Los Angeles Unified School District (Kaady) (PERB 0957E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MITCHELL A. 	KAADY,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
)
) 	Case Nos. 	LA-CE-3058
LA-CE-3099
PERB Decision No. 	957
November 18, 	1992
)
)
)
)
)
)
Appearances: 	Betty Levering for Mitchell A. 	Kaady; 	Ron Apperson,
Attorney, 	for Los Angeles 	Unified School District.
Before Camilli, 	Caffrey and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by Mitchell A. 	Kaady
(Kaady) 	of a proposed decision 	(attached hereto) 	of 	a PERB
administrative 	law judge 	(ALJ). 	The ALJ dismissed Kaady's
complaint which 	alleged 	that 	the 	Los 	Angeles 	Unified 	School
District violated 	section 	3543.5(a) 	and 	(b) 	of the Educational
Employment Relations Act 	(EERA)1 by delaying Kaady's 	return to
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq,
Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
__________ )

work 	from 	industrial 	injury/illness 	leave 	and 	by 	issuing 	three
written 	disciplinary 	actions.
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by this 	chapter.
The 	Board has 	reviewed the 	entire record 	in this 	case,
including the proposed decision, 	the 	exceptions 	and responses
thereto, 	and the transcript of the hearing, 	and finding the
proposed decision to be 	free of prejudicial 	error, 	adopts 	it as
the decision of 	the Board 	itself.
On appeal, 	Kaady contests 	the ALJ's 	rejection of his post
hearing brief as untimely. 	Pursuant to PERB Regulation 	32136,2 a
late 	filing may be 	excused 	for good 	cause 	only. 	The 	Board 	finds
that 	Kaady has 	failed to 	establish 	good 	cause 	to 	excuse 	the 	late
filing. 	Accordingly, 	this 	exception is rejected.
ORDER
The unfair practice 	charge 	and complaint 	in Case Nos.
LA-CE-3058 	and 	LA-CE-3099 	is 	hereby DISMISSED WITHOUT LEAVE 	TO
AMEND.
Members 	Camilli 	and Caffrey 	joined 	in this 	Decision.
2PERB Regulations 	are 	codified 	at California Code 	of
Regulations, 	title 8, 	section 31001 	et seq. 	PERB Regulation
32136 states:
A 	late 	filing may be 	excused 	in the
discretion of 	the 	Board 	for good cause 	only.
A 	late 	filing which has 	been 	excused becomes
a 	timely 	filing under 	these 	regulations.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MITCHELL A. 	KAADY,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
Unfair Practice
Case Nos. 	LA-CE-3058
LA-CE-3099
PROPOSED DECISION
(5/22/92)
)
)
)
Appearances: 	Betty Levering and Mitchell A. 	Kaady, 	on behalf
of Mitchell A. 	Kaady; 	Ron Apperson, 	Assistant Legal Adviser,
for 	Los Angeles 	Unified School 	District.
Before W. 	Jean Thomas, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On January 	29, 	1991,1 Mitchell A. 	Kaady 	(Kaady or Charging
Party) 	filed an unfair practice 	charge with the 	Public 	Employment
Relations 	Board 	(PERB) 	against the Los Angeles Unified School
District 	(District or Respondent). 	The charge alleged a
violation of Government Code 	section 	3543.5(a) 	of the Educational
Employment Relations Act 	(EERA).2
1 A11 dates herein refer to 	1991, 	unless otherwise noted.
2EERA 	is 	codified 	at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
_______ )

applicant 	for 	employment 	or reemployment.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
On June 	24, 	the office of the general 	counsel of PERB,
after an investigation of the charge, 	issued a complaint. 	The
complaint 	alleged that 	the 	Respondent 	took adverse 	action against
the 	Charging Party 	in retaliation 	for his 	exercise of 	rights
guaranteed by EERA in violation of 	section 3543.5(a). 	On
July 22, 	Respondent 	filed an answer to the 	complaint denying
all 	material 	allegations 	and asserting 	an affirmative 	defense.
. ..J
On June 	24, 	Charging Party 	filed a 	second unfair practice
charge against the District, 	alleging additional unlawful 	conduct
in reprisal 	for his 	exercise of various 	rights 	guaranteed by
EERA, 	including the 	filing of Unfair Practice Charge No. 	LA-CE-
3058 	and 	representation by the Union on 	several 	occasions.
On July 	24, 	PERB 	issued a 	complaint based on these
allegations, 	charging the District with a violation of 	section
3543.5(a) and (b).
An 	informal 	conference was 	conducted 	concerning both 	cases
on July 24, 	but the dispute was not resolved. 	Respondent 	filed
an answer to the 	latter complaint on July 	26, 	again denying all
material 	allegations.
A 	PERB 	administrative 	law 	judge 	consolidated 	the 	two 	cases
for 	formal hearing on July 	29.
The 	formal hearing was held on October 22 	through 24, 	and
recessed. 	On the 	second day of hearing 	(October 23), 	Charging
N	2

