Moreland Elementary School District (PERB 0227E)

____________________
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 	715,
Charging 	Party,
v.
MORELAND 	ELEMENTARY SCHOOL 	DISTRICT,
Respondent.
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) 	Case 	No. 	SF-CE-105
PERB 	Decision 	No. 	227
July 	27, 	1982
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ApPearances: 	Robert 	J. 	Bezemek, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	and 	Roger) 	for 	Service Employees 	International 	Union,
Local 	715; 	Margaret E. 	O'Donnell, 	Attorney 	(Breon, 	Galgani 	and
Godino) 	for 	Moreland 	Elementary 	School 	District.
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Jensen, 	Members.
DECISION
Service 	Employees 	International 	Union, 	Local 	715 	(SEIU)
excepts 	to 	a 	Public 	Employment 	Relations Board 	(PERB) 	hearing
officer's 	dismissal 	of 	its 	charge 	alleging 	that 	the 	Moreland
Elementary 	School 	District 	(District) 	violated 	subsection
3543.5(a) 	of 	the 	Educational Employment 	Relations 	Act 	(EERA)l
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	noted.
Subsection 	3543.5(a) 	provides:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to

2	by 	(1) 	unlawfully 	discharging 	an 	employee 	because 	of 	his
participation 	in 	organizing 	on 	behalf 	of 	SEIU 	and 	(2) 	thereby
interfering 	with, 	restraining 	and 	coercing 	other 	employees 	in
the 	unit 	in 	the 	exercise 	of 	their 	rights 	under 	the 	Act.
The 	hearing 	officer 	found 	(1) 	that 	SEIU 	failed 	to 	prove
that 	Doe 	would 	not 	have 	been 	discharged 	but 	for 	his 	union
activity 	and 	(2) 	that 	there 	was 	no 	interference, 	restraint, 	or
coercion 	of 	other 	employees 	because 	the 	District's 	business
justification 	for 	the 	discharge 	outweighed 	any 	harm 	to 	the
employees' 	rights.
FACTS
The 	District discharged 	Doe 	on March 	22, 	1977 	for 	the
alleged 	March 	16 	theft 	of 	$39 	worth 	of 	postage 	stamps. 	Doe
denies 	the 	theft 	allegation 	and 	claims 	he 	was 	discharged 	for
his 	involvement 	in 	a 	decertification 	campaign 	against 	the
California 	School 	Employee 	Association 	(CSEA).
The 	District 	voluntarily 	recognized 	CSEA 	in 	May 	1976. 	In
the 	fall 	of 	that 	year, 	the 	Service Employees 	International
Union, 	Local 	77 	initiated 	a 	drive 	to 	decertify 	CSEA, 	holding
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
2Because 	of 	the 	basis 	for 	the 	discharge, 	the 	employee 	is
hereafter 	referred 	to 	as 	Doe.
2

meetings 	off 	campus. 	In 	December, 	Local 	715 	replaced 	Local 	77
in 	the 	decertification 	effort.
Doe 	worked 	out of 	the 	District 	warehouse 	as 	a 	delivery
driver 	to 	the 	12 	District 	campuses 	and 	as 	a 	gardener 	and
custodian. 	He 	was 	active 	in 	the 	decertification 	effort 	from
the 	earliest 	meetings 	and 	was 	a 	member 	of 	the 	organizing
committees of 	both 	Local 	77 	and 	715. 	In 	December, 	he 	signed 	a
Local 	715 	authorization 	card 	and 	took 	several 	cards 	to
distribute 	to 	other 	employees. 	After 	work 	one 	evening, 	he
solicited 	and 	received 	two 	signed 	cards; 	the 	evidence 	does 	not
indicate 	whether 	the 	solicitations 	occurred 	on 	school property.
Present 	at 	a 	restaurant 	where 	Local 	715 	held 	its 	first
organizing 	meeting 	were 	Mike 	Evans, 	Richard 	Stahl, 	and 	Richard
Martin, 	elected 	CSEA 	officials. 	The 	three 	men 	worked 	in 	the
warehouse 	area 	with 	Doe. 	Evans 	was 	the 	District 	storekeeper
and 	among 	his 	duties 	was 	responsibility 	for 	the 	issuance 	of
postage 	stamps; 	Martin 	was 	an 	audio-visual 	technician; 	Stahl
was 	a 	locksmith. 	They 	did 	not 	participate 	in 	the 	Local 	715
meeting, 	but 	sat 	close 	enough 	to 	observe 	the 	proceedings 	and
saw 	that 	Doe 	was 	present.
