Decision 1674E – Fresno County Office of Education

SA-CE-2004-E; SA-CE-2005-E

Decision Date: August 19, 2004

Decision Type: PERB Decision

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Perc Vol: 28
Perc Index: 219

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.11000 – Availability of Work

COE’s arguments that programmatic requirements justified the transfers were found to be without merit.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Contract Repudiation or Breach

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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
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.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.