Escondido Union Elementary School District (PERB 2019E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 150,
Charging Party, Case No. LA-CE-4862-E
Vv. PERB Decision No. 2019
ESCONDIDO UNION ELEMENTARY SCHOOL April 30, 2009
DISTRICT,
Respondent.

Appearances: California School Employees Association by Christina C. Bleuler, Attorney, for
California School Employees Association & its Chapter 150; Lozano Smith by Amanda S.
Georgino, Attorney, for Escondido Union Elementary School District.
Before Rystrom, Chair; Neuwald and Wesley, Members.
DECISION

RYSTROM, Chair: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Escondido Union Elementary School District (District) to findings
in the administrative law judge’s (ALJ) proposed decision.

The first amended complaint requested by the California School Employees

Association & its Chapter 150 (CSEA), alleged that the District violated the Educational

Employment Relations Act (EERA)! section 3543.5(a) and (b)’ by retaliating against

‘ EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

° EERA section 3543.5 makes it unlawful for a public school employer to:

(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.

Lance Barry (Barry) for filing a government tort claim against the District in May 2004, and
the instant unfair practice charge initially filed on June 3, 2005 (hereinafter referred to as this
unfair practice charge or Barry's unfair practice charge). The acts of retaliation for this
protected activity were alleged to be: the issuance of disciplinary memoranda dated
December 6, 2004 (December 6 memo), March 3, 2005 (March 3 memo) and July 12, 2005
(July 12 memo); as well as a July 18, 2005 letter ofreprimand (July 18 reprimand); an
August 30, 2005 notice of disciplinary action-statement of charges (August 30 notice); and a
September 13, 2005 decision of superintendent's designee regarding proposed disciplinary
action to impose a five-day suspension (September 13 suspension).
The ALJ concluded that the December 6 and March 3 memos were not issued in
violation of EERA.3 The ALJ found the July 12 memo, July 18 reprimand, August 30 notice,
September 13 suspension and a September 27, 2005 improvement plan (September 27 plan) 4
were issued in violation of EERA by the District because they were in retaliation for the filing
of this unfair practice charge. The District timely appeals the ALJ's findings of the EERA
violations based on the July 12 memo, July 18 reprimand, August 30 notice, September 13
suspension, and September 27 plan.
We reviewed the entire record in this case, including but not limited to the first
amended complaint, the District's answer, the hearing transcript, the parties' post-hearing
briefs, the ALJ's proposed decision, the District's statement of exceptions and supporting brief,
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
3 No exceptions were filed by either party to these findings. 	Thus, we do not review the
bases of these findings.
4 Although the September 27 plan was not listed in the first amended complaint as one
of the adverse actions taken against Barry in retaliation for engaging in protected activity and
was not litigated by the parties, the ALJ found that it was unlawful.
2

and CSEA's response thereto. 	Based on this review, and for the reasons stated below, we find
that the July 12 memo, August 30 notice, and September 13 suspension were retaliatory as
alleged and constituted violations ofEERA section 3543.5(a) and (b).5 We dismiss the
allegations alleging retaliation based on the July 18 reprimand finding CSEA failed to prove a
prima facie case as to this disciplinary action. 	We also find that the September 27
improvement plan was not included in the complaint and that it does not meet the test for an
unalleged violation.
PROCEDURAL BACKGROUND
This action commenced on June 3, 2005, when CSEA filed an unfair practice charge
against the District. The charge alleged that the District violated EERA by issuing the
December 6 and March 3 memos to Barry in retaliation for filing a government tort claim
against the District on May 11, 2004. PERB issued a complaint on July 7, 2005. On July 26,
2005, the District filed an answer to the complaint denying its allegations.
On August 8, 2005, PERB received a first amended charge from CSEA, which further
alleged that the District issued the July 12 memo and July 18 reprimand in retaliation for
PERB issuing the July 7, 2005 complaint on CSEA's charge. CSEA requested an amended
complaint be issued on October 14, 2005 based on CSEA's amended charge.
A formal hearing in the matter was held December 14-16, 2005. On the first day of the
hearing, at the request of CSEA, the ALJ issued a first amended complaint which included all
prior allegations and further alleged that the District issued Barry the July 12 memo, July 18
reprimand, August 30 notice and September 13 suspension in retaliation for Barry causing the
filing of this unfair practice charge. The ALJ issued her proposed decision on April 3, 2006.
5 We do not adopt the ALJ' s proposed decision as to these disciplinary actions given
our legal reasoning differs from that of the ALJ. We find that the District failed to meet its
burden of proof in this mixed-motive case.
3

