Carlsbad Unified School District * * * REVERSED AND REMANDED in McPherson v. Public Employment Relations Board (1987) 189 Cal.App.3d 293, and then SUPERSEDED by Carlsbad Unified School District (1989) PERB Decision No. 778* (PERB 0529E)

REVERSED AND REMANDED in McPherson v. Public Employment
Relations Bd. (1987) 189 Cal.App.3d 293, and then SUPERCEDED by
Carlsbad Unified School District (1989) PERB Decision No. 778
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CYNTHIA 	McPHERSON.
Charging 	Party.
v.
CARLSBAD UNIFIED SCHOOL DISTRICT.
Respondent.
)
)
) 	Case 	No. 	LA-CE-1590
PERB 	Decision No. 	529
October 	15, 	1985
)
)
)
)
)
)
Appearances: 	Mocine. 	Plotz 	& Eggleston by Mary H. 	Mocine for
Cynthia McPherson; 	Biddle 	& Hamilton 	by Christian M. 	Keiner 	for
Carlsbad 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Jaeger. 	Morgenstern and Porter.
Members.
DECISION
JAEGER. 	Member: 	The 	Carlsbad Unified 	School 	District
excepts 	to a 	proposed 	decision, 	attached hereto, 	which finds
that 	it violated 	section 3543.5(a) 	of 	the Educational
Employment 	Relations 	Act 	by 	taking 	certain 	actions 	against
charging party, 	Cynthia McPherson, 	because 	of 	her 	participation
in activities 	protected 	by 	the Act.1l
Except 	as 	noted 	below, 2 we 	adopt 	the 	findings 	of 	fact
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein are 	to 	the Government 	Code.
2The 	Administrative 	Law Judge 	stated 	that 	Superintendent
Grignon 	cited McPherson's 	membership 	in a 	union 	and 	her work 	on
its 	behalf 	as 	one 	reason for 	his 	action. 	In fact. 	Grignon made
no 	reference 	to 	her 	membership 	and 	referred 	to 	her work 	on
behalf 	of 	another 	employee 	organization.
______ )

made by 	the 	administrative 	law 	judge but 	otherwise 	reject 	the
proposed 	decision 	and order 	that 	the 	complaint 	against 	the
District 	be 	dismissed.
Because 	it 	is 	the employee's 	activity that 	is 	afforded
protection, 	in cases alleging discrimination or 	reprisal, 	a
charging party has 	the 	threshold 	obligation 	to 	establish 	that
such 	protected 	activity was 	involved. 	An 	employer 	may harbor
union animus without 	sanction as 	long as 	it 	does 	not 	act
thereon 	in 	derogation of 	statutory rights.
Here, 	charging party claims 	that 	the 	District's 	actions
were 	taken 	in 	reprisal against her work 	on behalf 	of 	a
teachers' 	union, 	her 	appointment 	to the bargaining committee of
an 	organization 	that 	represents 	the 	District's 	classified
employees, 	and her 	appeal 	to the personnel 	commission, 	In
light 	of 	the 	express 	language 	of 	section 	3543,3 the 	first 	of
these allegations must fail. 	It 	is participation 	in
organizational 	activities 	for 	the 	purpose 	of 	representation
that 	is 	protected.4 The 	teachers' 	union does 	not 	represent
3Section 	3543 	reads 	in part:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on all matters 	of
employer-employee 	relations.
4The 	dissent 	cites 	a 	number 	of 	NLRB 	cases 	protecting
activities 	performed on 	behalf 	of 	unions 	other 	than 	those 	that
represent 	the 	employees 	against whom reprisals were 	taken. 	In
each 	case 	cited, 	the 	protected 	activity was 	performed 	in
N	
2

McPherson or 	the unit to which 	she, 	a 	classified employee,
5
belongs. 	Nor 	may 	it 	do 	so.5 If 	the 	typing McPherson 	did on
its 	behalf 	somehow 	brought 	that 	activity within 	the 	four
corners 	of 	the 	first paragraph 	of section 	3543, 	it was her
66
burden 	to establish 	that 	fact. 	She 	did not 	do 	so.
sympathy with 	and 	in 	support 	of 	another 	organization's
representation 	duties, 	or was 	performed with 	the 	clear 	intent
that 	the 	employee's 	own 	unit would benefit 	thereby, 	or 	was
performed 	in 	concert with 	other 	employees. 	We have 	no quarrel
with 	those holdings. 	However, 	McPherson's 	typing on behalf of
the teachers' 	union, 	in and of itself without more, 	does not
fall within 	any of 	the 	forms 	of protected 	activity 	described 	in
the 	cases 	the 	dissent 	cites. 	No 	evidence was 	presented 	that
the 	consequences 	of her 	typing had a 	chilling 	effect 	on
labor/management 	relations 	in 	general, 	or 	that her 	activity was
done 	"in sympathy" with 	the teachers' 	association.
The 	other 	allegations also 	fail. 	The 	District's alleged
course 	of 	discriminatory 	conduct 	began 	several 	months 	before
McPherson was 	appointed 	to 	the 	classified 	union's 	bargaining
committee. 	It could not, 	therefore, 	have been the motive for
that conduct. 	At any rate, 	the action complained of, 	Bates'
remarks 	about 	McPherson's 	service on 	the 	committee, 	were made
by 	the 	very 	individual 	who 	utilized 	her 	services 	and 	actively
5Once 	an 	employee 	organization 	is 	recognized 	or 	certified
as 	the 	exclusive representative of an appropriate 	unit, 	only
that 	employee 	organization 	may 	represent 	unit 	employees.
Section 3543.l(a).
6We 	do not 	find 	it 	necessary 	to 	decide 	now whether 	work
on 	behalf 	of 	another 	employee 	organization 	may be 	protected.
See Morris, 	the Developing Labor Law, 	2d Edition, 	Bureau of
National Affairs, Inc., Washington, D.C., pp. 	142-144; also,
Gorman, 	Basic Text on Labor Law, West Publishing Co., 	St. 	Paul,
Minn. 1976, pp. 301-302.
W3

sought her 	reclassification as 	his 	confidential 	secretary. 	He
obviously was 	not 	motivated 	to 	take 	reprisals 	if 	he was 	seeking
her 	reclassification. 	His 	comment was ambiguous 	and, 	at 	the
least, 	could well 	have been an appropriate 	comment 	on 	the
incompatibility of 	her 	concurrent 	service 	as 	his 	confidential
secretary and 	member 	of 	the 	union 	bargaining 	committee.
Further, 	Grignon, 	who did not want McPherson to act as
confidential 	secretary, 	promptly nullified 	and 	corrected Bates'
statement. 	Thus, we do not find Bates' 	statement as rising to
the 	level of a violation of 	law, 	nor 	as 	support 	for 	the
proposition 	that 	it was 	the basis 	for 	the District's 	series 	of
actions 	adverse 	to 	McPherson's 	interest 	in 	reclassification 	and
back 	pay, 	or 	as 	the basis 	of her 	transfer 	to a 	different school.
Her 	appeal 	to 	the personnel 	commission was 	from 	the
District's 	denial 	of 	an 	out-of-class 	pay 	claim, 	a 	pay claim
alleged 	to 	have 	been 	denied 	because 	of her 	"protected
activity." 	This 	argument 	is 	rejected because 	we 	find no
protected activity. 	Nor 	do we 	see 	in 	the District's 	subsequent
actions, 	particularly her 	transfer, 	an 	independent act of
retaliation 	based 	on her 	exercise 	of her 	right 	of 	appeal.
Rather, 	we 	see 	the entire sequence of 	events 	to be 	an 	integral
series 	of 	actions 	designed 	solely 	to 	deny her 	the 	confidential
appointment 	and 	to 	remove her 	from 	the 	personnel 	office 	once
she was 	legitimately 	denied 	the 	confidential 	position.
4

We 	conclude 	that 	charging 	party 	has 	failed 	to 	demonstrate
that 	she 	had 	participated 	in 	activity protected by 	EERA 	and
that 	such 	participation was 	the 	motivation 	underlying 	a 	series
of 	District 	actions 	that were adverse 	to her 	employment
interests.
ORDER
Based 	on 	the 	record 	and 	the 	exceptions 	filed 	to 	the
proposed 	decision of 	the administrative 	law 	judge, 	the
Public 	Employment 	Relations 	Board 	ORDERS 	that 	the 	complaint
filed against 	the 	Carlsbad Unified 	School 	District 	by
Cynthia 	McPherson 	is 	DISMISSED.
Chairperson Hesse 	and Member 	porter 	joined 	in 	this 	Decision.
Member 	Morgenstern's 	concurrence 	and 	dissent 	begins 	on 	page 	6.
5

Morgenstern, 	Member, 	concurring and dissenting: 	I
vehemently disagree 	with my colleagues' 	radical 	departure 	from
the 	established policy of 	this 	Board 	and 	federal 	precedent 	with
respect 	to the nature of 	"protected" 	employee activity.
Contrary to 	the majority, 	I 	find 	that McPherson engaged 	in
protected 	activity when 	she 	typed documents 	for 	the 	teachers
union, 	when she was 	appointed 	to her 	union's 	negotiating
committee, 	and when she sought 	to exercise her 	rights 	under 	the
negotiated 	contract 	and civil 	service 	rules.
It 	is 	well 	established 	that 	section 	7 of 	the National 	Labor
Relations 	Act 	(NLRA) 	protects 	activities 	of employees 	for 	the
mutual 	aid 	and 	protection 	of 	other 	employees 	— 	even 	when 	they
are 	members 	of 	a 	different 	union or 	are 	employed by a different
employer. 	Morris, 	Developing Labor Law, 	2nd Ed., 	Vol. 	I,
p. 	142. 	Thus, 	employees have a protected right to honor the
picket 	line of another 	employer's 	employees 	(Redwing 	Carriers,
Inc. 	(1962) 	137 NLRB 1545 	[50 LRRM 1440] 	enf. 	sub nom.
Teamsters, 	Local 79 v. NLRB 	(D.C. 	Cir. 	1963) 	325 F.2d 1014 [54
LRRM 2707], 	cert, denied 	(1964) 	377 U.S. 905 [55 LRRM 3023]); to
express 	sympathy 	for 	another 	employer's 	striking 	employees 	(NLRB
v. 	J. 	G. 	Boswell Co. 	(9th Cir. 	1943) 	136 F.2d 585 	[12 LRRM
776]); 	to publish support 	for a strike by a cooperative
association of 	dairy 	farmers 	(NLRB v. 	Peter 	Cailler 	Kohler 	Swiss
Chocolates Co., 	Inc. 	(2nd Cir. 	1942) 	130 F.2d 503 	[10 LRRM
852]); 	to assist 	in organizing another employer's 	employees
(Fort Wayne Corrugated Paper Co. 	v. 	NLRB 	(7th Cir. 	1940) 	111
66

F.2d 860 	[6 LRRM 888]; 	to distribute 	literature 	(Yellow Cab,
Inc. 	(1974) 	210 NLRB 568 [86 LRRM 1145]); 	to demonstrate in
support 	of 	another 	employer's 	employees 	(Washington 	State 	Serv.
Employees 	(1971) 	188 NLRB 957 	[76 LRRM 1467]); 	and to solicit
funds 	for 	the benefit 	of agricultural 	laborers 	even 	though 	they
are 	not 	considered 	employees 	covered by 	the 	NLRA 	(General 	Elec.
Co. 	(1968) 	169 NLRB 1101 	[67 LRRM 1326]).
In Modesto City Schools 	(1983) 	PERB Decision No. 	291, 	this
Board 	found 	no 	substantive 	difference 	between 	employee 	rights
under 	section 	3543 	of 	the 	Educational 	Employment 	Relations 	Act
and under 	section 	7 	of the 	NLRA. 	As 	the 	Board 	stated:
The 	only difference we 	find between 	the
right 	to engage 	in concerted 	action 	for
mutual 	aid 	and protection 	and 	the 	right 	to
form, 	join and participate 	in the activities
of 	an employee 	organization 	is 	that 	EERA
uses 	plainer 	and 	more 	universally understood
language 	to 	clearly and 	directly authorize
employee 	participation 	in 	collective 	actions
traditionally related 	to 	the 	bargaining
process. 	(Modesto, p. 	62.)
The 	majority's 	claim that 	it has 	not decided 	to abandon NLRA
precedent 	is 	simply not plausible. 	If McPherson 	is 	not
protected 	in 	typing documents 	for 	the 	union which 	represents 	her
fellow employees, 	how then may she be protected when she acts 	in
solidarity with 	the 	employees 	of 	a 	different 	employer? 	How 	then
would 	the 	majority protect 	a 	job applicant 	against
discrimination based 	on her prior 	affiliation 	with 	"another"
employee 	organization 	in her previous 	job? 	A thousand 	such
questions 	arise.
-
7

By 	finding an 	otherwise 	legal 	and proper 	act 	of 	association
with an employee 	organization of 	fellow workers 	to be 	a
sufficient basis 	for 	adverse action against an employee, 	the
Board 	gravely 	undermines 	the 	most 	basic 	right 	granted by 	EERA,
the 	employees' 	right 	to engage 	in activities 	of 	an employee
organization.
The 	majority's 	assertion 	that 	no such protection will 	be
afforded, 	absent affirmative proof 	regarding 	the purpose 	of 	the
employee's protected 	activity or 	the 	result 	thereof, 	directly
contradicts 	federal precedent. 	It 	surely should 	suffice 	that
the 	uncontested 	facts 	herein 	establish 	that 	McPherson donated
her 	labor 	to aid 	the 	exclusive 	representative of 	the
certificated 	employees 	of 	the 	Carlsbad 	School 	District. 	As 	the
Second Circuit 	Court 	of Appeals 	recently said 	in Ewing v. 	NLRB
(2nd Cir. 	1985) 	F.2d 	[119 	LRRM 	3273]:
We 	cannot 	agree 	that 	. . . 	a 	literal 	reading
of 	the 	word 	"concerted" 	is 	required by the
Act. 	The 	Board cannot 	claim that 	its
literal 	compliance with 	the 	"letter of 	the
law" 	excuses 	its 	avoidance of 	the policies
addressed 	by 	that 	law.
However, 	though 	I 	find 	that McPherson engaged 	in protected
activity and 	the 	District does 	not deny that 	it 	was 	motivated,
at 	least 	in part, 	by that 	activity when 	it denied McPherson
,
appointment 	to a confidential 	position,1 I 	nonetheless 	find
1District 	Superintendent 	Philip 	Grignon 	testified 	that,
because of her work 	for 	the teachers' 	union, 	he personally had
8