.-
Party filed a request to amend charge No. 	LA-CE-3099 	to 	add
additional 	adverse 	actions 	by the 	District which allegedly 	led
to his 	dismissal 	on October 	8. 	An order granting the 	request
to 	amend the 	complaint was 	issued on November 	7, 	and required
Respondent 	to 	file 	an amended answer. 	The amended answer was
filed November 	15, 	denying the allegations 	raised 	in the amended
complaint.
On December 	11, 	the hearing was reconvened to 	litigate
the 	amended charges. 	The hearing was 	completed on that date.
Post-hearing briefs 	were 	filed 	and 	the 	case 	submitted 	for
proposed decision on February 24, 	1992.3
INTRODUCTION
In case No. 	LA-CE-3058, 	Charging Party alleges that the
District delayed his 	return to work in December 	1990 	from
industrial 	injury/illness 	leave because 	he 	complained 	to 	his
supervisors 	about 	an unsafe work assignment 	in October 	1990 	and
exercised his 	contractual 	right 	to take 	industrial 	illness 	leave
in November 	1990.
In case No. 	LA-CE-3099, 	he alleges that the District, 	acting
through his 	supervisors Victor Parrillo 	(Parrillo) 	and Roderick
Macdonnell 	(Macdonnell), 	took disciplinary action against him,
3Charging Party 	filed 	an untimely brief 	on March 	3,
1992, 	with a request that 	its 	late filing be excused. 	The
basis 	for the request was 	that 	neither Charging Party nor his
representative, 	Betty Levering, 	received notice that the hearing
transcript had been issued. 	Following an 	investigation of 	this
claim, 	the request was denied. 	Thus, 	Charging Party's brief was
not 	considered 	in the preparation of 	this 	decision.
w	3

in the 	form of 	three written notices 	of unsatisfactory 	service
between February and 	July 	1991 	that 	eventually resulted 	in his
termination 	from employment 	in October 	1991. 	These 	latter
adverse 	actions 	allegedly were 	in reprisal 	for Charging 	Party's
exercise of the protected rights 	cited in case No. 	LA-CE-3058,
the 	filing of 	charge No. 	LA-CE-3058 	in January 	1991 	and the use
of 	Union representation on 	several 	occasions 	between October 	1990
and June 	1991.
The 	District denies 	that any of 	the 	alleged unlawful 	conduct
violated EERA, 	and asserts 	that all personnel actions 	taken
against the Charging Party were 	for good cause.
FINDINGS OF 	FACT
Jurisdiction
Charging Party 	is 	an employee within the meaning of 	section
3540.l(j) 	and Respondent 	is 	a public 	school 	employer within the
meaning of 	section 3540.l(k). 	The Los Angeles County Building &
Trades 	Council 	(Union) 	is 	an employee organization within the
meaning of section 3540.1(d)' and is the exclusive representative
of 	Unit E, 	a bargaining unit of 	skilled crafts 	employees 	of 	the
District. 	This unit 	includes 	the classifications 	of 	electrician
and 	senior 	electrician.
Background 	and 	Employment 	History
Kaady was 	employed by the District 	for nine years 	as 	an
electrician. 	For the 	five years prior to October 	1989, 	he worked
as 	a 	"troubleshooter" 	in District maintenance area 	2 	under the
supervision of Vernon Green 	(Green). 	The troubleshooter is
4

responsible 	for detecting 	and 	repairing 	a 	variety 	of 	electrical
problems 	that require a 	short period of 	time to 	correct. 	These
duties 	include repairs 	to 	fire alarm and bell 	systems 	that do 	not
require major 	construction or underground 	electrical 	work. 	Kaady
described 	his working 	relationship with Green as 	"mostly
harmonious."
In October 	1989 	Kaady transferred to maintenance 	area 	19
(Area 	19) 	and became a member of 	the newly-created 	fire alarm
inspection crew. 	This 	transfer represented a reduction 	in the
scope of 	Kaady's duties as 	a troubleshooter.
Initially, 	the 	crew consisted of 	six 	employees—three
electricians 	(Kaady, 	Joel Miller and John Newman 	[Newman])
and 	three 	maintenance workers. 	Prior to 	commencing their new
assignment, 	the 	electrician members 	of this 	crew were given
an 	examination and 	some 	instructions 	that 	certified their
preparation as 	fire alarm inspectors. 	Otherwise, 	their tasks
on the 	crew were within the 	scope of 	typical 	duties 	contained 	in
the 	District's 	class description for electrician. 	The 	first 	line
supervisor of this 	crew was Bill Bourland 	(Bourland), 	a 	senior
electrician. 	The 	second level 	supervisor was Macdonnell, 	the
electrical/technical 	supervisor 	for Area 	19.
The duties 	of 	the 	fire alarm inspection crew were 	to 	inspect
fire alarm and bell 	systems 	at all 	school 	sites 	in the area and
make necessary repairs and corrections, 	if possible, 	to insure
that these 	systems were 	in good working 	condition. 	When an
inspection was 	completed, 	they were 	to 	sign an inspection 	sheet
5

certifying that 	the 	inspection had been done. 	These 	forms were
eventually 	submitted 	to the 	city 	fire 	department 	for review.
The 	fire 	alarm 	inspection 	crew 	frequently worked 	on weekends
to minimize 	the disruption to 	regular 	school programs.
A 	few months 	after commencing work as 	a 	fire 	alarm
inspector, 	Kaady experienced difficulties 	in his working
relationship with 	Bourland. 	Kaady 	attributed the problems 	to
a 	lack of 	adequate 	instructions 	and guidelines 	about performing
his 	duties, 	and the 	failure to provide him with the necessary
assistance 	to perform the 	job. 	Kaady described 	Bourland as
"verbally abusive, 	intimidating and pugnacious," 	at times, 	when
he 	asked 	for assistance with a 	job, 	or objected to the way
Bourland wanted him to do 	the 	inspections.
Kaady's 	first major dispute with 	Bourland occurred 	in
January or 	February 	1990 	during 	an 	inspection at Crescent 	Heights
Elementary School. 	The disagreement arose 	over whether Kaady
should 	repair 	or 	have 	replaced 	malfunctioning 	electrical 	switches
for the 	school's 	alarm and bell 	system. 	Bourland 	felt that 	Kaady
should 	try 	to 	repair 	the 	switches 	and Kaady 	felt 	that 	they 	should
be replaced. 	After that 	incident, 	Kaady and Bourland met with
Victor Parrillo, 	the Area 	19 maintenance and operations
facilities director, 	to iron out their differences.
The 	Lassen Elementary 	School 	Incident
On March 23, 	1990, 	Kaady was given an assignment to survey
and prepare 	a written report 	for 	service 	switchboards 	at 	several
school 	sites 	in his maintenance area. 	Prior to beginning this
6

