Los Angeles County Office of Education (PERB 0851E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, LOCAL 660, AFL-CIO,
Charging 	Party,
v.
LOS ANGELES 	COUNTY OFFICE 	OF
EDUCATION,
Respondent.
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) 	Case No. 	LA-CE-2933
PERB Decision No. 	851
November 	14, 	1990
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Appearances: 	Jack L. 	Roberts, 	Staff Director, 	for Service
Employees International Union, 	Local 660, AFL-CIO; 	Whitmore, 	Kay
& Stevens by Janice E. 	Johnson, 	Attorney, 	for Los Angeles County
Office of 	Education.
Before Hesse, 	Chairperson; 	Shank and Cunningham, 	Members.
DECISION AND 	ORDER
This 	case 	is 	before the Public 	Employment Relations 	Board
(PERB or Board) 	on appeal 	by the 	Service 	Employees 	International
Union, 	Local 	660, 	AFL-CIO 	(SEIU) 	of a Board agent's dismissal of
its 	unfair practice charge. 	In its 	charge, 	SEIU alleged that the
Los Angeles 	County Office of 	Education 	(LACOE) 	violated 	section
3543.5(a) 	of the Educational Employment Relations Act 	(EERA)1 by
discriminating/retaliating against 	Shelby Maynard 	(Maynard), 	an
SEIU member and 	job 	steward, 	for having 	filed a 	grievance.
Maynard 	alleged 	that within 	one week of 	receiving 	an 	answer 	to
her grievance 	regarding her performance 	evaluation, 	LACOE 	removed
her duties 	related 	to 	LACOE's 	Adaptive 	Physical 	Education 	(APE)
________________ )
11EERA	EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to 	the Government Code.

program. 	Those duties, 	she alleged, 	had occupied at 	least 	50
percent of her day 	for 	several years. 	The Board agent, 	after
investigating the 	allegation, 	dismissed the 	charge 	for 	failure 	to
state a prima 	facie 	case.
For the reasons 	stated herein, 	the Board agent's 	dismissal
of 	the 	charge 	is 	reversed.
To demonstrate a violation of 	EERA section 3543.5(a)2 the
charging party must allege 	facts which, 	if proven, 	would
establish: 	(1) 	the 	employee 	exercised rights 	under the EERA;
(2) 	the 	employer had knowledge 	of 	the 	exercise of those rights;
and 	(3) 	the 	employer 	imposed or threatened to 	impose 	reprisals,
discriminated or threatened to discriminate, 	or otherwise
interfered with, 	restrained, 	or coerced the 	employee because of
the 	exercise of 	those rights. 	(Novato 	Unified 	School 	District
(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School District
(1979) 	PERB Decision No. 	89.)
SEIU 	alleges 	that Maynard 	filed 	a 	grievance 	concerning 	the
contents 	of a performance 	evaluation. 	Pursuant to the Board's
decision 	in North 	Sacramento 	School 	District 	(1982) 	PERB 	Decision
2Section 3543.5(a) 	states:
It 	shall 	be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
N	
2