Doe 	testified 	that 	he 	believed 	that 	the 	District was 	aware
prior 	to 	March 	16, 	1977 	of 	his 	organizing 	on 	behalf 	of 	SEIU.
He 	claimed 	that 	Dan 	Droke, 	the 	District Assistant Business
Manager, 	knew 	about 	the 	drive 	through 	his 	relationship 	with 	the
three 	CSEA 	officials 	who 	worked 	under 	him. 	However, 	the 	only
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conversation 	Doe 	recalled 	was 	between 	Droke 	and 	Evans
concerning 	a 	reclassification 	request 	by Evans 	and 	he 	admitted
that 	he 	never 	heard 	Evans, 	Stahl 	or 	Martin 	talk 	or 	pass
information 	to 	Droke 	or 	his 	superior, 	Robert 	Bjoring, 	Business
Manager, 	about 	CSEA or 	union 	activities.
Doe 	testified 	that 	Evans 	had 	informed 	him 	that
Superintendent 	Richard 	Davis 	disliked 	"unions, 11 	as 	contrasted
to 11 CSEA, 11 and 	had 	told 	Evans 	that 	he 	would 	never 	permit 	a
union 	in 	the 	District. 	He 	remembered 	this 	conversation 	as
occurring 	around 	the 	time 	he 	was 	hired 	and 	prior 	to 	the
decertification 	drive. 	Both 	Evans 	and 	Davis 	denied 	that 	Davis
ever 	made 	such 	a 	reference 	about 	unions. 	Doe 	admitted 	that 	he
had 	never 	had 	any 	discussions 	about 	the 	union 	with 	Davis 	or 	any
other 	member 	of 	management.
SEIU 	contends 	that 	the 	District 	had 	knowledge 	of 	the
organizing 	campaign 	because 	it 	had 	mailed 	a 	copy 	of 	its 	PERB
petition 	to 	the 	District 	on 	March 	14. 	It 	produced 	a
declaration 	of 	service 	by 	mail. 	SEIU 	acknowledged 	that 	on
March 	18 	it 	had 	sent 	an 	"amended" 	petition 	to 	the 	District
which 	was 	virtually 	identical 	to 	the 	original 	except 	for 	the
date. 	Davis 	testified 	that 	the 	District 	received 	only 	the
latter 	petition 	on March 	23. 	The 	hearing 	officer 	took
administrative 	notice 	that 	PERB 	received 	the 	March 	18 	petition
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on 	March 	25.3 	Davis, 	Bjoring, 	and 	Droke 	indicated 	that 	they
had 	no 	knowledge 	of 	SEIU 	organizing 	prior 	to 	receipt of 	the
petition. 	SEIU 	witnesses 	admitted 	that 	they 	had 	had 	no
discussions 	with 	these 	men 	prior 	to 	the 	March 	16 	discharge.
The 	only 	District 	manager 	with 	apparent 	knowledge 	of 	SEIU's
organizing 	was 	Jay 	Hederick, 	Supervisor 	of 	Maintenance 	and
Doe's 	immediate 	supervisor. 	In 	February, 	Vernon Crawford, 	a
bus 	driver, 	posted 	SEIU materials 	on 	a 	bulletin 	board.
Hederick 	told 	Crawford 	to 	remove 	the 	information 	because 	the
board 	was 	for 	school 	use 	only. 	Crawford 	also 	testified 	that
CSEA 	material 	was 	occasionally 	posted 	on 	the 	bulletin
board. 4 	In 	March, 	a 	second 	bulletin 	board 	was 	placed 	in 	the
drivers' 	room 	and, 	although 	Hederick 	informed 	Crawford 	that
only 	CSEA 	material 	could 	be 	posted, 	the 	board 	was 	divided 	to
permit 	use 	by SEIU after 	receipt 	of 	its 	petition.
