the number of grievances 	at NMHS.
II. 	Bookout's Transfer
A• 	The 	Transfer Decision
The 	decision to 	transfer 	Bookout 	from NMHS 	to Newark Junior
High School 	(NJHS) 	was made near the 	end of the 	1987-88 	school
year by Roach. 	Roach admitted that, 	during the 	time he was
deciding who to 	transfer, 	he knew of Bookout's participation in
the grievance procedure, 	as well as his 	roles 	in the faculty
senate 	and 	in NTA.
In the 	early 	spring of 	1988, 	the District transferred Robert
Risken, 	an English teacher, 	from NJHS to NMHS, 	effective
September 	1988. 	The parties 	stipulated that 	the 	District had a
"reasonable" 	basis 	for this decision and thus 	Risken's 	transfer
is 	not 	contested here. 	The transfer of 	Risken created a need 	for
an English teacher at NJHS. 	By late March 	1988, 	Roach decided
that 	a teacher would have 	to be 	transferred 	from NMHS 	to NJHS 	to
fill 	this 	need. 	Roach immediately began the process 	to do 	so.
The 	need to 	transfer an English teacher to 	NJHS was
discussed at 	staff meetings attended by Haga, 	Berke, 	Mori and
Roach. 	These meetings 	occurred during April 	and May 	1986. 	Mori
11

and 	Roach also 	had approximately 	six 	telephone 	calls 	where 	they
further discussed 	the 	transfer.3
On direct 	examination, 	Mori 	testified that Roach 	sought his
opinion about who 	should be 	transferred. 	According to Mori,
several names 	"came up."' 	On cross 	examination, 	however, 	Mori
could not recall Roach asking, him for recommendations. 	Mori
further testified, 	on cross 	examination, 	that Roach asked him for
information about teachers, 	but they never engaged 	in a dialogue
whereby the 	qualifications 	of 	the various 	teachers 	were 	rated 	and
compared.
Roach described the process 	as 	follows. 	Except to gather
information about teachers, 	Roach testified, 	he did not consult
with 	site 	administrators 	before deciding 	to 	transfer Bookout.
Later 	in his 	testimony, 	Roach 	said he discussed potential 	impact
on NMHS 	if 	certain teachers were transferred. 	Roach 	said he 	then
evaluated 	all 	relevant 	information and 	informed 	site
administrators 	(as well as the 	superintendent) 	of his decision.
Roach 	said he was prepared to 	change his 	mind if 	site
administrators 	objected, 	but no one at either NMHS or NJHS
opposed the decision to 	transfer Bookout.
3As a principal, 	Mori has 	no authority to transfer a
teacher. 	The 	authority to transfer rests 	with the 	superintendent
or his designee. 	In this case, 	Roach was the designee. 	However,
Mori 	and 	other 	site 	administrators 	have 	the 	authority 	to
determine 	local assignments.
4Mori 	recalled discussions 	about 	three 	English teachers 	at
NMHS: 	Bookout, 	Ronald Johnson and Jeffery Hallford.
12

Meanwhile, 	Roach also 	considered transferring a 	teacher 	from
Churchill High School 	(CHS), 	a continuation school, 	to NJHS. 	He
rejected the 	idea, 	however, 	because CHS had only four teachers.
A transfer 	from Churchill was 	unworkable 	since 	it would
unreasonably 	restrict 	assignment 	flexibility. 	For 	the 	same
reason, 	Risken was 	not transferred from NJHS to CHS.
Roach 	also 	solicited volunteers 	from among 	the 	teachers 	in
the NMHS English department. 	However, 	no one was 	interested in
transferring to NJHS.
During the 	selection process, 	Roach 	collected 	information
about teachers 	in the NMHS 	English department. 	There 	is 	no
evidence 	that 	Roach 	considered 	teachers 	outside 	the department.
A key 	source of 	information was 	the 	employment 	cards 	kept 	in the
personnel 	office. 	These 	cards 	contained 	information about
credentials, 	seniority, 	courses taught, 	etc. 	All teachers in the
NMHS 	English department possessed 	the 	requisite 	credential 	to
teach at NJHS. 	In fact, 	Roach pointed out 	in his 	testimony that
the 	State 	of 	California makes 	certain assumptions 	about what 	the
holder of 	a particular credential 	can teach. 	For example, 	it 	is
presumed that a person who holds 	a 	credential 	to teach English
can 	also 	teach 	journalism. 	Roach also 	reviewed 	staffing
information and 	enrollment projections 	compiled by 	the 	District.
With 	the above 	referenced 	information 	in hand, 	Roach 	set 	out
to decide which of 	the thirteen teachers 	in the NMHS 	English
13

department 	to 	transfer.5 Roach's 	evaluation of 	each 	candidate
may be 	summarized as 	follows.
Adrienne 	Blackhart, 	Mary Neri 	and Tom Gulbranson are more
senior 	than Bookout. 	None had 	experience 	teaching at 	the 	junior
high 	school 	level.
Steve Harrington, 	fifteen years 	less 	senior than Bookout,
taught 	English 	and drama. 	Roach 	testified 	that 	Harrington
preferred 	to 	teach drama 	and 	in fact had been hired to do 	so.
His 	transfer, 	according to Roach, 	would have disrupted the drama
department at NMHS. 	However, 	the employment card relied on by
Roach confirms 	that Harrington was 	hired 	in 	1985, 	but did not
teach a drama 	class 	until 	1987. 	(Other records 	suggest that
Harrington may have 	taught 	a 	single drama 	section 	in 	1986-87.)
At 	no 	time during 	1987-88 	and 	1988-89 	has 	Harrington taught more
than two 	sections 	of drama. 	It was 	not until the 	1989-90 	school
year that 	Harrington taught three 	sections 	of drama. 	There was
another teacher 	(Barbara Williams) 	in the drama department 	at
NMHS who 	in the past had been 	solely responsible 	for the program.
Records 	show that, 	in each of the years mentioned above, 	Williams
schedule 	could have 	been realigned 	to permit 	her 	to 	teach 	the
drama 	sections 	assigned to Harrington. 	Also, 	NJHS had a drama
department 	in which 	Harrington 	could 	have 	participated.
5Roach 	rejected 	the 	idea 	of 	transferring 	a 	K-8 	teacher 	to
NJHS 	for two reasons. 	First, 	a teacher with a K-8 	credential
could not teach ninth grade. 	Second, 	it would not have made room
for Risken at NMHS.
14

Mary 	Kay 	Henderson also 	had teaching 	experience 	at 	the
junior high school 	level, 	but 	she 	i	. . . . s more 	senior than Bookout.
Also, 	Henderson had already been 	involuntarily 	transferred once
in her 	career and Roach did not want to 	transfer her again.
Chris Hunt, 	eight years 	less 	senior than Bookout, 	has
multiple credentials. 	In addition to English, 	she is
credentialed to 	teach math and 	journalism. 	She 	taught 	all 	math
from the 	1978-79 	school year through the 	1986-87 	school year. 	In
1987-88 	she 	switched to English. 	During 	1987-88 	and 	1988-89,
Hunt 	typically taught 	four 	sections 	of 	English 	and 	one 	section of
journalism. 	Hunt 	taught 	at Ohlone College during 	1989-90 	in a
program designed to 	encourage 	students 	to attend Ohlone. 	Hunt 	is
scheduled to 	return to the District 	after the 	1989-90 	school
year. 	Hunt has 	three years 	experience teaching at the
intermediate 	school 	level. 	She was 	kept at NMHS to maintain
assignment 	flexibility.
Ronald Johnson, 	eleven years 	less 	senior than Bookout,
typically 	teaches 	a 	split 	assignment 	of 	English 	and 	social
studies. 	He also coached 	several 	sports. 	Roach retained him at
NMHS 	to maintain assignment 	flexibility 	in teaching 	and 	coaching.
Susan Kennelly was 	retained 	at 	NMHS 	primarily because 	she
taught ESL. 	Bookout 	is 	fifteen years more 	senior than Kennelly.
Bruce Wasser, 	three years 	less 	senior than Bookout,
typically 	teaches 	a 	split 	assignment 	of 	English 	and history.
Roach 	retained him at NMHS 	to maintain assignment 	flexibility.
15

