Carlsbad Unified School District (PERB 0778E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CYNTHIA 	McPHERSON,
Charging 	Party,
v.
CARLSBAD UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-1590
Remand 	from Court
PERB Decision No. 	778
November 21, 	1989
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Appearances; 	Mocine & Eggleston by Mary H. 	Mocine, 	Attorney, 	for
Cynthia McPherson; 	Biddle & Hamilton by Christian M. 	Keiner,
Attorney, 	for Carlsbad Unified School 	District.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	Shank and Camilli,
Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on remand 	from the Court 	of
Appeal, 	Fourth Appellate District, 	Division One. 	The Court of
Appeal 	reversed Carlsbad Unified School 	District 	(1985) 	PERB
Decision No. 	529, 	which dismissed the unfair practice complaint.
The court found that, 	contrary to the Board's decision, 	Cynthia
McPherson 	(McPherson) 	had 	engaged 	in activity protected by 	the
Educational Employment Relations Act 	(EERA or Act)1 by
undertaking 	activities 	for the 	certificated bargaining unit. 	On
remand, 	the 	court 	requested the Board to decide 	the 	following
issues: 	(1) 	whether the Carlsbad Unified School District
(District) 	refused McPherson's 	reclassification to 	a 	confidential
'BERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code.
_______________ )

position because of protected activity; 	(2) 	if 	so, 	whether the
District 	had 	legitimate business 	reasons 	for refusing 	to
reclassify McPherson. 	To make this determination, 	the court
requested that PERB decide whether, 	in choosing a 	confidential
employee, 	the 	District may lawfully decide against an applicant
because 	the 	applicant has 	engaged 	in activity protected by EERA;
(3) 	whether the 	District 	transferred McPherson 	from her 	former
position with the Employment Relations 	Office to 	a high 	school
because of protected activity; 	(4) 	if so, 	whether the District
would 	have 	transferred 	McPherson anyway 	for 	a 	legitimate 	business
reason; 	and 	(5) 	whether the 	District 	interfered with McPherson's
EERA rights 	by refusing to permit her to be 	on her 	exclusive
representative's 	negotiating 	committee.
FACTUAL 	BACKGROUND
McPherson has 	been employed by the 	District 	since 	1953.
Since 	1977, 	McPherson has been a full-time employee of the
District 	and held 	the position of 	Secretary 	III 	in the personnel
department 	from July 	1980 until June 	1, 	1982. 	From February 	1981
through February 	1982, 	McPherson handled all the work of 	the
personnel 	office 	as 	the position of personnel 	director was
vacant.
In February 	1982,2 the District hired David Bates 	(Bates) 	as
director of 	employee relations. 	Upon his 	arrival, 	Bates 	assumed
all 	of 	the 	labor relations 	functions, 	including being the
District's 	negotiator on collective bargaining matters. 	These
2Hereafter all 	dates 	refer to 	1982, 	except where noted,
22

duties 	had 	been previously performed 	through 	the 	assistant
superintendent's office. 	Bates' 	secretary was McPherson.
Bates, 	upon being hired, 	requested through Superintendent Philip
Grignon 	(Grignon) 	that McPherson's 	position be reclassified 	from
Secretary 	III 	to Secretary 	III 	(Confidential).3 Bates 	requested
reclassification because his 	secretary would be 	handling
responsibilities 	that would include access 	to, 	and knowledge 	of,
the 	District's 	labor relation positions 	and 	files.
On February 	17, 	the board of trustees 	(board) 	rejected the
reclassification request. 	Grignon testified to 	the board 	in
opposition to Bates' 	recommendation. 	Grignon's 	concerns were
that, 	although McPherson was 	a good 	secretary and had good
secretarial 	skills, 	she 	should not be a confidential 	employee as
she had been a 	long-time member of 	the community, 	her ex-husband
3The 	job description of 	a 	Secretary 	III 	(Confidential)
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.
(Charging party's Exh. 	No. 	7.)
Section 3540.l(c) 	defines a confidential employee as:
. 	. 	. 	any employee who, 	in the regular course
of his or her duties, 	has access to, 	or
possesses 	information relating to, 	his 	or her
employer's 	employer-employee 	relations.
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was a teacher, 	and, 	in the past, 	she had undertaken work for the
teachers' union.
After this denial, 	McPherson met with her union
representative, 	Federated School Employees, 	Local 	1200, 	LINUNA
(Association) 	where 	it was 	agreed that McPherson would be
appointed to 	the 	negotiating 	committee 	in an effort 	to 	obtain the
reclassification.
In March, 	Bates was 	notified by 	letter that McPherson had
been appointed 	to the negotiating 	committee. 	Bates 	informed
McPherson that 	she 	"may 	serve 	on the 	committee 	but my 	secretary
may 	not." 	McPherson 	immediately 	agreed 	to withdraw 	from the
committee as 	she did not want 	to 	jeopardize her position as 	a
secretary. 	Also, 	McPherson wanted to give the board additional
time 	to 	clarify whether 	or not her position would be 	reclassified
to 	a 	confidential position.
Grignon, 	in a May meeting with McPherson's 	union
representative, 	learned for the first time of Bates' 	comments
concerning McPherson's 	appointment 	to 	the 	negotiating 	committee.
Immediately 	Grignon 	sent 	a 	letter to 	McPherson 	stating 	that 	she
had 	the 	right 	to 	serve on the 	negotiating 	committee.
In April, 	McPherson sent a memorandum to the District's
personnel 	commission requesting reclassification as 	well 	as
out-of-class 	pay 	for 	the period during which 	she had performed
A
	4

the work of 	a 	confidential 	secretary.4 McPherson also 	made 	the
same request to Grignon.
Grignon responded 	that 	only 	the 	District's 	board 	and 	not 	the
personnel 	commission had 	the 	authority 	to 	determine whether 	or
not an employee had confidential 	status. 	Also, 	Grignon noted
that 	since 	McPherson had 	never been appointed 	as 	a 	confidential
employee, 	she was 	owed no out-of-class back pay. 	Grignon
scheduled 	interviews 	for the 	confidential position in April. 	In
May, 	McPherson and 	nine 	other District 	employees 	interviewed 	for
the position. 	The position was 	then offered to 	an applicant who
subsequently declined the appointment. 	Thereafter, 	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. 	However, 	ability to operate a
court 	reporting machine was 	not 	included within the 	job
specifications 	for the position.
In May, 	Grignon recommended to the board that 	it reduce the
premium 	it paid 	for confidential 	employees 	from $2 96 	per month 	to
$50 	per month over the 	salary 	for a 	nonconfidential position at
the 	same 	level. 	The board approved the 	change 	in 	salary which
became 	effective June 	1st. 	At that time, 	no one 	in the District
was 	employed as 	a Secretary III 	(Confidential).
In mid-May, 	McPherson was 	notified that 	she was 	to be
laterally transferred 	to 	a 	Secretary 	III 	position to work 	for 	the
4Confidential 	Secretaries 	earned 	$296 	per month more 	than
nonconfidential 	Secretary 	IIIs.
S5