No. 	264, 	filing a grievance 	is 	considered a protected activity
under EERA. 	Therefore, 	the 	first prong of the above test 	is
satisfied. 	There 	is 	also no dispute 	that 	the 	LACOE 	knew about
Maynard's 	grievance 	as 	the LACOE 	affirmatively declares 	that 	fact
in its 	appeal 	requesting that the Board dismiss 	the 	charge. 	The
critical 	issue here 	is 	whether 	SEIU alleged 	facts 	to 	support 	its
allegation 	that 	the 	LACOE 	transferred duties 	from Maynard 	because
of the 	exercise of those rights.
Direct proof 	of 	unlawful 	motivation 	is 	very 	often difficult
to 	establish and, 	thus, 	may be 	established by circumstantial
evidence 	inferred 	from the record as 	a whole. 	Although the
timing of 	the 	employer's 	adverse 	action 	in close proximity 	to 	the
employee's protected conduct is an important factor; 	it 	is 	not,
standing alone, 	sufficient to prove unlawful 	intent. 	(Moreland
Elementary School District 	(1982) 	PERB Decision No. 	227.)
Additional 	facts 	that may be 	examined 	from which 	to 	infer 	an
unlawful 	intent include: 	(1) 	the employer's disparate treatment
of the employee; 	(2) 	the 	employer's departure 	from established
procedures 	and 	standards when dealing with the 	employee; 	(3) 	the
employer's 	inconsistent 	or 	contradictory 	justifications 	for 	its
actions; 	(4) 	the employer's 	cursory investigation of the
employee's misconduct; 	(5) 	the employer's 	failure to offer the
employee 	justification at the time 	it took the action, 	or the
offering of exaggerated, 	vague, 	or ambiguous reasons; 	or 	(6) 	any
other 	justification which 	might 	demonstrate 	the 	employer's
unlawful motive. 	(Novato Unified School District, 	supra. 	PERB
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Decision No. 	210; 	North Sacramento School District, 	supra, 	(1982)
PERB Decision No. 	264.)
In this 	case, 	SEIU relies 	on the timing of 	the adverse
action as 	one 	indicia of unlawful 	intent. 	Thus, 	SEIU alleges
that 	approximately one week after Maynard's 	grievance was 	denied
at 	Level 	II, 	Maynard's APE program duties were 	transferred 	from
her and assigned to another employee. 	Additionally, 	SEIU
contends 	that 	Maynard was 	offered 	no 	justification 	for 	the
transfer of 	these duties 	at the time the transfer occurred. 	In
its 	second amended charge, 	SEIU alleged that:
Much later after Ms. 	Maynard's 	job duties
were 	changed 	it was 	decided this 	action was
taken as 	a result of a Division
reorganization, 	and that other 	employees were
also affected. 	. 	. 	.
Thus, 	Maynard alleged 	she 	engaged 	in protected activity,
that 	the 	employer had knowledge of 	that protected activity, 	and
that 	the 	LACOE 	transferred her duties 	because 	of 	that protected
activity. 	Furthermore, 	Maynard has 	alleged 	facts 	from which
unlawful 	intent could be 	inferred, 	including: 	(1) 	the proximity
in 	time between Maynard's 	filing of 	the 	grievance 	and the 	LACOE's
transfer of duties; 	and, 	(2) 	the LACOE's 	failure to give Maynard
justification 	for the transfer at 	the 	time 	it 	occurred. 	We 	find
these 	allegations 	minimally 	sufficient 	to 	establish 	a prima 	facie
case.
The Board agent's dismissal 	is, 	therefore, 	REVERSED and the
charge 	is 	REMANDED to the General Counsel 	for 	issuance of 	a
4 .

complaint 	based 	upon 	the 	alleged 	violation of 	section 	3543.5(a)
of 	the 	EERA as 	stated 	in unfair practice 	charge Case No.
LA-CE-2933.3
By the 	Board4
3LACOE's 	response to 	SEIU's 	appeal 	of 	the 	Board 	agent's
dismissal was 	originally rejected as 	untimely 	filed. 	In 	its
appeal 	of 	the determination rejecting the 	filing, 	the LACOE
contends 	that 	although the proof 	of 	service 	attached to 	the
appeal 	indicated the appeal was 	personally 	served, 	the director
of employee relations, 	in fact, 	received the appeal by regular
mail on June 20, 	1990. 	The same day, 	the Office of Employee
Relations 	faxed 	the 	document 	to 	the 	LACOE's 	attorney which was
designated on a 	PERB Notice of Appearance 	form as 	the 	LACOE's
official 	representative 	in this matter. 	SEIU has 	not disputed
the LACOE's 	contentions 	in this 	regard. 	In light of 	these 	facts,
we 	have 	accepted 	the 	LACOE's 	response which was 	received 	July 	10,
1990.
4Members 	Craib 	and Camilli 	did 	not participate 	in this
Decision.
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