Wasser has 	three 	or 	four years 	teaching 	experience 	at 	the
intermediate grade 	level.
Barbara Williams 	is 	an English/drama 	teacher who 	is 	more
senior than Bookout. 	She was 	retained at NMHS because of her
split 	assignment, 	importance 	to 	the drama program and 	seniority.
Jeffrey Hallford 	is 	seven years 	less 	senior than Bookout.
He 	taught 	at 	the 	junior high 	school 	during the 	1982-83 	school
year. 	Although Roach described this 	as 	a 	"partial assignment,
Hallford 	actually taught 	at 	the 	lower 	level 	from October 	1982
through June 	1983. 	Thus, 	Hallford had the practical 	equivalent
of 	one year teaching 	experience at 	the 	junior high 	school 	level.
Hallford was 	not 	transferred because 	he had 	less 	junior high
school 	experience than Bookout, 	he viewed teaching at 	the 	junior
high 	school 	level 	as 	a 	"very undesirable 	assignment," 	and he
possessed 	special 	skills 	teaching 	seniors. 	As 	of the date of 	the
hearing, 	Hallford was 	teaching sophomores 	at NMHS.
Betty Hollenbeck, 	an English teacher who had been on 	special
assignment, 	returned to NMHS 	for the 	1988-89 	school year. 	She
served 	as 	department 	chairperson and 	also 	taught 	four 	sections 	of
English. 	(Lou Haga, 	Hollenbeck's predecessor, 	had no teaching
assignment. 	He had taken an administrative position in the
District's 	office.) 	Hollenbeck is 	four years more 	senior than
Bookout.
Roach admitted that, 	as 	of the time he 	selected Bookout, 	he
had 	not 	investigated 	the 	teaching 	experience 	of 	candidates 	who
taught 	elsewhere prior 	to 	the 	time 	they were 	employed by 	the
16

District. 	Thus, 	despite the weight placed on 	junior high 	school
experience, 	whether any 	candidate had 	junior high 	school 	teaching
experience 	outside of 	the 	District was 	unknown to Roach when he
decided 	to 	transfer Bookout.
During the decision making process, 	Roach was 	aware of the
great 	flexibility 	to 	realign and manipulate 	assignments 	when
necessary 	in the English department 	at NMHS. 	District documents
show that 	this practice was 	not uncommon. 	From the 	spring of
1988 	through the fall of 	1989, 	several teachers 	in the NMHS
English 	department 	had 	their 	assignments 	realigned 	as 	needed 	and
even 	crossed departmental 	lines 	to 	fulfill 	other assignments. 	In
addition, 	new 	teachers were assigned 	sections 	in the NMHS 	English
department when the need arose. 	For example, 	the District hired
a basketball 	coach 	in 	1989 	and 	assigned him two 	sections 	of
English, 	in addition to three 	sections of physical 	education.
Eventually, 	Bookout was 	chosen for the transfer. 	Bookout
had 	taught 	English at NMHS 	for the past 	twelve years. 	From 	1970
to 	1976 	he taught English at the 	junior high 	school 	level. 	His
experience 	teaching at 	the 	junior high 	school 	level was 	extremely
unsatisfactory. 	Bookout 	requested a transfer each of 	the 	six
years 	he taught at that level. 	In 	1976 	he was 	transferred to
NMHS.
The process 	followed by 	Roach 	represented a 	departure 	from
the way 	involuntary transfers were made 	in the past. 	Roach
served 	as 	a 	site 	administrator 	in the 	District 	from 	1974 	through
the 	summer of 	1987. 	During this 	thirteen year period, 	he
17

testified, 	selection of 	teachers 	for 	involuntary transfer had
been the prerogative of the 	site principals, 	not the director of
personnel. 	Roach 	explained the departure 	as 	an attempt on his
part 	to avoid potential 	"hard 	feelings" 	between 	site
administrators 	as 	a result of disagreements 	about the transfer.
Because 	involuntary transfers 	occur 	infrequently, 	there 	is
limited evidence of past practice in this area. 	However, 	in one
recent transfer 	similar to this 	case, 	seniority 	seemed to be a
determining factor. 	In 	1987, 	the District attempted to transfer
one of the most 	senior NMHS 	science teachers 	to NJHS. 	There was
a protest 	over 	the notion that 	a 	senior teacher would be
transferred. 	The Association intervened and 	it was 	determined
that 	the 	least 	senior teacher would be 	transferred 	instead. 	In
another recent example, 	the need arose to transfer four of 	eight
counsellors 	to 	classroom assignments. 	Although the 	counsellor
transfers presented 	issues 	not present here 	(e.g., 	appropriate
credentials, teaching versus nonteaching assignments, etc.), 	it
nevertheless 	contained certain 	similarities. 	As 	a major
personnel 	action, 	it 	involved reassignment of 	certificated
employees 	under 	circumstances 	which 	represented 	significant
career changes 	for the affected employees. 	In the 	counsellor
situation, 	the District developed a 	formal 	rating 	system
whereunder 	all 	candidates 	were 	objectively 	evaluated 	using
weighted 	factors.
. . *
18

B. 	The June 3, 	1988 Meeting
On June 	3, 	1988, 	Roach called 	Bookout to a meeting 	and
announced the transfer, 	effective September 	1988, 	to NJHS. 	The
announcement 	stunned 	Bookout. 	Bookout 	explained he was
"temperamentally unsuited" 	to 	teach 	at 	the 	junior high 	school
level. 	He 	told Roach he had a very bad 	experience 	teaching at
the 	lower 	level during his 	first 	six years 	in the District. 	One
year, 	in particular, 	he received a negative evaluation. 	He
explained he 	asked 	for a 	transfer each of 	those 	six years.
According 	to 	Bookout's unrebutted testimony, 	Roach acknowledged
locating at 	least 	two of 	those transfer requests.
Other possibilities were discussed. 	Bookout 	asked why 	a
less 	senior teacher/such as 	Harrington, 	was 	not transferred
instead. 	Roach 	responded 	that 	Harrington had 	expertise 	in drama
and thus was 	needed at NMHS. 	Hallford was discussed. 	Roach 	said
Hallford, 	unlike Bookout, 	had skills 	in teaching seniors.
(Hallford currently teaches 	sophomores 	English at NMHS, 	not
seniors.)
During the course of 	the meeting, 	Roach cited 	several
reasons 	for the transfer. 	Roach 	said Bookout's 	experience 	at 	the
junior high level was 	successful. 	Bookout, 	on the other hand,
explained that 	just 	the opposite was 	true. 	Roach also 	said he
was 	concerned with 	establishing 	a 	male-female balance 	at the
junior high. 	Bookout was 	"dubious" 	about the notion of male-
female balance. 	There was 	also discussion about the overall
desirability of 	the NJHS 	assignment. 	Roach claimed 	it was 	a good
19

assignment 	because 	NJHS 	had 	recently won a 	statewide 	award 	for
excellence, 	and the 	teaching environment was 	a good one. 	Bookout
explained 	that 	NMHS 	had 	on 	ongoing problem with 	low CAP 	scores
and he wanted to be 	a part of 	improving the 	scores. 	The meeting
ended.
After consulting the Association president, 	Bookout 	asked
Roach 	for a written 	statement of 	reasons 	for the 	transfer. 	On
June 	6, 	1988, 	Roach provided Bookout with the following reasons
in writing.
After a great deal 	of 	thought 	the 	District
has 	decided that you are 	the best 	qualified
person for the 	junior high position. 	You are
fully 	credentialed 	to 	teach 	all 	grades 	at
this 	level. 	Also, 	in making the decision the
District 	considered experience. 	You were
originally hired 	in Newark to 	teach 	junior
high 	students. 	You have 	extensive experience
teaching average or above 	average 	students.
In addition, 	the 	junior high English 	staff
has been a 	strong one, 	but because of
turnover during the past 	several years, 	many
excellent teachers have 	left the program, 	and
it 	is 	the District's desire to place an
experienced, 	highly qualified person 	in the
job.
Finally, 	some 	consideration was 	given to the
fact 	that 	there 	is presently only one 	full
time male 	scheduled 	into this 	department,
whereas 	six women are 	full 	time. 6
66At 	the hearing 	Roach 	said departmental 	gender balance was 	a
goal under a program known as Project Equals, 	as well as under
the 	District's 	affirmative 	action policy. 	Departmental 	gender
balance may be a 	laudable goal. 	However, 	the District's written
affirmative 	action policy does 	not 	expressly 	require 	departmental
gender balance. 	Rather, 	the program is geared to ensure that
"transfers 	... 	are 	carried out 	in keeping with the Affirmative
Action Policy." 	The 	"policy," 	drafted 	in general terms, 	is 	to
afford 	"equal 	opportunity 	employment 	to 	all 	applicants 	for
employment with the 	school 	district." 	It would appear that this
policy 	is 	designed to 	enable women and minorities 	to move 	into
20