assignment, 	he received a list of the schools, 	which included
Lassen Elementary School 	(Lassen), 	and instructions 	about how to
conduct the 	survey and prepare the reports. 	On March 23, 	Kaady
went 	to Plummer Elementary School 	(Plummer) 	instead of 	Lassen,
as 	directed, 	but 	submitted a 	switchboard 	survey 	for Lassen.
On March 29, 	1990, 	Kaady was assigned to conduct a test
of 	the 	fire alarm system at Lassen. 	Again he went to Plummer,
instead of Lassen, 	and carried out the assignment. 	Kaady's
reports 	showed that the work had been done at Lassen when, 	in
fact, 	it had been done at Plummer. 	Although these two 	schools
are 	located 	in the 	same vicinity, 	each 	is 	clearly 	identified by
name on the exterior of the buildings.
This 	error 	led to 	a 	corrective 	conference with Macdonnell
on April 	2, 	1990, 	about Kaady's 	failure to follow instructions.
A written memorandum 	regarding 	the 	conference was 	placed 	in
Kaady's personnel 	file.
The 	May 	1990 	Incident 	Regarding 	Bourland
In 	late April 	1990 	Kaady and Bourland had another
disagreement over the misplacement of 	a 	set of keys 	at
Millikan Junior High School during a weekend assignment. 	As
a 	consequence, 	Kaady and the maintenance worker assigned to
assist him were unable to get 	into the 	school 	clock room and
complete 	the 	fire alarm inspection at that 	site.
Kaady 	testified 	that 	Bourland 	became 	verbally 	abusive 	toward
him during a heated 	exchange between them about 	the 	"lost" 	keys.
Anthony Brown 	(Brown), 	the maintenance worker, was present when
77

the 	dispute 	occurred. 	Brown testified that 	Bourland 	spoke 	in a
loud voice while 	expressing his 	frustration about 	the 	situation,
but was 	not 	abusive 	toward Kaady. 	Brown denied 	that Bourland
used profanity 	in addressing 	Kaady.
Kaady 	unsuccessfully 	attempted 	to 	discuss 	the 	matter 	further
with Bourland the next day, 	which was April 	30, 	1990.
A 	few days 	following 	this 	attempted discussion, 	Kaady made
remarks on three separate occasions, 	between May 3 and 	11, 	to
several co-workers, 	including Newman, 	Kurt Machtolf 	(Machtolf)
and Brown, 	words 	to the effect that he was 	so angry with Bourland
about 	their dispute 	that he:
. 	. 	. 	felt like going home . 	. 	. 	getting his
gun . 	. 	. 	and coming back to shoot Bourland,
but 	instead went 	to my psychiatrist to 	calm
down.
Later, 	Machtolf, 	believing that Kaady was 	serious 	and that
his 	comments were 	"unusual 	and out of 	the ordinary," 	informed
Bourland 	about 	them and 	the 	fact 	that 	similar 	comments 	were 	made
to 	other crew members.
Bourland 	told Macdonnell 	about Machtolf's 	report 	of 	Kaady's
remarks. 	Bourland was 	concerned, 	but not actually 	frightened
by 	the 	comments. 	Neither Bourland nor Macdonnell 	took 	further
action to 	question Kaady about his 	reported comments.
Bourland 	continued to 	supervise 	Kaady after 	this 	incident;
however, 	he described the work environment as 	"tense" 	at times
because of 	the 	reluctance of 	other crew members 	to work with
Kaady. 	Bourland viewed Kaady as poorly organized, 	which
contributed, 	in part, 	to his difficulty in completing
8

assignments. 	Some members 	of the 	fire 	inspection crew felt that
Kaady was 	a 	frequent complainer, 	with an annoying attitude and
behavior on the 	job.
Sometime 	in 	1990 	Newman once witnessed Kaady 	lose his 	temper
and beat a chair against a door in a 	"volatile, 	explosive" 	manner
after he 	had difficulty reaching 	a 	fire 	alarm bell 	at 	a 	school
where 	they were 	conducting an inspection. 	Machtolf 	also 	saw him
become very upset, 	using profanity and 	screaming over a minor
alarm wiring problem at another inspection site. 	Also, 	Kaady
and Brown, 	who was 	assigned to assist Kaady, 	had frequent work-
related disagreements 	over how the 	assignments 	should be
completed.
The October 18, 	1990. 	Incident
On October 	18, 	1990, 	Kaady was 	temporarily assigned to the
Area 	19 	boiler crew to 	supply the transformer boilers 	at Jordan
High 	School with 	electrical power. 	His work was 	supervised by
Fernando Sanchez 	(Sanchez), 	the heating, 	ventilation and air
conditioning 	supervisor for Area 	19. 	Sanchez 	gave Kaady verbal
instructions 	about how to 	complete the assignment. 	However,
before he began, 	Kaady requested a written job plan, 	a material
list and the assistance of a 	second electrician to 	"pull" 	the
electrical wire 	to the transformer. 	Sanchez 	took Kaady the 	job
ticket 	and 	sketches 	made by the planner 	for his 	review.
After 	surveying the work 	site, 	Kaady told Sanchez 	that the
working 	conditions 	were unsafe because 	the 	job 	involved 	the 	use
of 	metal 	scaffolding 	and 	contact with what he believed was 	480
volts 	of 	energized 	electricity.
9

