Decision 0210E – Novato Unified School District

District's claim of operational necessity must be based on facts which are concurrent or which antedate the decision to transfer employee; p. 21.

District's claim of operational necessity must be based on facts which are concurrent or which antedate the decision to transfer employee; p. 21.

The NLRB and courts have generally considered employer discriminatory conduct to be covered by section 8(a)(3) of the NLRA, whereby it must be proven that the employee was engaged in protected activity and that the employer's conduct was motivated by that participation. Because retaliatory conduct is inherently volitional in nature, the same requirements are appropriate under EERA; pp. 5-6. Where the case revolves around the existence of both lawful and unlawful motives, the Board must determine whether the employer would have taken its action had the employee not engaged in protected activity; p. 16. Employer must have actual or imputed knowledge of the employee's protected activity.

The NLRB and courts have generally considered employer discriminatory conduct to be covered by section 8(a)(3) of the NLRA, whereby it must be proven that the employee was engaged in protected activity and that the employer's conduct was motivated by that participation. Because retaliatory conduct is inherently volitional in nature, the same requirments are appropriate under EERA; pp. 5-6.

Case properly before Board despite deficient charge because all issues were raised and fully litigated.

Evidence that respondent failed to offer justification to the agrieved employee at the time it took action against him or that it offered exaggerated or vague and ambiguous reasons is relevant in deducing improper motive; p. 13. By raising at the hearing new justifications, employer appeared to be attempting to legitimize its decision after the fact, an action supportive of an inference that the employer's motives were unlawful; pp. 13-14. Offering no justification to the aggrieved employee at the time it took action against him, or offering exaggerated or vague and ambiguous reasons is relevant in deducing improper motive. The District's failure to offer the teacher a reason for his transfer, and its later explanation that he had been employed at the high school over 20 years and needed a change, that he had become engrained in his its later explanation that he had been employed at the high school over 20 years and needed a change, that he had become engrained in his that the District violated EERA subsection 3543.5(a); pp. 12-14.

In interference cases where motive/intent is not an issue, the charging party need only make a prima facie showing that the respondent's conduct tends to or does result in harm to employee rights granted by statutes; p. 5, fn. 5.

Once charging party has made a prima facie showing that exercise of rights granted by EERA was a motivating factor in employer's decision to transfer, the burden shifts to the employer to prove that its action(s) would have been the same despite the protected activity. The shifting of burdens does not undermine or conflict with the requirement of Board rule 32178 that charging party must establish an unfair labor practice by a preponderance of the evidence. The shifting burden merely requires the employer to make what is actually an affirmative defense to the prima facie case of wrongful motive. Such a requirement does not shift the ultimate burden; p. 14. Direct proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus, unlawful motive can be established by circumstantial evidence and inferred from a state of mind which may be known only to the actor. Thus, unlawful motive can be established by circumstantial evidence and inferred from and unlawful motives, the Board must determine whether the employer would have taken its action had the employee not engaged in protected activity; p. 16.

The District's prerogative to transfer teachers is not absolute and its decision to transfer cannot be protected where the motive for such a transfer is unlawful; p. 19.

Proximity of time between employer's action to transfer employee and employee's vocal participation in grievance representation, along with the maintenance of a secret file on employee's union activitites and the disparity in employee's evaluations, sufficient to prove unlawful motive; pp. 20-21.

Proximity of time between employer's action to transfer employee and employee's vocal participation in grievance representation, along with the maintenance of a secret file on employee's union activities and the disparity in employee's evaluations, sufficient to prove unlawful motive; pp. 20-21.

Proximity of time between employer's action to transfer employee and and employee's vocal participation in grievance representation, along with the maintenance of a secret file on employee's union activities and the disparity in employee's evaluations, sufficient to prove unlawful motive; pp. 20-21. Violation of Education Code 44031 is evidence of improper motive.

Once charging party has made a prima facie showing that exercise of rights granted by EERA was a motivating factor in employer's decision to transfer, the burden shifts to the employer to prove that its action(s) would have been the same despite the protected activity. The shifting of burdens does not undermine or conflict with the requirement of Board rule 32178 that charging party must establish an unfair labor practice by preponderance of the evidence. The shifting burden merely requires the employer to make what is actually an affirmative defense to the prima facie case of wrongful motive. Such a requirement does not shift the ultimate burden; p. 14. District's claim of operational necessity must be based on facts which are concurrent or which antedate the decision to transfer; p. 21. which are concurrent or which antedate the decision to transfer; p. 21.

35035(c) The school district's transfer discretion is inherently limited by the requirement that it be exercised reasonably and in the best interests of the educational objectives of the school system. The District's prerogative is not absolute and its decision to transfer cannot be protected where the motive for such a transfer is unlawful; pp. 19-20. 35050(c) Contradictory to EERA section 3543.5(a), the protection of an employee's right to engage in protected activities free of reprisal is a fundamental legislative prupose. Limiting the District's power to transfer to purposes not prohibited by EERA harmonizes the two sections without depriving the District of its discretion to transfer employees for legitimate puposes. Violation of Education Code 44031 is evidence of improper motive. Violation of Education Code 44031 is evidence of improper motive.

35050(c)-contradictory to EERA section 3543.5(a), the protection of an employee's right to engage in protected activities free of reprisal is a fundamental legislative purpose. Limiting the District's power of transfer to purposes not prohibited by EERA harmonizes the two sections without depriving the District of its discretion to transfer employees for legitimate purposes.

Unlawful motivation inferred by transfer after generally and consistently previous good evaluations.

Motion denied where evidence irrelevant; p. 21.