In addition to 	the reasons 	offered on June 	3 	and 	in the 	June
6 memo 	, 	Roach testified about other reasons 	for the transfer.
Roach 	said 	that 	he wanted 	to 	send a 	good 	teacher 	to 	NJHS 	because
the 	English department there had recently 	(prior to 	1986-87) 	lost
six 	"tremendous 	teachers," 	and he wanted to maintain the high
level 	of 	teaching at 	the 	school. 	Roach also 	said he 	considered
that Mary Kay Henderson, 	another NMHS English teacher, 	was
returning 	from a 	sabbatical. 	Roach was 	of 	the 	opinion that her
return would 	lessen the 	impact 	of 	Bookout's 	departure.
The 	collective 	bargaining 	agreement 	also played 	a prominent
role 	in Bookout's 	transfer. 	The 	contract covers 	involuntary
transfers 	in general 	terms. 	The agreement gives 	the District
great 	authority to 	involuntarily transfer a teacher, 	providing
only for notice and a 	statement of reasons. 	Article 	10, 	section
10.. 5 of the contact contains a more detailed provision covering
voluntary transfers. 	That provision states:
The 	following 	criteria 	shall 	be 	reviewed when
considering applications 	for a posted vacancy:
10.5.1 	Certification requirements.
10.5.2 	Affirmative Action goals 	of 	the
District.
desired positions. 	Its application to 	situations 	such as 	the 	one
presented by this 	case is 	questionable. 	In any event,
departmental 	gender balance 	as 	a 	reason 	for transferring 	Bookout
was 	undercut when the District, 	in 	1989, 	filled the next vacancy
in the NJHS 	English department with a white 	female 	over a
comparably qualified white male. 	According to Roach, 	the new
hire 	"had 	student 	teaching 	experience 	only 	and 	she 	had worked 	in
the 	area 	of 	Drama 	somehow or other 	in the 	schools 	in the Alameda
Unified." 	The 	rejected male had 	also 	student-taught 	and had
recent 	experience 	in a teacher training corps program.
21

10.5.3 	All 	of 	the 	criteria 	in Section 	10.5 	having
first 	been 	considered 	and being 	found 	equal,
a unit member's 	length of 	service with the
district will 	be 	the determining 	factor.
10.5.4 	The qualifications, 	including the
recent training of 	the unit member
compared to those of 	other
candidates 	for both 	the position to
be 	filled 	and the position 	to 	be
vacated.
10.5.5 	The needs 	for 	efficient 	operation
of the District.
10.5.6 	The needs 	of 	the unit member.
Roach 	testified as 	follows 	as 	to 	the weight he 	gave 	the 	section
10.5 criteria.
You know, 	one of the things 	that you could
say is pretty much all 	things 	being equal,
you know, 	look at 	seniority as 	an important
factor. 	I 	think seniority 	should be given
the overwhelming weight, 	but I 	think
seniority 	is 	extremely 	important.
Roach did 	not 	clearly 	inform Bookout 	or the Association 	that
he 	applied the 	section 	10.5 	criteria 	in deciding who 	to 	transfer.
Aleita Huguenin, 	Association representative, 	testified that 	it
was not until 	the 	formal 	hearing 	in this 	case that 	Roach 	first
announced 	he 	followed 	the 	contractual 	voluntary 	transfer
criteria.7
7The 	District 	argues 	that 	the 	notes 	of Association
representative Joan Perlowitz, 	taken at the June 24 meeting
described below, 	show Roach 	considered the 	section 	10.5 	criteria
in making the transfer decision. 	These notes 	are not a reliable
piece of 	evidence. 	Perlowitz did not testify at the hearing, 	and
the notes 	are vague and confusing. 	According to the notes, 	it
appears 	that 	at 	one point 	Huguenin asked Roach 	if 	section 	10.5
was 	used. 	Roach responded that he 	"considered what was 	in
letter." 	This 	seems 	to 	indicate 	that Roach 	said he relied on the
content of the June 	6 	letter, 	not section 	10.5. 	At another
point, 	the notes 	show that application of 	section 	10.5.4 was
22

Meanwhile, 	Bookout's 	grievance 	challenging the 	transfer was
denied by-Mori 	at 	step one 	of 	the grievance procedure.8 On
June 	17, 	1988, 	Bookout met with Roach again to discuss a possible
resolution. 	They discussed the transfer again, 	but Roach was
unwilling 	to modify his position.
raised. 	According to the notes, 	Roach responded that he 	"did not
consult update 	for recent 	training." 	This 	again 	seems 	to
indicate 	that 	Roach 	said he 	did not 	rely on the 	"recent 	training"
criterion in section 	10.5.4. 	Later, 	the notes 	indicate that
Roach 	said "I feel 	10.6 	and 	10.1 was 	all 	I 	had to referred to. 	I
followed this." 	This 	response 	similarly 	indicates 	no 	application
of 	section 	10.5. 	Thus, 	even if the notes are competent evidence,
they do not 	support 	the District's 	contention. 	The notes 	tend to
show that 	section 	10.5 was 	mentioned on June 	24, 	but they do not
establish 	that 	Roach 	clearly 	informed 	the Association 	that 	he
relied on 	section 	10.5.
B. 	The June 24, 	1988 Grievance Meeting
Bookout's 	grievance 	first 	questioned 	the 	need 	for 	the
transfer. 	If a transfer had to be made, 	the grievance 	further
asked whether Bookout was 	the appropriate person. 	The parties
discussed these 	issues at the June 24, 	1988 grievance meeting.
2.4
- .. .n
Roach explained 	that 	transfers 	and 	assignments 	are 	made 	on
the basis 	of a 	"population analysis" 	which 	includes 	total 	number
of 	students 	and teachers. 	A specific 	number of 	sections 	are
assigned to each campus; 	assignment of those 	sections 	is 	left to
local 	campus 	administrators. 	Roach's 	explanation prompted Aleita
8The 	decision to 	transfer Bookout was 	very unpopular.
Students 	and 	faculty 	staged a demonstration. 	A contingent 	of
teachers 	read a 	resolution on Bookout's 	behalf 	to 	the
superintendent. 	Teachers 	in the 	English department presented 	the
principal with a petition urging retention of Bookout 	at NMHS.
Letters were 	sent to the 	school board by students, 	teachers,
former students, 	parents 	and various 	elements of the community.
Articles 	appeared in the 	local newspaper, 	as well as 	in the San
Jose Mercury News.
23

Huguenin, 	Association representative, 	to request enrollment
projections, 	staffing and assignment 	information to verify
Roach's 	explanation and to analyze the basis 	of 	the transfer. 	At
that time, 	the Association was 	not 	satisfied with Roach's
explanation as 	to the 	need 	for the transfer or the 	selection of
Bookout. 	Huguenin requested 	"staffing and 	assignments"
information 	for prior years 	and 	for the upcoming 	school 	year,
1988-89. 	Huguenin needed this 	information to determine what had
occurred 	and 	to 	make 	an 	informed 	evaluation of 	the decision 	to
transfer Bookout.
Roach had a 	great deal 	of 	the 	staffing and 	assignment
information at the June 24, 	1988 meeting. 	Although Roach
referred 	to written 	information on occasion during the 	course 	of
his 	explanation, 	he refused to make it available. 	According to
Huguenin, 	Roach 	said the requested materials 	constituted his
"working papers," 	and he would not 	share 	them unless 	told to do
so by a 	"higher authority."
Roach admitted 	that 	Huguenin asked 	for materials 	to 	verify
his position. 	He 	said he checked his 	files, 	but the file
containing the 	enrollment projections was 	not 	in his 	possession.
Roach 	testified that 	he 	interpreted 	the 	request 	for 	staffing 	and
assignment 	information as 	an attempt 	to review his 	entire 	file.
He 	felt 	this 	exceeded the 	enrollment projections 	and 	staffing
information, 	hence he refused. 	Roach admitted that he responded
with a 	"flip 	remark" 	that he would provide the 	information when
24

ordered by 	a 	"higher power." 	He 	admittedly did 	not 	give 	Huguenin
the 	staffing 	or 	assignment 	information.	. . .
Because 	Roach's 	refusal was 	firm, 	Huguenin did not 	renew the
request for information after June 	24, 	1988. 	The grievance was
eventually 	dropped 	because 	the 	grievance 	procedure 	provided 	only
for 	advisory 	arbitration.
Bookout's 	transfer to NJHS became 	effective 	September 	1988.
The 	transfer adversely affected Bookout 	in 	several ways. 	After
twelve 	successful years of teaching at NMHS, 	he was 	required to
adapt 	to 	a very different 	environment. 	The transfer required
that he 	relearn 	the 	junior high 	school 	curriculum, 	develop new
lesson plans, 	and devise new teaching strategies. 	These 	factors
required 	that 	Bookout 	spend more 	out-of-class 	time 	in order to
teach 	effectively at NMJS. 	He 	convincingly testified that he 	is
"temperamentally unsuited" 	to 	teach the 	junior high 	school 	age
group 	and 	strongly prefers 	the 	subject matter and 	the 	students 	at
the 	high 	school 	level. 	He has 	difficulty controlling younger
students 	and 	finds 	it 	necessary to write more disciplinary
referrals at NJHS.
ISSUES.
1. 	Whether the District transferred Bookout because of his
protected 	activity?9
9Although the 	complaint alleges 	that Mori made 	the decision
to 	transfer Bookout, 	it was 	established early in the hearing that
Roach was 	the decision-maker. 	The 	case was 	fully 	litigated with
that 	in mind. 	Therefore, 	this decision will treat the transfer
decision by Roach as 	unalleged violation. 	Santa Clara 	Unified
School District 	(1979) 	PERB Decision No. 	104, pp. 	18-19.
25