According 	to 	Crawford, 	Hederick 	also 	prohibited
distribution of 	SEIU materials 	during 	school 	hours 	and 	told 	him
some 	time 	in 	March 	that 	he 	should 	not 	distribute 	authorization
cards. 	Doe 	claimed 	that 	some 	time 	in 	December 	or 	January,
during 	lunch, 	Hederick 	came 	by 	a 	table 	where 	a 	group 	of
3Further, 	the 	Board 	takes 	administrative 	notice 	that 	PERB
files 	fail 	to 	reveal 	receipt 	of 	the 	alleged 	earlier 	petition.
4There 	is 	nothing 	in 	the 	record 	to 	indicate 	whether 	the
CSEA material 	was 	ordered 	removed 	or 	allowed 	to 	remain 	posted.
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employees 	were 	sitting, 	picked 	up 	an 	SEIU 	newspaper, 	and 	said
that 	"there 	will 	be 	no 	union 	material 	around 	here." 	Hederick
did 	not 	testify 	at 	the 	hearing.
The 	Theft 	of 	March 	16, 	1977
During 	November 	1976, 	Mike 	Evans 	realized 	that 	there 	were
discrepancies 	between 	his 	postage 	stamp 	inventory 	and 	the
number 	of 	stamps 	actually 	in 	his 	possession. 	At 	that 	time, 	he
did 	not 	suspect 	that 	the 	stamps 	were 	being 	stolen 	but 	thought
that 	either 	he 	had 	made 	a 	recordkeeping 	error 	or 	that 	someone
had 	distributed 	stamps 	without 	his 	knowledge. 	He 	informed
Droke 	that 	he 	thought 	some 	stamps 	were 	missing.
In mid-February 	1977, 	after 	continuing 	to 	experience 	stamp
shortages, 	Evans 	came 	to 	believe 	that 	someone 	was 	stealing 	the
missing 	stamps. 	Droke 	ordered 	a 	new 	lock 	put 	on 	Evans' 	door.
Stahl 	installed 	the 	lock 	which 	had 	a 	recapture 	tumbler
preventing 	the 	withdrawal 	of 	a 	key 	which 	does 	not 	fit. 	Evans
and Droke 	received 	the 	only 	two 	keys 	that 	fit 	the 	new 	lock.5
Stahl, 	upon 	learning 	the 	reason 	for 	the 	change 	in 	locks 	and
believing 	that 	his 	job 	as 	locksmith 	entailed 	security 	duties,
called 	the 	San Jose 	Police 	Department 	to 	see 	if 	there 	were 	any
further 	measures 	that 	could 	be 	taken. 	According 	to 	Stahl, 	the
5Doe 	contends 	that, 	on 	a 	day 	Evans 	was 	absent 	in March,
Droke 	attempted 	to 	give 	him a 	key 	to 	Evans' 	office 	and 	that
when 	he 	refused 	the 	key, 	claiming 	that 	he 	did 	not 	need 	it 	to
fill 	his 	delivery 	orders, 	Droke 	urged 	him 	to 	hold 	on 	to 	it.
Droke 	denies 	this.
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police 	suggested 	the 	placement 	of 	a 	hidden 	camera. 	Stahl,
Evans 	and 	Martin 	then 	secured 	Droke's 	permission 	to 	install
one. 	On 	March 	9, 	Stahl 	and 	Martin 	set 	up 	the 	camera 	so 	that 	it
would 	be 	focused 	on 	the 	desk 	drawer 	where 	the 	stamps 	were 	kept
and 	be 	activated 	by 	pulling 	out 	the 	drawer. 	Doe 	was 	not
informed 	of 	the 	change 	in 	locks 	or 	the 	hidden 	camera.
On 	the 	morning 	of 	March 	16, 	at 	approximately 	8:20 	a.m.,
Evans 	removed 	one 	roll 	of 	stamps 	from 	his 	desk 	drawer 	and 	left
his 	office 	to 	deliver 	them. 	He 	testified 	that 	at 	that 	time 	all
stamps were 	accounted 	for. 	He 	could 	not 	recall 	precisely 	the
length 	of 	time 	he 	was 	away 	from 	his 	office 	but 	approximated 	it
to 	be 	20 	minutes, 	between 	8:20 	and 	8:40 	a.m. 	He 	also 	could 	not
remember 	whether 	he 	had 	left 	his 	door 	open 	while 	he 	was 	gone.
However, 	he 	was 	certain 	that 	if 	the 	door 	were 	closed, 	it 	was
locked 	and 	that 	he 	would 	have 	closed 	the 	door 	before 	leaving
the 	warehouse 	later 	at 	approximately 	8:40 	a.m.