Later that day, 	Bourland 	and Parrillo visited 	the 	job 	site
and 	Kaady 	renewed his 	complaint 	to 	them about what 	he 	regarded 	as
an unsafe work 	situation. 	The 	supervisors 	provided Kaady with 	a
ladder, 	additional verbal 	instructions 	and 	informed him that 	no
additional 	electrician was 	available 	or 	needed 	for 	assistance 	in
pulling the wire. 	Once the 	ladder was provided, 	the 	supervisors
felt 	that 	they had 	adequately 	responded 	to 	Kaady's 	complaint.
Kaady was 	directed to use one of 	the three 	electrical maintenance
workers 	assigned at the 	site to 	"pull 	the wire" 	to 	complete the
job. 	Kaady 	still 	objected to 	completing the 	job without a 	second
electrician present, 	and 	stated that he was 	going to call 	the
State 	Division 	of 	Occupational 	Safety 	and 	Health Administration,
(OSHA) 	to report a 	safety problem. 	Kaady testified that he did
call 	OSHA, 	but never 	filed a written or 	formal 	safety complaint
about this 	situation with OSHA, 	the District or the Union.
The 	collective bargaining agreement 	(CBA) 	between the 	Union
and 	the District4 contains 	a provision on safety conditions. 	It
states as 	follows:
. " , 1 - .
4PERB Regulation 32120 	(Cal. 	Code of Regs., 	tit. 	8, 	sec.
32120) 	requires 	employers 	to 	file 	copies 	of their CBA with
exclusive 	representatives with 	the 	appropriate PERB 	regional
office. 	A true 	and accurate copy of 	the 	1986-1992 	Unit E CBA
between the Union and the 	District 	is 	maintained 	in the 	PERB
Los Angeles Regional Office. 	Official notice may be taken of
the 	contract under PERB precedent. 	(Antelope Valley Community
College District 	(1979) 	PERB Decision No. 	97; 	John Swett Unified
School District 	(1981) 	PERB Decision No. 	188; 	Compton Community
College District 	(1988) 	PERB Decision No. 	704.)	-
The 	Union and the District have been parties 	to 	a CBA
in effect, 	by 	its 	terms as modified by 	successor reopener
negotiations, 	from 1986 to September 	15, 	1992.
10

ARTICLE 	XVII
SAFETY 	CONDITIONS
1.0 	The 	responsibility 	for providing 	for
reasonably 	safe working 	conditions 	which
are 	in conformance with the 	applicable 	law
and which 	are within 	fiscal 	constraints
shall be the District's. 	Employees 	shall
be 	responsible 	for 	complying with 	safety
procedures 	and practices 	and 	for reporting to
the 	immediate 	supervisor as 	soon as possible
any unsafe condition, 	facility, 	or equipment.
At 	each Maintenance Area 	and major work 	site,
there 	shall 	be posted the name of 	an
individual 	designated 	by 	the 	District
to 	receive 	employee reports 	of unsafe
conditions. 	There 	shall be no reprisal
against 	an 	employee 	for reporting an unsafe
condition, 	facility or equipment.
Macdonnell was 	the person designated to 	receive 	employee 	reports
of unsafe working conditions 	in Area 	19; 	however, 	Kaady never
reported his 	concerns 	directly to Macdonnell.
Macdonnell 	described the 	Jordan assignment 	as 	a 	"relatively
superficial 	job" 	that did not 	involve Kaady's 	exposure to
energized 	480 	voltage. 	Sanchez 	also testified that 	Kaady was
never 	exposed to 	live 	480 	voltage 	on this 	assignment because 	the
electrical 	supply 	to 	the 	transformer was 	disconnected 	and 	the 	job
was 	never 	completed.
While working on this 	assignment, 	Kaady 	failed to 	establish
a 	temporary 	bypass 	electrical 	system that would 	allow him 	to
supply 	the power 	to 	the transformer without 	disruption to 	the
electrical power for the 	school's bell 	system. 	As 	a result, 	the
bell 	and public 	address 	system was 	disconnected 	and 	inoperable
for approximately 	10 to 	15 minutes.
11

Following this 	incident, 	Kaady took 	job-related
stress 	leave, 	as provided for by the CBA, 	from October 	18 	to
approximately November 2, 	1990.5 The record does 	not establish
whether 	Kaady took permissive 	or mandatory 	leave.
Shortly 	after Kaady returned to work, 	he had a 	corrective
conference with Macdonnell, 	Parrillo and Joe Vaughn 	(Vaughn), 	the
Union business representative, 	on November 	16. 	At this 	meeting,
Kaady's 	overall 	performance 	during 	the previous 	few months 	was
discussed, 	and 	corrective measures were 	established 	for his
improvement. 	A written memorandum of 	the 	conference was 	later
given to 	Kaady.
On the day of this 	conference, 	Kaady complained of 	insomnia,
headaches, 	stomach pains, 	nightmares and other physical 	symptoms.
Effective November 	16, 	he was 	allowed to extend his 	industrial
illness 	leave.
Before Kaady returned 	to work, 	he 	spoke with Macdonnell
in late November about his 	general medical 	condition. 	Because
of Macdonnell's 	reservation about Kaady's 	fitness 	to 	resume
his duties, 	with Kaady's permission, 	Macdonnell telephoned his
psychiatrist. 	The doctor's 	reference to Kaady's possible 	"self-
destructive or inappropriate behavior" 	unless 	his work 	location
5Article XII 	governs 	leaves 	of absence. 	Section 	1.0
defines 	"leaves" 	as 	either 	"permissive" 	or 	"mandatory." 	If a
leave is 	"permissive," 	". 	. 	. t h e District retains discretion
as 	to whether they are 	to be 	granted and as 	to the 	starting and
ending dates 	of 	the 	leave." 	The District has 	no discretion
as 	to whether 	"mandatory" 	leave 	is 	to be granted to a qualified
employee. 	Section 	12.0 et 	seq. 	contains 	language pertaining to
paid 	industrial 	injury/illness 	leave.
12