2. 	Whether the 	District unlawfully refused to provide
relevant 	information,to 	the Association during 	the 	grievance
procedure?
3. 	Whether the District 	issued Bookout a negative
evaluation because 	of 	his 	protected 	activity?
4. 	Whether the 	District 	unlawfully 	encouraged 	an 	employee
to 	refrain 	from 	involving 	the Association 	in her 	employment
activities?
DISCUSSION
Bookout's 	transfer
Section 3543.5(a) prohibits 	retaliation 	against 	an 	employee
for 	engaging 	in conduct protected by the 	EERA. 	To 	establish 	a
violation of 	section 3543.5(a), 	Charging Party bears 	the burden
of 	showing that Bookout 	engaged 	in protected activity, 	that the
Respondent knew of 	the activity, 	and that the protected activity
was 	a 	"motivating factor" 	in the transfer decision. 	Novato
Unified School District 	(1982) 	PERB Decision No. 	210. 	The
Charging Party must also 	show, 	under objective 	standards, 	that
the 	employer's 	action was 	adverse to an employee. 	Palo Verde
Unified School District 	(1988) 	PERB Decision No. 	689. 	Once this
is 	established, 	the burden shifts 	to the 	employer to demonstrate
that 	it would have 	taken the 	same 	action even in the 	absence of
protected conduct. 	Ultimately, 	the 	employee must 	show that 	"but
for" 	the protected 	conduct he or 	she would not have 	suffered 	the
adverse action. 	Novato Unified School District, 	supra. 	In
- -
applying this 	test, 	the trier of 	fact 	is 	required to weigh both
26

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. 	Novato 	Unified School
District. 	supra. 	See also, 	Martori Brothers Distributors v.
Agricultural Labor Relations Board 	(1981) 	29 Cal.3d 721, 	729-730.
It 	is 	undisputed that Bookout 	engaged 	in a rather 	large
amount 	of protected activity during the period 	(the 	1986-87 	and
1987-88 	school years) 	immediately preceding his 	transfer. 	He
served 	as 	head of 	the 	faculty 	senate 	and 	on the 	NTA board 	of
directors. 	He 	filed numerous 	grievances 	and represented
employees 	in a variety of 	employment related disputes. 	The
nature 	and amount of protected activity by Bookout placed him 	in ,
a highly visible role 	as 	a prominent NTA 	leader.
To 	justify an inference of unlawful motive, 	the Charging
Party must 	show that 	the 	employer had actual 	or 	imputed 	knowledge
of 	the 	employee's protected 	conduct. 	Novato 	Unified School
District, 	supra. 	p. 	6. 	In this case it is undisputed that Roach,
who became chief of personnel 	in August 	1987, 	was aware of
Bookout's 	protected activity 	throughout 	the 	1987-88 	school 	year.
Roach admitted that, 	during the period he was deciding who 	to
transfer, 	he knew of Bookout's participation in the grievance
procedure, 	as well as his 	role in the faculty senate and the NTA.
It 	is 	similarly undisputed that Mori, 	who provided 	substantial
input to Roach during the transfer process, 	knew of Bookout's
protected 	conduct during the 	1986-87 	and 	1987-88 	school 	years.
There 	are 	several pieces 	of 	evidence which 	suggest unlawful
27

motive 	and thus 	provide 	the 	nexus 	between Bookout's 	protected
conduct and the 	involuntary transfer to NJHS. 	Bookout's 	transfer
came 	on the heels 	of 	an extended period of protected conduct,
near the 	end of Roach's 	first year as 	chief of personnel. 	The
transfer was 	soon after Roach 	told 	a 	grievance 	meeting 	that
contract disputes 	"had to 	stop." 	Timing of 	a discriminatory act
is 	evidence 	from which an unlawful motive may be 	inferred. 	North
Sacramento School District 	(1982) 	PERB Decision No. 	264, 	p. 	9.
Other 	evidence which points 	to unlawful 	motive 	is 	found 	in
the 	reasons 	given by Roach to 	support 	the transfer. 	Beginning
with the June 	3, 	1988 meeting, 	Roach's 	overall explanation for
Bookout's 	transfer became a patchwork of vague, 	shifting and
exaggerated reasons. 	For example, 	at the June 	3, 	1988 meeting,
Roach told Bookout he was 	chosen because he 	(Bookout) 	had
successful 	experience at the 	junior high 	school 	level,
affirmative 	action considerations 	dictated a man fill 	the 	slot 	at
NJHS, 	and the assignment was 	desirable because NJHS had recently
won a 	statewide award for excellence. 	But in his June 	6, 	1988
written statement of 	reasons, 	Roach modified his 	justification
for the transfer. 	He 	added that Bookout had 	extensive 	experience
beaching above-average 	students, 	a 	factor quite different 	from
3xperience at the 	junior high 	school 	level. 	The June 	6 	memo
explains that, 	although the NJHS 	English 	staff has 	been a 	strong
one, "because of 	turnover during the past 	several years, 	many
excellent teachers have left the program, 	and it is 	the
District's 	desire 	to place 	an 	experienced highly 	qualified person
28

in the 	job." 	This 	justification is 	inconsistent with Roach's
June 	3 	statement that NJHS was 	at 	that time an excellent 	school
and Bookout 	should welcome 	the 	opportunity to 	teach there.
Roach's 	concern, 	based on high teacher turnover 	in the 	English
department at NJHS, 	seems 	exaggerated 	for a 	school which had
recently won an award 	for excellence. 	Moreover, 	Roach later
admitted that 	the 	teachers 	who 	left 	the 	English department 	at
NJHS had done 	so prior to the 	1986-87 	school year. 	Thus, 	Roach's
concern about dilution of 	the 	quality of 	the 	English 	staff 	at
NJHS 	seems 	not 	only exaggerated but 	also 	somewhat 	untimely.
Vague, 	shifting and exaggerated,, reasons 	offered to 	justify
Bookout's transfer is 	evidence which 	suggests 	an unlawful motive,-.
Novato Unified School District, 	supra, 	pp. 	13-14; 	Pleasant Valley
School District 	(1988) 	PERB Decision No. 	708, 	pp. 	17-18.
In his 	testimony 	Roach 	added 	other 	previously 	unannounced
reasons 	to 	support his decision to transfer Bookout. 	He 	said
that the return of Mary Kay Henderson, 	who had been on 	sabbatical
during the 	1987-88 	school year, 	made the loss of Bookout more
acceptable 	at NMHS. 	Although Roach 	steadfastly maintained
throughout 	the hearing that his 	mind was 	open to 	arguments 	to
persuade him to change 	the decision, 	he 	never mentioned
Henderson's return as a 	factor. 	Thus, 	a reason for the 	transfer
was 	known only to 	Roach. 	Bookout was 	given no opportunity to
state his 	case with respect to 	Henderson's 	return.
The 	same 	is 	true with respect to the 	section 	10.5 	criteria.
The 	absence of any reference 	to 	section 10.5 	either on June 	3 	or
29