Rather 	than 	making 	his 	usual 	morning 	deliveries, 	Doe, 	on
orders 	from 	Droke, 	remained 	at 	the 	warehouse 	to 	assist 	Evans,
Martin, 	and 	Droke 	in 	moving 	some 	furniture. 	Droke, 	however,
later 	told 	him 	that 	he 	was 	not 	needed, 	and 	Doe 	left 	to 	make 	his
deliveries.
Evans 	suggested 	that 	the 	moving 	took 	approximately
20 	minutes 	and 	that 	he 	returned 	to 	his 	office 	at 	approximately
9:00 	a.m. 	Several minutes 	thereafter 	he 	became 	aware 	that 	the
camera 	had 	been 	activated. 	He 	then 	took 	an 	accounting 	of 	the
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stamps 	and 	found 	that 	two 	or 	three 	roles 	were 	missing. 	He
notified 	Droke 	who 	later 	had 	the 	film 	developed.
Evans 	could 	not 	detect 	any 	signs 	of 	forced 	entry 	into 	his
office. 	Stahl 	testified 	that 	while 	there 	were 	scratches 	which
might 	indicate 	that 	the 	lock 	had 	been 	jimmied, 	they 	could 	have
been 	there 	for 	over 	10 	years. 	Droke 	testified 	that 	on March 	8
or 	9, 	Stahl 	tried 	to 	see 	if 	the 	door 	could 	be 	jimmied. 	Droke
was 	not 	sure 	whether 	that 	test 	had 	left 	the 	scratches.
On 	March 	18, 	Droke, 	Bjoring, 	Evans, 	Stahl 	and 	Martin 	viewed
the 	developed 	film. 	It 	first 	pictured 	Evans, 	Stahl 	and 	Martin
behind 	Evans' 	desk. 	They 	had 	been 	filmed 	on 	March 	9 	to 	test
the 	camera's 	operation. 	It 	then 	showed 	approximately
10 	seconds 	of 	a 	figure 	dressed 	in 	Levis 	and 	a 	green 	jacket
standing 	next 	to 	the 	desk 	drawer 	and 	taking 	something 	from 	it.
The 	figure 	is 	pictured 	only 	from 	the 	knees 	to 	mid-torso, 	with
portions 	of 	both 	arms 	and 	hands 	visible. 	A bulge 	appears 	in
the 	back 	right 	pants 	pocket. 	The 	screening 	convinced 	all 	five
viewers 	that 	the 	figure 	in 	the 	film 	was 	Doe. 	They 	claimed 	to
have 	identified 	him 	by 	his 	clothes, 	the 	location of 	his 	wallet
(the 	bulge), 	his 	physique, 	and 	movements.
Bjoring 	held 	a 	second 	screening 	for 	Superintendent 	Davis
and 	Bob Williams, 	Director 	of Administrative 	Services. 	Davis
identified 	the 	figure 	in 	the 	film 	as 	Doe 	because 	of 	the 	way 	he
was 	dressed 	and 	his 	configuration. 	According 	to 	him, 	" •••
there 	was 	no 	one 	else 	it 	could 	have 	been 	••• 	because 	there 	is
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no 	one 	else 	who 	looks 	like 	that 	in 	the 	District. 11 	Williams 	did
not 	testify, 	but 	Davis 	testified 	that 	Williams 	concurred 	in 	the
identification.
SEIU 	disputed 	the 	identifications, 	arguing 	that 	the 	only
evidence 	used 	to 	identify 	Doe 	is 	a 	figure 	in 	a 	film 	and 	Doe's
alleged 	presence 	in 	the 	area. 	It 	claimed 	that 	Doe 	could 	not
have 	been 	the 	culprit 	because 	(1) 	he 	carried 	his 	keys 	on 	his
belt 	and 	they 	were 	not 	shown 	in 	the 	film; 	(2) 	he 	carried 	his
wallet 	in 	his 	left 	rear 	pocket; 	(3) 	he 	did 	not 	wear 	either 	a
watch 	or 	a 	bracelet 	and 	the 	person 	in 	the 	film 	appeared 	to 	be
wearing 	some 	type 	of 	wrist 	jewelry; 	(4) 	other 	District
employees 	wear 	green 	jackets 	and 	blue 	jeans 	to 	work; 	(5) 	Doe 	is
black 	but 	no 	one 	so 	identified 	the 	man 	in 	the 	film; 	(6) 	Doe 	was
making 	his 	deliveries 	at 	the 	time 	of 	the 	theft; 	and 	(7) 	he 	did
not 	have 	a 	key 	to 	Evans' 	office 	door.