that 	the 	District did not 	thereby violate 	EERA. 	My reasons,
however, 	are 	in no way 	consent 	with the majority's 	views 	as 	to
what 	constitutes 	protected 	activity.
concerns 	regarding McPherson as 	a confidential 	secretary, 	which
he 	communicated 	to 	the board:
In 	finding a violation here, 	the administrative 	law 	judge
(ALJ) 	erroneously relied on cases 	involving 	the 	selection of
managerial 	and 	supervisory 	employees.2 However, 	under 	EERA,
confidential 	status 	differs 	from managerial 	and 	supervisory
Well, 	I think 	I should differentiate between
the 	skills 	that 	the person has 	and 	the
advisability of her 	in that position. 	I
think that Mrs. 	McPherson has good
secretarial 	skills, 	that she takes 	shorthand
well, 	she types well. 	But, however, 	as far
as 	confidentiality there 	was 	my concern.
She's 	been 	a 	long-term member 	of 	this
community. 	Her ex-husband 	is 	a teacher, 	she
has 	carried out 	work 	in 	the past 	for 	the
teachers union, 	in fact, 	at that time she
was 	typing documents 	for 	the 	teachers
union. 	And, 	so, 	therefore, 	I felt that the
position was 	too 	sensitive 	to appoint her
given all 	that 	knowledge 	. . . . 	Again, 	we
deal 	with 	very confidential 	materials 	that
we want 	to stay there 	that 	we do not want
broadcasted 	in 	the 	community or 	even slipped
to 	the 	community and 	in my opinion 	I did not
feel 	that 	Cynthia McPherson 	could 	carry out
that 	function.
2 See, 	e.g., 	Lemoore Union High School 	District 	(1982) 	PERB
Decision No. 	271; 	Town of Burlington 	(1982) 	9 MLC 1139
(managerial); 	Ford Motor Co. 	(1980) 	251 NLRB 413 	[105 LRRM 1143]
enf. 	v a c , 	rem. 	in part 	(6th Cir. 	1982) 	683 F.2d 156 	[110 LRRM
3202]; NLRB v. 	Bell Aircraft Corp. 	(2nd Cir. 	1953) 	206 F.2d 235
[32 LRRM 2550]; Little Lake Industries, 	Inc. 	(1977) 	233 NLRB
1049 [97 LRRM 1101] 	(supervisory).
9

status 	in certain 	fundamental 	respects 	which 	render 	the 	cases
cited 	by 	the 	ALJ 	inapplicable here.
As 	the 	Board 	stated 	in an early case 	regarding 	confidential
employees,3 there 	are 	very 	few confidential positions 	as
compared 	to managerial/supervisory positions. 	It may reasonably
be presumed that many, 	if not most, 	employees 	entertain
ambitions 	to 	improve 	their 	status 	through 	upward movement 	on 	the
job. 	At 	some point, 	this 	is 	accomplished only by promotion to
supervisory or managerial 	status. 	If promotional 	opportunities
were 	endangered by union activity, 	the predictable 	outcome 	would
be 	a 	significant 	chilling 	effect 	on 	the 	exercise 	of 	the
employees' 	right 	to union participation. 	This would not only
violate 	individual 	rights 	but 	would deprive 	the 	union of 	the
activists 	it needs 	to be effective. 	In contrast, 	confidential
status 	is 	not a 	necessary step on the promotional 	ladder.
Confidential 	status 	does 	not 	make one 	a supervisor or 	manager
and 	is 	not 	a 	qualification 	for 	supervisory or managerial
status. 	Indeed, 	an entry level 	clerk-typist position may be
designated as a confidential 	employee. 	Moreover, 	as here,
confidential 	status 	most 	often 	represents 	an 	immediate
assignment 	(secretary to the 	labor 	relations 	director) 	rather
than a permanent 	classification 	(Secretary I ) .
3Sierra 	Sands 	Unified 	School 	District 	(1976) 	EERB
Decision No. 	2. 	(Prior 	to January 1, 	1978, 	PERB was 	known as
the 	Educational 	Employment 	Relations 	Board.)
10

Because 	confidential 	status 	affects 	only a 	small 	number 	of
positions 	and does 	not 	necessarily or 	even usually affect
permanent promotional 	opportunities, 	employees 	and 	employee
organizations 	have 	significantly 	less 	legitimate 	interest 	in 	the
selection of 	confidential 	employees 	than 	in 	the 	selection of
managerial/supervisory 	employees.
At the same time, 	because confidential status does 	not
embark an employee on a 	(presumably permanent) 	supervisory or
managerial career, 	there 	is 	less 	motivation 	for an employee 	to
shift 	loyalties 	to 	the management 	side 	upon entering
confidential 	ranks. 	Thus, 	management may well be warranted 	in
utilizing criteria 	which 	in some 	ways 	exceed 	those 	applied 	to
prospective 	managers 	and 	supervisors 	when 	choosing 	confidential
employees.
To put 	it 	another way, 	because the 	rewards 	are 	fewer and 	the
obligation to remain 	tight-lipped 	so basic and absolute, 	a
management desire 	to exercise 	extreme 	and 	unusual 	caution 	in
choosing confidential 	employees 	is 	not 	unreasonable.
Finally, 	I would note that 	the 	law limits 	confidential
status 	to those 	involved 	in 	labor 	relations 	on behalf 	of 	the
employer,4 a 	limitation not 	statutorily attached 	to managers
4Section 3540.1(c) provides:
"Confidential 	employee" 	means 	any employee
who, 	in the regular course of his duties,
has 	access 	to, 	or possesses 	information
relating 	to, 	his 	employer's 	employer-employee
relations.
11

or supervisors. 	Clearly, 	then, 	state law authorizes 	the Board
to distinguish between 	these 	categories 	when 	circumstances
warrant.
For 	these 	reasons, 	I would conclude 	that 	the employer may
exercise 	very broad 	discretion 	in 	selecting 	individuals 	to 	fill
confidential positions. 	With respect 	to supervisory or
managerial 	employees, 	a district 	would 	likely exceed 	its
discretionary authority 	if 	it 	were 	to decide 	that prior 	union
association 	rendered a candidate unacceptable. 	In 	the 	case of a
confidential employee, 	however, 	at the very least, 	a less
stringent 	restriction on 	the 	employer 	is 	properly applied.
Thus, 	in a situation such as 	this, 	where the employer seemed to
want 	greater distance 	from union activists 	or a 	"laundering
period" 	that 	was 	free 	from activities 	which 	involved 	close
association with union 	functionaries, 	I cannot 	find 	the
employer's 	decision 	illegal.
However, 	in my view, 	the District's 	legitimate 	interest 	in
the 	selection of 	its 	confidential 	employees 	does 	not 	entirely
justify 	its 	conduct 	with respect 	to Charging 	Party 	in 	this
case. 	Specifically, 	this 	justification 	fails 	to excuse the
District's 	refusal 	to pay McPherson 	a 	salary differential 	of
$296.00 per 	month 	for 	the period 	February to June 	1982 	when 	she
was 	engaged 	in doing work 	of 	a confidential 	nature. 	Similarly,
McPherson's 	transfer 	to Carlsbad High 	School 	was 	not 	justified
by any management 	interest 	in 	filling 	the position of 	Bates'
secretary with a confidential 	employee. 	Indeed, 	the 	record
12

indicates 	that, 	for 	five months 	after McPherson was 	transferred,
her position was 	filled by a series 	of 	temporary employees 	and
all 	confidential 	work was 	done by Grignon's 	secretary. 	While
the 	District 	certainly 	could 	properly have 	transferred McPherson
once a confidential 	employee 	assumed her position 	in 	October,
here her 	transfer on June 	1, 	1982 was premature and punitive.
Unlike the majority, 	I 	find ample evidence 	in the record 	to
indicate 	that, 	quite apart 	from 	its 	legitimate refusal 	to
appoint her 	to a 	confidential position, 	the 	District 	refused 	to
pay McPherson 	the 	salary differential 	and 	decided 	to 	transfer
her because 	of her 	active pursuit 	of her 	rights 	under 	the
contract and personnel rules. 	There 	is 	some evidence that, 	in
part, 	this 	retaliation was 	directed at McPherson because of 	the
fact 	that 	she 	took recourse 	to the personnel 	commission. 	In any
event, 	the 	District 	appeared quite 	content 	to permit McPherson
to continue 	in her position, 	doing confidential work, 	until she
sought 	to enforce her 	rights 	to 	receive a 	substantial pay
differential 	for 	that 	work.
Apart 	from 	its 	general 	assertion of 	a 	right 	to refuse 	to
appoint McPherson to a confidential position, 	the 	District has
offered 	no explanation 	for 	its 	refusal 	to pay the 	salary
differential. 	With respect 	to the transfer, 	the District now
contends 	that 	the decision was made 	"for 	the good of 	the
District" 	because 	"the high school needed a good, 	permanent
Secretary III and Mrs. 	McPherson 	fit 	that need." 	However, 	at
13
'

hearing, 	the 	District's 	witnesses provided conflicting and
inconsistent 	testimony regarding 	the 	reasons 	for 	and
circumstances 	surrounding 	the 	transfer. 	I am not persuaded 	that
McPherson would have 	been 	transferred 	if 	she had 	not 	vigorously
pursued 	reclassification 	and 	back pay.
I would, 	therefore, 	find a violation with respect 	to both
the denial 	of 	the 	confidential 	salary differential 	and 	the
transfer 	and would 	order 	the 	District 	to 	compensate McPherson
for 	the 	salary differential 	she 	would have 	received but 	for 	the
District's 	unlawful 	discrimination.
Finally, 	I would affirm the ALJ's 	conclusion that Bates
violated 	the 	Act 	by refusing 	to permit McPherson 	to serve 	on 	the
Union negotiating committee. 	Because 	this 	violation consists 	of
interference with the right 	to participate 	in 	the activities 	of
an 	employee 	organization 	rather 	than 	discrimination because 	of
such participation, 	Bates' 	motivation is 	irrelevant. 	However,
since 	Grignon 	corrected 	Bates 	immediately 	upon becoming 	aware 	of
this matter, 	the violation is de minimus.
14

STATE 	OF CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CYNTHIA 	McPHERSON,
Charging 	Party,
v.
CARLSBAD 	UNIFIED SCHOOL 	DISTRICT,
Respondent.
)
) 	Unfair 	Practice
Case No. 	LA-CE-1590
PROPOSED 	DECISION
(8/2/83)
)
)
)
)
)
)
)
Appearances; 	Thomas 	Rankin, 	attorney for Charging 	Party
Cynthia McPherson; 	Christian Keiner 	(Biddle & Hamilton),
attorney 	for 	Respondent 	Carlsbad 	Unified 	School 	District.
Before Marian Kennedy, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On June 7, 	1982, 	Charging Party, 	Cynthia McPherson,
(hereafter 	Charging 	Party or 	McPherson) 	filed 	an 	unfair
practice 	charge 	against 	Respondent, 	Carlsbad Unified 	School
District 	(hereafter 	Respondent 	or 	District) 	alleging 	that
Respondent 	violated 	the Educational Employment 	Relations 	Act
(hereafter EERA1) by denying 	her 	the 	right 	to act 	as 	a member
of 	the 	negotiating 	team 	for 	the 	Federated 	School Employees,
Local 1200, 	LIUNA 	(hereafter 	the Union), 	the exclusive
bargaining 	representative 	for 	classified 	employees 	of
Respondent.
1The 	Educational Employment 	Relations 	Act 	is codified at
California Government Code 	section 	3540, 	et seq. 	Unless
otherwise 	indicated, 	all code 	references will be 	to 	the
California 	Government 	Code.
___ )

On June 	16, 	McPherson 	filed 	a 	first 	amended 	charge 	adding
the 	allegation 	that 	Respondent 	violated 	the EERA by
transferring 	her 	from her 	position 	as 	secretary 	to 	the 	director
of employee 	relations 	to a 	lateral position 	in 	the Carlsbad
High 	School 	in 	retaliation 	for 	her 	exercise 	of 	rights protected
by the EERA. 	On August 	3, 	1982, 	McPherson 	filed a 	second
amended 	charge 	which 	corrected 	the 	statutory 	references 	in 	the
previous charge to section 3543.5(a), 	(b), 	and 	(d) 	of the EERA
and 	added 	further 	factual 	and 	documentary 	support 	for 	the
charge. 	Finally, 	on December 	1, 	1982, 	McPherson filed a third
amended 	charge 	which 	added 	the 	allegation 	that McPherson 	was
denied 	appointment 	to 	the 	newly 	created 	position of
credentials-personnel 	technician 	because 	of 	her 	exercise 	of
rights 	protected 	by 	the EERA.
A complaint was 	issued on September 	15, 	1982. 	Respondent
filed 	its 	answer 	on October 	4, 	1982, 	admitting 	certain 	factual
allegations 	but denying 	that 	its 	actions were 	taken 	in
retaliation 	for 	McPherson's 	exercise 	of protected 	rights.
Respondent 	also 	filed 	an 	amended 	answer 	in 	response 	to 	the
third 	amended charge on December 	20, 	1982.
An 	informal 	conference 	was 	conducted 	by 	an 	administrative
law 	judge 	of 	the 	Public Employment 	Relations 	Board 	(hereafter
PERB or 	the Board) 	on November 	19, 	1982, 	in Carlsbad,
California, 	but 	the dispute was 	not 	resolved.
N2

A Notice of Hearing was 	issued on January 12, 	1983, 	and 	a
formal 	hearing 	was 	conducted 	by 	the 	undersigned 	administrative
law judge on March 	24, 	1983 	in Carlsbad. 	Each party having
filed 	briefs, 	the 	matter 	was 	submitted 	for 	proposed 	decision on
May 24, 	1983.
FINDINGS 	OF FACT
Cynthia 	McPherson 	has 	been 	employed 	as 	a 	secretary by
Carlsbad 	School 	District 	intermittently 	since 	1953 	and
full-time 	since 	1977. 	She 	held 	the position of 	secretary 	III
in 	the personnel department 	from July 1980 	until June 	1, 	1982,
when 	she 	was 	involuntarily 	transferred 	to 	a 	secretary 	III
position 	for 	the principal of Carlsbad High 	School. 	During 	the
period of 	February 	1981 	through 	February 	1982, 	the position of
personnel 	director 	was 	vacant 	and 	McPherson 	handled 	all 	of 	the
work 	of 	the 	personnel office.
In February 1982, 	David Bates was hired 	by 	the District 	as
director 	of 	employee 	relations.2 Prior 	to 	the 	arrival 	of
Mr. 	Bates, 	labor 	relations functions, 	including collective
bargaining, 	had 	been performed 	by 	the 	assistant
superintendent's 	office. 	Bates 	assumed 	those 	labor 	relations
functions 	in 	addition 	to 	the 	personnel 	functions previously
performed 	by 	the 	personnel 	department.
22prior	Prior 	to assuming 	that position, 	Bates 	had 	represented
teachers 	and 	had 	worked 	for 	teachers' 	unions 	as 	a 	labor
relations 	specialist. 	He 	had 	never 	previously held 	an
administrative 	position.
W3