in the June 	6 	memo 	supports 	Huguenin's 	testimony that 	Roach 	first
announced application of 	this 	section at the hearing. 	Even if
Perlowitz' 	notes are considered, 	they 	suggest that on June 	24
Roach avoided any admission that he used 	section 	10.5. 	Roach's
belated 	announcement 	that 	he 	used the 	section 	10.5 	criteria
indicates 	an attempt 	to 	legitimize 	the 	transfer decision after
the 	fact. 	Like 	the 	failure 	to mention the Mary Kay Henderson
situation, 	the 	failure to 	clearly 	inform Bookout or Huguenin that
the 	contractual 	voluntary 	transfer 	criteria 	had 	been 	followed
largely precluded a 	meaningful 	discussion about 	the 	basis 	for 	the
transfer. 	Ignorant as to the precise criteria used, 	Bookout
'could not have possibly persuaded Roach to 	change his 	mind. 	This
is 	evidence 	from which an unlawful motive may be 	inferred. 	See
Woodland Joint 	Unified School 	District 	(1987) 	PERB 	Decision No.
628, 	adopting decision of administrative law judge at page 	34.
Roach 	also 	departed 	from what 	he 	described 	as 	a 	long
practice whereby 	involuntary 	transfer decisions 	were 	made 	at 	the
site 	level. 	According to Roach's own testimony, 	this practice
existed 	for 	approximately 	fifteen years. 	While 	Roach 	claimed 	he
was 	only 	trying to avoid hard 	feelings 	at 	the 	site 	level,
departure 	from 	such a 	long and 	established past practice 	is'
nonetheless 	evidence 	from which 	an unlawful 	motive 	may be
inferred. 	Woodland Joint Unified School District, 	supra, 	p. 	6.
As 	more 	fully discussed below, 	Roach's 	refusal 	to provide
relevant 	information to Aleita 	Huguenin at 	the June 	24 	meeting
also raises 	the 	spectre of unlawful motive. 	Although the meeting
30

occurred 	after the transfer decision, 	Roach's 	refusal
nevertheless 	is 	evidence 	from which 	an unlawful 	motive may 	be
inferred. 	It 	indicates 	that 	Roach was 	more 	interested 	in
transferring Bookout 	than he was 	in an open discussion about 	the
merits 	of 	the transfer. 	See 	Baldwin Park unified School 	District
(1982) PERB Decision No. 	221, pp. 	16-17.10
Further 	evidence 	of unlawful motive 	is 	found 	in the
statements 	of Kaz Mori.11 His 	comment 	in the 	spring of 	1987 	that
he 	did not want 	outsiders 	involved 	in problems 	at NMHS 	suggests 	a
hostile feeling for NTA representatives, 	including Bookout, 	who
had 	supported 	a 	fellow teacher 	unjustly 	treated 	by 	the 	school
newspaper. 	Unrebutted testimony regarding Mori's 	hostile
comments 	and 	reluctant 	dealings 	with 	the 	faculty 	senate 	and NTA
are 	similarly indicative of unlawful motive. 	See pp. 	3-6, 	supra.
... .
Under objective 	standards, 	the transfer adversely affected
Bookout. 	A discriminatory transfer 	for purposes 	of 	retaliating
against 	an employee 	for protected 	activity 	is 	viewed 	as 	adverse
in nature. 	Woodland Unified School District 	(1990) 	PERB decision
10Roach's 	irritation at 	Bookout's 	seemingly mild 	speech to
the 	city 	council 	and his 	comment 	to Welsh 	that 	contract disputes
"had to 	stop" 	are further examples 	of unlawful motive. 	However,
these 	need not be 	considered 	in detail. 	For purposes 	of 	argument
under the Novato 	analytical 	framework, 	Charging Party has 	already
shown 	sufficient 	anti-union motive on the part of 	Roach.
uRoach 	sought 	information and 	input 	from Mori 	about who
should be 	transferred. 	Mori 	and Roach discussed Bookout, 	Johnson
and 	Hallford as 	candidates. 	Mori participated 	in 	several
meetings where the 	transfer was 	discussed with Roach. 	Mori 	and
Roach, 	according to Mori, 	had approximately 	six private 	telephone
calls where 	they discussed the 	transfer. 	Although Mori was 	not
the person who ultimately made the decision, 	it 	is 	concluded that
he provided 	substantial 	input.
31

No. 	808. 	In addition, 	this case is unlike Palo Verde Unified
School 	District, 	supra, 	where the 	transfer merely resulted 	in
mild 	inconvenience, 	the 	employee 	continued to perform the 	same
duties, 	and working conditions 	in certain respects 	actually
improved. 	In contrast, 	the transfer of Bookout constituted a
major career 	setback. 	Bookout's demeanor on the witness 	stand
clearly demonstrated 	that 	he 	is 	"temperamentally unsuited" 	to
teach the 	junior high 	school age group, 	and as 	a result he has
difficulty controlling younger 	students. 	He was 	required 	to
relearn the 	junior high 	school 	curriculum, 	devise new teaching
strategies and develop new lesson plans. 	All 	of this 	required
that 	Bookout 	spend more out-of-class 	time preparing 	to 	teach.
Furthermore, 	the 	failure of 	even one English teacher at NMHS 	to
show the 	slightest 	interest 	in Roach's 	solicitation of 	volunteers
indicates 	that 	teaching in the English department 	at NJHS was 	not
viewed as 	a desirable 	assignment.
It 	has 	been 	established 	that 	Bookout 	engaged 	in protected
activity, 	and that Roach and Mori knew of the activity. 	It has
also 	been 	shown that 	the 	transfer 	adversely 	affected 	Bookout.
And 	the 	existence 	of 	unlawful 	motive 	establishes 	a 	nexus 	between
the protected 	conduct 	and the 	transfer. 	The burden now shifts 	to
the 	District 	to prove 	that 	its 	actions would have been the 	same
despite 	the protected activity. 	Novato 	Unified 	School 	District.
supra, p. 	14.
Roach's 	explanation, 	viewed 	in the totality of 	the 	evidence,
does 	not withstand 	scrutiny. 	Despite 	the 	claim that this was 	an
32

extremely difficult decision which caused great 	concern, 	he
adapted a 	surprisingly narrow approach. 	First, 	for all 	intents
and purposes, 	he 	limited the pool 	of 	candidates 	to the English
department at NMHS. 	Serious 	consideration was 	given only to
these teachers. 	This 	automatically precluded consideration of
the 	remaining teachers 	at 	the high 	school who may have been
qualified to 	fill 	the 	slot at NJHS. 	The possibility exists 	that
a teacher holding a multiple credential 	(e.g., 	Wasser, 	Johnson or
Hunt) 	could have been reassigned to permit 	the transfer of 	a NMHS
teacher from outside the English department. 	Second, 	there were
no meaningful discussions 	between Roach and the 	local 	site,
administrators who presumably knew the 	candidates 	best. 	Roach
took control over the decision. 	According to Mori, 	while he
provided 	Roach with 	information and 	even discussed 	some
individuals, 	there was 	never an in-depth dialogue between Roach
and 	site 	administrators 	to 	rate 	and 	compare 	the 	candidates 	by 	use
of 	objective 	standards. 	As 	evidenced by the example of the
counsellor transfers, 	Roach 	(and Mori) 	used this procedure 	in the
past and thus knew it was 	a viable option, 	yet it was 	not
adopted. 	The 	arbitrary limitation on the 	number of 	candidates
considered 	and 	the 	failure 	to 	rate 	or 	compare the 	candidates 	with
the assistance of 	local 	site administrators, 	as 	had occurred 	in
the past, 	indicates no real desire to fill the slot at NJHS 	in a
fair and 	open process 	using 	clear 	and objective 	criteria.
Six 	of 	the teachers 	in the English department 	at NMHS who
were considered for the transfer - Neri, 	Blackhart, 	Gulbranson,
33

Henderson, 	Williams 	and Hollenbeck 	- 	had more 	seniority than
Bookout. 	Also, 	Hollenbeck was 	to replace Haga as department
chairperson, 	Henderson had experience 	teaching 	at 	the 	junior high
school 	level 	but had already been transferred once 	in 	her 	career,
and Williams was 	the main teacher 	in the drama department.
Two candidates 	--Wasser and Johnson 	- were 	less 	senior than
Bookout. 	Wasser even taught at the 	intermediate 	level. 	However,
both held multiple 	credentials 	and taught 	split 	assignments.
Johnson 	coached 	at 	least 	two 	sports 	and Wasser 	typically 	taught
several 	sections 	in 	the 	history department.
Another 	teacher 	(Kennelly) 	taught 	ESL. 	She was 	retained 	at
NMHS 	for this 	reason.
Retention of 	these 	teachers 	at NMHS 	because of the 	above-
stated reasons 	finds 	support in the record. 	However, 	viewed
against a background of unlawful 	animus, 	Roach's reasons 	for
selecting 	Bookout 	rather 	than 	any 	of 	the 	remaining 	teachers 	are
deemed to be pretextual.
Roach 	offered 	several 	reasons 	for 	not 	transferring 	Hallford,
who, 	like Bookout, 	taught only English. 	Roach claimed Hallford
viewed 	teaching at 	the 	junior high 	school 	level 	as 	a 	"very
undesirable 	assignment." 	Hallford was 	not 	called to 	testify.
However, 	even if his dislike 	of teaching at the 	junior high
school 	level 	is 	accepted as 	true, 	it is hard to imagine that
Hallford's 	feelings 	in this 	regard were 	stronger 	than Bookout's.
Roach knew this 	before he made his decision. 	At the June 	3, 	1988
meeting, 	Roach indicated he was already aware of 	at least two of
34