principal 	of Carlsbad High 	School. 	McPherson was 	informed 	that
the transfer was 	"for the good of 	the District."
Grignon 	testified 	that 	McPherson was 	transferred 	because 	the
principal 	of 	Carlsbad High 	School 	had requested 	a permanent
secretary. 	Also, 	Grignon testified that Bates had 	"requested a
transfer" 	because of a 	lateral 	opening at the high 	school. 	Bates
testified 	that 	he did not 	initiate McPherson's 	transfer.
The principal 	of Carlsbad 	High 	School 	testified 	that 	she 	had
been requesting 	a permanent 	secretary 	since 	September 	or October
1981. 	Her last request had been just prior to April 	12, 	1982,
which was 	the 	earliest date 	that her previous 	secretary 	could
legally 	be 	replaced.5
Between June 	1 	and October, 	McPherson's 	former position was
filled by a 	succession of 	eight temporary 	secretaries. 	McPherson
testified that 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.
McPherson testified 	that 	the 	calls 	continued until 	October when
someone was 	hired to work 	full-time 	for Bates.
During July, 	Grignon proposed to the board that the position
of 	Secretary III 	(Confidential) 	to the director of 	employee
relations 	be 	replaced by 	a new position, 	Credentials-Personnel
Technician 	(CPT).
5The previous 	secretary 	retired. 	A temporary 	employee was
hired but under the agreement with the union, 	a 	temporary
employee 	could only work a maximum of 	120 	days.
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In August, 	McPherson took a written test 	for the CPT
position. 	McPherson received the highest 	score 	of 	the 	five
applicants. 	McPherson and two 	others with the highest 	scores
were 	interviewed 	in September. 	One of 	the 	other applicants was
offered 	the position.
PROCEDURAL 	HISTORY
On June 	7, 	1982, 	McPherson filed an unfair practice 	charge
with 	PERB 	alleging 	that 	the 	District 	violated 	EERA by 	denying 	her
the 	right 	to 	act 	as 	a member of 	the 	negotiating team 	for her
exclusive 	representative.
On June 	16, 	1982, 	McPherson filed a first amended charge,
adding 	the 	allegation that 	the 	District violated 	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
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)6 of EERA and added further
r
'Section 3543.5 	states:
It 	shall be unlawful 	for a public 	school
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise 	of 	rights
guaranteed by this 	chapter.
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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 	CPT because 	of 	her 	exercise 	of 	rights
protected 	by 	EERA.
On August 2, 	1983, 	a PERB administrative law judge 	(ALJ)
issued 	a 	proposed 	decision 	finding 	that 	the 	District 	had 	violated
sections 	3543.5(a) 	and 	(b) 	by taking certain actions 	against
McPherson because of her activities 	protected by the Act. 	The
Board 	reversed the ALJ 	on appeal 	and 	ordered that 	the 	complaint
be 	dismissed.
On March 	11, 	1987, 	the Court of Appeal reversed Carlsbad
Unified School District 	(1985) 	PERB Decision No. 	529 which
dismissed 	the 	unfair practice 	complaint 	and 	remanded 	the 	case
back to 	the 	Board 	for disposition of 	several 	issues.
The 	following 	is 	a 	summary of the three decisions.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(d) 	Dominate or interfere with the 	formation
or administration of 	any 	employee
organization, 	or contribute financial or
other 	support to 	it, 	or 	in any way encourage
employees 	to 	join any organization in
preference to another.
8

ALJ'S 	DECISION
Applying 	the 	test 	set 	forth 	in Novato 	Unified 	School
District 	(1982) 	PERB Decision No. 	210,7 the ALJ concluded that
uncontradicted 	evidence 	showed that Grignon's 	entire 	course 	of
conduct was 	based upon McPherson's 	protected activity.
Accordingly, 	all 	subsequent District conduct, 	including denial of
promotion, 	transfer, 	denial of appointment to the CPT position,
and 	refusal 	of 	opportunity 	to 	serve 	on the 	bargaining 	committee,
were 	taken 	solely because 	of 	McPherson's 	protected union activity
and therefore constituted violations 	of 	section 3543.5(a).
Additionally, 	the ALJ found that Bates' 	comments regarding
McPherson 	serving 	on the 	negotiation committee 	for 	the
Association was 	a violation of 	section 3543.5(b).
The ALJ 	also 	determined 	that 	the 	District was 	not 	entitled
to 	discriminate against union activists 	in choosing 	a
confidential 	employee. 	The ALJ 	reviewed National 	Labor Relations
Board 	(NLRB)8 law and other decisions 	dealing with the 	choice 	of
supervisorial 	or managerial 	employees 	and 	found that 	the 	District
was 	not 	entitled to 	engage 	in such discrimination, 	amounting to a
7In Novato, 	the Board held that, 	in cases of alleged
reprisals 	against 	employees, 	the 	charging party must 	establish
that 	the 	employee was 	engaged 	in protected activity, 	that 	the
employer 	had 	actual 	or 	imputed knowledge 	of 	the 	employee's
protected activity, 	and 	that 	the 	employer's 	conduct was 	motivated
by 	the 	employee's 	participation 	in protected activity.
8In previous decisions, 	the Board has 	indicated that while
it 	is 	not bound by NLRB decisions, 	it would take cognizance 	of
them where 	appropriate. 	(Los 	Angeles 	Unified School 	District
(1976) 	EERB Decision No. 	5 	(prior to January 1, 	1978, 	PERB was
known as 	the 	Educational Employment Relations Board 	(EERB));
Carlsbad Unified School 	District 	(1979) 	PERB Decision No. 	89.)
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presumption that a past 	loyal 	employee of many years 	service
could not be 	trusted 	in a 	confidential position.
As 	a remedy,, the ALJ recommended that McPherson be offered
the position of CPT, 	as well 	as 	being provided with back pay 	for
all periods 	during which 	she 	should have held that position, 	or
the position of 	a 	confidential 	secretary. 	The ALJ 	also
recommended a posting of 	a 	cease-and-desist 	order 	and 	related
relief.
PERB DECISION NO. 	529 	(Carlsbad I)
On appeal, 	PERB reversed the ALJ's decision. 	The Board
stated that 	although 	the 	employee's 	activity 	is 	afforded
protection, 	in cases 	alleging discrimination or reprisal, 	the
charging party has 	the 	threshold 	obligation to 	establish 	that
such protected activity was 	involved. 	In regards 	to the
District's 	actions 	against 	McPherson 	for 	undertaking work 	for the
certificated union, 	the 	Board 	found that working 	for a 	sister
union is 	not 	a protected activity under EERA and that, 	even if
the 	typing McPherson did 	on the Association's 	behalf 	brought
McPherson's 	activity within the 	four corners 	of 	the 	first
paragraph of 	section 	3543,9 McPherson 	failed 	in her burden to
establish that 	fact.
9Section 	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.
10