The 	job 	description 	for 	McPherson's 	secretary 	III
(administrative offices) 	position provides 	in 	relevant part:
Employees 	in 	this 	classification may be
assigned 	to 	responsibilities 	that 	involve
access 	to 	and 	knowledge 	of 	the 	district's
employer-employee 	relations 	and 	attendance
at 	collective 	bargaining 	sessions 	between
the 	district's 	negotiator 	and 	employee
organizations. 	Employees who 	are 	assigned
this 	specific 	responsibility will 	be
classified 	as 	confidential 	employees.3
The 	Request 	to 	Reclassify McPherson 	as 	Confidential
On February 8, 	1982, 	his 	first day at work, 	Bates prepared
a 	memo 	addressed 	to 	Superintendent 	Grignon 	recommending 	that
his 	secretary, 	McPherson, 	be 	reclassified 	from a 	secretary 	III
to a 	secretary 	III 	(confidential) 	position. 	The 	reason given
for 	this 	reclassification was:
Because 	the 	director 	of 	employee 	relations
is 	now the 	negotiator 	for 	the District, 	and
the 	personnel 	secretary's 	assigned
responsibilities 	include 	"access 	to
knowledge 	of 	the 	District's
employer-employee 	relations," 	the position
qualifies 	as 	a 	confidential 	position 	. . . .
Bates 	did 	not 	contemplate 	that 	McPherson's position 	would
be 	opened 	for 	interviews 	at 	the 	time 	it was 	reclassified.
McPherson 	testified 	that 	at 	the 	time 	the 	Rodda Act 	became
effective, 	secretaries 	assuming 	new 	functions 	involving
employee 	relations 	were 	reclassified 	as 	confidential;
interviews 	were 	not 	held.
3Classification 	to confidential 	status 	brought 	with 	it 	an
increase 	in 	salary of 	$296.00 	per 	month.
4

During 	the 	period 	that 	McPherson 	worked 	for 	Bates,
particularly 	in April of 	1982, 	part of her duties 	included
typing 	the 	District's 	collective 	bargaining 	proposals 	and 	work
relating 	to grievances 	filed 	by District 	employees.
No 	reclassification 	occurred 	as 	a 	result of Bates'
recommendation. 	Superintendent 	Grignon 	testified 	that 	he
received Bates' 	memo 	and 	submitted his 	recommendation 	to a
closed 	session of 	the Board 	of Trustees on February 	17, 	1982.
Both Bates 	and Grignon were present 	at 	that meeting. 	Bates
testified 	that 	his 	recommendation 	was 	rejected 	by 	the 	board 	on
budgetary grounds: 	there 	were 	already 	two confidential
secretaries 	and 	the 	board 	did 	not want more. 	Bates 	testified
that 	he 	discussed 	the 	matter 	with 	McPherson 	afterwards 	but
asserted 	that 	he 	did 	not 	recall 	whether 	he 	told 	her 	that 	the
board 	had 	rejected 	his 	recommendation.
Grignon 	testified 	that 	he 	took Bates' 	recommendation 	to 	the
Board 	of 	Trustees 	but 	that 	the 	board 	had 	a 	vehement 	negative
reaction. 	According 	to Grignon, 	the 	board 	did 	not want 	to 	fill
the 	position 	and 	"they had 	qualms 	about 	the 	person who was
recommended 	by 	the 	director 	of 	employee 	relations." 	During
cross-examination on 	advice of 	the District's 	counsel, 	Grignon
refused 	to 	answer 	any questions 	regarding 	the 	specific
reservations 	expressed 	about 	McPherson 	on 	the 	ground 	that 	to do
so 	would 	violate 	the 	confidentiality of 	the 	closed 	board
session.
55

Grignon 	testified 	that 	he 	personally 	had 	the 	following
concerns 	regarding 	McPherson 	as 	a 	confidential 	secretary which
he 	communicated 	to 	the 	board:
Well, 	I 	think 	I 	should differentiate between
the 	skills 	that 	the person has 	and 	the
advisability of her 	in that position. 	I
think 	that Mrs. 	McPherson has good
secretarial 	skills, 	that 	she 	takes 	shorthand
well, 	she types well. 	But, however, as far
as 	confidentiality 	there 	was my concern.
She's 	been 	a 	long-term member 	of 	this
community. 	Her 	ex-husband 	is a teacher, 	she
has 	carried 	out work 	in 	the past 	for 	the
teachers union, 	in fact, 	at that 	time she
was 	typing 	documents 	for 	the 	teachers
union.4 And, 	so, 	therefore, 	I felt that
the 	position 	was 	too 	sensitive 	to 	appoint
her given all that knowledge 	. 	. 	. 	Again,
we 	deal 	with 	very 	confidential 	materials
that 	we want 	to 	stay 	there 	that we do not
want 	broadcasted 	in 	the 	community or 	even
slipped 	to 	the 	community and 	in my opinion 	I
did 	not 	feel 	that 	Cynthia McPherson 	could
carry out 	that 	function.
Grignon 	denied 	recommending 	that 	the 	reclassification 	be
rejected; 	nonetheless, 	the 	board 	assertedly 	rejected 	the
recommendation 	but 	told 	Grignon 	that 	he 	might 	be 	permitted 	to
"screen 	applicants 	for 	the position 	sometime 	in 	the 	future."
4McPherson 	testified 	on 	cross-examination 	that 	she 	had
lived 	in Carlsbad 	since 	1938, 	had gone 	to school 	there 	and was
well-liked 	in 	the community. 	Her 	ex-husband 	is a 	teacher 	in
the 	school district. 	She 	has 	typed 	work 	for 	the Union 	in 	the
past. 	On 	redirect McPherson 	testified 	that 	she personally 	told
Grignon 	that 	she 	was 	typing material 	for 	the 	Union 	and 	that he
never 	asked 	her 	or 	told 	her 	not 	to do 	so or 	raised 	any question
of 	a 	conflict of 	interest.
6

Grignon 	testified 	that 	he 	told 	McPherson after 	the 	board
meeting 	that 	the 	board would 	not 	accept 	her 	as 	a confidential
secretary 	because 	of 	the 	possibility 	that 	she 	would 	leak
information 	and 	her 	possible 	conflict of 	interest. 	McPherson
testified 	that 	she 	was 	not 	told 	about 	the meeting. 	Indeed, 	she
asked 	Bates 	on 	several occasions 	when 	her 	reclassification 	to
confidential 	secretary would 	occur 	and 	Bates 	assured 	her 	each
time 	that 	the 	reclassification 	would 	be 	forthcoming.
McPherson's 	Appointment 	to 	the 	Union Negotiating 	Committee
In 	an 	effort 	to 	speed 	up 	the 	reclassification of McPherson
to 	confidential 	status, 	McPherson 	and 	the Union 	jointly agreed
that 	the 	Union would 	appoint McPherson 	to 	its 	negotiating
committee.5 On March 	22, 	1982, 	Nancy Davis,
secretary-treasurer 	for 	the Union, 	sent 	a 	letter 	to Bates
announcing McPherson's 	appointment 	to 	the 	negotiating 	committee.
McPherson 	testified 	that 	when Bates 	received 	the 	letter, 	he
went 	to 	the 	superintendent's 	office 	and 	upon 	returning 	he
informed 	her 	that 	she 	could 	not 	serve 	on 	the 	Union's
negotiating 	committee 	because 	of 	her 	position 	as 	his
secretary. 	Bates 	testified 	that 	he 	told McPherson 	she 	could
serve 	on 	the 	negotiating 	committee 	but 	his 	secretary could
not. 	McPherson 	immediately 	agreed 	to withdraw 	from 	the
5Robert 	Garner, 	representative 	of 	the 	international 	union
of which 	the Union 	is a part, 	testified 	that he had had a
conversation with Bates 	shortly 	after 	Bates 	began his 	job 	in
which 	Bates 	had 	told 	him of 	the 	pending 	reclassification of
McPherson 	to confidential 	employee.
7

committee 	until 	the 	Board 	of 	Trustees 	had 	been given 	a
reasonable 	length 	of 	time 	to clarify whether 	or 	not 	her
position 	would 	be 	reclassified 	to 	a 	confidential position 	and
gave Bates 	a 	letter 	to 	that 	effect 	the 	same day. 	McPherson
testified 	that 	she 	withdrew 	from 	the 	negotiating 	committee
because 	she 	did 	not 	want 	to 	jeopardize 	her 	position 	as
secretary 	and 	did 	not 	want 	to do what 	was 	wrong.
On April 	1, 	1982, 	Garner 	sent 	a letter 	to Bates 	stating
that McPherson was 	working 	as 	a 	confidential employee 	and
should 	be 	reclassified 	to 	that 	status 	and 	receive 	back 	pay 	for
her 	out-of-classification work. 	He 	received 	no 	response.
McPherson's 	Protest 	to 	the 	Personnel Commission
Still 	having 	received 	no 	notice 	regarding 	reclassification
of 	her 	position, 	McPherson 	sent 	a memorandum to 	the personnel
commission of 	the District on April 	22, 	1982, 	requesting 	the
reclassification 	as well 	as 	out-of-class pay 	for 	the period
during 	which 	she 	had 	performed 	the 	work 	of 	a 	confidential
secretary. 	McPherson 	testified 	that 	she made her 	request 	to
the 	personnel 	commission 	because 	"it 	seemed 	to be 	the 	next
legal 	step 	to 	follow." 	On April 	23, 	McPherson 	sent 	a memo to
Grignon making 	the 	same 	request. 	She 	also 	told 	him of 	her
request 	to 	the personnel commission. 	McPherson 	testified,
uncontradicted, 	that 	Grignon 	responded 	that 	confidential
secretaries 	were 	overpaid 	and 	that 	his position was 	that 	she
88

should 	get 	only 	a 	stipend 	of 	$50 	per 	month 	retroactive 	to
February 8, 1982. 	He 	did 	not 	tell 	her 	that 	she personally was
not 	acceptable 	as 	a confidential employee 	either 	to him or 	the
board.
Three days 	later, 	on April 26, 	1982, 	Grignon sent a memo to
the 	director 	for 	classified 	personnel 	requesting 	that
interviews 	be 	scheduled 	for 	the 	position 	of 	secretary 	III
(confidential) 	to 	replace 	the 	secretary 	III position held 	by
McPherson. 	Grignon 	testified 	that 	he 	requested 	interviews
because 	the 	Board 	of 	Trustees 	had 	informed 	him 	that, 	although
he 	could 	not 	fill 	the position 	for 	budget 	reasons, 	he could
begin 	screening 	for 	the 	position.6
On April 	27, 	McPherson, 	along with eight other 	District
employees, 	was notified of the 	interviews. 	On April 28, 	she
responded 	by 	letter 	that 	she 	would 	interview 	under 	protest. 	On
the 	same 	date 	she 	sent 	a memo 	to Bates 	asking 	the 	reasons 	that
interviews 	were 	being 	conducted 	for 	the 	position which
6on 	the 	same 	day, 	the 	classified personnel commission
considered McPherson's 	request 	and 	supported 	it 	in 	its
entirety. 	The 	commission 	also directed 	Kathy Brown, 	the
director 	of 	classified personnel, 	to question 	the
superintendent's 	reasons 	for 	scheduling 	interviews 	for 	the
position 	of 	secretary 	to 	the 	director 	of 	employee 	relations
when 	that 	position was 	currently 	filled 	by McPherson. 	Grignon
responded 	that 	only 	the 	Board 	of 	Trustees 	and 	not 	the personnel
commission 	had 	the 	authority 	to determine 	whether 	or 	not 	an
employee 	had 	confidential 	status; 	furthermore, 	since McPherson
had 	never 	been 	appointed 	as 	a confidential 	employee, 	she was
owed 	no 	out-of-class 	back 	pay.
9

she 	then 	held. 	Bates 	responded 	that 	he 	did 	not 	know what was
happening. 	He 	suggested 	she 	speak 	to Grignon.
On May 	3, 	1982, 	Garner 	had a meeting with Grignon and
Bates. 	Garner 	argued 	that 	the 	District 	should 	make McPherson's
position 	confidential 	and 	pay 	her 	the 	confidential premium
because 	she 	was 	already 	doing 	the 	work. 	Grignon neither
refused 	nor 	agreed, 	nor 	did 	he 	indicate 	that 	the matter 	had
already 	been 	decided 	by 	the Board 	of Trustees. 	Instead 	he 	told
Garner 	that McPherson 	had 	taken 	the 	issue 	to 	the personnel
commission, 	that 	she had 	ignored 	the Union, 	and 	that maybe 	the
Union 	"didn't 	have 	any obligation 	to 	represent 	her
interests."7
Garner 	also 	raised 	the 	issue 	of 	McPherson 	being 	told 	that
she 	could 	not 	serve 	on 	the 	Union 	negotiating 	committee.
Grignon 	testified 	that 	he 	had 	not 	known 	about 	that 	issue
previously 	and 	immediately 	sent 	a 	letter 	to McPherson 	saying
that 	the 	District 	acknowledged 	her 	right 	to 	serve 	on 	the Union
7McPherson 	and 	Garner 	testified 	that 	Grignon had 	an
on-going 	dispute 	with 	the 	personnel 	commission 	and 	that 	Grignon
had 	tried 	to 	abolish 	the 	commission. 	Garner 	testified Grignon
had 	asked 	him 	if 	the 	Union would 	support his 	efforts 	to abolish
the 	commission 	and 	Garner 	had 	refused 	saying 	the 	Union would
support 	the 	commission. 	Grignon 	threatened 	to 	take 	over 	the
Union 	if 	they didn't 	support 	him. 	There 	is 	nothing 	in 	the
record 	regarding 	when 	this 	conversation 	occurred. 	The 	District
offered 	evidence 	that 	only 	a 	small 	percentage 	of 	school
districts 	have 	a personnel 	commission 	and 	that 	at 	least 	three
other 	school 	districts 	which 	had 	personnel 	commissions 	have
recently 	abolished 	them.
10

negotiating 	committee. 	Grignon 	denied 	having 	been 	consulted 	by
Bates 	at 	the 	time 	the question 	first 	arose.
McPherson 	was 	interviewed 	for 	the 	position of 	secretary 	III
(confidential) 	on May 4, 	1982. 	As a result of 	those
interviews, 	the District offered 	the position 	to a person
employed 	outside 	the 	District 	who 	subsequently 	declined 	the
appointment. 	No other offers 	were made. 	Grignon 	testified
that 	the 	candidate 	who was 	offered 	the 	job was 	chosen 	because
she 	was 	a 	court 	reporter 	and 	could 	operate 	a 	shorthand machine,
a 	skill 	would 	might 	be 	useful 	in 	taking 	notes 	during
negotiations. 	Ability 	to operate 	a 	court 	reporter 	machine was
not 	included 	within 	the 	job 	specifications 	for 	the position.
Salary 	Change
On May 	5, 	1982, 	Grignon 	sent 	a memorandum to 	the Board of
Trustees 	recommending 	that 	the 	pay premium 	for 	confidential
employees 	be 	reduced 	from $296.00 	per 	month 	to 	$50.00 per 	month
over 	the 	salary 	for 	a 	non-confidential position 	at 	the 	same
level. 	Grignon 	testified 	that 	he 	recommended 	that 	reduction 	in
salary 	because 	of 	budgetary 	concerns 	and 	because 	confidential
secretaries 	were 	overpaid 	by 	comparison 	with 	other 	districts.
The 	change 	in 	salary 	for 	confidential 	secretaries 	became
effective June 	1, 	1982. 	At 	that 	time, 	there was only one
person 	in 	the 	school 	District 	employed 	as 	a 	secretary 	III
(confidential), 	Grignon's secretary. 	Just prior 	to
11