On March 	18, 	Davis 	prepared 	a 	letter 	to 	Doe 	notifying 	him
that 	he 	was 	being 	recommended 	for 	discharge 	because 	of 	the
theft 	of 	three 	rolls 	of 	thirteen 	cents 	stamps. 	Davis 	based 	his
recommendation 	on 	the 	film, 	a 	summary 	of 	an 	investigation
conducted 	by 	Bjoring 	and 	Droke, 	and 	Evans' 	stamp 	inventory
records.
Bjoring 	described 	his 	investigation 	as 	consisting 	of 	a
review of 	the 	inventory 	records 	and 	determining 	who 	was 	in 	the
vicinity 	of 	the 	warehouse 	at 	the 	time 	of 	the 	theft 	and 	had
access 	to 	Evans' 	office. 	He 	said 	that 	he 	had 	already 	concluded
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prior 	to 	viewing 	the 	film 	that 	a 	theft 	had, 	in 	fact, 	occurred;
the 	film 	then 	revealed, 	in 	his 	mind, 	who 	had 	committed 	the
theft. 	Bjoring 	also 	said 	he 	had 	an 	officer 	of 	the 	San Jose
Police 	Department 	view 	the 	film, 	but 	the 	record 	does 	not
indicate 	the 	officer's 	reaction. 	Further, 	Bjoring 	presented
all 	the 	above 	evidence 	to 	the 	county 	counsel 	who, 	according 	to
Bjoring, 	concluded 	that 	there 	was 	sufficient 	evidence 	to 	link
Doe 	to 	the 	incident. 	The 	counsel 	did 	not 	testify.
On 	March 	21, 	Doe 	met 	with 	Bjoring 	and 	Droke 	and 	was 	accused
of 	the 	theft 	and 	informed 	that 	he 	would 	be 	recommended 	for
dismissal. 	Doe 	testified 	that 	neither 	Bjoring 	nor 	Droke 	asked
him 	any 	questions 	about 	the 	incident.
The 	District 	Board 	of 	Trustees 	adopted 	Davis'
recommendation 	at 	a 	meeting 	at 	which 	Doe 	failed 	to 	appear. 	He
did 	appeal 	the 	discharge 	to 	the 	Moreland 	Personnel 	Commission
which, 	after 	a 	full 	hearing, 	upheld 	the 	Trustees' 	decision 	by 	a
2-1 	vote.
DISCUSSION
The 	Discharge
The 	hearing 	officer 	found 	that 	SEIU 	failed 	to 	establish
that 	the 	District 	was 	unlawfully 	motivated 	and, 	specifically,
that 	it 	had 	no 	knowledge 	of 	Doe's 	participation 	in 	the
organizing 	activity. 	In 	its 	exceptions, 	SEIU 	argues 	that 	the
District 	had 	such 	knowledge 	through 	its 	officials, 	Davis,
Bjoring, 	and 	Droke, 	and 	that 	the 	knowledge 	of 	Evans, 	Stahl, 	and
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Martin 	can 	be 	attributed 	to 	the 	District. 	It 	further 	argues
that 	knowledge 	of 	Doe's 	activity 	can 	be 	inferred 	from 	the
totality of 	the 	evidence 	of 	the 	District's 	anti-union 	animus.
In 	Novato 	Unified 	School 	District 	(4/30/82) 	PERB Decision
No. 	210, 	the 	Board 	held 	that 	in 	cases 	alleging 	reprisal 	or
discrimination 	the 	charging 	party 	has 	the 	burden 	of 	showing
that 	the 	employer's 	act 	was 	motivated 	by 	the 	employee's
participation 	in 	protected 	activity 	and 	that 	motivation 	can 	be
established 	by 	circumstantial 	evidence. 	An 	essential 	element
of 	such 	proof 	is 	the 	employer's 	knowledge 	of 	the 	protected
activity. 	Doe's 	organizing 	activity 	is 	not 	disputed. 	The
District's 	knowledge 	thereof, 	up 	to 	and 	including 	the 	time 	of
the 	discharge, 	is 	disputed. 	The 	record 	supports 	the 	District.