PERB 	also 	rejected 	McPherson's 	interference 	claim 	based 	on
Bates' 	comment to McPherson regarding the negotiating committee.
The 	Board 	found 	insufficient 	anti-union animus 	in Bates' 	remark
about McPherson's 	service on the 	committee, 	as 	Bates was 	the
person who 	utilized 	McPherson's 	services 	and 	actively 	sought 	her
reclassification as 	his 	confidential 	secretary.
Finally, 	the 	Board also 	denied McPherson's 	out-of-class 	pay
claim, 	as 	the Board 	found no protected activity.
In a 	concurrence and dissent, 	former Member Morgenstern
disagreed with 	the 	Board's 	decision 	that 	McPherson's 	activities
on behalf 	of 	a 	fellow employee's 	union did 	not 	constitute
protected 	conduct under 	EERA. 	Morgenstern would have 	found 	that
McPherson 	engaged 	in protected 	activity when 	she 	typed 	documents
for the teachers' 	union, 	when she was appointed to the
negotiating 	committee, 	and when 	she 	sought 	to 	exercise 	her rights
under the negotiated 	contract 	and 	civil 	service rules. 	In
support 	of his position, 	Morgenstern cited National 	Labor
Relations Act 	(NLRA) 	section 710 which protects 	activities of
10Section 7 	of the NLRA states:
Employees 	shall have the right to 	self-
organization, 	to form, 	join, 	or assist labor
organizations, 	to bargain collectively
through representatives 	of 	their own
choosing, 	and to engage 	in other concerted
activities 	for the purpose of 	collective
bargaining or other mutual 	aid or protection,
and 	shall 	also have 	the 	right 	to 	refrain 	from
any or all 	of 	such activities 	except to the
extent 	that 	such right 	may be 	affected by 	an
agreement 	requiring membership 	in a 	labor
organization as 	a 	condition of 	employment 	as
authorized in section 8(a)(3).
11

- -
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. 	1, p. 	142.)
Morgenstern also cited Modesto City Schools 	(1983) 	PERB
Decision No. 	291, 	in which the Board found no 	substantial
difference 	between 	employee 	rights 	under 	section 3543 	of 	EERA and
under 	section 7 	of the NLRA. 	In Modesto, 	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, supra, 	p. 	62.)
Despite his 	disagreement, 	Morgenstern concurred 	in the
Board's 	conclusion, 	as 	it was his 	opinion that the District was
entitled 	to 	discriminate 	on the 	basis 	of protected unit 	activity
in 	selecting a confidential 	employee. 	In part, 	Morgenstern 	said:
. 	. 	. 	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.
(P. 	11.)
However, 	Morgenstern 	concluded that 	although the District
was 	justified 	in 	refusing 	McPherson's 	reclassification 	or
appointment as 	a 	confidential 	secretary, 	this 	justification
should not be 	relied upon 	in refusing to pay her a 	salary
differential 	of 	$2 96 per month 	for the period February to June
12

1982, 	when she was, 	in fact, 	engaged in doing confidential work.
Finally, 	Morgenstern would have affirmed the ALJ's
conclusion 	that 	Bates 	violated 	the Act by 	refusing 	to permit
McPherson to 	serve 	on the 	negotiating 	committee. 	However,
because 	the 	violation consisted 	of 	interference with 	the 	right 	to
participate 	in the 	activities 	of 	an 	employee 	organization rather
than discrimination because of 	such participation, 	Bates'
motivation was 	irrelevant. 	Therefore, 	as Grignon corrected
Bates' 	position immediately upon becoming aware of 	this 	matter,
Morgenstern would 	conclude 	that 	the violation was 	"de minimis."
APPELLATE 	COURT 	DECISION
Whether 	McPherson was 	Engaged 	in 	Protected 	Conduct
The 	court 	first 	noted that 	although the EERA 	is 	similar 	in
many ways 	to the NLRA, 	the 	language of the two 	statutes 	is 	not
identical. 	Specifically, 	section 7 of the NLRA refers 	to the
right 	to 	engage 	in 	"other concerted activities 	for the purpose 	of
collective bargaining or other mutual 	aid 	or protection." 	This
language 	directly protects 	activity 	on behalf 	of 	sister unions,
whereas 	such 	language 	is 	not 	found 	in EERA 	sections 	354011 or
11Section 3540 provides 	in part:
It 	is 	the purpose of 	this 	chapter to promote
the 	improvement 	of personnel management 	and
employer-employee 	relations 	within the public
schools 	systems 	in the 	State of California by
providing 	a uniform basis 	for 	recognizing 	the
right of public 	school 	employees 	to 	join
organizations 	of their own choice, 	to be
represented by 	such 	organizations 	in their
professional 	and 	employment 	relationships
with public 	school 	employers, 	to 	select one
employee 	organization as 	the 	exclusive
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3543. 	Even though the 	statutory provisions 	are dissimilar, 	the
court 	found 	no 	evidence 	in the 	record 	and 	no policy
considerations 	stated 	in Carlsbad 	I 	which would 	justify 	exempting
activity on behalf 	of 	a 	sister union 	from protection under 	EERA.
The 	court 	then reviewed NLRB 	case 	law which 	found 	that protected
activity under 	section 	7 	of 	the NLRA 	is 	not 	limited to
association with 	employees 	of 	the 	same 	employer 	or 	to 	association
with 	employees 	represented by the 	same union. 	(See 	Redwing
Carriers, 	Inc. 	et al. 	(1962) 	50 LRRM 1440 	[137 NLRB No. 	1545],
enforcement sub, 	nom.; 	Teamsters, 	Chauffeurs & Helpers Local U.
No. 	79 v. 	NLRB 	(D.C. 	Cir. 	1963) 	325 F.2d 1011, 	cert. 	den. 	(1964)
377 U.S. 	905; Alamo Express. 	Inc. 	(5th Cir. 	1970) 	430 F.2d 1032.)
The 	court, 	therefore, 	concluded that McPherson's work on behalf
of 	the teachers' 	union would 	fall 	squarely within the parameters
of protected activity set 	forth 	in NLRB 	case 	law.
The 	court 	also 	reversed 	PERB's 	determination that 	McPherson
failed 	to prove 	she 	engaged 	in protected 	activity 	as 	she 	did 	not
offer 	specifics 	as 	to what 	she typed 	for the teachers' 	union
and/or why 	she had done 	the typing. 	The 	court 	found that under
NLRB precedent, 	no 	evidence 	is 	required as 	to the 	employee's
intent 	in engaging 	in these activities 	or 	specifics 	about 	such
activities. 	Therefore, 	the court concluded that despite
differences 	in 	statutory language, 	PERB was 	not 	justified 	in
representative of 	the 	employees 	in an
appropriate unit, 	and to afford certificated
employees 	a voice 	in the 	formulation of
educational policy.
14