was 	changed, 	alarmed Macdonnell. 	Macdonnell discussed the matter
with 	his 	supervisors 	and 	it was 	decided 	that 	Kaady 	should be
examined by 	an 	independent psychiatrist. 	Parrillo 	notified 	Kaady
of this decision by letter, 	on or about November 26.
When Kaady attempted to return to work on December 	10,
1990, 	the District refused to authorize his 	return until he
was 	examined by a 	counselor 	selected by the 	District. 	Despite
clearance by his private psychiatrist, 	according to the District,
it wanted 	another 	evaluation to 	insure 	that 	Kaady did 	not present
a danger to himself 	or his 	co-workers.
Kaady 	appealed 	the 	District's 	medical 	disqualification 	from
his 	return to 	service with the 	District personnel 	commission.
The 	personnel 	commission 	received 	the 	evaluation 	from the
independent medical 	examiner on or about December 26, 	stating
that 	Kaady was 	fit to 	resume work, 	and recommending that he be
given 	a 	requested 	transfer and 	continue 	therapy 	for nonwork-
related problems. 	The personnel 	commission adopted these
recommendations on or about January 	30, 	1991. 	Kaady was 	allowed
to return to work on February 	1, 	1991.
The Notices 	of 	Unsatisfactory Service 	Issued February 	1. 	1991
On February 	1, 	the day 	that Kaady returned to work
from his 	leave of 	absence, 	Parrillo 	issued him two notices 	of
unsatisfactory 	service. 	One notice, 	covering the period from
May 3 	through May 	11, 	1990, 	charged him with 	"discourteous,
abusive, 	or threatening treatment of the public, 	employees, 	or
13

students 	. 	. 	. 	." 	The conduct which formed the basis for this
notice were 	the 	statements 	Kaady made 	in early May 	1990 	to
co-workers 	Newman, 	Machtolf 	and Brown about his 	anger toward
Bourland. 	This 	notice recommended no disciplinary action.
According to Sue Campbell 	(Campbell), 	the District personnel
representative 	for classified employees, 	the personnel office did
not 	learn about Kaady's 	"threat" 	statements 	until 	several months
after they were made. 	She personally 	interviewed the 	three
employees, 	who wrote 	statements 	in early December 	1990, 	before
deciding to 	issue 	a 	notice. 	Though 	she 	considered the 	statements
serious 	enough to warrant dismissal, 	no disciplinary action was
recommended as 	an accommodation of Kaady's 	illness. 	Instead, 	the
notice was 	issued as 	a warning.
The 	second notice, 	covering the period from October 	18 	to
November 	16, 	1990, 	charged Kaady with 	"incompetency, 	inefficiency
and 	inattention to or dereliction of 	duty." 	This 	notice
referenced 	five 	instances 	of 	Kaady's 	unsatisfactory performance
between February and November 	1990 	(some of which 	is 	described
--supra
---·) 	during which time he worked on the 	fire alarm 	inspection
and 	the boiler crews. 	This 	notice recommended a 	five-day
suspension.
Kaady, Vaughn, 	Parrillo, 	Macdonnell and Campbell met
on February 	9, 	1991, 	for an administrative review of the two
unsatisfactory 	notices. 	Kaady 	also 	submitted written rebuttal
to the charges on or about February 	11. 	In April, 	the five-day
suspension was 	imposed on Kaady.
14

Effective February 	1, 	Kaady was 	assigned permanently as 	an
electrician to the boiler 	crew, 	working under the 	supervision of
Sanchez.
The 	March 	1991 	Incident at 	Abram 	Freidman 	Occupational 	Center
(AFOC)
Between March 	18 	and March 22, 	Kaady was assigned to AFOC to
install 	a 	fuse disconnect 	switch 	for a 	chiller to 	increase 	the
voltage 	from a transformer. 	Before he 	started this 	assignment,
Sanchez 	gave Kaady oral 	instructions 	about how to 	complete 	the
job. 	Even so, 	Kaady again asked for a written job plan, 	a
• 	material 	list and an assistant 	journeyman electrician, 	since
he 	again believed 	that 	he would be working with high voltage.
Sanchez 	told him that 	there were workers 	at the 	site who 	could
assist him, 	but the assistant did not have to be a 	journeyman
electrician.
After a 	few days, 	it became apparent to his 	supervisors
that Kaady was having problems 	completing this assignment, 	so
Macdonnell prepared 	a detailed 	set 	of written 	installation
instructions. 	These instructions were given to Sanchez, 	who
delivered 	them 	to AFOC 	and posted 	them 	on 	the 	transformer 	itself.
They were 	never personally handed 	to 	Kaady. 	Kaady 	completed 	the
installation, 	but incorrectly wired the transformer, 	thereby
decreasing the voltage 	(to 240 volts), 	instead of increasing
it to 	480 	volts 	as directed.
At the hearing, 	Kaady admitted 	seeing the 	instructions, 	but
testified 	that he did 	not 	understand 	that 	they were 	for him to
use 	to 	complete the 	assignment.
15

The May 31, 	1991, 	Incident with Sanchez
On or about May 	28, 	Kaady was 	assigned to 	install 	an
electrical 	conduit 	at Sunland Elementary 	School. 	On May 	31,
Kaady had 	a 	telephone 	conversation with 	Sanchez 	about his
progress 	in completing the assignment. 	Sanchez 	felt that Kaady
was 	taking too 	long to do the 	job 	since 	it was 	not 	complicated.
Sanchez 	told Kaady that 	it was 	a 	simple 	job and 	should have been
completed. 	Kaady responded to Sanchez 	as 	follows:
You know, 	I'll tell you what 	is 	simple. 	What
is 	simple 	is what you're doing over there
sitting on your ass 	telling me what to do.
That is 	simple.
Sanchez 	told 	Kaady that he 	did 	not 	appreciate being 	spoken to
that way, 	and, 	in response, 	Kaady said that he was not 	serious,
but 	just 	joking. 	Sanchez did not regard the remarks 	as
insignificant. 	He reported them to 	Parrillo 	and asked him
to have Kaady 	"written up."
On June 	13, 	Parrillo and Macdonnell met with Kaady and
Vaughn 	in 	a predisciplinary meeting. 	Kaady was 	presented with
a written 	list of 	several 	instances 	of 	improper conduct or
performance between March 	18 	and June 	7. 	The details 	of those
incidents 	are 	set 	forth supra
- -. . 	except 	for allegations 	that he
failed 	to 	report directly 	to 	his 	Sunland 	school 	assignment 	on
May 	28, 	and read a newspaper 	for 20 	minutes before the end of
the work day on May 	31. 	The meeting was 	brief because Kaady
refused to discuss 	the allegations without his 	attorney present,
even though Vaughn was 	there 	as 	his 	Union representative.
.. .
16