ALJ'S PROPOSED DECISION
The ALJ found the evidence insufficient to show that the District issued Barry the
December 6 memo in retaliation for filing a government tort claim against the District because
CSEA failed to prove that the District had knowledge of Barry's involvement in the tort claim.
As to the March 3 memo, the ALJ concluded that the evidence failed to demonstrate
two necessary elements: that the District knew of Barry's involvement in the tort claim and
that such involvement constituted protected activity. The ALJ also concluded that even if
Barry's tort claim was protected activity and the District knew about it, the District would still
have issued Barry the March 3 memo.
The ALJ found that the District retaliated against Barry in violation of EERA
section 3543.S(a) and (b) for the filing of this unfair practice charge when it issued him the
July 12 memo, July 18 reprimand, August 30 notice, September 13 suspension, and
September 27 plan. The July 12 memo and July 18 reprimand were found to be retaliatory on
the basis that they were inaccurate, exaggerated, and the product of an inadequate and cursory
investigation by Francis Spoonemore (Spoonemore), the director of maintenance and
operations, and Barry's second line supervisor, who relied chiefly on the reports of three lead
workers who were known to have antagonistic relationships with Barry. 	Spoonemore was
also found to hold a degree of union animus.
The ALJ reasoned that the subsequent August 30 notice, September 13 suspension and
September 27 plan were retaliatory because they were based on and tainted by Spoonemore's
July 12 memo and July 18 reprimand. A further reason given by the ALJ for this finding of
retaliation was that the August 30 notice, September 13 suspension and September 27 plan
were unjust because they were additional adverse actions for the same conduct for which Barry
had already been disciplined.
4

THE DISTRICT'S EXCEPTIONS
The District excepts to all of the ALJ' s findings in support of her conclusions that
CSEA met its burden of proof of a prima facie case for each of the disciplinary actions found
to be retaliatory and that the disciplinary actions would not have issued in the absence of
Barry's unfair practice charge.
CSEA'S RESPONSE TO DISTRICT'S EXCEPTIONS
CSEA responds by claiming that all of the ALJ' s findings are supported by the weight
of the evidence.
FACTUAL BACKGROUND
Barry has been employed as a carpenter with the District since 1989 and has acted as
the chief steward ofCSEA for the past 12 years. From 1989 until May of 2004, Barry was
supervised by Maintenance Supervisor, Dan Lloyd (Lloyd). The only annual evaluations of
Barry were done by Lloyd and were for the years 1992, 1994, 1995, 1997, 1998 and 1999. 6 In
each evaluation, Lloyd rated Barry's performance as above average. The District
acknowledged that in most of the subcategories of those evaluations, Barry received above-
average ratings. 	There is no evidence that Barry received any separate oral or written
discipline by Lloyd.
CSEA acknowledged that Barry was not a perfect employee. Each of Lloyd's
evaluations stated that Barry needed to complete more projects and increase his productivity
and organization. 	Barry's 1997 evaluation commented that he should make it a goal to spend
less time socializing. Barry admitted that planning was one of his weak points.
District witness Jean Welser (Welser), director of classified personnel, testified that
employees are normally evaluated once a year. 	She acknowledged that there have been gaps in
the annual evaluations and did not know why they were not done in some cases.
5

Spoonemore was promoted to the director of maintenance and operations position in
July 2003, at which time he became Barry's second-line supervisor. In this position,
Spoonemore was responsible for the disciplinary actions in the maintenance and operations
department where Barry worked. 	In September or October 2004, Spoonemore spoke with
Barry regarding concerns about Barry's work productivity. Barry admits meeting with
Spoonemore in September 2004 regarding Spoonemore's belief that Barry's jobs had not been
completed in a timely manner.
Spoonemore testified that because he felt he was not getting through to Barry,
Spoonemore had a "one on one" meeting with Dave Foster (Foster), the CSEA president,
hoping that Foster could get through to Barry so his productivity and work habits would
improve and the need for documentation would be obviated.7 Spoonemore began drafting a
disciplinary memorandum to Barry in September or October 2004.
Welser worked with Spoonemore on his disciplinary actions and was usually the first to
review them. When Wesler received Spoonemore's initial draft of the December 6 memo on
September 2, 2004, she reviewed Barry's prior evaluations looking for common deficiencies or
patterns. In this review she noted a pattern of reports about Barry's lack of productivity and
excessive socialization.
Spoonemore issued this first disciplinary memorandum to Barry on December 6, 2004.8
The memo was critical of Barry's work productivity and cited several specific incidents as
examples of tardiness, not starting or completing work orders in a timely fashion and excessive
7 Foster testified that his first conversation with Spoonemore regarding Barry's work
productivity was at a disciplinary meeting regarding Barry's Skilsaw. This disciplinary
meeting took place in March 2005.
8 No exceptions are made to this disciplinary memo or the March 3 memo, but these
facts are relevant to the District's progressive discipline policy discussed infra.
6