departing 	from 	sound 	NLRB 	precedent which 	established 	the
parameters protecting conduct 	in the 	labor relations 	context.
The 	court 	then 	found 	that McPherson's 	activity 	on behalf 	of 	a
fellow employees' 	union was protected activity under EERA.
Discrimination with 	Reference 	to 	Identical 	Employee 	Position
The 	court 	found that 	there was 	little doubt 	that 	the
District 	had 	discriminated 	against 	McPherson 	in 	choosing 	a
confidential 	secretary. 	However, 	the question that remained was
whether 	an 	employer 	could 	discriminate 	against 	an 	employee 	on 	the
basis 	of union activity when the 	employee 	seeks 	to become 	a
confidential 	employee. 	The 	court determined that as 	this was 	a
sensitive 	labor 	relations 	issue 	affecting 	all 	public 	sector
employees 	under PERB's 	jurisdiction, 	and 	since the 	statutory
scheme 	of 	EERA reposes 	exclusive 	initial 	jurisdiction 	in PERB
over 	such matters, 	the court would not resolve this 	matter,
absent 	PERB 	analysis 	and 	application of policy.
Negotiating 	Committee
The 	court 	found that 	section 	3543 	grants 	the right 	to 	engage
in labor relations 	activities 	to 	"public 	school 	employees."
Section 	3543.4 prevents 	a 	"confidential 	employee" 	from being
represented by a union, 	but 	it does 	not otherwise deny
"confidential 	employees" 	the rights 	guaranteed by 	section 	3543.5.
The 	court 	concluded that because a 	confidential 	employee 	is 	part
of 	the nucleus 	of the management negotiating team, 	a
15

"confidential 	employee" 	cannot 	also 	be 	represented by the union
which represented other employees. 	Therefore, 	the court asked
that on remand, 	PERB decide whether McPherson was 	a 	"confidential
employee" 	in the spring of 	1982.
Issues 	on Remand
On remand, 	the court asked PERB to decide: 	(1) 	whether the
District 	refused McPherson's 	reclassification 	to 	a 	confidential
position because 	of 	activity 	this 	court has 	found protected 	under
EERA; 	and 	(2) 	if so, 	whether the District had legitimate business
reasons 	for refusing to 	reclassify McPherson. 	To make 	this
determination, 	PERB was 	asked to decide whether in choosing a
confidential 	employee, 	the 	District may 	lawfully decide 	against
an 	applicant 	because 	the 	applicant has 	engaged 	in activity
protected by EERA. 	(3) 	Whether the District transferred
McPherson 	from her 	former position with 	the 	employment 	relations
office to 	a high 	school 	because of 	activity this 	court has 	found
to be protected; 	and 	(4) 	if so, 	(4) 	whether the District would
have 	transferred McPherson 	anyway 	for 	a 	legitimate 	business
reason; 	and 	(5) 	whether the District 	interfered with McPherson's
EERA rights 	by refusing 	to permit her to be 	on the 	negotiating
committee.
On July 23, 	1987, 	both parties 	filed briefs 	on the 	issues
raised by 	the Court of Appeal.
On September 20, 	1988, 	oral arguments were held at the PERB
Headquarters 	in Sacramento.
16

DISCUSSION
1. 	Whether the 	District 	refused McPherson's 	reclassification to
a 	confidential 	position because 	of 	activity 	the Court 	of Appeal
found 	protected 	under 	EERA.
The 	District 	argues 	that 	the board rejected McPherson 	for
the 	confidential position on 	several 	grounds, 	including 	concern
that Bates' 	recommendation came too quickly, 	problems with costs,
and 	concern 	over placing McPherson 	in a 	confidential 	position.
Further, 	the District argues 	that 	the 	factual record 	in no way
establishes 	that the activity on behalf of 	the teachers' 	union,
deemed 	"protected activity" 	by the Court of Appeal, 	was 	the 	sole
cause 	of 	the 	decision not 	to reclassify or appoint McPherson to
the position.
McPherson argues that the Board, 	in its 	initial decision,
found 	that Grignon's 	decision was 	based upon McPherson's 	typing
for the 	teachers' 	union and that no one ever contended that the
decision was 	based 	on anything 	other 	than the work 	for 	the
teachers' union.
Grignon testified that as 	superintendent, 	he was 	responsible
for 	selecting and recommending management, 	classified 	and
confidential personnel 	to the 	District's 	board. 	When questioned
as 	to his 	concerns 	about McPherson being 	selected as 	a
confidential employee, 	he replied:
I 	think that Mrs. 	McPherson has 	good
secretarial 	skills, 	that 	she takes 	shorthand
well, 	she types well. 	But, however, 	as far
as 	the 	confidentiality there was 	my concern.
She's 	been a 	long-term member of 	this
community. 	Her ex-husband is a teacher, 	she
17

has 	carried out work in the past 	for the
teacher 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 	. 	. 	. 	and in my opinion I did not
feel 	that 	Cynthia McPherson could 	carry 	out
that 	function.
(Hearing transcript, 	p. 	90.)
Grignon denied 	recommending that McPherson's 	reclass-
ification be 	rejected 	and 	testified 	that 	the 	board 	did 	not want
to 	fill 	the position as 	"they had 	qualms 	about 	the person who was
recommended by the director of 	employee 	relations." 	On the
other hand, 	Bates 	testified that McPherson was 	denied the
position based upon budgetary grounds, 	as 	the 	District 	already
had 	two 	confidential 	secretaries 	and 	the 	board did 	not 	believe
another one was 	warranted.
When questioned as 	to the board members' 	actual 	reason 	for
denying the reclassification, 	Grignon, 	under the advice of his
counsel, 	refused to answer with any 	specificity, 	as 	to do 	so
would violate 	the 	confidentiality 	of 	the 	board's 	closed 	session.
Although the 	Board 	recognizes 	the 	importance 	of
confidentiality 	of 	closed 	board meetings 	to permit 	evidence 	to 	be
introduced regarding board personnel 	decisions, 	reliance 	on 	such
a basis 	does 	not absolve 	the 	District 	from 	its 	obligation to
prove 	that the denial 	of 	the position to 	McPherson was 	based upon
nondiscriminatory grounds. 	As 	Bates' 	and Grignon's 	testimony
were 	contradictory, 	we 	find that 	the 	District has 	not proven that
18
•