Parrillo received a letter, 	on or about June 25, 	from
attorney Alene Games, 	responding, 	on Kaady's behalf, 	to the
allegations presented at 	the June 	13 	meeting and accusing the
District 	of 	harassing him. 	Parrillo 	notified the 	classified
personnel 	office that he had received the June 	25 	letter;
however, 	the District did not respond to 	it. 	Kaady also
submitted written rebuttal 	to 	these 	allegations.
The 	Notice of 	Unsatisfactory Service 	Issued July 	12. 	1991
Kaady 	received 	a 	third 	notice 	of 	unsatisfactory 	service 	on
July 	12, 	charging him with 	"abusive behavior, 	inefficiency and
inattention to or dereliction of duty." 	This 	notice was 	based
on the 	items presented at the June 	13 	predisciplinary meeting.
On August 	2, 	the District 	sent Kaady a notice of 	intended
discipline, 	recommending his dismissal 	from service. 	The
recommendation for dismissal was based on: 	(1) 	a notice of
unsatisfactory service issued January 29, 	1986, 	for similar
causes, 	with no recommended discipline; 	(2) 	the notice of
unsatisfactory 	service 	issued February 	1, 	with a 	five-day
suspension; 	(3) 	the 	interim counseling that Kaady received
in 	1990; 	and 	(4) 	the July 	12 notice of unsatisfactory service.
The 	District 	board 	formally 	dismissed 	Kaady 	from 	employment
on October 	8.
Kaady 	appealed his 	dismissal with 	the 	District personnel
commission and, 	at the time of the hearing, 	was 	scheduled for
an appeal hearing on January 22, 	1992.
17

ISSUES
Whether the District's 	actions 	against Kaady, 	between
December 	1990 	and October 	1991, 	were taken in reprisal 	for his
exercise 	of protected rights 	in violation of 	section 	3543.5(a)
and 	(b)?
CONCLUSIONS 	OF 	LAW
Section 	3543 	guarantees public 	school 	employees 	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 . 	. 	. 	. 	[and] represent
themselves 	individually 	in 	their 	employment
relations with the public 	school 	employer,
Section 	3543.5(a) 	prohibits 	an employer 	from 	imposing reprisals
or discriminating against 	employees 	because of the 	exercise 	of
such rights.
Cases 	alleging discrimination or reprisal 	are 	analyzed by
the 	test 	established 	in Novato 	Unified 	School 	District 	(1982)
PERB Decision No. 	210. 	There, 	in order to establish a prima
facie case of discrimination or reprisal, 	the charging party must
first 	show that he 	engaged 	in conduct 	that 	is 	protected activity
within the meaning of 	EERA. 	(Novato 	Unified School 	District,
supra; 	Pleasant Valley School District 	(1988) 	PERB Decision
No. 	708.)
The 	record 	shows 	that 	Kaady 	engaged 	in 	several 	activities
that 	are protected under EERA, 	including his 	complaint about
18

an unsafe working condition at Jordan High School, 	the use of
contractually provided 	industrial 	illness 	leave, 	the use 	of 	Union
representation regarding work-related problems, 	and the 	filing of
an unfair practice 	charge. 	The 	safety 	complaint 	and the use 	of
industrial 	illness 	leave were not only protected under EERA, 	but
also were an assertion of 	contractual 	rights. 	It 	is 	further
noted that Article XVII, 	section 	1.0 	contains 	language protecting
an 	employee 	against reprisal 	for 	"reporting an unsafe 	condition,
facility or equipment." 	(Pleasant Valley School District, 	supraf
PERB Decision No. 	708; 	North Sacramento School District 	(1982)
' PERB Decision No. 	264.)
Although 	the 	District 	disagrees 	that 	an unsafe 	or hazardous
work 	condition existed with 	respect 	to 	Kaady's 	Jordan High 	School
assignment, 	it does 	not dispute the protected nature of 	Kaady's
conduct 	in making 	the 	complaint 	or participating 	in 	the 	other
activities.
The Novato test 	next requires 	that 	the 	employer have 	actual
or 	imputed 	knowledge 	that 	the 	alleged 	discriminatee 	engaged 	in
protected 	conduct. 	(Moreland Elementary 	School 	District 	(1982)
PERB Decision No. 	227.) 	It 	is undisputed that various 	District
representatives, 	including 	several of Kaady's 	supervisors 	and
District personnel managers, 	were 	either present when Kaady
engaged 	in his 	various 	protected 	activities 	or were 	notified 	of
such 	activity 	in writing.
19