Indeed, 	there 	is 	nothing 	in 	the 	record 	to 	justify
overturning 	the 	hearing 	officer's 	credibility 	finding 	that
Davis, 	Bjoring 	and 	Droke 	had 	no 	knowledge 	of 	SEIU's 	organizing
drive 	prior 	to 	receipt 	of 	the 	petition 	five 	days 	after 	Doe's
discharge.
The 	only 	District 	official 	that 	had 	some 	knowledge 	of
SEIU's 	activity 	was 	Hederick.6 	But 	there 	is 	no 	evidence 	to
indicate 	that 	Hederick 	knew 	that 	Doe 	was 	involved.
The 	allegation 	contained 	in 	the 	charge 	that 	Evans, 	Stahl
and 	Martin, 	all 	of 	whom 	had 	knowledge 	of 	Doe's 	activity, 	were
6SEIU 	did 	not 	name 	him 	as 	an 	agent 	whose 	knowledge 	could
be 	imputed 	to 	the 	District.
11

agents 	of 	the 	District 	is 	not 	supported 	by 	the 	record. 	No
evidence 	was 	produced 	to 	show 	that 	they 	were 	informants 	(Amyx
Industries, 	Inc. 	v. 	NLRB 	(8th 	Cir. 	1972) 	457 	F.2d 	904 	[79 	LRRM
2930]) 	or 	in 	any 	other 	way 	serving 	as 	agents 	or 	representatives
of 	the 	District. 	Cf. 	Rexart 	Color 	and 	Chemical 	Co. 	(1979) 	246
NLRB 	No. 	40, 	(employer 	held 	responsible 	for 	acts 	of 	a
nonsupervisory 	employee 	who 	occupied 	such 	a 	position 	that 	other
employees 	could 	reasonably 	believe 	that 	he 	was 	speaking 	and
acting 	on 	behalf 	of 	management); 	NLRB 	v. 	American 	Thread 	Co.
(1953) 	204 	F.2d 	161 	[32 	LRRM 	2044] 	(employer 	held 	responsible
for 	anti-union 	conduct 	of 	nonsupervisory 	employee 	where 	it
instigates, 	encourages, 	ratifies, 	or 	condones 	such 	activity).
Several 	federal 	circuits 	have 	held 	that 	knowledge 	of -the
protected 	activity 	can 	be 	inferred 	from 	circumstantial 	evidence
of 	anti-union 	motive:
There 	is 	no 	good 	reason 	why 	the 	two 	factual
propositions 	- 	a 	knowledge 	of 	general 	union
activity 	and 	a 	anti-union 	motivation 	in
discharging 	a 	particular 	employee-need 	be
proved 	by 	different 	types 	of 	evidence. 	As
to 	each 	direct 	evidence 	may 	not 	be
obtainable 	and 	circumstantial 	evidence 	and
"inferences of 	probability 	drawn 	from 	the
totality 	of 	other 	facts, 	are 	perfectly
proper.
NLRB 	v. 	Long 	Island 	Airport 	Limosine 	Service
~ 	(2nd 	Cir. 	1972) 	468 	F.2d 	242 	[81 	LRRM
2445); 	NLRB 	v. 	Wal-Mart 	Stores, 	Inc. 	(8th
Cir. 	1973) 	488 	F.2d 	114 	[84 	LRRM 	2865).
Similarly, 	the 	NLRB 	has 	held 	that 	when 	there 	is 	sufficient
circumstantial 	evidence 	to 	establish 	improper 	motive, 	an
12

employer's 	defense 	that 	there 	is 	lack 	of 	evidence 	to 	establish
the 	employer's 	knowledge 	is 	without 	merit. 	Rosen 	Sanitary
Wiping 	Cloth 	Co. 	(1965) 	154 	NLRB 	1185 	[60 	LRRM 	1114].
SEIU 	argues 	that 	unlawful 	motive 	can 	be 	inferred 	from
(1) 	the 	timing 	of 	Doe's 	discharge, 	(2) 	the 	animus 	of 	District
representatives, 	and 	(3) 	the 	insufficiency 	of 	cause 	for 	the
discharge.
Doe's 	discharge 	did 	coincide 	with 	his 	organizing 	efforts.