the 	board properly 	denied 	reclassification 	of 	McPherson 	for
nondiscriminatory 	reasons.
2. 	Whether 	in 	selecting a 	confidential 	employee 	a 	school
district 	may 	lawfully decide 	against 	an applicant 	because 	the
applicant 	has 	engaged 	in activity protected by 	EERA.
The 	District argues 	that 	a 	school district has 	the highest
interest 	in 	selecting a person whom the 	governing board 	and
administration believes 	would be 	the 	most 	appropriate 	employee 	or
outside 	candidate to 	fill 	a 	confidential 	slot. 	The uniqueness 	of
such 	a position 	is 	demonstrated by Government 	Code 	section
3540. l(j)12 and section 3543.413 that establishes that a person in
a 	confidential 	position 	is 	not 	included 	in any bargaining 	unit
and 	is 	not an EERA 	"employee" 	within the meaning of 	the Act. 	The
District 	cites 	Sierra Sands 	Unified School 	District 	(1976) 	EERB
Decision No. 	2, 	and Fremont Unified School District 	(1976) 	EERB
Decision No. 	6, 	in support of the right of an employer to be
12Section 3540. 1 ( j ) states:
"Public 	school 	employee" 	or 	"employee" 	means
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.)
13Section 	3543.4 provides 	in pertinent part:
No person 	serving 	in a management position,
senior management position, 	or a 	confidential
position 	shall 	be 	represented 	by 	an 	exclusive
representative.
(Emphasis 	added.)
19

allowed 	a 	small 	group of 	employees 	who 	could be 	entrusted with
confidential 	information 	concerning 	employer-employee 	relations.
The Association argues 	that 	the 	District 	seeks 	to 	sanction
discrimination on the basis 	of 	prior union activity or other
protected 	acts 	and 	the permission to 	interfere with 	employees'
exercise of protected rights. 	If this were to occur, 	the
Association argues, 	employees would be 	fearful 	of participating
in union activities 	if 	such participation could 	lead 	to 	a 	loss 	of
promotion.
The Association 	further 	asserts 	that because 	confidential
positions 	usually pay more money and 	are 	generally 	the 	top 	of 	the
line 	for 	secretarial 	employees, 	the position should be 	considered
a promotion. 	NLRB 	and 	federal 	courts 	have ordered promotions 	to
supervisor 	and 	management positions 	when 	the 	employer denied 	them
based on protected activity. 	(See NLRB v. 	Bell Aircraft
Corporation 	(2nd Cir. 	1953) 	206 F.2d 235, 	237 	; 	Little Lake
Industries. 	Inc. 	(1977) 	233 NLRB 1049 	[97 LRRM 1101]; 	Osteopathic
Hospital Founders Assn, 	v. 	NLRB 	(10th Cir. 	1980) 	618 F.2d 633,
636.) 	Moreover, 	PERB has held that promotional opportunity
cannot be denied because 	of protected 	activity. 	(Lemoore 	Union
High School 	District 	(1982) 	PERB Decision No. 	271.)
The Association also 	asserts 	that 	the 	District 	did 	not
establish 	legitimate 	business 	justification 	for 	its 	denial 	of 	the
position to McPherson. 	A business 	justification is 	an
affirmative 	defense which must 	be 	demonstrated by 	the 	employer
after the 	employee has 	established discrimination. 	(Novato
1
20

Unified School District, 	supra, 	PERB Decision No. 	210.) 	In this
case, 	no 	such 	justification was 	given.
Under section 3540. l(c), 	"Confidential Employee" 	is defined
as:
any employee who, 	in the regular course of
his or her duties, 	has access to, 	or
possesses 	information relating to, 	his 	or her
employer's 	employer-employee 	relations.
PERB has 	recognized the 	right 	of 	an employer to have
confidential positions 	in employer-employee relations. 	In Sierra
Sands Unified School District, 	supra. 	EERB Decision No. 	2, 	PERB
stated:
The 	assumption is 	that 	the 	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. 	It 	is
further assumed that 	this 	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.
(P. 	2.)
In 	another 	significant 	case 	concerning 	confidential
employees, 	Fremont Unified School District, 	supra. 	EERB Decision
No. 	6, 	PERB found that:
. 	. 	. 	the employer's right to the undivided
loyalty of 	a nucleus 	of 	staff designated as
"confidential" 	outweighs 	the 	inherent denial
of 	representation rights 	of 	those 	employees
designated as 	"confidential."
(P. 	10.)
In determining whether a position 	should be 	deemed
confidential, 	PERB has 	looked to the degree of 	contact of 	the
position with the 	negotiations 	process 	or the processing of
21

grievances. 	(Unit Determination for Professional 	Librarians 	of
the University of California Unit 	(1983) 	PERB Decision No.
247b-H.) 	An employee must have 	involvement 	substantial 	enough 	so
that 	the 	employer's 	ability to 	negotiate 	on an equal posture with
the 	Union would be 	jeopardized 	if 	the 	information was 	made
prematurely public. 	(See Campbell 	Union High 	School 	District
(1978) 	PERB Decision No. 	66, 	where the Board held a principal's
secretary who 	maintained 	files 	and 	processed 	correspondence
relating to 	negotiations 	and 	employee 	grievances was 	a
confidential 	employee.) 	In 	Imperial 	Unified School 	District
(1987) 	PERB Decision No. 	647, 	"in the regular course of his
duties" 	was 	held to mean that more than a 	fraction of 	the
employee's 	time was 	spent on confidential matters, 	although the
frequency of access was 	not 	important.
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 activities 	of an employee organization. 	In
the 	initial 	determination, 	the ALJ 	found under NLRB 	law that
reprisals 	and discrimination related 	to 	the 	opportunity 	of
promotion is prohibited. 	(Ford Motor Co. 	(1980) 	251 NLRB 413,
422 	[105 LRRM 1143], 	enf. 	v a c , re. 	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].) 	The ALJ then concluded
because 	the 	confidential 	secretary was 	paid more 	than a 	Secretary
III, 	this 	should be regarded as a promotion and that denying an
22

employee 	the 	opportunity 	to 	compete 	for 	a promotion based upon
the protected organizational 	activities 	of 	the 	employee 	is
prohibited by EERA. 	(Lemoore Union High 	School 	District, 	supra,
PERB Decision No. 	2 71.)
The 	Board 	cannot 	agree with 	the Association's 	and ALJ's
analogy 	that the appointment of 	a person to a 	confidential
position is 	equated with receiving a promotion. 	Confidential
status 	is 	not a necessary 	step on the promotional 	ladder. 	As
former Member Morgenstern 	stated 	in his 	concurrence 	and 	dissent
in Carlsbad 	I:
. 	. 	. 	Confidential status does not make one a
supervisor or manager and 	is 	not a qualifi-
cation 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 ) .
(Carlsbad I, 	supra, p. 	10.)
Although 	the 	Confidential 	Secretary 	III 	position provides 	an
increase 	in pay, 	salary alone 	is not a gauge of whether a
promotion has 	occurred. 	A promotion may 	also 	include 	being
provided with new responsibilities 	and a wider 	scope 	of 	duties.
In this 	case, 	the Secretary III 	(Confidential) 	has the 	same
responsibilities 	as 	a Secretary 	III, 	except that they may be
assigned responsibilities 	that 	involve 	access 	to, 	and knowledge
of, 	the District's 	employer/employee relations, 	and attendance at
collective bargaining sessions. 	As a result, 	we conclude that
appointment 	of 	a 	secretary to 	the 	confidential position on 	the
- -.
23