June 	1, 	1982, 	she was 	reclassified 	to an administrative
assistant 	at 	no 	loss of pay.
McPherson's 	Transfer
On May 17, 	1982, 	McPherson was 	notified 	that 	she would be
involuntarily 	transferred 	from 	her 	position 	as 	secretary 	III
for 	the 	director 	of 	employee 	relations 	to 	the position of
secretary 	III 	for 	the principal 	at Carlsbad 	High 	School, 	a
lateral 	transfer, 	effective June 	1, 	1982. 	The 	reason given for
the 	transfer 	was 	"for 	the 	good 	of 	the 	District." 	McPherson
testified 	that 	she 	asked 	Bates 	why 	she 	was 	being 	transferred
and 	he 	stated 	that 	he 	did 	not 	know.8
Grignon 	testified 	that 	McPherson 	was 	transferred 	at 	the
beginning 	of 	June 	because 	the 	principal of 	the 	high 	school had
requested 	a 	permanent 	secretary 	during 	the 	first week 	in May.
Grignon 	testified 	that 	he 	consulted 	with 	Bates 	before
transferring 	McPherson 	and 	that 	Bates 	had 	"requested 	the
transfer" 	because of 	the 	need 	for 	a 	secretary at 	the high
school. 	Bates 	testified 	that 	he 	did 	not 	request McPherson's
8on June 	8, 	1982, 	McPherson 	filed 	a grievance 	under 	the
parties' 	collective 	bargaining 	agreement protesting 	her
involuntary 	transfer. 	The 	grievance 	has 	reached 	the
arbitration 	stage 	and 	is 	currently 	in abeyance pending
resolution 	of 	this 	unfair 	practice 	charge. 	The 	arbitration
provision 	in 	the 	contract provides 	for 	advisory arbitration
only 	and 	provides 	that 	the 	final 	decision 	on 	any grievance
shall be made 	by 	the Board 	of 	Trustees.
12

transfer 	and 	that 	Grignon did 	not 	tell him 	the 	reasons 	for 	the
transfer.
Patricia Burden, 	principal of Carlsbad 	High 	School,
testified 	that 	she 	had 	been 	requesting 	a 	permanent 	secretary
since 	her 	secretary became 	ill 	in September 	or 	October. 	Her
last 	request had 	been 	just prior 	to April 	12, 	1982, 	which was
the 	earliest 	date 	that 	her 	previous 	secretary could 	legally 	be
replaced.
From 	the 	date 	of McPherson's 	transfer 	on June 	1 	until
sometime 	in October 	1982, 	her position was 	filled by a
succession of 	eight 	temporary 	secretaries. 	McPherson 	testified
that 	in 	the period 	between June 	1 	and 	July 	12 	she 	received
67 	calls 	from both Bates 	and 	the 	temporary 	secretaries 	asking
her 	questions 	about 	how 	to do 	things 	in her previous position.
Bates 	acknowledged 	that 	he made 	several 	such 	calls 	to
McPherson. 	The 	calls 	continued 	until 	and 	even after 	someone
was 	hired 	to work 	for 	Bates 	in October.
Grignon 	acknowledged 	that 	the 	District 	was 	in 	negotiations
with 	the 	Union 	at 	the 	time McPherson 	was 	transferred 	and 	that
Bates 	was 	representing 	the District 	in 	those 	negotiations. 	He
testified 	that 	after 	McPherson was 	transferred, 	all
confidential 	work 	from Bates' 	office 	was 	done by Grignon's
secretary. 	Grignon 	testified 	that 	he 	did 	not 	know whether
McPherson 	typed 	District 	contract 	proposals 	before 	she 	was
transferred 	but 	said 	that 	he 	did 	not 	necessarily 	consider
contract 	proposals 	"confidential".
13

Creation 	of 	the 	Credentials-Personnel 	Technician
(Confidential) 	Position
On July 	7, 	1982, 	Grignon presented 	a proposal 	to 	the Board
of 	Trustees 	that 	the 	position of 	secretary 	III 	(confidential)
to 	the 	director 	of 	employee 	relations 	be 	abolished 	and 	replaced
by 	the 	position 	of 	credentials-personnel 	technician
(confidential) 	(hereinafter CPT). 	Grignon 	testified 	that 	the
idea 	for 	the CPT was his, 	along 	with Bates. 	He 	thought 	the 	new
position 	should 	be 	created 	because 	the 	position of 	secretary 	to
the 	director 	of 	employee 	relations 	had 	become 	highly 	technical
and 	required 	someone 	who 	was 	highly 	trained 	in 	credentials
law. 	Grignon 	testified 	that 	the 	idea 	for 	the 	new position
first came up 	in June, 	after McPherson's 	transfer. 	He could
not 	recall 	whether 	or 	not 	the 	idea 	arose 	after 	McPherson 	filed
her 	unfair practice charge 	on June 	7. 	In his written
justification 	to 	the 	Board 	of 	Trustees 	regarding 	the 	proposed
new position, 	Grignon stated:
Over 	the 	last 	few years, 	the complexity of
teaching 	credentials 	has 	increased
dramatically 	. . . 	A 	lack 	of 	knowledge 	and
experience 	concerning 	the 	intricacies 	of
credentialing 	and 	contracting 	has 	led 	into
[sic] 	the post-in-house difficulties which
came 	to 	light during 	the 	current 	teacher
layoffs. 	It 	is 	imperative 	that 	the District
have 	a 	qualified 	credential 	technician 	with
a 	full 	range of 	knowledge 	of 	the 	laws 	and
the 	experience 	to 	implement 	these 	legal
mandates.
Grignon 	testified 	that part 	of 	the 	rationale 	for 	the 	new
position 	was 	that 	there 	had 	been difficulties with 	scope 	of
14

various 	type of 	credentials 	in 	the past. 	Grignon could 	not
remember 	whether 	these 	difficulties 	had 	occurred 	during 	the
year 	in which 	there 	had 	been 	no director 	of personnel 	and 	he
did 	not 	know or 	investigate 	whether 	the 	difficulties were
McPherson's 	fault. 	Grignon 	felt, 	however, 	that McPherson 	"did
not 	know 	all 	the 	intricacies 	of 	the 	laws which 	deal with 	the
commissioning 	or 	licensing 	of 	teachers" 	and 	that 	the position
"had 	evolved 	to 	such 	a point 	where 	the 	technicalities 	needed
someone 	who 	was 	highly 	trained 	and 	who 	had 	experience 	and
knowledge 	of 	teaching 	credentials." 	Grignon 	testified 	that 	he
was 	aware of 	this 	need 	in February 1982, 	prior 	to 	the 	time
interviews 	were 	held 	for 	the 	secretary 	III 	(confidential)
'
position, 	although 	there 	was 	no evidence 	that candidates with
special 	credentialing 	skills 	were 	sought 	at 	that 	time.
Bates 	testified 	that 	he 	had 	no complaints 	regarding
McPherson's performance 	and 	specifically had 	no problems 	with
her 	work 	dealing 	with 	credentials. 	McPherson 	testified 	that
she 	had 	never 	received 	any 	complaints 	regarding 	her
credentialing 	work.
The 	salary 	for 	the CPT was 	set 	at 	several 	steps 	higher 	than
the 	secretary 	III position which 	it 	replaced 	because, 	according
to Grignon, 	it demanded 	greater 	knowledge 	and 	skills. 	The 	job
description 	for 	the position 	included 	a 	long 	list of 	duties 	to
15

be 	performed. 	McPherson 	testified 	without 	contradiction 	that
she 	had 	performed 	all 	of 	those 	duties 	in her previous position.
On August 	26, 	1982, 	McPherson took a written test for 	the
CPT position which 	tested 	matters 	of office procedure, 	office
management, 	spelling 	and 	typing. 	She 	received 	the highest
score 	of 	the 	five 	applicants. 	The 	candidates who 	received 	the
three 	highest 	scores 	were 	interviewed 	in 	September 	and 	one of
those 	three, 	other 	than McPherson, 	was chosen for 	the
position. 	The 	personnel 	commission 	rules permit 	the 	District
to 	appoint 	any one 	of 	the 	top 	three 	candidates 	to 	the position
for 	which 	they 	tested. 	No 	evidence 	was 	introduced 	regarding
the 	qualifications 	of 	the 	person 	ultimately 	hired 	or 	whether
that 	person's 	knowledge 	of 	credentialing 	exceeded 	that of
McPherson.
Issues 	Presented
1. 	Did 	the District violate 	section 3543.5(a), 	(b) 	and 	(d)
by 	(1) 	denying McPherson promotion 	to 	the position of 	secretary
III 	(confidential); 	(2) 	transferring McPherson from her
position 	as 	secretary 	to 	the 	director 	of 	employee 	relations 	to
the 	position 	as 	secretary 	to 	the principal of Carlsbad 	High
School; 	and 	(3) 	denying McPherson appointment 	to the position
of 	credentials-personnel 	technician 	(confidential)?
2. 	Did 	the District violate section 3543.5(a), 	(b) 	and 	(d)
by denying 	Cynthia McPherson 	the 	right 	to 	serve 	on 	the Union
negotiating 	committee?
16

DISCUSSION 	AND 	CONCLUSIONS 	OF 	LAW
I. 	Involuntary Transfer 	and 	Denial of 	Promotion
A. 	The 	Legal 	Standard
By 	its 	terms, 	section 3543.5(a) 	of 	the Act prohibits
discriminatory 	action 	against 	an 	employee 	for 	engaging 	in
conduct protected 	by 	the EERA, 	including,
. 	. 	. 	the right to form, join, 	and
participate 	in 	the 	activities 	of 	employee
organizations 	of 	their 	own 	choosing 	for 	the
purpose 	of 	representation 	on 	all matters 	of
employer-employee 	relations. 	(Sec. 	3543.)
In Carlsbad Unified 	School 	District 	(1/30/79) 	PERB 	Decision
No. 	89, 	and 	in Novato Unified School District 	(4/30/82) 	PERB
Decision No. 	210, 	the Board 	set 	forth 	the 	standard by which
charges 	alleging 	discriminatory 	conduct 	under 	section 	3543.5(a)
are 	to be 	decided. 	The Board 	summarized 	its 	test 	in a decision
issued 	the 	same 	day 	as Novato;
. . . 	a party alleging a violation 	. 	. 	. 	has
the 	burden 	of making 	a 	showing 	sufficient 	to
support 	the 	inference 	that 	protected 	conduct
was 	a 	"motivating 	factor" 	in 	the employer's
decision 	to engage 	in 	the 	conduct of which
the employee complains. 	Once 	this 	is
established, 	the burden 	shifts 	to the
employer 	to demonstrate 	that 	it would 	have
taken 	the 	same 	action even 	in 	the 	absence 	of
protected 	conduct. 	As 	noted 	in Novato, 	this
shift 	in 	the 	burden 	of producing 	evidence
must 	operate 	consistently 	with 	the 	charging
party's 	obligation 	to 	establish 	an 	unfair
practice 	by a preponderance 	of 	the
evidence. 	(California 	State University,
Sacramento 	(4/30/82) 	PERB Decision No. 	211-H
at pp. 	13-14.)
17

The 	test 	adopted 	by 	the 	Board 	is 	consistent 	with precedent
in California 	and 	under 	the National 	Labor 	Relations Act 	(NLRA)
requiring 	the 	trier 	of 	fact 	to weigh 	both direct 	and
circumstantial 	evidence 	in order 	to determine whether 	an action
would 	not 	have 	been 	taken 	against 	an 	employee 	but 	for 	the
exercise of protected 	rights. 	See, 	e.g., 	Martori Brothers
Distributors v. 	Agricultural Labor Relations Bd. 	(1981) 	29
Cal.3d 721, 	729-730; Wright Line, 	Inc. 	(1980) 	251 NLRB 150 	[105
LRRM 1169] 	enf., 	in part, 	(1st Cir. 	1981) 	662 F.2d 899 	[108
LRRM 2513]; 	NLRB v. 	Transportation Management Corp.
(1983) 	U.S. 	, 	113 LRRM 2857.9
B. 	Protected 	Activity 	by McPherson
There 	is 	no 	factual 	dispute 	that McPherson 	had 	engaged 	in
protected 	activity 	within 	the 	knowledge 	of 	the 	District,
particularly 	of 	Superintendent 	Grignon.
Grignon 	himself 	testified 	that McPherson's 	membership 	in
the 	Union 	and 	her 	activity 	in 	typing 	some 	documents on behalf
of 	the Union constituted, 	at 	least 	in part, 	the ground 	for 	his
opposition 	to promoting McPherson 	to a confidential 	secretary
9The 	construction 	of 	similar 	or 	identical provisions 	of
the NLRA, 	as amended, 	29 U.S.C. 	151 et seq., 	may be used 	to
guide 	interpretation of 	the EERA. 	See, 	e.g., 	San Diego
Teachers Assn. 	v. 	Superior Court 	(1979) 	12 Cal.3d 1, 	12-13;
Fire Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 	608,
616. 	Compare 	section 	3543.5(a) 	of 	the Act 	with 	section 	8(a)
(3) 	of 	the NLRA, 	also prohibiting discrimination 	for 	the
exercise 	of protected 	rights.
18

when 	Bates 	first 	recommended 	that 	reclassification 	on
February 8, 	1982. 	The Union's March 22, 	1982, 	appointment of
McPherson 	to 	its 	negotiating 	committee 	at 	a minimum 	raised
McPherson's 	apparent 	involvement 	in 	the Union 	to a more
prominent level. 	On June 7 and 8, 	1982, 	respectively,
McPherson 	filed 	an 	unfair 	practice 	charge 	and 	a grievance
regarding 	her 	transfer 	and 	the 	denial of 	reclassification; 	both
constitute 	protected 	activities 	under EERA. 	Baldwin Park
Unified School District 	(6/30/82) 	PERB Decision No. 	221; 	North
Sacramento School District 	(12/20/82) 	PERB Decision No. 	264.
The Union argues, 	in addition, 	that McPherson's act of
filing 	a 	request 	for 	reclassification 	and 	back 	pay with 	the
District 	personnel 	commission 	was 	an 	act 	protected 	by EERA and
that 	Grignon 	immediately 	retaliated 	by 	ordering 	interviews 	for
the 	position of 	confidential 	secretary 	to 	replace McPherson.
This 	issue 	need 	not 	be 	reached 	since 	I 	find 	that 	Grignon's
whole 	course of 	conduct 	with 	respect 	to McPherson was 	based
upon 	the 	reasons 	Grignon 	himself 	enumerated 	included 	her
protected 	activity.
C. 	Discriminatory Action 	by 	the 	District
The District 	takes 	the position 	that 	no violation 	can be
found 	in 	this 	case 	because 	the District 	engaged 	in 	no
discriminatory 	action 	within 	the 	meaning 	of EERA.
Specifically, 	the District 	argues 	that 	the decision not 	to
designate McPherson 	a 	confidential 	employee 	is 	not 	reviewable
19