However,
mere 	coincidence 	in 	time 	between 	the
employee's 	union 	activities 	and 	his 	discharge
does 	not 	raise 	an 	inference 	of 	knowledge 	on
the 	part 	of 	the 	employer 	without 	some 	direct
or 	persuasive 	circumstantial 	evidence 	in 	the
record 	of 	knowledge. 	Amyx 	Industries, 	supra.
The 	evidence 	of 	Davis' 	alleged 	animus 	was 	Doe's
uncorroborated 	testimony 	that 	Evans 	had 	informed 	him of 	Davis'
comments 	about 	unions. 	The 	hearing 	officer 	did 	not 	credit 	this
testimony 	in 	the 	face 	of 	Davis' 	and 	Evans' 	denials.?
Even 	if 	we 	were 	to 	find 	some 	animus 	in 	Hederick 	in 	view of
his 	prohibition 	against 	the 	distribution 	of 	authorization 	cards
during 	working 	hours 	and 	the 	presence 	of 	SEIU materials 	during
lunch 	time, 	we 	would 	not 	impute 	it 	to 	the 	District. 	Hederick
was 	not 	involved 	in 	Doe's 	discharge. 	In 	the 	absence
7SEIU 	contends 	that 	the 	evidence 	should 	be 	credited
because 	it 	falls 	under 	one 	or 	more 	of 	the 	hearsay 	exceptions.
(See 	sections 	1220, 	1230 	and 	1235 	of 	the 	California 	Evidence
Code.) 	The 	exceptions 	go 	to 	the 	admissibility 	of 	hearsay
rather 	than 	its 	credibility.
13

of 	evidence 	of 	some 	communication 	between 	Hederick 	and 	the
other 	officials, 	neither 	his 	actions 	nor 	state 	of 	mind 	should
be 	attributed 	to 	the 	District. 	Cf. 	Frank 	Paxton 	Lumber 	Co.
(1978) 	235 	NLRB 	582 	(98 	LRRM 	1072] 	(animus 	of 	supervisor
attributed 	to 	employer 	where 	supervisor 	contributed 	directly 	to
decision 	to 	terminate 	employee); 	see 	also 	Antelope Valley
Community 	College 	District 	(7/18/79) 	PERB 	Decision 	No. 	97.8
SEIU 	asserts 	that 	it 	is 	incumbent 	upon 	the 	Board 	to
determine 	whether 	or 	not 	there 	was 	just 	cause 	for 	the
discharge; 	if 	there 	was 	not, 	improper 	motive 	may 	be 	inferred.
It 	also 	contends 	that, 	to 	make 	a 	proper 	determination 	of 	just
cause, 	it 	is 	necessary 	to 	resolve 	the 	numerous 	conflicts 	in 	the
testimony 	of 	the 	District 	and 	SEIU 	witnesses.9
The 	Board 	has 	reviewed 	the 	film 	in 	question 	and, 	while 	we
may 	not 	share 	the 	District's 	estimate 	of 	its 	value 	in
identifying 	the 	miscreant,lO 	we 	cannot, 	for 	that 	reason
8while 	SEIU 	asserts 	that 	both 	Droke 	and 	Bjoring 	harbored
animus, 	it 	presented 	no 	evidence 	to 	substantiate 	its 	claim.
9The 	hearing 	officer's 	findings 	here 	are 	confusing.
After 	reviewing 	the 	film 	several 	times, 	he 	said 	that 	the
District 	reasonably 	could 	have 	identified 	Doe 	as 	the 	man 	in 	the
film 	and 	that 	it 	was 	unnecessary 	to 	resolve 	the 	conflicts 	in
testimony 	which 	raised 	questions 	regarding 	the 	reliability 	of
the 	identification. 	Later, 	however, 	he 	went 	on 	to 	conclude
that 	Doe's 	testimony 	(portions 	of 	which 	were 	not 	disputed), 	as
well 	as 	the 	other 	(sic) 	circumstantial 	evidence 	presented 	by
SEIU, 	was 	not 	sufficiently 	credible 	to 	find 	the 	District's
identification 	to 	be 	unreasonable.
10 1ndeed, 	the 	film 	fails 	to 	show 	that 	the 	individual
removed 	any 	stamps.