facts of this 	case would not be a promotion. 	Therefore, 	it 	is
unwarranted 	to 	review additional 	NLRB 	and PERB 	case 	law that
finds 	denial 	of 	a promotion based upon protected 	activity
prohibited.
The 	NLRB 	has 	supported 	the 	transferring or discharge 	of
confidential 	personnel 	based 	upon protected 	activities 	which 	lead
to a 	"more than conjectural" 	concern that 	confidential 	secrets
may be 	leaked. 	(Raytheon Missile 	System Division. 	Raytheon
Company and Electrical Workers (IUE), AFL-CIO 	(1986) 	279 	NLRB 	35
[122 LRRM 1036]; 	Illinois Bell Telephone Co. 	(1977) 	228 NLRB 942
[94 LRRM 167]; 	Lucky Food Stores. 	Inc. 	(1984) 	269 NLRB 942 	[115
LRRM 3089]; 	Emanuel Hospital 	(1984) 	268 NLRB 	1344 	[116 LRRM
1008].) 	In Raytheon, 	the NLRB held that an employer did not
violate 	the 	NLRA when 	it 	transferred a 	secretary who 	had 	access
to 	confidential 	information, 	as 	the 	employer had more 	than a
"conjectural" 	basis 	for 	fearing 	she might disclose 	information to
the 	union. 	The 	employer 	found that the 	secretary had 	initially
attempted to 	conceal her attendance 	at a union meeting.
Therefore, 	the management decision to transfer 	in Raytheon was
- -
based upon 	"protected activity," 	the 	secretary's 	support 	for 	the
union 	and 	concealment of 	union activity.
Based 	upon 	PERB 	and 	NLRB precedent 	stressing 	the 	importance
of 	confidential 	employees 	in labor relations, 	the Board 	finds
that 	an employer 	should be given 	"broad discretion" 	in 	filling 	a
confidential 	position.
24

The 	law limits 	confidential positions 	to those 	employees
directly 	involved 	in 	labor relations 	on behalf 	of 	the 	employer.
The 	Board believes 	that 	the 	"broad discretion" 	standard will 	have
a 	minimal 	impact 	on employee-union relations 	due to 	the 	small
number of confidential positions that exist. 	In addition, 	we
also 	find that 	the 	important 	role 	a 	confidential person may play
in negotiations 	between an employer and 	its 	employees'
representative 	outweighs 	the potential 	result 	of 	a 	few
individuals 	being denied 	a 	confidential position based 	upon 	their
protected activity. 	Therefore, 	an employer, 	under EERA, 	may
consider past protected 	activity when 	selecting 	an 	employee 	for 	a
"confidential" position.
The 	facts 	of 	each 	and every case will 	dictate whether the
employer 	exercised 	appropriate 	"broad discretion." 	As 	McPherson
had 	previously 	undertaken work 	for 	the 	certificated 	union 	that
may be adverse to the District's 	interests, 	the Board concludes
that 	the 	board's 	refusal 	to 	appoint her to the 	confidential
position was 	a proper exercise 	of 	the 	District's 	"broad
discretion."
3. 	Whether the 	District transferred McPherson 	from a 	former
position with 	the 	employment 	relations 	office 	because 	of 	activity
the Appellate Court 	found protected.
The 	District 	asserts 	that 	no 	evidence 	in the 	factual 	record
establishes 	that 	the 	District 	transferred McPherson 	"because 	of"
the 	exercise 	of 	the 	inter-union protected rights 	set 	forth by 	the
Court of Appeal. 	The District argues 	that 	even pursuant to
25

Novato Unified School District, 	supra. 	California State
University. 	Sacramento 	(1982) 	PERB Decision No. 	211-H, 	and
California 	State University 	(San Francisco) 	(1986) 	PERB Decision
No. 	559-H, 	the mere exercise of protected rights 	itself 	is 	not
sufficient to meet the 	"but 	for" 	test. 	The District then goes 	on
to 	assert 	that McPherson was 	transferred 	to 	Carlsbad 	High 	School
for proper business 	reasons 	after 	she was 	lawfully denied
reclassification or appointment to 	a 	confidential position.
McPherson argues 	that her transfer to 	the high 	school was
based 	upon her typing 	for the 	teacher's 	union 	and 	seeking wage
differential 	redress 	from the personnel 	commission. 	McPherson
also 	alleges 	that 	there was 	no 	legitimate business 	reason 	for the
transfer as 	she was 	needed by Bates 	for the 	current 	negotiations,
and 	she had 	served him well 	in that 	capacity 	for a 	number of
months. 	Additionally, 	McPherson argues that 	she was 	needed 	in
the position as 	she was 	the only person qualified, 	as
demonstrated by the 	fact that 	she received 	67 phone 	calls 	asking
for advice 	subsequent to her transfer. 	Finally, 	McPherson argues
the 	high 	school 	had been 	seeking a 	secretary 	for 	a 	very 	long 	time
and had been eligible 	for one 	since 	early April. 	Not until 	late
May did Grignon approve the transfer.
When Bates 	assumed the 	labor functions 	for the District, 	it
necessitated 	that his 	secretary's 	position be 	filled by 	a
confidential 	employee. 	Interviews 	were 	initially conducted 	in
early May 	for the 	confidential 	secretary position. 	As 	a 	result
of 	those 	interviews, 	the District offered the position to a
26

person 	employed 	outside 	the 	District who 	subsequently 	declined
the position.
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 of 	May.
Grignon 	further 	testified that 	Bates 	had 	requested the 	transfer
because a 	secretary was needed at the high school. 	However, 	in
his 	own testimony, 	Bates made no mention that he requested the
transfer. 	Moreover, 	evidence 	showed that the 	secretary position
at the high school had become available on April 	12, 	1982, 	and it
was not until May 	17, 	1982, 	that McPherson was notified that 	she
would be 	involuntarily transferred 	from her position. 	The 	reason
given for the transfer was 	for the 	"good 	of 	the District." 	These
facts 	indicate 	inconsistent 	and questionable 	justifications. 	We
conclude that McPherson was 	transferred based, 	in part, 	upon her
protected 	activities.
4. 	Whether the 	District would have 	transferred McPherson anyway
for a 	legitimate business 	reason.
McPherson was 	transferred 	laterally to 	fill 	a permanent
replacement 	at 	the high 	school 	due 	to 	an event 	outside the
control 	of the District, 	e.g., 	the expiration of the 	120-day
limit 	for 	leave 	for a temporary 	employee who no 	longer was
eligible 	to 	fill 	the position. 	Although 	six weeks 	elapsed
between the 	time of 	the 	opening and McPherson's 	notification, 	we
find that beginning on February 	17, 	1982, 	when the board decided
not to designate McPherson as 	a 	"confidential 	employee," 	the
27