socializing. The December 6 memo informed Barry that he was being placed on shop duty for
six months so that his work could be closely evaluated. It further stated that during this time
if
Barry had to leave the shop, he needed to report to Spoonemore where he was going,
what
he
was doing and how long he would be gone. 	The memo provided that Barry's work progress
would be evaluated at the end
of
six months.
On March 3, 2005, Spoonemore issued Barry a disciplinary memo that charged him
with insubordination for the repeat offense
of
making an unauthorized and potentially unsafe
modification to his newly issued Skilsaw.9 The March 3 memo resulted from a safety
inspection that Spoonemore ordered Larry Rouse (Rouse), one
of
Barry's leads, to conduct on
February 16, 2005, during which Rouse discovered that Barry's Skilsaw had been modified.
Barry admitted that he modified his second Skilsaw the same as he had modified his previously
asssigned Skilsaw.
The July 12, 2005 Memorandum
On July 12, 2005, Spoonemore issued Barry a follow-up memo to the December 6
memo referenced "Follow up Memorandum on Your Attendance, Work Performance, Safety,
and Job Conduct." The memo was four pages long and cited eight major criticisms
of
Barry's
work with examples as follows.
9 The first offense occurred on July 23, 2004, when an inspection by the Division
of
Occupational Safety and Health revealed that Barry's Skilsaw had been modified with two
little holes. Barry admitted being informed by the Department
of
Industrial Relations, Division
of
Occupational Safety and Health (Cal/OSHA), that the District could be cited for this
modification. After the inspection, Spoonemore cut the electrical plugs off of
Barry's Skilsaw
(rendering it useless), and issued him a new Skilsaw with explicit instructions not to modify it
many way. 	Barry denied receiving such instructions from Spoonemore with the replacement
Skilsaw.
7

1. 	Failure to follow directives: Barry violated Spoonemore's December 2004
directive to work from a prioritized list of orders and to see Spoonemore upon
completion for further orders which constituted insubordination.
2. 	Low productivity: Between December 20, 2004 and June 23, 2005, Barry
closed only 28 work orders, with other maintenance workers substantially
completing 14 of them. This productivity rate is very low considering the size,
scope and complexity of the work assigned.
3. 	Delay in beginning assignment: For more than 40 days after Spoonemore had
conducted a walk through at Lindon School assigning Barry a casework project,
Barry failed to order any materials for the project. Barry's ability to follow
directions and priorities, remain on task and complete work was cited as
unsatisfactory.
4. 	Failure to work with an assigned assistant: Upon his request, Barry was
assigned an assistant, Pete Tabone (Tabone) to help Barrry on June 29 and 30,
2005. 	On June 29 Barry did not begin working with Tabone until 10:00 a.m.
On both days Barry was observed talking on the phone or visiting with another
employee while Tabone stood around waiting for instructions. Later, Barry was
observed wandering around the yard or in another shop while Tabone, a new
maintenance employee, worked by himself. Barry was criticized for not
working with and overseeing the work of his assigned assistant.
5. 	Attitude regarding lack of productivity: Barry's actual work productivity
matches comments he has described to Spoonemore between 2000 and 2003 and
made to others more recently that: "The District is lucky if they get 15% out of
me;" proudly referring to himself (Barry) as "the Dark Side" and "Captain
8

Chaos;" and stating that he "Comfort the distressed and distress the comforted."
These statements are interpreted by Spoonemore as indicating Barry is content
with and even proud of his lack of productivity and disruptiveness making his
work performance unacceptable.
6. 	Excessive socialization: Barry socialized in excess with other employees which
was observed by Spoonemore and reported by Lead Workers Rouse and Eric
Thompson (Thompson), Custodial Supervisor Eric Daniels (Daniels) and
nutrition warehouse Supervisor Scott Oppitz. In addition, Barry engages in
activities that are insubordinate, unauthorized and/or detrimental to department
operations and morale.
Examples of these criticisms are: 	(a) making the unauthorized purchase of a
laser level and lying to his Lead Worker, Rouse, that the level had been loaned
to Barry by the lumber company; (b) telling Rouse who was questioning some
materials in Barry's truck that they were for a project Spoonemore had approved
when Spoonmore had not approved Barry's starting the project; (c) on April 7,
2005 telling Custodial Supervisor Daniels that Barry would be doing union
business for the rest of the day rather than informing one of Barry's Lead
Workers, Rouse or Thompson; (d) responding to Lead Worker Rouse, who
inquired about a project at Pioneer School, that Barry didn't care if it took him
one or two days, its been eight weeks and the project would be finished when
Barry finished it; (e) on June 8, 2004 at 8: 15 a.m. Barry was observed having a
45-minute discussion with a warehouse worker, David Lawrence, in Nutrition
without permission from the District administration to take this time away from
Barry's carpentry work; and (f) on June 2, 2005, at 8:15 a.m. Barry was
9