Bookout's 	six 	requests 	for transfer out 	of 	the 	junior high
school. 	Although Roach claimed he was prepared to 	reconsider his
decision even after 	it was 	announced, 	Bookout's June 	3 	emotional
argument 	that 	he 	too disliked 	teaching at 	the 	junior high 	school
level 	for all practical purposes was 	ignored.
Roach also claimed that Hallford, 	unlike Bookout, 	had
special 	skills 	teaching seniors. 	Those 	skills were never
identified at hearing. 	However, 	even if Hallford had 	such
skills, 	Bookout too possessed 	similar 	skills 	easily applied to
teaching 	seniors. 	In his June 	6 memo, 	Roach wrote that Bookout
had 	"extensive 	experience 	teaching average 	or above 	average
students. 	At the hearing, 	Roach praised Bookout's dedication
and 	teaching ability. 	Thus, 	the preference of 	Hallford over
Bookout, 	based on the ability to teach seniors, 	was plainly
exaggerated 	by 	Roach.
Bookout's 	teaching skills 	aside, 	the 	justification that
Hallford was 	retained at NMHS 	to 	teach 	seniors 	is 	suspect 	for
another reason. 	Hallford may be very good at teaching 	seniors.
However, 	Roach admitted at 	the hearing that Hallford now teaches
sophomores. 	The 	fact that Mori 	and/or Hollenbeck 	(the new
department 	chairperson) 	have not 	found 	it necessary or desirable
to 	assign Hallford to teach 	seniors 	severely undercuts 	one 	of
Roach's 	chief 	reasons 	for 	choosing Bookout 	over 	Hallford 	for 	the
transfer.
The 	final 	reason for not 	selecting Hallford 	is 	found 	in
Roach's 	claim that 	Bookout had more 	teaching 	experience 	at 	the
35

junior high school 	level. 	Of course this 	is 	true in terms 	of
number of years 	teaching at that 	level. 	But Hallford, 	like
Bookout, 	possessed the required credential to teach at NJHS. 	And
his 	experience, 	acquired during the 	1982-83 	school year, 	was 	far
more 	"recent," 	a 	factor 	in 	section 	10.5.4 which Roach 	claims 	he
followed.12 In comparison, 	Bookout had not 	taught 	at 	the 	junior
high school 	level 	for twelve years. 	The questionable value of
such 	obviously 	stale 	experience was 	inexplicably 	overlooked 	by
Roach. 	Further, 	Hallford had taught 	in the District 	for
approximately eleven years. 	Choosing Hallford would not have
resulted 	in placing an inexperienced teacher at NJHS. 	Plainly,
Hallford would have 	satisfied 	Roach's 	concern regarding 	the 	type
of 	teacher that was 	needed at NJHS 	(whether one 	accepts 	the
justification that NJHS was 	a 	good place to teach because 	it had
recently won a 	statewide 	award 	or whether 	one 	accepts 	the
somewhat 	different 	justification that 	the 	English department 	at
NJHS 	needed an experienced teacher because 	of teacher turnover).
In this 	connection, 	Roach's 	claim that he placed great
weight on 	junior high 	school 	teaching experience 	is 	belied by his
unexplained 	failure 	to 	investigate whether 	any of 	the 	candidates
had taught at the 	lower level prior to their 	employment 	in the
District. 	If 	junior high 	school 	teaching experience was 	such 	an
12Roach testified that he 	applied the 	section 	10.5 	criteria,
including the 	"recent training" 	factor. 	Huguenin's 	notes 	of the
June 	24 meeting, 	introduced into the record by the District,
indicate 	that 	Roach 	told Association representatives 	that 	he
"didn't 	look at recent 	training/experiences 	or inservices 	only
went 	on known credential." 	This 	inconsistency 	further undermines
Roach's 	justification 	for the transfer.
36

important 	factor 	in resolving what 	Roach 	claimed was 	an 	extremely
tough 	situation 	(nobody wanted to transfer to NJHS), 	it 	seems
that 	investigating prior 	experience was 	the 	logical 	thing to do.
Based on the totality of the evidence, 	it 	is 	concluded that
Bookout 	and 	Hallford were 	at 	least 	equally 	qualified 	candidates
for the transfer. 	In such circumstances, 	Roach emphatically
testified that, 	"all 	things being equal," 	seniority 	should be the
governing 	factor. 	Roach 	stressed 	in his 	testimony that
"seniority 	should 	be 	given 	the 	overwhelming weight 	. . . 	I 	think
seniority 	is 	extremely 	important." 	This 	approach 	is 	consistent
with that used 	in the 	1987 	science department transfer case.
Since Bookout 	is 	seven years 	more 	senior than Hallford, 	under
Roach's unilaterally adopted objective 	criteria, 	as well 	as 	under
the 	limited past practice 	in the District, 	Hallford 	should have
received 	the 	transfer.
The 	two remaining teachers 	- 	Harrington and Hunt 	- were 	far
less 	senior than Bookout. 	They were 	retained at NMHS primarily
because they taught other 	subjects, 	in addition to English. 	If
Harrington and 	Hunt were 	truly 	needed 	at NMHS 	to 	teach drama 	and
journalism/math respectively, 	their retention at 	that 	school
would be 	justified. 	However, 	the record does 	not 	support this
need.
Roach placed 	considerable weight on 	seniority. 	Bookout 	is
fifteen years 	more 	senior than Harrington. 	Roach claimed
Harrington was 	hired to teach drama. 	But the 	employment 	card
relied on by Roach at 	the time 	of 	the decision indicates 	that
37

Harrington, 	hired in 	1985, 	did not teach a drama course until
1987. 	(Other records 	indicate that Harrington may have taught a
single drama 	course 	in 	1986-87.) 	District 	records 	indicate 	that
at 	no 	time 	during 	1987-88 	or 	1988-89 	did 	Harrington teach more
than two 	sections of drama. 	In fact, 	Williams 	alone was
responsible 	for the drama program 	in prior years. 	Harrington's
relatively 	light 	teaching 	load 	in this 	area, 	coupled with
Williams' 	availability and the option to reassign 	sections,13
casts 	serious 	doubt 	on the 	assertion that 	Harrington's 	absence
from NMHS would have presented a 	serious problem. 	As 	for
Harrington's preference for drama, 	NJHS had a drama department 	in
which 	he 	could 	have 	participated. . "
The 	reasons 	Hunt was 	retained at NMHS 	are 	also 	questionable.
The 	goal 	of 	departmental 	gender balance played 	only 	a 	minor role
in the decision to transfer Bookout. 	Almost as 	an afterthought
at the end of his 	June 	6 memo outlining the reasons 	for transfer,
Roach wrote that 	"some 	consideration was 	given" 	to this 	factor.
At the June 24 	grievance meeting, 	as well as 	in his 	testimony,
Roach again 	indicated 	that 	gender was 	not 	a 	determinative 	factor.
Thus, 	while gender may have been a consideration, 	Hunt cannot
automatically be 	ruled out 	as 	a viable 	candidate.
Aside 	from the weight 	given departmental 	gender balance,
there are 	other reasons 	to question use of this 	goal as 	a valid
13District records 	show that Williams' 	schedule was 	such
that, 	with relatively minor reassignments, 	she could have taught
the drama 	sections 	assigned to 	Harrington. 	Such minor
reassignments were 	frequent 	in the English department 	at NMHS.
38