District had a 	legitimate 	business 	reason 	for 	the 	lateral
transfer. 	McPherson's 	new position as 	secretary 	to the principal
of Carlsbad High School 	resulted in no 	loss of pay, 	benefits, 	or
status. 	Even though McPherson's 	former position was 	to remain
unfilled or run by temporary 	secretaries, 	the 	Board 	finds 	that
the 	transfer of McPherson was 	lawful.
5. 	Whether the 	District 	interfered with McPherson's 	EERA rights
by refusing to permit her to be 	on the negotiating 	committee.
The record 	establishes 	that the 	District did 	interfere with
McPherson's 	right by refusing to allow her to 	serve 	on the
negotiating committee. 	However, 	once Grignon was 	notified of
Bates' 	statement to McPherson, 	"you can serve on the committee
but my 	secretary 	cannot," 	he 	corrected the 	District's 	position
stating that McPherson could 	serve on the committee. 	No
testimony was 	given 	showing that 	Grignon knew of 	the 	statement 	at
an earlier date. 	Also, 	during her testimony, 	McPherson herself
indicated that 	the negotiating team appointment was 	sought, 	not
for the purposes 	of representation, 	but 	for the purpose of
achieving a raise by appointment to a 	"confidential" 	position.
Therefore, 	we 	find that 	any resultant harm to McPherson was 	"de
minimis" 	and thus 	not a violation.
6. 	Out-of-class work.
As we find there is no violation of EERA, 	it 	is
inappropriate 	for the Board to 	comment on whether McPherson 	is
entitled 	to back pay based upon out-of-class work. 	The
collective 	bargaining 	agreement 	between 	the Association 	and 	the
28

District provided 	a 	five-step grievance process. 	According 	to
the 	record before the Board, 	McPherson has 	appealed 	for out-of-
class pay through 	step 	four of the procedure. 	The 	fifth and
final 	step, 	advisory arbitration, 	has been held in abeyance
pending the outcome of this matter. 	Therefore, 	any remedy that
McPherson may be 	entitled 	to 	should proceed 	through 	the
contractual 	grievance process.
ORDER
The unfair practice charge 	in Case No. 	LA-CE-1590 	is hereby
DISMISSED.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
Member Porter's 	concurrence begins 	on page 	30.
Member Craib's 	concurrence 	and dissent begins 	on page 	33.
29

Porter, 	Member, 	concurring: 	I agree with the majority
insofar 	as 	it 	concludes 	that 	the 	charge 	and 	complaint 	in this
case must be dismissed. 	However, 	I 	respectfully disagree with
the majority's 	analysis 	for the 	reasons 	set 	forth below.
Regarding the 	initial 	issue, 	whether the Carlsbad Unified
School 	District 	(District) 	refused McPherson's 	reclassification
because 	of 	the typing 	she had performed for the teachers' 	union,
my reading of 	the 	entire record 	leads 	me 	to the 	conclusion that
the 	District 	did not 	unlawfully discriminate 	against 	McPherson.
As 	pointed out by the majority, 	the record 	shows 	that
Superintendent 	Grignon was 	concerned 	about 	moving 	McPherson
into 	a 	confidential position because 	she 	is 	a 	long-term member
of 	the 	community who 	has 	extensive personal 	and professional
acquaintances, 	an outgoing personality, 	and is well-liked by,
and popular among, 	her peers. 	McPherson's 	ex-husband being a
District 	teacher and her past typing 	for the teachers' 	union were
further 	examples 	evidencing her broad 	ties within the 	community
and 	among 	District 	classified 	and 	certificated 	employees.
However, 	the past typing was merely a piece of 	the McPherson
personality 	mosaic 	which 	Grignon observed 	in evaluating
McPherson. 	While Grignon perceived McPherson as 	a person
qualified to perform the work in a technical 	sense, 	he was
obviously 	concerned 	about 	placing 	such 	an outgoing person 	into
a 	confidential 	slot. 	His belief was 	that 	she might, 	albeit
unintentionally, 	leak or 	slip 	confidential 	information to her
co-workers, 	other District employees, 	or community members 	in
30

the 	course of her various 	interactions with these people. 	Put
simply, 	Grignon did not believe 	that McPherson's 	extroversive
personality 	lent 	itself well 	to 	the performance 	of 	confidential
duties 	and obligations.
Accordingly, 	I would 	find that Grignon's 	concern with
McPherson was 	based on his 	lawful 	consideration of 	various
legitimate 	factors, 	all relating to what he perceived to be a
possible 	risk with 	respect 	to her performing 	in a 	confidential
capacity. 	I 	cannot agree with the majority's 	finding that
the District, 	through Superintendent Grignon, 	retaliated or
discriminated 	against McPherson because 	of 	her 	typing 	activity.1
Secondly, 	even assuming that there was 	a prima 	facie 	showing
that 	the 	District did refuse 	the 	reclassification because 	of
McPherson's 	typing for the teachers' 	union, 	and the burden
shifted to the 	District to 	show that, 	notwithstanding McPherson's
past 	typing, 	it would have 	refused the 	reclassification anyway
(Novato Unified School District 	(1982) 	PERB Decision No. 	210,
p. 	14), 	I would find that the District's 	evidence satisfies 	such
a 	burden. 	In other words, 	I 	believe the District has met the
"but 	for" 	test. 	I 	reach this 	conclusion for the reasons 	set
forth above. 	The typing in and of 	itself was 	not Grignon's
1Further evidence of 	Grignon's 	lack of 	animus 	toward
McPherson and/or 	the 	union appears 	in the 	record 	in 	connection
with 	a 	previous 	incident whereby 	Grignon 	granted 	McPherson's
request not to be transferred out of the headquarters 	office, 	to
a 	school 	site, 	as a result of layoffs 	in the District. 	Grignon
clearly did 	not 	act 	adversely toward McPherson 	in the 	earlier
instance which, 	when taken with the other record 	evidence
discussed above, 	bolsters 	a 	finding of no unlawful discrimination
in the present 	case.
31

concern; 	his 	concern was with McPherson's 	overall popularity and
contacts within the 	community and among District 	employees. 	His
concern, 	therefore, 	would remain even in the absence of the past
typing 	activity.
Finally, 	assuming arguendo 	that 	the District did refuse
to place McPherson 	into 	the 	confidential 	slot because 	of her
exercise 	of 	a protected right, 	I 	must respectfully disagree
with the majority's 	conclusion that, 	under a 	"broad discretion"
standard, 	such District conduct 	is 	lawful.2 The relevant 	EERA
provision, 	section 3543.5(a), 	prescribes that a public school
employer 	shall 	not 	impose 	reprisals 	or discriminate 	against
employees 	"because 	of 	their 	exercise 	of 	rights 	guaranteed by 	this
chapter." 	The 	statute does 	not 	except 	confidential positions
from its proscription, 	nor does 	it provide 	for the 	exercise of
any 	employer 	discretion which would 	allow 	such 	discrimination
against 	candidates 	for confidential positions. 	Under the
statutory provisions, 	if an employer, 	in the course of taking a
personnel-related action, 	discriminates 	or retaliates 	against 	an
employee 	solely because 	of his/her protected activity, 	that
conduct 	is 	unlawful. 	I 	therefore 	submit that this 	Board may not
read a 	"broad discretion" 	exception, 	for confidential positions,
into 	the mandatory proscription of 	section 3543.5(a).
2Nor do 	I 	agree with my dissenting 	colleague 	that 	a broad
discretionary 	standard would 	be 	valid 	and 	could 	be 	exercised
by. the public 	school 	employer in such cases. 	A public 	school
employer has 	no discretion under the 	Educational 	Employment
Relations Act to discriminate against an employee because 	of
the 	employee's 	exercise of 	a protected right.
32