Kaady personally 	lodged his 	complaint 	about 	the 	unsafe
. 	work assignment and the threat to call OSHA with his 	supervisors,
Bourland and 	Parrillo, 	when they visited the 	job 	site 	to 	inspect
the 	situation.
Kaady's 	use of 	industrial 	illness 	leave and his 	appeal 	of
the 	District's 	medical 	disqualification 	from return to 	service
were well-known to Macdonnell, 	Parrillo and Campbell, 	the
personnel 	representative, 	because of their personal 	involvements
in processing his 	case.
It 	is 	unclear when Parrillo 	and other District
representatives 	first 	learned that 	Kaady had 	filed his 	initial
unfair practice 	charge 	against 	the District. 	The 	charge was
filed with PERB on January 29, 	1991.
Kaady's 	use 	of 	Union 	representation and 	assistance 	regarding
work-related problems 	is 	well-documented 	and was 	known to 	all 	his
immediate 	supervisors 	and 	District personnel 	managers 	since
several 	of 	them met with 	Union representative Vaughn and 	Kaady 	in
predisciplinary and 	administrative 	review meetings 	in 	1990 	and
1991.
Finally, 	the Charging Party 	is 	required to 	establish a
nexus; 	i.e., 	that the adverse actions taken by the employer were
motivated by his protected activities. 	Various 	factors 	have been
employed to determine unlawful 	motivation 	in reprisal 	cases.
Statements 	of, 	or indicating such motive, 	are certainly a 	strong
indication thereof. 	(Santa Clara Unified School 	District 	(1979)
PERB Decision No. 	104.) 	Since this 	sort of overt proof 	is 	often
nonexistent 	in reprisal 	cases, 	circumstantial 	evidence may
20

establish the 	required employer animus. 	Factors which are
considered 	include 	the proximity 	of 	the 	adverse 	action to
knowledge of 	the protected activity 	(timing),6 disparate
treatment,7 failure to 	follow usual procedures,8 a pattern of
union animus,9 and/or 	shifting 	justifications 	for the 	action
taken and 	the 	cursory 	investigation thereof.10
However, 	the mere fact that an employee 	is or was
participating 	in union activities 	does 	not 	give 	him 	immunity 	from
routine 	employment 	decisions 	or 	insulate him 	from discharge 	for
misconduct. 	(Martori Brothers Distributors v. 	Agricultural Labor
Relations Board 	(1981) 	29 Cal.3d 721 	[175 Cal.Rptr. 	626].) 	In
Martori, 	the court held that:
[W]hen it 	is 	shown that the employee is
guilty 	of 	misconduct warranting discharge,
the discharge 	should not be 	deemed 	an unfair
labor practice 	unless 	the 	board determines
that 	the 	employee would have been retained
"but for" 	his 	union membership or his
performance 	of 	other protected 	activities.
(Id. 	at p. 	730.)
There 	is 	no direct 	evidence demonstrating animus 	toward
Kaady because he 	engaged 	in protected 	conduct.
6(North Sacramento School 	District, 	supra, 	PERB Decision
No. 	264.)
7(State of California 	(Department of Transportation) 	(1984)
PERB Decision No. 	459-S.)
8(Santa 	Clara 	Unified 	School 	District, 	supra, 	PERB 	Decision
No. 	104.)
9(Cupertino 	Union Elementary School 	District 	(1986) 	PERB
Decision No. 	572.)
10(State 	of 	California 	(Department 	of 	Parks 	and 	Recreation
(1983) 	PERB Decision No. 	328-S.)
21

Charging 	Party 	argues 	that 	unlawful 	motivation 	can be
inferred 	from the 	actions 	of 	Parrillo 	and Macdonnell when they
delayed his 	return to work 	from 	industrial 	illness 	leave 	from
December 	10, 	1990, 	to February 1, 	1991. 	He points to the timing
of 	this 	delay 	following his 	safety complaint 	in October 	1990 	and
his 	exercise of the right to take the 	industrial 	illness 	leave
starting November 	16, 	1990. 	Additionally, 	Charging Party
contends 	that 	the 	explanation presented by the 	District 	for the
delay is pretextual, 	since he was not aware that his May 	1990
comments 	about 	Bourland were 	an 	issue 	or 	that an 	investigation
was 	undertaken until 	he 	received the 	notice 	of unsatisfactory
service on February 	1, 	1991. 	Kaady also contends that, 	if
his 	statements 	about 	Bourland 	created 	such 	a 	"threatening
environment" 	as the District claims, 	the District's delay of
almost 	nine 	months 	before 	taking any action against 	him raises
serious 	doubts 	about 	the validity of 	the delay and the
unsatisfactory notice. 	Kaady maintains 	that 	an 	inference
of unlawful motive can be made 	from this 	evidence.
The 	timing of 	these 	two adverse 	actions 	did 	follow closely
after Kaady's 	involvement 	in protected activities. 	The delay 	of
his 	return to work and the 	initial 	investigation of 	the May 	1990
remarks 	both 	occurred within two months 	after Kaady made his
safety 	complaint 	to 	Parrillo 	and 	Bourland 	and went 	on 	industrial
illness 	leave.
It 	is 	undisputed that Macdonnell 	knew about the 	rumored
comments 	in May 	1990. 	Yet, 	when Kaady was 	counseled by
Macdonnell and Parrillo on November 	16, 	1990, 	about his
22

performance deficiencies that 	lead to the February 	1, 	1991,
notice recommending a 	five-day 	suspension, 	no mention was 	made
of 	his 	alleged 	inappropriate remarks 	about 	Bourland. 	Apparently,
this aspect of Kaady's behavior was 	of 	no great 	concern to his
supervisors 	in November 	1990.
Kaady's 	use 	of 	union representation at 	counseling 	and
predisciplinary meetings with Parrillo, 	Macdonnell 	and Sanchez
(June 	13, 	1991, 	meeting only) 	in November 1990, 	February 	1991 and
June 	1991, 	is 	interwoven with the timing of the July 	12, 	1991,
unsatisfactory notice; 	the August 2, 	1991, 	notice of intended
dismissal; 	and his 	termination in October 	1991. 	There 	is 	some
correlation between the District's 	knowledge 	of 	this 	protected
activity and these adverse actions 	against him. 	Timing, 	along
with other factors, 	can lead to an inference of unlawful motive.
Assuming that the element of timing 	is present in this 	case,
timing alone does 	not 	establish unlawful 	motivation. 	(Charter
Oak Unified School District 	(1984) 	PERB Decision No. 	404.)
The 	record 	fails 	to 	establish 	any of 	the other 	indicia 	of
animus, 	and it is 	the Charging Party's burden to present 	such
evidence.
Although there 	is 	evidence 	of 	significant 	friction between
Kaady and 	Bourland during 	the 	time 	that 	Kaady was 	assigned 	to 	the
fire alarm inspection crew, 	there 	is 	no 	indication that Bourland,
or any of 	the other 	supervisors, 	showed hostility or animus
toward Kaady's 	safety complaint. 	In fact, 	Parrillo considered
the 	safety 	issue 	rectified when Kaady was 	provided with a 	ladder,
as 	requested, 	and 	informed that 	adequate 	assistance was 	available
23

