Decision 0864E – Newark Unified School District

Where District involuntarily transferred employee in retaliation for his union activism, conduct also denied Association rights guaranteed under EERA and thus constituted violation of EERA section 3543.5(b); p. 18.

In applying the "but for" test in discrimination cases, trier of fact is required to weigh both direct and circumstantial evidence in order to determine whether an action would not have been taken against an employee "but for" the exercise of protected rights; p. 27, proposed dec.

To establish violation of section 3543.5(a), charging party bears the burden of showing that employee engaged in protected activity, that the employer knew of the activity, and that the protected activity was a motivating factor in the transfer decision; p. 5.

An inference of unlawful motive may be drawn from the record as a whole; p. 5.

Employer's refusal to provide information at meeting regarding discriminatory transfer raises specter of unlawful motive; pp. 30-32, proposed dec. Employer's hostile comments and reluctant dealings with teacher group and union are indicative of unlawful motive; p. 31, proposed dec.

Involuntary transfer from senior high school to junior high found to be adverse action where evidence showed that transfers to senior high school were regularly requested by junior high teachers as career moves, subject employee had previously attempted to transfer to senior high school, and no other teacher had volunteered for transfer from senior high school to junior high school; p. 12. Increased preparation time accompanying involuntary transfer from senior high school to junior high school not necessarily supportive of finding of adverse action; p. 13. Adverse action must be based on objective evidence; employee's temperament irrelevant in determination of whether employer conduct constituted adverse action; p. 14. But see concurring opinions.

Pursuant to the Board's decision in Los Angeles Community College District (1989) PERB Decision No. 748, timing of adverse action in proximity to protected activity is not sufficient, standing alone, to support inference of unlawful motive; p. 14.

Shifting or differing justifications offered by District in support of involuntary transfer supplies evidence of unlawful motive; p. 15. Exaggerated reasons offered to justify employer's adverse action are evidence which suggests unlawful motive; p. 29, proposed dec.

Where involuntary transfers were rare in a district, district's conduct of involuntarily transferring employee supports inference of unlawful motive; p. 15.

Under Palo Verde Unified School District (1988) PERB Decision No. 689, Board applied an objective test in determining whether action taken by the employer actually resulted in harm to subject employee; test is not whether employee found employer action undesirable, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee's employment; p. 11. Adverse action is not limited to formal disciplinary actions such as those enumerated in Gov. Code 19570.

Departure from long and established past practice is evidence from which unlawful motive may be inferred; p. 30, proposed dec.

Where District involuntarily transferred employee in retaliation for his union activism, conduct also denied Association rights guaranteed under EERA and thus constituted violation of EERA section 3543.5(b); p. 17. Employer's refusal to provide information constituted violation of EERA section 3543.5(c); conduct also denied Association its statutory right to bargain on behalf of unit members and thus violated section 3543.5(b); conduct further denied employee's right to have representation on a contract grievance and thus also violated section 3543.5(a); p. 18.

An inference of unlawful motive may be drawn from the record as a whole; p. 5.

Under section 3541.5(c) PERB is given power to issue decision and order directing offending party to take such action as will effectuate the policies of EERA; p. 20.

After charging party has proven prima facie case, to avoid finding of discrimination, employer must show that it would have taken adverse action against employee even if that employee had not engaged in protected activity; p. 15. District failed to meet its burden of showing that employee would have been transferred in absence of protected activity where it failed to offer non-pretextual justifications for retention of other teachers in employee's department; pp. 16-17.

Employer's refusal to provide necessary and relevant information upon request from association in grievance hearing constituted bad faith bargaining as employer failed to provide reason why it refused to provide this information; p. 18. In refusal to provide information, relevance is determined by liberal discovery-type standard; information is not deemed irrelevant simply because an exclusive representative is able to negotiate a contract or present a grievance without the information; proposed dec., p. 41. Employer's refusal to provide information constituted violation of EERA section 3543.5(c); conduct also denied Association its statutory right to bargain on behalf of unit members and thus violated section 3543.5(b); conduct further denied employee's right to have representation on a contract grievance and thus also violated section 3543.5(a); p. 18. representation on a contract grievance and thus also violated section 3543.5(a); p. 18.

Association entitled to staffing and enrollment projections prepared for District to verify need to transfer teacher; p. 18.

Where employer involuntarily transferred employee from senior high school to junior high in retaliation for exercise of protected rights, reinstatement to high school order delayed until beginning of next school semester so as to avoid disruption to the educational process; p. 19.