reason for Bookout's 	transfer. 	The 	District's 	affirmative 	action
policy, 	relied on by Roach, 	does 	not 	expressly address
departmental gender balance. 	In fact, 	the next vacancy in the
NJHS 	English department was 	filled by a white woman 	in preference
to 	a 	comparably qualified male, 	thus 	further underscoring the
lack of 	importance placed on departmental 	gender balance.
Hunt's retention at NMHS 	is 	questionable for other reasons.
She had two years 	of more 	recent teaching 	experience 	at 	the
intermediate 	school 	level, 	and 	she was 	eight years 	less 	senior
than Bookout. 	Although she held multiple credentials, 	the
employment 	card relied on by 	Roach 	indicates 	that 	she 	had 	not
taught math' since the 	1986-87 	school year, 	having been assigned
no math sections during the 	1987-88 	or 	1988-90 	school years.
This 	undercuts 	the 	contention that 	she was 	needed 	in the NMHS
math department. 	In addition her 	journalism courseload was
light. 	Records 	show she 	typically taught 	no more 	than one
journalism 	section per term. 	Under 	the presumption that 	any
holder of an English credential 	is 	able to teach 	journalism, 	any
of 	the teachers 	in the NMHS 	English department presumably 	could
have 	been assigned the 	single 	journalism 	section taught 	by 	Hunt.
Therefore, 	the 	claim that 	she was 	needed to 	teach 	journalism 	is
not 	convincing.
The need 	for Hunt to 	teach math and 	journalism at NMHS 	is
called 	into question on yet 	another basis. 	During the 	1989-90
school year, 	Hunt taught at Ohlone College. 	Although 	she 	is
scheduled to 	return to NMHS, 	her absence during this 	period tends
. .
39

to 	support 	the 	observation that her presence 	at NMHS 	to 	teach
either math or 	journalism was 	not 	crucial.
The 	collective 	bargaining 	agreement provides 	that 	the
District has 	the 	right to 	transfer an employee when 	it 	is 	in the
best 	interest of the District. 	The basis 	of what 	is 	in the best
interest of the District, 	however, 	cannot be an employee's
involvement 	in protected 	activity under the 	EERA. 	See 	e.g.,
McFarland Unified School 	District 	(1990) 	PERB Decision No. 	786,
pp. 	8-9. 	Other 	legitimate 	criteria must be advanced 	for the
District to exercise 	its discretion. 	The District has 	offered
several 	reasons 	to 	support Bookout's 	transfer. 	No reason offered
by the District, 	standing alone, 	supports 	the conclusion that the
transfer was 	unlawfully motivated. 	However, 	the reasons 	advanced
for Bookout's 	transfer cannot be viewed 	in a vacuum. 	The 	trier
of 	fact 	may 	"consider 	facts 	and 	incidents 	compositely 	and draw
inferences 	reasonably 	justified 	therefrom." 	Santa 	Clara 	Unified
School District, 	supra. pp. 	14-15. 	As explained above, 	Roach's
rationale 	for transferring Bookout rather than Hallford, 	Hunt 	or
Harrington does 	not withstand 	scrutiny and 	is 	therefore 	deemed 	to
be pretextual. 	Based on the totality of 	circumstances, 	the
inference to be drawn is 	that the District's position is 	more
indicative 	of 	unlawful 	motivation than 	legitimate 	justification.
See 	San Leandro Unified School 	District 	(1983) 	PERB Decision No.
288; 	Santa Clara Unified School District 	(1985) 	PERB Decision No.
500.
40

Based on the foregoing, 	it 	is 	concluded that the transfer of
Bookout violated section 3543.5(a).. 	Because Bookout was 	an
Association activist, 	the 	same 	conduct also violated 	section
3543.5(b).
The denial 	of 	information.
An 	exclusive 	representative 	is 	entitled 	to 	all 	information
that 	is 	necessary and relevant to 	the discharge of 	its 	duty to
represent 	employees 	in contract 	administration. 	Modesto 	City
Schools 	and High School District 	(1985) 	PERB Decision Nos. 	479
and 	518. 	The employer's 	refusal 	to 	supply 	such information
evidences 	bad 	faith bargaining unless 	it 	demonstrates 	adequate
reasons why it 	cannot provide 	the 	information. 	Stockton Unified,
School District 	(1980) 	PERB Decision No. 	143. 	Absent a valid
defense, 	refusal 	to 	furnish necessary and relevant 	information 	is
in itself 	an unfair practice. 	Trustees 	of 	the California 	State
University 	(1987) 	PERB Decision No. 	613-H. 	Relevance is
determined by a 	liberal discovery-type 	standard, 	and 	information
is 	not 	deemed 	irrelevant 	simply because 	an 	exclusive
. ..:
representative 	is 	able 	to negotiate 	a 	contract or present 	a
grievance without the 	information. 	Id.
The 	information 	concerning 	staffing 	and 	enrollment
projections, 	requested by Huguenin on June 24, 	1988, 	was plainly
relevant to Bookout's 	transfer grievance. 	The Association was
not yet convinced that a transfer was 	necessary, 	nor had 	it
accepted Bookout 	as 	the 	logical 	selection. 	The 	information would
have 	assisted the Association in evaluating the need 	for the
41

transfer, 	the District's reasons 	for the transfer, 	and the
selection of 	Bookout.
In response to Huguenin's 	request, 	Roach checked his 	files
and 	found that he did not have the 	enrollment projections. 	This
information, 	therefore, 	could not be provided. 	However, 	Roach
also 	refused 	to provide 	staffing 	and 	assignment 	information which
he had 	in his possession. 	The record 	contains 	many documents
containing 	such 	information which 	Roach 	admitted 	in testimony
that he had 	in his possession during the June 	24 	meeting. 	Thus,
he was 	obligated to give 	Huguenin that 	information. 	The
contention that 	Roach believed 	Huguenin's 	request 	for 	the
staffing and 	assignment 	information was 	overbroad 	is 	not
persuasive. 	The plain meaning of Huguenin's request, 	as well 	as
the purpose of the meeting 	itself, 	was 	to 	secure 	information to
enable the Association to 	evaluate 	the 	transfer. 	Roach was 	aware
of this. 	Even if he believed the request was 	overbroad or 	sought
confidential 	documents, 	he 	could have provided the 	staffing and
assignment 	information while 	retaining 	the 	remainder 	of 	the 	file.
See Los 	Rios 	Community College District 	(1988) 	PERB Decision No.
670. 	He did not do 	so. 	He responded with a 	"flip remark" 	while
firmly refusing production. 	Since the 	District has 	raised no
valid defense, 	the refusal 	to provide 	the 	staffing and assignment
information was 	unlawful under the Act.
Based on the 	foregoing, 	it 	is 	concluded that the District
refused 	to 	provide 	necessary 	and 	relevant 	staffing/assignment
information to the Association, 	in violation of 	section
42

3543.5(c). 	The 	same conduct also violated section 3543.5(a) 	and
(b ) .	-(b) •
Bookout's 	evaluation
The comment placed in Bookout's May 	16, 	1988 	evaluation -
that 	he 	uttered 	an expletive 	and 	abruptly 	left 	a 	staff 	meeting 	-
must be 	evaluated under the Novato 	standards. 	As 	described
earlier, 	Bookout 	engaged 	in the requisite protected activity.
Mori, 	the evaluator, 	knew of Bookout's protected conduct and on
occasion 	had 	demonstrated 	hostility 	towards 	Association 	activity.
However, 	the objectionable part of 	the 	evaluation did not
originate with Mori. 	The 	evaluation was 	initially based on
Berke's report. 	Since she was not the official evaluator, 	Berke
reported her observations 	to Mori. 	Mori 	confirmed the 	report
with Haga. 	In reality, 	it was 	Berke and Haga who were
responsible 	for the objectionable part of the evaluation. 	Mori
simply 	accepted 	their 	input 	concerning 	the 	meeting.
There 	is 	no 	evidence 	in the 	record upon which 	it 	can be
concluded 	that 	either Berke 	or Haga 	harbored 	an unlawful 	motive
against Bookout because of his protected conduct. 	Therefore,
even if the contested part of the evaluation is 	inaccurate, 	it
cannot be 	found unlawful under the 	EERA. 	See Moreland Elementary
School District 	(1982) 	PERB Decision No. 	227 	(Employer conduct,
even if 	inappropriate, 	may not be remedied under the Act where 	it
43

is not based on anti-union motive.)14 This part of the
complaint 	is 	hereby dismissed.
The 	Forgatsch 	meeting
As 	the parties point out 	in their respective briefs,
employees 	have the right 	to be 	represented at certain meetings
with their employers. 	Citing Fremont 	Union High 	School 	District
(1983) 	PERB Decision No. 	301, 	Charging Party contends that
employees 	have the right to be represented 	in 	"all 	matters 	of
employer-employee 	relations." 	Relying 	on 	Redwoods 	Community
College District v. 	PERB 	(1984) 	159 Cal.App.3d 617, 	[205
Cal.Rptr. 	523], 	Respondent argues 	that employees have the right
to 	representation only 	in meetings 	surrounded by 	"highly 	unusual
circumstances." 	However, 	since Mori did not deny Bookout 	the
right to represent Forgatsch, 	the extent of an employee's 	right
to representation is 	not the central 	issue here. 	Having
consented to Bookout's presence, 	Mori was 	bound to participate 	in
the meeting in a lawful manner. 	The issue, 	therefore, 	concerns
the appropriateness of Mori's 	comments 	to Forgatsch, 	during as
well as 	after the meeting.
.,.,
. . . . . .
An employer 	is 	entitled to 	express 	its 	views 	on employment
related matters 	over which it has 	legitimate 	concerns. 	Only
employer 	speech which 	carries 	a 	"threat of 	reprisal 	or 	force 	or
promise of benefit" 	will 	lose its protection. 	Rio Hondo
Community College District 	(1980) 	PERB Decision No. 	128, 	pp. 	19-
14Given this 	finding, 	it is unnecessary to resolve any
lingering dispute 	about 	the 	accuracy of 	the 	contested part 	of 	the
otherwise 	favorable 	evaluation.
44