when needed to pull 	the wire at the 	Jordan High 	School
assignment. 	There 	is 	no 	indication that this 	issue was 	given any
further 	consideration by 	the 	District until 	the Charging 	Party
raised 	it 	in his 	first unfair practice charge.
No 	evidence was 	presented 	to 	show that 	Kaady was 	subjected
to disparate 	treatment with respect 	to the 	frequency or types 	of
disciplinary actions 	taken against him. 	Nor was 	a pattern of
union animus demonstrated. 	Macdonnell 	testified that he 	is 	a
union member, 	as are most employees under his 	supervision.
According to Parrillo, 	union representation of members 	of Unit E
is 	quite 	common in the maintenance and operations 	division.
Thus, 	Kaady's 	representation did not 	engender hostility toward
such 	activity.
Kaady contends 	that 	the District 	failed to 	follow its 	usual
procedures 	in that 	it did not provide him with notice of 	the
allegations 	of misconduct 	in May 	1990 	before 	imposing discipline.
While 	the 	almost 	nine-month delay between his 	alleged
inappropriate 	behavior 	and 	the 	subsequent 	discipline 	present
questions 	as 	to their propriety, 	the 	evidence 	fails 	to 	establish
that, 	in similar cases, 	the District's policy or practice was to
discipline 	employees 	more promptly.
Similarly, 	the evidence also 	fails 	to 	establish 	shifting
explanations 	for 	Kaady's 	discipline 	and 	eventual 	termination 	from
employment or a cursory investigation thereof. 	There 	is 	no basis
for 	inferring unlawful 	motivation 	in 	connection with 	these
adverse actions.
24

Based on the foregoing, 	it 	is 	concluded that the evidence
fails 	to 	establish a prima 	facie 	case 	of 	reprisal 	for protected
activity. 	While 	this 	finding makes 	it unnecessary to 	complete
the Novato analysis, 	it is 	further concluded that the District
has 	rebutted 	any prima 	facie 	case which might have been
established by a preponderance of 	the 	evidence. 	The District
presented ample 	reasons 	to 	support 	its 	belief 	that Kaady 	failed
to 	attain and 	sustain an acceptable 	level 	of performance 	and
conduct, 	despite counseling and the 	issuance of three notices
of unsatisfactory service between February 	1 	and July 	12, 	1991.
This 	evidence, 	coupled with Kaady's prior disciplinary record 	and
evidence 	of 	unacceptable performance 	even prior to his 	protected
activity, 	establishes 	that the District would have 	issued the
three 	1991 	notices 	of 	unsatisfactory 	service and recommended
Kaady's dismissal 	from service, 	absent his protected activity.
(Baldwin Park Unified School 	District 	(1982) 	PERB 	Decision
No. 	221.)
There is no evidence, 	likewise, 	that the District's actions
against 	Kaady 	in any way violated the 	Union's 	rights 	under 	EERA.
Thus, 	there 	is no basis 	for finding a violation of 	section
3543.5(b). 	(Tahoe-Truckee Unified School District 	(1988) 	PERB
Decision No. 	668.)
Based on these conclusions, 	both charges 	and complaints
should be dismissed in their entirety.
PROPOSED 	ORDER
Based upon the 	foregoing findings 	of 	fact, 	conclusions 	of
law and the 	entire record 	in this 	case, 	and no violations 	of
25
\

me
the 	Educational 	Employment 	Relations 	Act 	having been 	found:
It 	is 	hereby ORDERED that Unfair Practice Charge
No. 	LA-CE-3058 and LA-CE-3099, 	as amended, 	and the companion
complaints 	are 	DISMISSED.
Pursuant to California Code of Regulations, 	title 8, 	section
32305, 	this 	Proposed Decision and Order shall become 	final 	unless
a party files 	a 	statement of 	exceptions with the Board 	itself, 	at
the headquarters 	office in Sacramento, 	within twenty 	(20) 	days 	of
service of 	this 	Decision. 	In accordance with PERB regulations,
the 	statement 	of 	exceptions 	should 	identify by page 	citation or
exhibit number the portions of the record, 	if any, 	relied upon
for such exceptions. 	(See Cal. 	Code of Regs., 	tit. 	8, 	sec.
32300.) 	A document 	is 	considered 	"filed" 	when actually received
before the close of business 	(5 p.m.) 	on the last date 	set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or Express
United 	States 	mail 	postmarked 	not 	later than the 	last day 	set 	for
filing . 	. 	. 	." 	(See Cal. Code of Regs., tit. 	8, 	sec. 	32135;
Code Civil Proc., 	sec. 	1013(a) 	shall apply.) 	Any statement of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently with
its 	filing upon each party to 	this proceeding. 	Proof 	of 	service
shall 	accompany 	each 	copy 	served 	on a party 	or 	filed with 	the
Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8, 	secs. 	32300,
32305 	and 	32140.)
Dated: 	May 22, 	1992
W. JEAN THOMAS
Administrative Law Judge
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