by PERB; 	the 	question of which 	employees 	are put 	in
confidential positions 	is 	purely 	a matter 	of management
discretion 	since 	confidential 	employees 	are 	not 	employees
within 	the meaning of EERA. 	Moreover, 	the District argues,
interviews 	were 	conducted 	according 	to 	personnel 	commission
rules 	for 	both 	the 	secretary 	III 	(confidential) 	position and
the CPT position, 	candidates were 	ranked, 	and 	in each case one
of 	the 	top 	three candidates was chosen. 	Since 	it 	is within
management's discretion 	to choose 	any one of 	the 	top 	three
candidates, 	that 	choice 	cannot 	be challenged 	under EERA.
Finally, 	the District 	argues 	that McPherson's 	transfer 	did 	not
constitute 	discrimination 	because 	it was purely 	lateral 	and 	did
not 	involve 	any 	reduction 	in pay or 	benefits.
Considering 	these contentions 	in reverse order, 	I conclude
that 	the District's 	last point 	is without merit. 	A transfer
from one 	work 	location 	to 	another 	or 	from one 	set of duties 	to
another, 	even 	though 	the 	transfer 	is without 	loss of pay or
benefits, 	constitutes discrimination which 	is prohibited 	by
EERA if 	the 	action 	is 	taken 	in 	retaliation 	for protected
activity. 	Carlsbad Unified 	School District 	(1/30/79) 	PERB
Decision No. 	89.
The 	District's 	second 	argument 	must 	also 	be dismissed.
Normally, 	absent 	restrictions 	embodied 	in a collective
bargaining 	contract, 	an employer 	has 	the 	authority and
discretion 	to 	determine 	which 	employees 	should 	be 	appointed 	or
20

promoted. 	That 	management 	right 	is 	limited 	by EERA only 	to 	the
extent 	that management's 	choice 	not 	to promote 	or 	appoint 	a
particular 	person may 	not 	be 	based 	upon 	the 	employee's
protected 	activities. 	Similarly, 	under 	a merit 	system like
that 	in Carlsbad, 	the District 	has 	the 	authority and discretion
to 	appoint 	any one 	of 	the 	top 	three 	candidates 	tested 	for 	a
position 	— 	limited, 	however, 	by 	the EERA proscription 	against
basing 	that 	choice 	upon 	the 	protected 	activity of 	one 	of 	more
of 	the 	candidates. 	It certainly does 	not 	interfere with 	the
operation 	of 	the 	merit 	system 	to 	require 	that management's
choice 	for 	appointment 	among 	the 	top 	three 	candidates 	for 	a
position 	may 	not 	be 	based 	upon 	grounds 	prohibited 	by other 	laws.
The District's 	first argument, 	however, 	raises a novel
question 	of 	labor 	law 	not 	addressed 	by 	any PERB or 	NLRB cases.
Does 	an 	employer 	have 	absolute 	discretion 	in 	choosing 	employees
for 	confidential positions 	such 	that 	a 	refusal 	to appoint 	an
employee 	to 	a 	confidential position 	cannot 	be 	the 	basis 	for 	an
unfair practice charge, 	even 	if 	the 	refusal 	is based 	upon the
employee's protected 	activity? 	Resolution of 	this 	issue
requires 	consideration 	of 	the 	conflicting 	statutory 	interests
involved.
On 	the one hand, EERA section 3543.5(a) 	protects public
school 	employees 	against 	reprisals 	or 	discrimination 	by 	their
employer 	for 	the 	exercise 	of 	rights 	protected 	by EERA,
including 	the 	right 	to 	form, 	join and participate 	in 	the
21

activities of 	an 	employee 	organization. 	The 	reprisals 	and
discrimination prohibited 	relate 	to 	any 	term and 	condition of
employment 	and 	the 	opportunity 	for 	promotion 	is 	one 	such
condition of employment. 	Ford Motor Co. 	(1980) 	251 NLRB 413,
422 	[105 LRRM 1143], 	enf. 	v a c , 	rem. 	in part 	(6th Cir. 	1982)
683 F.2d 	156 	[110 LRRM 3202]; 	NLRB v. 	Bell Aircraft Corp.
(2d Cir. 	1953) 	206 F.2d 235, 	237, 	[32 LRRM 2550]. 	The PERB has
held 	that 	denying 	an 	employee 	the 	opportunity 	to compete 	for 	a
promotion 	— 	specifically, 	a 	promotion 	to 	a 	management 	position
outside 	the 	bargaining 	unit 	— 	is 	prohibited 	by EERA when 	the
denial was 	based 	upon 	the protected 	organizational 	activities
of 	the 	employee. 	Lemoore Union High 	School District 	(12/28/82)
PERB Decision No. 	271. 	The designation as a confidential
secretary would, 	on 	the 	facts of 	this case, 	have 	been a
promotion 	since 	it 	would 	have 	carried 	with 	it 	an 	increase 	in
salary 	of 	approximately 	$296.00 	per 	month.10
The protection 	against 	reprisals 	or 	discrimination 	for
protected 	activity 	extends 	to 	all persons 	who 	are 	employees
within 	the 	definition of 	the Act. 	The 	definition of 	employee
in 	section 	3540.l(j) 	excludes management 	and confidential
10The 	confidential premium was 	reduced 	to 	$50.00 	per
month 	on June 	1, 	1982. 	In August 	the confidential 	secretary
III position 	was 	replaced 	by CPT at 	a 	salary not 	specifically
disclosed 	in 	the 	record 	but which 	was 	greater 	than 	secretary
III 	salary.
22

employees 	but 	nothing 	in 	the Act 	can be 	read 	to exclude 	from
protection 	bargaining 	unit 	employees 	who 	simply 	aspire 	to
promotions 	to managerial or confidential positions. 	Thus, 	there
is 	nothing 	in 	the 	law which 	would 	permit 	an employer 	to
condition 	future promotions 	to managerial 	or 	confidential
positions 	on 	an 	employee 	not 	engaging 	in protected 	activities
while 	the 	employee 	is 	a member 	of 	the 	bargaining 	unit 	and 	thus
falls 	within 	the 	definition 	of 	employee 	under 	the Act.
On 	the 	other 	hand, 	the District correctly argues 	that 	an
employer 	has 	strong 	interests 	in having 	a 	reliable 	management
team 	and 	those 	interests 	are 	also 	recognized 	by 	the Act 	in 	the
exclusion 	of managerial 	and 	confidential 	employees 	from
coverage 	under 	the 	Act 	and 	the 	exclusion of 	supervisors 	from
bargaining 	units with 	other 	public 	school employees. 	In 	a very
early decision, 	PERB 	recognized 	the policy behind 	the 	exclusion
of 	confidential 	employees 	from 	the protection of 	the Act:
Presumably, 	the 	Legislature 	denied 	certain
rights 	to 	"confidential" 	employees 	for 	the
sole 	purpose 	of 	guaranteeing 	orderly 	and
equitable progress 	in 	the 	development 	of
employer-employee 	relations.
[T]he 	employer 	should 	be 	allowed 	a 	small
nucleus 	of 	individuals 	who would 	assist 	the
employer 	in 	the development of 	the
employer's positions 	for 	the purposes of
employer-employee relations. 	. 	. 	[T]his
nucleus 	of 	individuals 	would 	be 	required 	to
keep confidential 	those matters 	that 	if made
public 	prematurely 	might 	jeopardize 	the
employer's 	ability 	to 	negotiate 	with
employees 	from 	an 	equal posture.
23

The underlying assumption then, 	is 	that the
employer, 	in order 	to 	fulfill 	its 	statutory
role 	in 	its 	employer-employee 	relations,
must 	be 	assured 	of 	the 	undivided 	loyalty of
a 	nucleus 	of 	staff 	designated 	as
"confidential employees". 	(Sierra 	Sands
Unified 	School 	District 	(10/14/76) 	EERB
Decision No. 	2.)
Persons 	who 	fall 	within 	the 	definition 	of confidential
employee 	are 	therefore 	excluded 	from 	representation 	by 	an
employee 	organization 	on 	the 	theory 	that 	an 	employee 	could 	not
give 	the 	employer 	his 	or 	her 	undivided 	loyalty on matters
involving 	labor 	relations 	if 	the 	employee 	were 	also 	represented
by 	the 	employee 	organization 	with 	which 	the 	employer 	is
bargaining. 	A potential 	conflict of 	interest or 	conflict 	of
loyalties 	of 	the 	confidential 	employee 	is 	thereby avoided.
Although 	no NLRB or 	PERB cases 	deal directly with 	the
question presented 	here, 	the NLRB and 	to a 	limited extent 	the
courts, 	have 	confronted 	the question of whether 	a bargaining
unit 	member 	may 	be 	denied 	promotion 	to 	a 	supervisorial position
solely on 	the ground 	of 	union or 	concerted 	activities 	while 	a
member 	of 	the 	bargaining 	unit. 	The 	answer 	has 	been clearly
"no", 	In 	Ford Motor Co., 	supra, 	the employer denied promotions- . .. . . . .
to 	supervisory positions 	to 	two 	rank-and-file 	employees 	because
they 	filed 	grievances 	challenging 	the 	employer's 	promotional
policies, 	contemplated 	filing 	a 	lawsuit, 	and brought unfair
labor 	practice 	charges 	against 	their 	employer. 	The NLRB 	found
that 	the 	employees' 	activities 	were protected 	and 	the 	denial of
24

promotions 	to 	them 	therefore 	constituted 	unfair 	labor
practices. 	The Board 	quoted 	the 	Second Circuit 	in NLRB v. 	Bell
-
Aircraft Corp. 	(2nd Cir. 	1953) 	206 F.2d 235, 	237 	[32 LRRM 2550].
[T]he 	employee's 	"prospects 	for 	promotion
were 	among 	the 	conditions 	of his
employment," 	the Act 	"protected 	him so 	long
as 	he 	held 	a 	nonsupervisory position," 	and
it 	is 	immaterial 	that 	the protection thereby
afforded 	was 	calculated 	to 	enable 	him 	to
obtain 	a position 	in which 	he would 	no
longer 	be 	protected.
Similarly, 	in Little Lake Industries, 	Inc. 	(1977) 	233 NLRB
1049 	[97 	LRRM 1101], 	the 	employer 	argued 	that he was 	justified
in 	refusing 	to promote 	an employee 	to 	a 	supervisory position
because 	of 	the 	employee's 	union 	activity 	on 	the 	ground 	that 	an
employee 	who 	supports 	a 	union would 	be disloyal 	to 	the 	employer
as 	a 	supervisor. 	The Board 	rejected 	that 	argument 	finding 	that
an 	employee 	can 	engage 	in 	union 	activity 	so 	long 	as 	he 	remains
a 	rank-and-file 	employee 	and 	he may 	not 	be 	held 	to a 	code of
conduct 	for 	supervisors 	until 	he 	becomes 	a 	supervisor.11
The 	lesson of 	these 	decisions 	is 	that 	union 	activity as 	a
rank-and-file 	employee 	alone 	does 	not 	justify 	a presumption
that 	an 	employee 	will 	not 	give 	the 	employer 	his 	full 	loyalty
when 	promoted 	to 	a 	supervisory position.
11See 	also, 	Republic Corp., 	Advanced Mining Group
Lucerne Facility 	(1982) 	260 NLRB No. 	73 	[109 LRRM 1281] ; 	Keeler
Corp. 	dba Keeler Brass Co. 	(1982) 	262 NLRB No. 	23 	[110 LRRM
1257].
25
,

The 	Massachusetts 	Labor 	Relations 	Commission 	has 	reached
the 	same 	conclusion 	in 	a case 	involving 	denial of 	a promotion
to a managerial position 	to a public 	sector 	employee. 	In Town
-
of Burlington 	(1982) 	9 MLC 1139, 	a union activist was denied 	a
promotion 	to 	the position of 	acting 	fire chief, 	a managerial
position, 	because he was 	an active 	and 	vocal union 	supporter 	as
a 	rank-and-file 	employee. 	The 	employee 	had 	served 	as 	acting
fire 	chief 	on 	two 	earlier 	occasions 	without 	any problems 	and
there 	was 	no 	evidence 	other 	than his 	active 	union 	role 	from
which 	to draw 	an 	inference 	that he would 	be disloyal 	to
management 	in 	the 	future. 	The Commission concluded:
We 	can 	envision 	circumstances 	in which 	a
public 	employer 	may 	legally decline 	to
promote 	an 	employee 	to 	a managerial position
because 	of 	the 	employee's 	union 	activity.
We note, 	as only one example, 	the 	situation
in 	which 	a 	union 	applicant 	for 	a managerial
position 	indicates 	by conduct 	or 	comment
that 	she or 	he 	will 	continue 	to 	feel aligned
with 	the 	union 	following 	the promotion.
Here, 	however, 	the 	record discloses
absolutely 	nothing 	about 	Pollicelli's 	prior
association 	with 	the 	Union 	other 	than 	that
it was 	active 	and 	vocal. 	We 	can 	find on
this 	record 	no 	legitimate 	interest of 	the
town which 	is 	served 	by upholding 	the 	denial
of Pollicelli's promotion. 	We 	agree with
Commissioner Altman 	that 	an 	employer 	has 	a
major 	stake 	in who 	its managers will be.
There 	is no suggestion, 	however, 	that
Pollicelli 	was 	in 	any way unqualified; 	the
evidence, 	in fact, 	is quite the reverse.
Further, 	the 	record 	demonstrates 	that
Pollicelli 	served 	in 	the 	temporary
managerial position 	of Acting 	Chief 	on 	two
occasions 	in 	the 	past 	without 	any problems
26

or 	complaints 	from management. 	In addition,
there 	is 	no direct or 	circumstantial
evidence 	warranting 	an 	inference 	that
Pollicelli 	would 	have 	been 	disloyal 	to
management 	if he 	assumed 	the 	Acting Chief's
position on this occasion. 	Instead, 	the
record 	indicates 	that 	the 	employer 	acted 	on
pure 	speculation 	in 	denying 	Pollicelli 	the
promotion, 	based 	upon 	nothing 	but 	the mere
fact 	that 	Pollicelli 	had 	previously 	been 	an
active 	union 	leader. 	All we hold 	in 	this
case 	is 	that 	a public 	employer 	under 	Chapter
1508 	cannot 	deny an 	employee 	a promotion 	to
a 	managerial 	position 	solely 	because 	of 	the
employee's 	affiliation 	with 	a 	union.
Thus, 	while an employer's 	legitimate concerns 	for 	loyalty 	in
managerial 	and 	supervisorial 	employees must 	and 	should 	be
accommodated, 	an employer 	is 	not 	justified 	in presuming 	future
disloyalty 	based 	solely 	upon 	past 	union 	activity.
I conclude 	that 	there 	is 	no 	reasonable 	basis 	for 	applying 	a
different 	rule 	in 	the 	case of 	confidential employees. 	The
employer's 	interest 	in selecting 	a managerial employee 	is, 	in
part, 	in 	choosing 	someone 	who can effectively represent 	the
employer 	and 	its 	interests 	in 	formulating, 	determining 	and
carrying 	out 	the managerial policies of 	the 	employer, 	including
labor 	relations policies. 	Bell Aerospace, 	Division of Textron
Corp. 	v. 	NLRB 	(1974) 	416 U.S. 	267 	[85 LRRM 2945]. 	In choosing
a supervisory employee, 	the employer's concern 	is, 	in relevant
part, 	in 	finding 	someone who can effectively enforce management
policies 	in 	the 	employer's 	relations with 	its employees.
A confidential employee 	is, 	by definition, 	one who 	"in the
regular 	course of his duties, 	has access 	to, 	or possesses
27