20. 	In assessing employer 	speech, 	the Board considers 	the 	likely
impact on 	employees who may be more 	susceptible 	to 	intimidation
or to the coercive import of the employer's message. 	id.. , 	p. 	20.
In addition, 	employer 	speech is 	evaluated in the total 	context
which 	it occurred to determine whether it 	is 	unlawful. 	See e.g.,
Antelope Valley Community College District 	(1979) 	PERB Decision
No. 	97, pp. 	20-23; 	Los Angeles Unified School District 	(1988)
PERB Decision No. 	659, p. 	9.
Applying these 	standards here, 	it 	is 	concluded that Mori's
comments 	to 	Forgatsch did 	not 	exceed the 	kind of 	employer 	speech
permitted by the Act. 	It was 	Forgatsch who 	requested the
meeting. 	Although 	the subject of the meeting was 	to be a routine
work assignment, 	Mori 	honored Forgatsch's 	request that 	Bookout
attend. 	The meeting was 	brief 	and almost 	immediately Mori
granted Forgatsch's 	requests 	regarding the assignment. 	Bookout
conceded that the tone of 	the meeting was 	"pleasant, 	it wasn't
antagonistic." 	Mori's 	references 	to Association representation
were apparently 	so mild that Bookout was 	not moved to 	object
during the course of 	the meeting. 	Even in post-meeting
correspondence, 	Bookout was 	not unduly critical of Mori. 	In a
memo to Association officials, 	Bookout admitted the parties 	did
an 	"exemplary 	job" 	in solving the problem. 	In a memo to Mori,
Bookout 	suggested 	it was 	permissible 	for Mori 	to 	invite 	employees
to 	see him 	(Mori) 	"privately at any time." 	While 	it 	is
recognized that 	even 	subtle 	employer 	comments 	can occasionally
carry a coercive message, 	that does 	not appear to be the case
45

here. 	Mori's 	comments during 	and after the meeting are 	in 	line
with the view that 	the 	subject was 	truly minor 	in nature and
could have been resolved 	accordingly. 	These 	statements 	are not
the 	type which objectively 	interfere with 	employee 	rights 	under
the Act.
Based on the totality of 	circumstances, 	it 	is 	concluded that
Mori's 	comments 	to Forgatsch were not unlawful under the Act. . . . .
This part of the complaint 	is 	hereby dismissed.
REMEDY
Under 	section 3541.5(c), PERB 	is 	given the power to 	issue 	a
decision and 	order directing 	an offending party 	to 	"cease 	and
desist 	from the 	unfair practice 	and 	to 	take 	such affirmative
action 	. . . 	as will effectuate the policies 	of 	[the Act]."
It has 	been 	found that 	the 	District 	unlawfully 	retaliated
against 	Gary 	Bookout 	by 	involuntarily 	transferring 	him 	from 	NMHS
to NJHS. 	By this 	conduct 	the 	District violated 	section 	3543.5(a)
and 	(b). 	Trustees of the California State University ..(1990) 	PERB
Decision No. 	805-H. 	It has also been found that the District
unlawfully 	refused 	to provide 	necessary 	and 	relevant 	information
to the Association at the June 24, 	1988 grievance meeting. 	By
this conduct the District violated section 3543.5(c), 	(a) 	and
(b). 	Modesto City Schools and High School District 	(1985) 	PERB
Decision No. 	518. 	It is appropriate to order the District to
cease 	and desist 	from all 	such conduct.
In addition, 	it is appropriate to require the District to
reinstate Bookout, 	upon request, 	to his 	former position or its
46

equivalent at NMHS without prejudice 	to his 	seniority and other
rights 	and privileges. 	To avoid disruption of 	the 	educational
program, 	the transfer of Bookout to NMHS need not occur until 	the
beginning of 	the 	1990-91 	school 	year. 	San Leandro Unified 	School
District, 	supra. PERB Decision No. 	288.
It 	is 	also 	appropriate 	that the 	District be required to post
a notice 	incorporating the terms 	of 	this 	order. 	The notice
should be 	subscribed by 	an authorized agent 	of 	the 	Newark Unified
School District, 	indicating that 	it will 	comply with the terms
thereof. 	The notice 	shall not be reduced 	in size. 	Posting 	such
a notice will 'inform employees 	that 	the District has 	acted 	in an
unlawful manner and 	is 	being 	required 	to 	cease 	and desist 	from
this 	activity and otherwise 	comply with the proposed order. 	It
effectuates 	the purposes 	of 	the EERA that 	employees 	be 	informed
of 	the resolution of 	the 	controversy and will announce 	the
District's 	readiness 	to comply with the ordered remedy. 	See
Placerville Union School District 	(1978) 	PERB Decision No. 	69;
Davis Unified School District. 	et al. 	(1980) 	PERB Decision No.
116.
". "
PROPOSED 	ORDER
Upon the 	foregoing findings 	of 	fact and conclusions 	of 	law,
the entire record herein, 	and section 3541.5(c), 	it has been
found that the District violated section 3543.5(a), 	(b) 	and 	(c).
It 	is 	hereby ordered that 	the Newark Unified School 	District 	and
its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
47

(A) 	Retaliating against employees, 	particularly Gary
Bookout 	, 	because they participated 	in activities 	of 	employee
organizations 	of 	their own choosing 	for the purpose 	of
representation on matters 	of 	employer-employee 	relations;
(B) 	Interfering with the right of Newark Teachers
Association, 	CTA/NEA to represent 	its members 	in their employment
relations with the public 	school 	employer;
(C) 	Failing to negotiate 	in good 	faith with the
exclusive 	representative 	by 	refusing to provide 	the 	Newark
Teachers 	Association CTA/NEA with 	relevant 	information 	needed 	to
prosecute contract 	grievances 	on behalf 	of 	certificated 	employees
of the District.
i . . .
2. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT RELATIONS
ICT:	ACT:
(A) 	Upon request, 	restore Gary Bookout to his 	former
position, or 	its 	equivalent, 	at Newark Memorial High School
effective the beginning of 	the 	1990-91 	school year, 	without
prejudice to his 	seniority 	and other 	rights 	and privileges.
(B) 	Within seven 	(7) 	workdays of 	service of a 	final
decision in this matter, 	post at all 	locations where notices 	to
employees 	are customarily posted, 	copies 	of the Notice attached
hereto as 	an appendix. 	The Notice must be 	signed by an
authorized agent 	for the 	District, 	indicating that the 	District
rill 	comply with the 	terms 	of 	this 	Order. 	Such posting 	shall 	be
maintained 	for a period of 	thirty 	(30) 	consecutive 	calendar days
Reasonable 	steps 	shall be taken to 	insure that the Notice 	is 	not
48

reduced 	in 	size, 	altered, 	defaced or covered by any other
material.
(C) 	Within thirty 	(30) 	workdays 	of a final decision in
this matter, 	notify the San Francisco Regional 	Director of the
Public Employment Relations 	Board, 	in writing, 	of the 	steps 	the
employer has 	taken to 	comply with the terms 	of 	this 	Order.
Continue 	to 	report 	in writing to 	the 	Regional 	Director
periodically thereafter as 	directed. 	All 	reports 	to 	the 	Regional
Director 	shall 	be 	served 	concurrently on the Charging 	Party.
Pursuant to California Administrative Code, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	if 	any,
relied upon 	for 	such 	exceptions. 	See 	California Administrative
Code, 	title 8, 	section 32300. 	A document is considered 	"filed"
when actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
on the last day 	set 	for filing 	". 	. 	. o r when sent by telegraph
or certified or Express United States 	mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of 	exceptions
and 	supporting brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to this proceeding. 	Proof 	of 	service 	shall
49

accompany 	each 	copy 	served 	on a party 	or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 	8, 	sections
32300, 	32305 and 32140.
Dated: 	June 	15, 	1990 Fred 	D'Orazio
Administrative 	Law 	Judge
50
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