Member Craib, 	concurring and dissenting: 	I 	agree with the
majority that, 	under the circumstances, 	any interference with
McPherson's 	right 	to be 	on the 	negotiating 	committee was
de minimis. 	I 	also agree with the conclusion that the Carlsbad
Unified 	School 	District 	(District) 	refused to 	appoint McPherson
to 	a 	confidential position and transferred her because 	of 	her
protected activity. 	While 	I 	also agree with the 	analytical
framework 	adopted 	by 	the 	majority 	for 	evaluating whether 	the
District's 	actions were nonetheless 	lawful, 	I 	do not agree with
the result reached. 	Specifically, 	I 	agree that a public 	school
employer must 	be 	given broad discretion 	in 	selecting 	a
confidential 	employee, 	and that protected activity may be
lawfully considered 	in exercising that discretion. 	However, 	I
believe 	the 	majority has 	failed 	to properly 	apply 	this 	broad
discretion test.
By definition, 	"broad" 	discretion is 	something less 	than
total 	discretion. 	While 	a 	broad discretion 	standard would be
easy 	to 	meet, 	the 	exercise of 	such discretion 	logically requires
some element of reasonableness. 	Furthermore, 	the choice of 	a
broad 	discretion 	over 	a 	total 	discretion 	standard 	necessarily
implies 	that 	not 	all protected 	activity would 	suffice 	to 	justify
the 	employer's 	actions. 	The 	standard used by the National 	Labor
Relations 	Board 	(NLRB), 	which the majority cites 	approvingly,
employs 	the 	analogous 	concept that 	the decision must be 	based on
more 	than 	"mere 	conjecture" 	that the 	employee may 	leak
confidential information. 	(See, 	e.g., 	Raytheon Missile System
Division. 	Raytheon Company 	(1986) 	279 NLRB 	35 	[122 	LRRM 	1036].)
33

Thus, 	while an employer may lawfully reject an employee 	for 	a
confidential 	position where prior 	or 	contemporaneous 	protected
activity would 	give 	the 	employer 	a 	reasonable 	doubt 	that 	the
employee 	could 	maintain 	the 	requisite 	undivided 	loyalty,
arbitrary rejection or 	irrational 	fears would 	not 	constitute
sufficient 	justification. 	As described below, 	I 	submit that the
District's 	actions 	in this 	case 	fall 	into the 	latter 	category.
The 	protected 	activity 	for which McPherson was 	denied 	the
confidential position was 	"typing 	for the teachers' 	union."
There was 	no 	evidence presented which provided 	any details 	about
this 	activity. 	It is 	important to note that, 	since McPherson has
successfully 	shown that the 	District's 	actions 	were 	motivated by
her protected activity, 	the District bears 	the burden of
establishing 	that 	its 	actions 	were 	nevertheless 	consistent with
the 	broad discretion 	standard 	adopted by the Board. 	(Novato
Unified School District 	(1982) 	PERB Decision No. 	210.)
It 	is 	difficult to conceive of more 	innocuous protected
activity than that 	relied on by the District 	in this 	case. 	While
it 	is 	perhaps 	conceivable 	that 	the 	circumstances 	surrounding
typing 	for another union 	could 	raise 	some 	doubt 	about 	an
employee's 	loyalty, 	the District has 	failed to provide 	evidence
of such circumstances. 	What is 	left, 	therefore, 	is the very
general 	assertion that McPherson was 	typing 	for the 	teachers'
union. 	Such activity would give no 	rational person reason to
fear 	that 	an otherwise well-respected 	and upstanding 	member 	of
the 	community would 	leak confidential 	information. 	The 	other
reasons 	given for the 	District's 	action toward McPherson, 	that
34

she was 	a 	long-term resident 	of 	the 	community and was 	formerly
married to a teacher 	in the District, 	are patently 	frivolous 	and,
therefore, 	do not add to, 	but detract from, 	the reasonableness of
the District's 	actions. 	The 	fact that McPherson performed
admirably as 	a de 	facto 	confidential 	employee 	for at 	least 	four
months 	further undermines 	the 	District's 	proffered 	justification.
In contrast to the present case, 	the NLRB 	cases 	relied on by
the parties 	and 	cited by 	the 	majority 	involved protected 	activity
that, 	due to its 	character or quantity, 	raised a reasonable 	fear
that 	confidentiality would be 	breached. 	In Raytheon Missile
System Division. 	Raytheon Company, 	supra. 	279 NLRB 35 	[122 LRRM
1036], 	the employer 	suspected divided loyalties because the
employee 	tried to 	cover up her attendance 	at a union
organizational meeting. 	In Emanuel Hospital 	(1984) 	268 NLRB 	1344
[116 	LRRM 	1008], 	the employee was 	an outspoken union supporter.
In Lucky Stores. 	Inc. 	(1984) 	269 NLRB 942 	[116 LRRM 	1463] 	and
Illinois Bell Telephone Company 	(1977) 	228 NLRB 942 	[94 LRRM
1671], 	the employees had close relationships with union officials
or 	activists. 	The protected activity relied on by the 	District
in the present 	case pales 	by comparison in its 	potential 	for
generating a reasonable 	fear of 	a breach of 	confidentiality.
. . . ... .
In 	sum, 	I 	cannot agree 	that the District's 	stated reason for
refusing a 	confidential position to McPherson, 	that 	she had done
some typing for the teachers' 	union, 	meets 	a broad discretion
test. 	If 	such protected 	activity 	is 	enough to 	justify the
District's 	actions, 	then it 	is difficult to imagine what kind of
protected activity would not. 	As 	discussed above, 	a broad
35

discretion test 	logically 	implies 	that 	not 	all 	protected 	activity-
would 	justify 	discrimination 	against 	present 	or prospective
confidential 	employees. 	Thus, 	the 	inescapable conclusion that
must 	be 	drawn 	from the 	majority's 	acceptance 	of 	the 	District's
proffered 	justification is 	that, 	while the majority purports 	to
adopt 	a 	broad discretion 	standard, 	it has 	instead applied 	a 	total
discretion 	standard.
.36