Decision 1674E – Fresno County Office of Education
SA-CE-2004-E; SA-CE-2005-E
Decision Date: August 19, 2004
Decision Type: PERB Decision
Description: The association alleged discrimination against two union officers for their protected activities, by, among other actions, involuntarily transferring them to positions with less favorable working conditions. The association further alleged that Fresno COE did not follow CBA procedures in implementing the involuntary transfers.
Disposition: The Board found that the union officers engaged in protected activity, the involuntary transfers was an adverse action and that the various factors established a nexus between the two, including departure from part practice, timing, shifting justifications, prior meritorious work records, and management statements at a staff assembly. The Board also found that Fresno COE did not follow CBA procedures in implementing the involuntary transfers. This decision has been appealed to the 5th District Court of Appeal.
Perc Vol: 28
Perc Index: 219
Decision Headnotes
300.01000 – In General
It is undisputed that Nolt and Allison, as Association officers and participation in representational activities, were engaged in protected activity from their responses to their supervisor’s questioning regarding the employee lounge incidents, the challenge to COE’s use of the Fund, their opposition to the superintendent’s candidacy, and their strong objections to COE’s proposal in negotiations, to their participation in the hearing over Fresno COE, in which both testified against the conduct of the superintendent and their supervisor and their resignation as Association officers to prevent the decertification effort.
300.06000 – Demands for Change in Working Conditions
It is undisputed that Nolt and Allison, as Association officers and participation in representational activities, were engaged in protected activity from their responses to their supervisor’s questioning regarding the employee lounge incidents, the challenge to COE’s use of the Fund, their opposition to the superintendent’s candidacy, and their strong objections to COE’s proposal in negotiations, to their participation in the hearing over Fresno COE, in which both testified against the conduct of the superintendent and their supervisor and their resignation as Association officers to prevent the decertification effort.
300.09000 – Participation in Board Process
It is undisputed that Nolt and Allison, as Association officers and participation in representational activities, were engaged in protected activity from their responses to their supervisor’s questioning regarding the employee lounge incidents, the challenge to COE’s use of the Fund, their opposition to the superintendent’s candidacy, and their strong objections to COE’s proposal in negotiations, to their participation in the hearing over Fresno COE, in which both testified against the conduct of the superintendent and their supervisor and their resignation as Association officers to prevent the decertification effort.
300.13000 – Holding Union Office
It is undisputed that Nolt and Allison, as Association officers and participation in representational activities, were engaged in protected activity from their responses to their supervisor’s questioning regarding the employee lounge incidents, the challenge to COE’s use of the Fund, their opposition to the superintendent’s candidacy, and their strong objections to COE’s proposal in negotiations, to their participation in the hearing over Fresno COE, in which both testified against the conduct of the superintendent and their supervisor and their resignation as Association officers to prevent the decertification effort
300.17000 – Other
It is undisputed that Nolt and Allison, as Association officers and participation in representational activities, were engaged in protected activity from their responses to their supervisor’s questioning regarding the employee lounge incidents, the challenge to COE’s use of the Fund, their opposition to the superintendent’s candidacy, and their strong objections to COE’s proposal in negotiations, to their participation in the hearing over Fresno COE, in which both testified against the conduct of the superintendent and their supervisor and their resignation as Association officers to prevent the decertification effort.
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities
The COE’s reassignment of Nolt and Allison constituted adverse action because, from a reasonable person’s standpoint, they were involuntarily transferred to positions with less favorable working conditions; ie, more lengthy commutes that negatively impact health, new jobs with difficult students, little or no security, loss of preparation period, lack of climate control, loss of quality time with his kids.
504.01000 – Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership
504.02000 – Disparate Treatment
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership.
504.03000 – Departure from Past Practices or Procedures
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership.
504.04000 – Timing of Action
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership.
504.05000 – Union Activity of Discriminatee
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership.
504.06000 – Meritorious or Satisfactory Work Record; Prior Promotion or Wage Increase
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership. Only Association activists to be involuntarily transferred for non-disciplinary reasons from continuing programs.
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership. Only Association activists to be involuntarily transferred for non-disciplinary reasons from continuing programs.
504.08000 – Cursory Investigation
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership.
504.12000 – Employer Statements or Conduct; Threats
There was sufficient evidence of nexus through the timing of the transfers, the varying justifications given for the transfers, the suspect investigation and results of the “employee lounge incidents” reported by Nolt and Allison as witnesses, and management’s statements at staff assemblies denouncing union leadership.
504.11000 – Availability of Work
COE’s arguments that programmatic requirements justified the transfers were found to be without merit.
602.02000 – Prior Notice and Opportunity to Bargain
Notice to the union must be made to a union official. Notice after the decision to implement transfers is not prior notice.
602.03000 – Change In Policy
Despite COE’s framing of the issue as “assignments,” the relocations of Nolt and Allison fit within the Involuntary Transfer provision of the CBA. COE did not follow specified procedures under the collective bargaining agreement before involuntarily transferring Nolt and Allison.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
The Association was unaware of previous “reassignments” because notice of previous reassignments was sent to Association members, not to Association officials.
1104.07000 – Bias or Prejudice/Motion to Disqualify
Board found no bias by ALJ because there was no evidence that he coached the discriminatee’s testimony.
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions
Board accords great deference to ALJ’s credibility findings and no evidence in record to support employer’s challenges to these findings. Findings are adopted by the Board.