14

alone, 	attribute 	anti-union 	animus 	to 	the 	employer. 	Assuming,
arguendo, 	that 	such 	is 	the 	case 	here, 	lack 	of 	"just 	cause" 	is
nevertheless 	not 	synonymous 	with 	anti-union 	animus. 	By 	itself,
it 	does 	not 	permit 	such 	a 	finding. 	Disciplinary 	action 	may 	be
without 	just 	cause 	where 	it 	is 	based 	on 	any 	of 	a 	host 	of
improper 	or 	unlawful 	considerations 	which 	bear 	no 	relation 	to
matters 	contemplated 	by EERA 	and 	which 	this 	Board 	is 	therefore
without 	power 	to 	remedy. 11 	Local 	715 	bore 	the 	burden 	of
producing 	evidence 	which 	would 	permit 	the 	conclusion 	that 	the
injustice 	here 	was 	an 	act 	of 	employer 	retaliation 	against 	Doe
for 	his 	organizing 	efforts. 	The 	totality of 	its 	evidence 	is
insufficient 	to 	permit 	an 	inference 	that 	the 	District 	was
unlawfully 	motivated 	against 	Doe. 	Therefore, 	there 	is 	no 	basis
for 	inferring 	that 	the 	District 	had 	knowledge 	of 	his 	activities.
The 	Interference 	Charge
SEIU 	excepts 	to 	the 	finding 	that 	the 	District 	did 	not
interfere 	with 	the 	rights 	of 	other 	unit 	employees 	by 	its
discharge 	of 	the 	grievant. 	It 	argues 	that 	it 	is 	legally
unnecessary 	for 	the 	charging 	party 	to 	provide 	evidence 	that 	the
discharge 	of 	a 	known 	activist 	for 	protected 	activity 	had 	an
adverse 	impact 	on 	other 	unit 	members. 	It 	maintains 	that 	such
discharge 	is 	per 	se 	inherently 	destructive 	of 	the 	rights 	of
other 	employees.
11E.g., 	mistaken 	identity, 	personal 	dislike,
discrimination 	based 	on 	nationality, 	religion, 	or 	sex, 	etc.
15

The 	thrust 	of 	this 	charge 	is 	not 	clear. 	If 	it 	proposes
that 	the 	unlawful 	discharge 	of 	a 	union 	organizer 	inherently
interferes 	with 	the EERA 	rights 	of 	unit 	employees, 	it 	must 	fail
according 	to 	the 	facts. 	We 	do 	not 	find 	that 	Doe 	was 	unlawfully
discharged. 	If 	the 	contention 	is 	that 	the 	discharge 	of 	an
organizer, 	irrespective 	of 	cause, 	constitutes 	such 	a 	violation,
it 	must 	be 	rejected 	in 	accordance 	with 	the 	principles
articulated 	in 	Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB
Decision No. 	89. 	There, 	the 	Board 	concluded 	that, 	while 	proof
of 	unlawful 	motive 	is 	generally 	not 	required 	in 	interference
cases, 	the 	charging 	party 	must 	demonstrate 	some 	nexus 	between
the 	employer's 	act 	and 	the 	protected 	activity 	with 	resultant
harm 	to employee 	rights 	under 	EERA. 	In 	such 	event, 	the 	Board
will 	balance 	the 	operational 	justification 	claimed 	by 	the
employer 	against 	the 	harm done.
Here, 	the 	justification 	was 	the 	need 	to 	protect 	against 	the
theft 	of 	school property 	and 	the 	right 	to 	take 	disciplinary
action 	against 	offenders. 	To 	find 	that 	the 	harm 	inherent 	in
the 	discharge 	of 	a 	dishonest 	employee 	who 	happens 	to 	be 	a 	union
organizer 	outweighs 	the 	employer's 	legitimate 	needs 	and
interests 	would 	make 	a 	mockery 	of 	Carlsbad's 	balancing
principle 	and 	preclude 	employers 	from 	ever 	disciplining 	union
activists 	irrespective 	of 	just 	cause.
ORDER
Based 	on 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in
this 	case, 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that
16

the 	unfair 	practice 	charge 	filed 	by 	the 	Service Employees'
International Union, 	Local 	715 	against 	the 	Moreland 	Elementary
School 	District 	in 	Case 	No. 	SF-CE-105 	be 	DISMISSED.
By: 	Harry 	Gluck, 	Chairperson 	John 	w. 	Jaeger, 	Member
Virgi
17