information 	relating 	to, 	his 	employer's 	employer-employee
relations." 	Unlike 	a managerial employee, 	a confidential
employee 	is 	not 	in a policy-making position. 	Nor 	is 	the
confidential employee, 	unlike 	the 	supervisor, 	in a position to
enforce management policies 	in 	day-to-day 	labor 	relations.
Thus, 	the concern 	for 	loyalty of a confidential employee 	is a
limited 	concern 	that 	the 	employee 	refrain 	from disclosing 	to
others 	the 	employer's 	confidential positions 	or 	information on
employer-employee 	relations.
Certainly, 	the employer's 	interest 	is having 	loyal
confidential 	employees 	is 	not greater 	than having 	loyal
managerial 	and 	supervisorial 	employees. 	While 	not 	every
supervisor 	or 	managerial 	employee may 	have 	the 	regular 	access
to 	employer 	labor 	relations 	information 	available 	to 	a
confidential 	employee, 	the 	basis 	for 	exclusion of 	all 	three
categories of 	employees 	is concern 	for 	potential conflicts of
interest 	in 	labor 	relations matters. 	There 	is 	simply no basis
for 	a blanket presumption 	that 	that 	conflict 	is more 	acute 	in
the 	case 	of 	confidential 	employees 	than managerial or
supervisory 	employees.
The 	court 	of 	appeal 	has 	noted 	a concern 	for 	allowing
substantial 	scope 	for 	an 	employer's 	discretion 	in making
employment 	decisions 	affecting 	managerial 	and 	confidential
employees. 	In Pugh v. 	See's Candies, 	Inc. 	(1981) 	116
Cal.App.3d 	311, 	171 Cal.Rptr. 	917, 	the court 	found 	that the
28

plaintiff, 	a high 	level managerial employee, 	had 	stated 	a cause
of 	action 	for 	arbitrary 	and 	unjust 	dismissal 	but 	cautioned:
Where, 	as here, 	the employee occupies a
sensitive 	managerial or 	confidential
position, 	the employer must of 	necessity be
allowed 	substantial 	scope 	for 	the 	exercise
of 	subjective 	judgment. 	Id. 	at 	330.12
Although that case arose 	in a different legal context, 	the
quote 	indicates 	that, 	in cases 	involving managerial and
confidential employees, 	the 	courts 	and 	the PERB should 	not put
themselves 	in 	the position 	of 	second-guessing 	the merits 	of
decisions 	arrived 	at 	through 	the 	conscientious 	exercise 	of
managerial discretion. 	That 	concern 	for 	reserving 	for
management 	sufficient 	room 	for 	the 	exercise 	of 	discretion 	in
12	12The	The 	Court 	accompanied 	this 	cryptic 	comment 	with 	a 	cite
to 	a 	Harvard 	Law Review 	article, 	"Note 	Protecting At Will
Employees Against Wrongful 	Discharge: 	The Duty 	to Terminate
Only in Good Faith" 	(1980) 	93 Harv. 	L. 	Rev. 	1816, which
proposed 	that 	different 	standards 	should 	be 	developed 	for 	what
constitutes 	bad 	faith 	termination which 	are 	less 	restrictive
and 	more 	subjective 	for 	high 	level managers. 	The article
argued:
Efficient 	running 	of 	an 	enterprise 	demands 	a
high 	degree 	of 	trust 	and 	cooperation among
top personnel; 	thus, 	upper echelon employees
should 	perhaps 	have 	to overcome 	a higher
hurdle 	to 	show 	that 	their 	discharge was
abusive or 	retaliatory. 	Foremen, 	salesmen,
supervisors, 	and middle managers 	[and
arguably confidential secretaries], on the
other 	hand, 	often 	fall between 	the 	two
stools 	[sic] 	of 	union 	safeguards 	and 	top
management privileges, 	and 	so may 	require
more protections." 	Id. 	at 1840-41.
-
-
29

choosing 	managerial 	and 	confidential 	employees 	should 	not,
however, 	cause 	the 	PERB 	to abdicate responsibility for 	enforcing
laws 	which protect 	public 	school 	employees 	in 	the 	exercise of
their 	statutory rights. 	When, 	as 	in the 	instant case, 	the only
exercise 	of managerial discretion 	shown 	is 	to deny an employee
a 	position 	— 	even 	a 	confidential 	position 	— 	solely 	because 	of
her 	exercise of 	rights protected 	by EERA, 	the PERB does 	not
exceed 	the 	appropriate 	exercise 	of 	its 	authority or 	interfere
with 	the 	rightful 	exercise of managerial discretion when 	it
condemns 	such 	actions 	as 	unfair practices.
Considering 	the 	standards 	set 	forth 	above 	and 	the 	facts 	in
this 	case, 	I 	conclude 	that McPherson was 	improperly denied 	the
promotion 	to a confidential position, 	was 	consequently
transferred 	to another 	secretary 	III position, 	and was denied
the 	CPT position 	solely 	because 	of 	her 	union 	activity.
Superintendent 	Grignon 	testified 	to 	three 	reasons 	for 	his
concern 	about 	McPherson 	maintaining 	the 	confidentiality of 	the
District's 	labor 	relations 	information:
She's 	been 	a 	long-term member 	of 	this
community. 	Her 	ex-husband 	is a 	teacher, 	she
has 	carried 	out work 	in 	the past 	for 	the
teacher 	union, 	in fact, 	at that 	timel3 	she
was 	typing 	documents 	for 	the 	teacher 	union.
13other 	testimony 	by McPherson 	and 	Grignon 	indicates 	that
McPherson 	had 	typed 	documents 	for 	the 	Union 	at 	some 	time 	in 	the
past, 	not at 	the 	time of 	the 	instant dispute.
30

Clearly, 	given 	the above discussion, 	Grignon's 	reliance on
the 	fact 	that 	McPherson 	had 	engaged 	in 	activities 	on 	behalf of
the 	teacher's 	Union while 	a 	rank-and-file 	employee 	was 	improper,
The 	District's 	Rebuttal
1. 	Concern 	Regarding 	Confidentiality
Under Novato, 	supra, 	once 	the Charging Party has made out a
prima 	facie 	case 	to 	support 	the 	inference 	that 	the 	exercise 	of
employee 	rights 	protected 	by EERA was 	the 	ground 	for 	a 	decision
affecting 	terms 	and 	conditions 	of employment, 	the 	burden 	shifts
to 	the 	employer 	to 	show 	that 	its 	actions would 	have 	been 	the
same 	even 	absent 	the 	protected 	activity. 	The other 	reasons
asserted 	by 	Grignon 	for 	refusing 	McPherson 	the 	confidential
position 	should 	be 	analyzed 	to determine 	whether 	the 	District
has met 	that 	burden.
Based 	upon 	the 	evidence presented 	herein, 	I conclude 	that
the District 	has 	not met 	its 	burden. 	The 	fact 	that an employee
is 	a long-time member 	of 	the community by no means, 	on 	its
face, 	raises 	the 	inference 	that 	the 	employee would 	be disloyal
to 	a major 	community 	institution, 	the 	school District which
employs her, 	upon being put 	in a confidential position. 	The
District 	offered 	no 	evidence 	to demonstrate 	why 	such 	an
inference 	would 	be 	appropriate 	here. 	Grignon 	subsequently
modified 	his 	expression 	of 	this 	concern 	to 	say 	that McPherson
was 	"popular" 	in 	the community. 	Again, 	one's popularity does
31

not, 	on 	its face, 	reflect, 	either positively or negatively, 	on
loyalty 	to one's 	employer 	and 	the 	District 	offered 	no 	evidence
upon 	which 	to draw 	a 	different 	conclusion.
In 	fact, 	McPherson had 	been 	not only 	a 	long-term member 	of
the 	community 	but 	also a 	long-term employee of 	the 	school
district. 	She 	had 	held 	over 	the 	years 	significant 	and
responsible 	secretarial 	positions 	for 	the 	District.14
Grignon 	conceded 	that 	McPherson 	had 	never 	engaged 	in 	any
conduct 	which 	was 	contrary 	to 	the 	interests 	of 	the 	District or
which 	could 	reasonably cause 	one 	to question 	her 	integrity or
loyalty 	to the District. 	To 	the contrary, 	McPherson gave 	the
impression 	in 	her 	testimony of 	being 	proud 	of 	her 	work 	for 	the
District 	and 	concerned, 	even 	in 	asserting 	her 	rights 	under
EERA, 	that 	she 	not 	do 	anything 	improper 	or 	wrong.
When 	the 	Union 	appointed 	McPherson 	to 	its 	negotiating
committee 	in order 	to press 	for 	a 	resolution of 	the continuing
question of her 	confidential 	status, 	McPherson 	immediately
declined 	the 	appointment 	as 	soon as 	her 	immediate 	supervisor,
Bates, 	told her 	(improperly) 	that he would 	not permit his
secretary 	to 	serve 	on 	the 	negotiating 	committee. 	McPherson
testified that 	she withdrew because 	she did 	not want 	to
jeopardize 	her 	position 	as 	secretary 	and 	because 	she 	did 	not
want 	to do 	"what 	was wrong." 	Similarly, 	McPherson 	filed her
14McPherson 	served 	as 	secretary 	to 	a prior 	superintendent
and 	as 	secretary 	to 	the 	personnel 	commission.
32

request 	with 	the 	personnel 	commission 	for 	reclassification 	to
confidential 	status 	and 	for 	out-of-class 	back 	pay 	after 	the
District 	had 	stalled 	on 	the 	question 	of 	her 	reclassification
more 	than 	two months 	and McPherson 	felt 	that 	the 	request 	to 	the
personnel 	commission 	"seemed 	to be 	the 	next 	legal 	step 	to
follow."
Moreover, 	the 	evidence 	indicates 	that McPherson was 	very
forthright 	with 	her 	employer. 	Grignon 	acknowledged 	that 	he
knew 	that McPherson 	had 	typed 	some 	documents 	for 	the Union 	in
the 	past 	because McPherson 	told Grignon 	at 	the 	time 	that 	she
performed 	the work. 	Grignon did 	not 	request 	or 	direct
McPherson 	to 	stop doing 	that work. 	Similarly, 	when McPherson
decided 	to 	take 	her 	problem of 	reclassification 	to 	the
personnel 	commission, 	she 	immediately 	informed 	Grignon 	that 	she
was 	doing 	so, 	even 	though 	her 	appeal 	to 	the personnel
commission was 	a challenge 	to Grignon's 	authority. 	Thus,
McPherson's 	conduct, 	even 	in handling 	her 	dispute with 	the
District, 	indicates 	loyalty 	and 	forthrightness 	rather 	than 	the
opposite.
Grignon's 	second 	justification 	for 	refusing 	McPherson
confidential 	status 	— 	that 	her 	ex-husband 	is 	a 	teacher 	in 	the
District 	— 	similarly 	does 	not 	assist 	the 	District's 	case. 	The
District 	offered 	no 	evidence 	or 	analysis 	to 	demonstrate why
McPherson's 	prior 	marriage 	to 	a 	teacher 	in 	the 	District 	— 	who
is presumably a member of 	the bargaining 	unit, 	although
33

not 	necessarily 	a 	member 	of 	the 	Union 	— 	could 	be 	a 	ground 	for
current 	concern 	about 	her 	confidentiality. 	In 	the 	absence 	of
such 	evidence, 	there 	is 	no basis 	to 	infer 	that McPherson would
breach 	the 	confidentiality of 	District 	information 	to her
ex-husband 	or 	to 	the 	Union 	which 	presumably 	represents 	him.
An 	even more 	telling 	consideration 	with 	respect 	to 	both 	of
these arguments 	is 	the fact 	that McPherson did, 	in fact, 	do
work 	as 	a confidential 	secretary on 	at 	least one 	significant
occasion 	between 	the 	time of 	her 	request 	for 	designation 	to
confidential 	status 	and 	her 	involuntary 	transfer 	to 	the high
school. 	McPherson 	testified 	without 	contradiction 	that 	she
typed 	the 	District's 	bargaining 	proposals 	for 	negotiations 	with
the Union which 	occurred 	in 	the 	spring of 	1982. 	There was
absolutely 	no 	evidence 	introduced 	that 	any 	confidential 	labor
relations 	information 	regarding 	those negotiations was 	leaked 	to
the Union. 	Thus, 	Grignon's 	fears 	about McPherson maintaining
the 	confidentiality of 	District 	labor 	relations 	information
seem 	not 	only 	unfounded 	but 	contradicted 	by direct 	experience.
Thus, 	of 	the 	reasons 	which Grignon himself gave 	for 	his
opposing McPherson's 	designation 	as 	a 	confidential 	employee,
only 	one 	reason 	— 	her 	Union 	activity 	— 	has 	any 	substance, 	and
reliance 	on 	that 	ground 	is 	improper 	under EERA.
2. 	McPherson 	Lacks 	Necessary Skills
Despite 	Grignon's 	explicit 	testimony 	that 	his 	opposition 	to
permitting McPherson 	to 	serve 	in 	a 	confidential position was
34

based 	upon 	the 	reasons 	just 	discussed 	and 	not 	upon McPherson's
abilities, 	the District made 	an effort 	to show that 	the
rejections 	of McPherson 	for 	the 	secretary 	III 	and 	CPT positions
were 	based 	upon her 	lacking 	certain 	necessary skills. 	The
evidence, 	however, 	is 	inconsistent and 	incomplete on this point
and 	creates 	the 	impression 	that 	this 	argument was 	conceived 	as
a post-hoc 	justification 	for 	a 	decision 	actually made 	on 	the
grounds which Grignon 	indicated. 	In 	fact, 	the 	reasons about 	to
be 	discussed 	were 	advanced 	only 	as 	justifications 	for 	choosing
another 	candidate 	over McPherson 	in 	the 	two 	sets of 	interviews
held, 	first 	for 	the 	secretary 	III 	(confidential) 	position and
later 	for 	the CPT position. 	No 	reason, 	other 	than concern 	for
confidentiality already discussed, 	was 	advanced 	for 	the 	initial
decision 	to 	refuse 	to designate McPherson's position as
confidential while 	she 	continued 	to 	fill 	that position.
After 	reviewing 	candidates 	for 	the 	secretary 	III
(confidential) 	position, 	Grignon offered 	the position to a
candidate 	other 	than McPherson because, 	he 	testified, 	that
candidate 	was 	a 	court 	reporter 	and 	could operate 	a 	shorthand
machine, 	a 	skill which Grignon 	thought might be 	useful 	in
negotiations. 	The 	ability 	to operate 	a 	shorthand machine was
not 	part 	of 	the 	job 	description 	for 	the 	secretary 	III
(confidential) 	position. 	The 	court 	reporter 	turned 	the 	job
down 	and 	no offer 	was made 	to 	any other 	candidate.
35

Shortly 	thereafter, 	McPherson 	was 	notified of 	her 	transfer
to 	the high 	school 	effective June 	1. 	McPherson was 	transferred
despite 	the 	fact 	that 	n6 	successor 	to 	her 	position 	had 	been
appointed. 	Her 	previous position was 	then 	filled 	by 	a
succession 	of 	eight 	unqualified 	temporary 	employees 	until
October. 	During 	that period, 	both 	the 	temporary employees 	and
Bates 	called 	upon McPherson 	frequently 	for 	help 	in performing
various 	aspects 	of her 	previous 	job.
In August McPherson 	was 	tested 	and 	interviewed 	for 	the 	CPT
position. 	This 	new position was created, 	according 	to Grignon,
because 	of 	the 	growing 	need 	to 	have 	someone 	skilled 	in
credentialing. 	Grignon 	acknowledged 	that 	McPherson had
performed 	credentialing 	tasks 	in 	the past 	and, 	although he
asserted 	that 	there 	had 	been 	some problems 	with 	teacher
credentials 	with 	respect 	to 	layoffs, 	he could 	not 	say 	that
those 	problems 	were 	the 	result 	of 	errors 	by McPherson.
The 	written 	test 	for 	the 	CPT position did 	not 	have 	anything 	to
do with 	credentialing 	skills. 	No 	evidence 	was 	offered 	to 	show
that 	the 	person 	finally 	appointed 	to 	this 	position possessed
credentialing 	skills 	not 	possessed 	by McPherson.
Moreover, 	Grignon 	testified 	that he was 	aware of 	the
credentialing 	"problem" 	at 	the 	time 	that 	interviews were 	held
for 	the 	secretary 	III 	(confidential) 	position, 	but no special
credentialing 	skills were 	sought 	in candidates 	at 	that 	time.
The 	timing of 	Grignon's proposal 	to 	create 	this 	new position
36

focusing 	on 	credentialing 	skills 	creates 	the 	inference 	that 	the
proposal 	was 	in 	response 	to McPherson's 	unfair 	practice 	charge
and 	grievance 	for 	denial 	of 	the 	secretary 	III 	(confidential)
position, 	both 	filed 	in early June. 	(Grignon 	testified only
that he 	"couldn't 	remember" 	whether 	the 	idea 	for 	the CPT
position 	came 	to him after 	the 	filing 	of 	McPherson's 	unfair
practice 	charge 	or 	not.)
I 	conclude 	that 	the 	District has 	not 	born 	the 	burden of
proving 	that, 	absent 	illegal considerations, 	McPherson would
have 	been 	denied 	either 	the 	CPT or 	the 	secretary 	III
(confidential) 	jobs 	because 	she 	lacked 	necessary 	skills 	for
them.
Finally, 	the District argues, 	based 	upon the 	testimony of
Grignon, 	that 	it was 	the Board of Trustees which decided 	not 	to
designate 	McPherson 	a 	confidential 	employee 	and 	that 	decision,
made on February 17, 	1982, 	is 	not attributable 	to any unlawful
motivation. 	Grignon 	testified 	that 	the 	board 	turned 	down
Bates' 	recommendation 	to designate McPherson confidential
because 	the members 	"had qualms 	about" 	McPherson 	in 	that
position. 	Grignon 	asserted 	that he 	did 	not oppose Bates'
recommendation, 	although 	he 	did 	tell 	the 	board 	his 	own concerns
about 	McPherson maintaining 	confidentiality 	based 	upon 	the
reasons 	quoted 	above. 	Grignon 	refused 	to answer 	questions 	on
cross-examination, 	on advice of counsel, 	regarding 	the basis
for 	the 	"qualms" 	which 	the 	board had about McPherson. 	Bates,
who was 	also present 	at 	the 	board meeting, 	testified 	that 	the
37

board 	rejected 	his 	recommendation 	because 	he 	had 	acted 	too
quickly 	and 	because 	of budgetary concerns. 	Although 	both men
assert 	that 	the 	recommendation 	regarding 	McPherson was
emphatically 	rejected, 	the 	record 	demonstrates 	that 	neither 	one
informed McPherson of 	the decision. 	In 	fact, 	Bates
subsequently made 	statements 	to her 	indicating 	that 	designation
as 	confidential 	would 	be 	forthcoming 	and 	Grignon made 	no 	claim
that 	the 	question 	had 	already 	been 	decided 	when 	it was 	raised
directly 	with 	him 	by Union 	representative 	Garner.
Based 	upon 	the 	contradictory 	testimony 	of 	Grignon 	and 	Bates
regarding 	the 	board 	meeting 	and 	the 	subsequent 	conduct of 	both
men 	which 	belies 	their 	claim 	that 	final decision 	about
McPherson's 	status was made at 	that meeting, 	I conclude 	that
the 	District 	has 	not proven 	that 	a decision 	to deny McPherson
confidential 	status 	was made 	by 	the 	board 	for non-discriminatory
reasons.15 While 	the 	District 	has 	the 	right 	to decline 	to
15An 	additional 	ground 	for 	not 	crediting 	the 	District 	on
this point 	is 	the general 	lack of credibility of Grignon, 	and
to a lesser 	extent, 	Bates. 	Grignon's 	testimony was
contradicted 	at 	several points 	noted 	in 	the 	discussion 	above
not 	only 	by McPherson 	but 	also 	by Bates 	and 	Burden. 	His
credibility was 	also 	undermined 	by his 	long 	delays 	in 	answering
questions on cross-examination, 	the evasiveness of his 	answers,
and 	his 	apparent discomfort or 	nervousness.
Bates 	was 	called 	as 	an 	adverse 	witness 	by McPherson 	after
the 	District 	indicated 	off 	the 	record 	that 	it did 	not 	intend 	to
call him. 	Bates 	gave 	the 	impression of being very cautious 	in
answering 	questions 	and 	phrased 	his 	answers 	carefully,
apparently 	in 	an effort 	to avoid putting his 	superior 	in 	a bad
light 	to 	the extent possible.
38

waive 	its 	privilege 	of 	confidentiality 	of 	closed 	board 	meetings
to permit 	evidence 	to 	be 	introduced 	regarding 	the 	alleged 	board
decision 	and 	reasons 	therefor, 	reliance 	upon 	that privilege
does 	not 	release 	the 	District 	from 	its 	obligation 	to prove 	that
the 	denial of 	the 	promotion 	was 	on non-discriminatory grounds
after 	a prima 	facie 	case 	of 	discriminatory denial 	of 	the
promotion has been made. 	Therefore, 	this argument 	is also
rejected.
For 	all 	the 	above 	reasons, 	I 	find 	that 	the District
violated 	section 	3543.5(a) 	by 	denying 	McPherson promotion 	to
secretary 	III 	(confidential) 	and CPT positions 	and 	by
transferring 	her 	to 	the 	position of 	secretary 	III 	in Carlsbad
High School.
II. 	Denial of Right 	to Serve on Negotiating Committee
Section 	3543 	of 	the EERA provides 	that public 	school
employees 	shall 	have 	certain 	rights 	including:
. 	. 	. 	the right to form, 	join, and
participate 	in 	the 	activities 	of 	employee
organizations of 	their 	own 	choosing 	for 	the
purpose 	of 	representation 	on 	all matters 	of
employer-employee 	relations. 	(Emphasis
added.)
The parties 	stipulated 	that 	the Union 	is 	an 	employee
organization 	within 	the 	meaning 	of EERA. 	A public 	school
employee 	is defined 	in section 3540.1(j) 	as:
. 	. 	. 	any person employed by a public school
employer 	except 	persons 	elected 	by popular
vote, 	persons 	appointed 	by 	the Governor 	of
this 	state, 	management employees and
confidential 	employees. 	(Emphasis 	added.)
39

Confidential 	employee 	is 	further 	defined 	in 	section 	3540.1 	(c)
to mean:
. 	. 	. 	any employee who, 	in the regular
course of his duties, 	has access to, or
possesses 	information 	relating 	to 	his
employer's 	employer-employee 	relations.
Serving 	as 	a member 	of 	the 	negotiating 	team 	for 	one's
exclusive 	representative 	is 	an 	act of participation 	in 	the
activities of 	the employee organization, 	which 	is a 	right
explicitly granted 	to employees 	in 	section 	3540.l(j) 	quoted
above. 	An employer 	is not 	free 	to prohibit certain employees
who 	are 	within 	the 	bargaining 	unit 	from 	taking part 	in
negotiations 	as 	a 	representative of 	an 	employee 	organization.
To 	attempt 	to dictate 	who 	the 	representatives of 	the opposing
side 	shall be 	in collective 	negotiations 	constitutes 	a 	refusal
to 	bargain 	in 	good 	faith. 	San 	Ramon Valley Unified 	School
District 	(8/9/82) 	PERB Decision No. 	230; 	Booth Broadcasting Co.
(1976) 	223 NLRB 867 	[92 LRRM 1335].
The 	only 	ground 	upon 	which 	McPherson 	could 	properly 	have
been 	denied 	the 	right 	to 	serve 	on 	the 	Union 	negotiating
committee 	would 	have 	been, 	as 	asserted 	by 	the Union below, 	that
she 	was 	a 	confidential 	employee 	excluded 	from 	the 	definition of
employee 	under EERA and 	therefore 	excluded 	from 	the 	right 	to
participate 	in 	activities of 	the exclusive 	representative. 	The
District, 	however, 	did not assert 	that argument as a defense 	to
its 	prohibiting McPherson 	from 	serving 	on 	the 	committee. 	Quite
40

the opposite, 	the District 	asserts 	that McPherson 	never 	was 	a
confidential 	employee. 	Indeed, 	the 	request 	by both McPherson
and 	her 	supervisor 	Bates 	that 	she 	be 	reclassified 	to
confidential 	employee 	status 	in 	light 	of 	the 	labor 	relations
work 	in which Bates 	was 	engaged 	was 	not 	granted 	during 	the 	same
period of March 	22, 	1982 	through May 3, 	1982, 	during which
McPherson was 	denied 	the 	right 	to 	serve 	on 	the 	negotiating
committee.
The 	only 	defenses 	asserted 	by 	the 	District 	are 	wholly
inadequate. 	Bates 	testified 	that 	he 	did 	not 	tell McPherson
that 	she 	could 	not 	serve 	on 	the 	negotiating 	committee 	- 	he 	only
-
told 	her 	that his 	secretary could 	not 	serve 	on 	the 	negotiating
committee. 	Since McPherson was Bates' secretary, 	a
rank-and-file position within 	the 	bargaining 	unit, 	Bates'
unmistakable message 	was 	that 	McPherson 	faced 	a 	choice 	between
losing 	her 	job 	and 	exercising 	her 	protected 	right 	to 	serve on
the 	negotiating 	team. 	Bates' 	careful phrasing of his denial of
McPherson's 	protected 	right 	does 	not make 	the denial 	any 	less
an 	unfair 	practice.
Grignon 	testified 	that 	he 	was 	not 	consulted 	about 	whether
McPherson 	should 	be 	told 	that 	she 	could 	not 	serve 	on 	the
negotiating 	committee 	and 	that 	he 	first 	learned 	of 	the
prohibition 	against 	her 	serving 	at 	his 	meeting 	with 	Union
representative Garner 	on May 	3, 	1982. 	Grignon 	immediately 	sent
McPherson 	a 	letter 	telling 	her 	that 	the 	District 	recognized 	her
41

right 	to 	serve 	on 	the 	negotiating 	committee. 	Grignon 	asserted
that Bates 	was 	simply wrong 	in his previous directions 	to
McPherson.
The 	District 	does 	not 	and 	could 	not 	successfully 	assert
that Bates 	did 	not 	have 	the 	authority 	to give 	instructions 	to
his 	secretary which 	are 	binding 	in 	their 	effects 	upon 	the
District. 	Bates 	is 	not 	only a 	supervisor 	but also 	the
District's 	chief 	negotiator. 	Acts 	of 	a 	supervisor 	constituting
unfair 	practices 	are 	attributable 	to 	the 	employer.
Nor 	does 	the 	fact 	that 	the 	District 	belatedly 	reversed 	its
position 	and 	told 	McPherson 	that 	she 	could 	serve 	on 	the
negotiating 	committee 	render 	the 	unfair 	practice moot.
Negotiations 	between 	the parties 	were 	already well 	in progress
when McPherson was 	told 	that 	she could 	join 	the 	committee. 	The
earlier 	denial of 	her 	right 	to 	serve 	on 	the 	committee prevented
her 	from 	taking 	part 	in 	negotiations 	or planning 	for 	the period
that 	the 	denial was effective. 	Thus, 	the effect on McPherson's
protected 	rights 	was 	not 	insubstantial.
Finally, 	the District 	asserts 	that 	there was 	no 	injury to
McPherson's 	protected 	rights 	because 	she 	did 	not 	really want 	to
serve 	on 	the 	negotiating 	committee. 	McPherson 	and 	the 	Union
admitted 	that 	appointing 	her 	to 	the 	negotiating 	committee 	was 	a
pressure 	tactic 	to 	force 	the 	District 	to 	finally come 	through
on 	its promise, 	through Bates, 	that McPherson would be
reclassified 	to 	confidential 	status. 	That McPherson's
42

appointment 	to 	the 	negotiating 	committee 	was 	a pressure 	tactic,
however, 	does 	not make 	it 	any less 	an unfair practice 	for 	the
District 	to prohibit 	McPherson 	from 	serving 	on 	the 	committee.
The 	evidence 	is 	uncontradicted 	that McPherson did 	serve 	as
secretary to 	the District's chief negotiator, 	Bates, 	for 	a
period 	of 	several months 	and 	did 	at 	least 	on 	some 	occasions
have 	access 	to 	the District's 	labor 	relations 	information.
Clearly, 	the 	position McPherson 	filled 	appropriately 	could 	have
been 	designated 	confidential 	by 	the 	District, 	as 	was eventually
done. 	Nonetheless, 	the District violated McPherson's 	rights by
not 	permitting 	her 	to 	serve 	on 	the 	negotiating 	team while
denying 	her 	confidential 	status. 	Orderly 	labor 	relations 	are
not 	served 	by permitting 	an 	employer 	to 	ignore 	at 	will 	careful
statutory 	distinctions 	between 	rights 	of 	rank-and-file 	versus
confidential 	employees.
I conclude, 	therefore, 	that 	the District violated 	section
3543.5(a) 	by 	interfering 	with 	and 	restraining McPherson 	in 	the
exercise 	of 	her 	statutory 	right 	to participate 	in 	the
activities 	of 	her 	employee 	organization.
The 	District's 	refusal 	to permit McPherson 	to 	serve 	on 	the
negotiating 	committee while 	she 	was 	a 	rank-and-file member 	of
the 	bargaining 	unit 	also constitutes 	a 	violation of 	section
43

3543.5(b) 	in 	that 	it denied 	the Union 	its 	right 	to designate
its 	own 	representatives 	for 	bargaining 	purposes.16
REMEDY
Section 	3541.5(c) 	of 	the EERA states:
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.
Having 	found 	that 	the 	District 	refused 	to place 	McPherson
in 	the position of 	secretary 	III 	(confidential) 	and
credentials-personnel 	technician 	(confidential) 	and 	transferred
her 	to 	the 	high 	school 	solely 	because 	of 	the 	exercise of 	her
rights 	protected 	by 	the EERA, 	the 	customary 	remedy would 	be 	a
cease 	and 	desist 	order 	along 	with 	an order 	to place McPherson
in 	a comparable position 	and 	to pay her 	back pay 	at 	the 	rate
which 	she 	would 	have 	earned 	in 	the 	positions 	discriminatorily
denied 	from 	the 	date 	of 	the 	denial 	until 	the 	date 	on which 	she
is offered a comparable position, 	along with 	7 percent 	interest.
The question arises 	in this case, 	however, 	unlike the
customary case, 	whether 	the PERB and 	this 	administrative 	law
judge 	have 	the 	authority 	to order 	an employer 	to appoint 	a
particular 	employee 	to a 	confidential position. 	In 	the Town of
Burlington case, 	supra, 	as well as 	in several NLRB cases
16NO evidence 	was 	introduced 	to 	support 	the 	alleged
3543.5(d) 	violation. 	It 	is 	therefore dismissed.
44
\

regarding promotion 	to supervisorial positions, 	a 	reinstatement
order 	was 	not 	necessary because 	the 	position 	involved 	was 	a
temporary one, 	the 	term of which 	had 	expired. 	The NLRB has
held, 	however, 	in the 	few cases which raise the 	issue, 	that
reinstatement 	is 	the 	appropriate 	remedy when an employee 	is
denied 	a promotion 	to a 	supervisorial position 	for
discriminatory reasons. 	Ford Motor Co., 	supra; 	Little Lake
Industries, Inc., supra.
The 	sixth circuit disagrees. 	In Ford Motor Co., 	supra, 	the
sixth 	circuit 	affirmed 	the 	NLRB's 	conclusion 	that 	the 	employees
were 	denied 	promotions 	to 	supervisorial positions 	solely
because 	of 	their 	union 	activity 	but 	reversed 	the 	board's 	order
that 	the 	employees 	be given 	those promotions. 	The court held
that 	the 	NLRB may 	not 	invade management's prerogative 	by
ordering 	an 	employee 	promoted 	to 	a 	supervisorial position. 	All
the NLRB may do, 	according 	to 	the 	sixth circuit, 	is order 	that
the 	employees 	be given 	fair 	reconsideration 	for 	the positions.
That 	remedy 	effectively 	requires 	the 	employer 	to 	reconsider
candidates 	and 	either 	appoint 	the 	discriminatee 	to 	the
promotional position or 	come 	forward 	with 	specific 	reasons,
supported 	by demonstrable 	facts 	for 	declining 	anew 	to do 	so.
The NLRB has 	not 	adopted 	the 	sixth 	circuit 	view.
Given 	the 	findings made 	above, 	I 	find 	no basis 	to conclude
that 	EERB 	is 	without 	authority 	to order 	McPherson promoted.
Where 	the 	only 	"managerial 	discretion" 	exercised 	in denying 	a
45

promotion 	to 	an 	employee 	is 	based 	on 	grounds prohibited 	by 	the
EERA, 	PERB does 	not 	invade 	the District's managerial
prerogatives 	by 	ordering 	the 	decision 	reversed 	and 	the 	employee
promoted. 	Since 	this 	case presents 	a novel 	unfair 	practice
question, 	however, 	it may be useful 	to consider 	alternative
remedies 	which 	are 	not 	subject 	to 	the 	type 	of objections 	raised
by 	the 	sixth 	circuit 	and 	determine 	whether 	the 	normal or 	an
alternative 	remedy would 	be 	more 	appropriately 	applied 	in 	this
case.
One 	alternative 	to a direct order 	of promotion would 	be 	to
order 	the District 	to 	reopen 	the 	selection process 	for 	the 	CPT
position 	and 	to give 	McPherson 	and 	other 	former 	candidates 	a
full 	and 	fair 	opportunity 	to be 	appointed. 	In order 	to avoid
the 	illegal 	taint 	which 	invalidated 	the 	previous 	selection
process, 	the District could be ordered: 	(1) 	to refrain from
considering McPherson's 	or 	any 	candidate's protected
organizational 	activities; 	(2) 	to 	structure 	the 	testing and/or
interview 	to 	eliminate 	any 	advantage 	to 	the 	incumbent 	by virtue
of his or 	her period of 	incumbency; 	and 	(3) 	to compose a
selection panel of persons 	not 	involved 	in 	the decision 	to
reject McPherson 	in 	the 	past. 	The District could be directed
to 	report 	back 	to 	the 	Regional 	Director 	in writing 	the
following: 	(1) 	the 	names 	and positions of 	the persons making
the 	selection; 	(2) 	the criteria by which 	the 	selection was
made; 	(3) 	whether or 	not McPherson was chosen to fill the
46

position; 	and 	(4) 	if McPherson was 	not chosen, 	the specific
facts 	and 	reasons 	for 	denying 	her 	the position. 	This
alternative 	essentially 	gives 	the 	District 	another 	opportunity
to make 	a 	nondiscriminatory decision. 	It creates 	the 	risk 	that
no 	new decision will be made, 	but only a 	better 	justification
created 	after 	the 	fact, 	for 	the previous discriminatory
decision.
Another 	alternative 	would 	be 	to 	order 	no change 	of position
for 	McPherson 	at 	all 	and 	limit 	the 	remedy 	to a 	cease 	and 	desist
order 	and 	back pay. 	In ordinary discharge cases, 	the NLRB has
occasionally 	denied 	reinstatement 	where 	actions 	of 	the 	employee
so poisoned 	the 	working 	atmosphere 	that 	reinstatement was 	not 	a
viable 	remedy. 	See e.g., 	NLRB v. 	Apico 	Inns of California 	(9th
Cir. 	1975) 	88 LRRM 3283; 	Renfro Hosiery Mills 	(1959) 	43 LRRM
1221.
Neither 	alternative 	appears 	appropriate 	in 	this case.
Ordering 	promotion 	of 	McPherson 	to 	the 	confidential 	CPT
position would 	not pose problems 	in 	the 	working 	relationship
with her 	supervisor, 	Bates. 	Bates 	testified 	that he considers
McPherson 	fully qualified 	to 	do 	the 	work 	required 	in 	his
office, 	including credentialing. 	Moreover, 	Bates expressed no
reservations 	regarding 	McPherson 	maintaining 	the
confidentiality of 	information 	in 	the office, 	and 	indeed,
originally 	recommended 	that 	she 	be 	designated 	confidential. 	In
the 	normal 	course of 	her 	work, 	McPherson would 	be 	reporting 	to
Bates.
47

Grignon 	clearly 	does 	harbor 	personal 	objections 	to
McPherson 	in any confidential position. 	However, 	McPherson
would 	not 	work 	directly 	for 	him 	and 	he 	would 	not 	be 	responsible
for 	supervising 	her 	work. 	For 	these 	reasons, 	I conclude 	that
ordering 	promotion of 	McPherson 	to 	the 	CPT position would 	be 	a
workable 	as 	well 	as 	appropriate 	remedy 	herein.
The 	remedy of 	ordering 	reconsideration 	for 	candidates 	for
the 	CPT position 	is 	also 	not 	a 	satisfactory alternative 	remedy
in 	this 	case. 	The 	record discloses 	that 	the District went 	to
some 	lengths 	already 	to 	try 	to camouflage 	Grignon's
discriminatory 	decisions 	regarding 	McPherson 	as 	grounded 	upon
her 	lack 	of 	necessary 	skills 	rather 	than 	on her 	protected
activity. 	Moreover, 	although 	the 	alternative 	remedy would
attempt 	to 	exclude 	Grignon 	from 	the 	reevaluation process 	to
avoid 	the 	discriminatory 	taint 	which 	affected 	the 	prior
selection, 	the 	small 	size 	of 	the 	school district and 	the
all-pervasive 	role of Grignon 	in 	the past 	indicate 	a
substantial 	risk 	that 	no 	real 	nondiscriminatory 	selection with
respect 	to McPherson 	is possible.
For 	all of 	these 	reasons, 	I conclude 	that 	the 	traditional
remedy of 	ordering 	the 	discriminatory 	decision 	reversed 	and
McPherson 	promoted 	to 	the 	current 	position 	of
credential-personnel 	technician 	is 	the 	only 	alternative
sufficient 	under 	the 	circumstances 	to 	remedy 	the prior
discriminatory 	action.
48

Secondly, 	because McPherson was 	denied 	the promotion 	to 	the
confidential 	position 	solely 	because 	of 	her 	exercise 	of
protected 	organizational 	activities, 	it 	is appropriate 	to award
her 	back 	pay 	at 	the 	rate 	which 	she 	would 	have 	earned 	in 	the
positions 	discriminatorily 	denied 	from 	the 	date 	of 	denial 	until
the 	date 	of her 	appointment 	to 	the CPT position. 	Interest at
7 	percent 	shall be 	added. 	The precise measure 	of 	back pay due
is 	not clear 	from the 	record. 	At a minimum, 	McPherson 	is due
the 	amount 	of premium 	for 	confidential 	status which was
authorized 	for 	the 	secretary 	III 	(confidential) 	position 	until
that position 	was 	replaced 	by 	the 	CPT position, 	and 	thereafter
she 	is due 	the 	salary and confidential premium, 	if any,
attached 	to 	that position. 	If, 	under 	the District's merit
system 	rules 	or 	other 	applicable 	restrictions 	outside 	the
EERA,17 the 	District 	would 	not 	have 	been permitted 	to 	reduce
the 	confidential premium 	applicable 	to 	the 	secretary 	III
(confidential) 	position had 	there 	been an 	incumbent 	in 	that
position on June 	1, 	1982, 	when 	the 	reduction 	from $296 per
month 	to 	$50 per 	month premium became 	effective, 	that 	reduction
shall 	not 	be 	applicable 	to 	the 	calculation of back pay 	for
McPherson. 	Similarly, 	the 	salary 	for 	the personnel-credentials
technician 	(confidential) 	position 	is 	not 	revealed 	in 	the
17	17 Reducin	Reducing 	the 	salary or 	changing 	the 	position 	are 	not
mandatory 	subjects 	of 	bargaining 	under 	the EERA since 	the
position 	is outside 	the 	bargaining 	unit.
49

record. 	If 	that 	salary 	is 	less 	than 	the 	salary for 	a
secretary 	III 	(confidential) 	plus 	$296 	and 	if under 	the
District's 	merit 	system 	rules 	or 	other 	applicable 	restrictions
outside 	the EERA, 	the 	District would 	not 	have 	been permitted 	to
change 	the 	title of 	the position 	and 	reduce 	the 	salary had
there 	been 	an 	incumbent 	in 	the 	secretary 	III 	(confidential)
position, 	the 	reduction 	in salary, 	if any, 	shall not be
applicable 	to 	the 	calculation 	of 	back 	pay 	for 	McPherson.18
Finally, 	it 	is 	appropriate 	that 	the District be ordered 	to
post 	at 	all 	schools, 	District offices 	and 	other 	work 	locations
where 	notices 	to employees 	customarily are placed, 	within 	five
(5) 	days 	of 	the date 	upon which 	this proposed decision becomes
final, 	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 	at 	least 	30 	days. 	The
Notice must 	not 	be 	reduced 	in 	size 	and 	reasonable 	steps 	shall
be 	taken 	to 	ensure 	that 	these 	notices 	are 	not altered, 	defaced
or 	covered 	by any other material. 	Posting of 	such 	a notice
will provide 	employees with 	notice 	that 	the District has 	acted
in 	an unlawful manner, 	and 	it 	is being 	required 	to cease and
18McPherson may, 	of course, 	decline an offer of 	transfer
to 	the 	CPT position 	or 	any 	comparable 	position 	and 	avoid 	being
thereby 	excluded 	from 	the 	bargaining 	unit 	and 	from 	the
protection of EERA. 	If 	an offer 	of 	the position 	is made 	and
declined, 	back pay liability would, 	of course, 	cease at 	that
point.
50

desist 	from 	this 	activity and 	to 	restore 	the 	status quo. 	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 	(9/18/78) 	PERB Decision
No. 	69. 	In Pandol and Sons v. 	Agricultural Labor Relations
Board 	and UFW 	(1979) 	98 Cal.App.3d 	580, 	587, 	the California
District 	of Appeal 	approved 	a posting 	requirement. 	See 	also
U.S. 	Supreme Court decision NLRB v. Express Publishing Co.
(1941) 	312 U.S. 	426 	[8 LRRM 415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	section
3541.5(c), 	it 	is hereby ordered 	that 	the Carlsbad Unified
School 	District 	and 	its 	representatives 	shall:
1. 	CEASE 	AND 	DESIST 	FROM:
Restraining, 	discriminating against, 	or otherwise
interfering 	with 	the 	rights 	of employees, 	and Cynthia McPherson
in particular, 	because of 	the exercise of 	their 	right 	to
participate 	in 	activities 	protected 	by 	the Educational
Employment 	Relations 	Act;
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES OF THE 	ACT:
(a) 	Promptly offer McPherson 	the position of
credentials-personnel 	technician 	in 	the 	office 	of 	the director
of 	employee 	relations.
51

(b) 	Make 	Cynthia 	McPherson 	whole 	for 	the 	loss 	of pay
and 	any 	loss 	of 	other 	benefits 	she 	may have 	suffered, 	including
(1) 	the 	applicable premium 	for 	confidential
status 	for 	the 	secretary 	III 	(confidential) 	position 	and
(2) 	the 	difference 	between 	her 	salary as 	a
secretary 	III 	and 	the 	salary 	plus 	confidential 	premium 	(if 	any)
applicable 	to 	the 	position 	of 	credential-personnel 	technician
(confidential) 	from 	the 	date 	that 	the 	position was 	created.
The 	amount 	paid 	shall 	include 	interest 	at 	the 	rate 	of 	7 	percent
per 	annum.
(c) 	Within 	five 	(5) 	workdays 	after 	this decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the 	NOTICE 	TO
EMPLOYEES 	attached 	as 	an 	appendix 	hereto, 	for 	at 	least 	thirty
(30) 	consecutive workdays 	at 	all 	schools, 	District offices and
other 	work 	location 	where 	notices 	to 	employees 	are 	customarily
posted. 	The 	Notice must 	not 	be 	reduced 	in 	size 	and 	reasonable
steps 	should 	be 	taken 	to 	see 	that 	it 	is 	not 	defaced, 	altered 	or
covered 	by 	any 	material.
(d) 	Within 	twenty 	(20) 	workdays 	from service 	of 	the
final 	decision 	herein, 	give 	written 	notification 	to 	the 	Los
Angeles 	Regional 	Director 	of 	the 	Public Employment 	Relations
Board 	of 	the 	actions 	taken 	to 	comply with 	this 	order. 	Continue
to 	report 	in writing 	to 	the 	regional 	director 	thereafter 	as
directed. 	All 	reports 	to 	the 	regional 	director 	shall 	be
concurrently 	served 	on 	the 	Charging 	Party 	herein.
52

IT 	IS 	FURTHER ORDERED 	that 	all 	other 	aspects 	of 	the 	charge
and 	complaint 	are 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed Decision and Order 	shall
become 	final on August- 22, 	1983, 	unless a party files a timely
statement of exceptions. 	In accordance with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify 	by page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part 	III, 	section 	32300. 	Such 	statement of exceptions and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	at 	its 	headquarters 	office 	in
Sacramento 	before 	the close 	of business 	(5:00 p.m.) 	on
August 	22, 	1983, 	or 	sent by telegraph or 	certified United
States mail, 	postmarked 	not 	later 	than 	the 	last day 	for 	filing
in 	order 	to be 	timely 	filed. 	See 	California Administrative
Code, 	title 8, 	part III, 	section 32135. 	Any statement of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon 	each 	party 	to 	this proceeding. 	Proof of
service 	shall be 	filed 	with 	the 	Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part 	III, 	sections 32300 and
32305.
Dated: 	August 	2, 	1983
Marian 	Kennedy
Administrative 	Law 	Judge
53