observed by Rouse with Kevin Hagerty (Hagerty) in the carpentry shop who left
after Rouse walked by and then returned fifteen minutes later and remained until
10:00 a.m. visiting with Barry and Terry Smith from grounds.
7. 	Undermining professional atmosphere: Barry engaged in unprofessional
disruptive behavior on June 6, 2005, when he interrupted a business meeting
custodial supervisor Daniels was having with a supplier by dropping off a piece
of paper with the word "CHAOS" written on it. 10 The word "chaos" on the
paper is considered further evidence of the pride Barry takes in undermining the
professionalism, productivity and morale of the Maintenance Department
operation.
8. 	Organizing barbeque: On April 21, 2005 Barry organized an unauthorized and
secret barbeque with a handful of other maintenance employees inside the paint
shop building with the main roll up doors closed. The grill was placed just
outside the side building exit door with the open flames within 20 feet of highly
flammable items. No permission was asked for the barbeque which constituted
an unauthorized use of District property as well as a negligent, insubordinate
and dishonest action.
The July 18, 2005 Reprimand
On July 18, 2005, Spoonemore issued Barry a letter of reprimand criticizing his
conduct at a staff safety meeting and his participation in a July 13, 2005, incident involving
Rouse' s tools.
The reprimand cited two instances where Barry was insubordinate during a staff
meeting. The first occurred when a group of employees were reading information on working
10 In his written response, Barry apologized for this incident.
10

safely and using trained personnel in confined spaces. Barry interrupted and stated that "these
guys [meaning the supervisors] would probably send in subs."
The second took place after Barry gave a pre-approved budget update when he made
comments to the group about: the fact that PERB had issued a complaint in his unfair practice
charge, his disciplinary problems, and how he thought Spoonemore treated him unfairly.
Spoonemore reprimanded Barry for making these comments on the basis they were
unapproved and unsolicited comments which resulted in undermining teamwork and
confidence in the District's leadership by bringing up Barry's personal disciplinary situation.
It also stated that Barry had intimidated fellow co-workers by giving misinformation about the
process. 11
The July 18 reprimand also described an incident where Barry wasted time. This
incident began when two maintenance employees brought a pile of Rouse's tools and
equipment to the carpentry shop where Barry was preparing a project. Custodial Supervisor
Daniels testified he observed Barry and his assistant carry tools and equipment belonging to
Rouse from the carpentry shop and dump it in a corner of the lead worker's office. 	When
Daniels asked them what they were doing, Barry replied that Rouse's equipment was in his
way and he could not find Rouse's truck.
Lead Worker Thompson12 testified that he observed Barry and another maintenance
employee carry Rouse's tools from the carpentry shop, where some of them would typically
belong, and put them in the lead worker's office where they did not belong. 	Consistent with
Barry told the workers attending the staff meeting that the PERB hearing officer was
investigating Barry's complaint and could subpoena witnesses.
12 Thompson had been a maintenance department lead worker since October 1, 2004.
He testified that lead workers receive, prioritize and assign work orders. They may not impose
discipline, but do refer disciplinary incidents to the director.
11

the reprimand, Thompson also testified that the carpentry shop was originally a bus garage
which was approximately 45-feet by 60-feet and contained more than sufficient room to put
Rouse's tools in it. At Thompson's direction, Barry moved the tools from the lead worker's
office. Thompson wrote Barry up because he believed Barry's actions were inappropriate and
provoked an unnecessary problem because there was already discord between Barry and
Rouse.
13
The August 30, 2005, Notice
of
Discipline
The August 30 notice stated that the District would propose to suspend Barry for five
days without pay. 	On July 28, 2005, prior to issuing this notice, Weiser met with Spoonemore,
Rouse, and Thompson to review Barry's response to the July
12
memo. Although Weiser
could not recall the exact date, she testified that the decision to recommend Barry's suspension
must have been made at least several weeks before August 30, because it takes time to put
together a statement
of
charges. Weiser testified that point-by-point she went over all the
memoranda that had been given to Barry, his responses, and anything else she had in his file.
She did this in an effort to make sure that all their information was correct and to determine
whether or not to take further disciplinary action against Barry.
The August 30 notice was based mainly on the incidents involving Barry described in
the July
12
memo but also contained incidents from the December 6 memo and July
18
reprimand. 	Weiser deleted the incidents in the July 12 memo regarding the priority listing
of
tasks and the unauthorized purchase of materials for the truck because she thought the listing
of
tasks could have been an honest misunderstanding and she determined that Barry had
authorization to purchase the materials for the truck.
12
Spoonemore testified that he believed he talked to Barry about the incident with
Rouse's tools before issuing the reprimand and that Barry told him it was a dumb thing to do.

The August 30 notice included a cover letter which stated that "overall" Barry failed to
correct the performance and behavioral issues identified in the four previous memoranda. 14
The cover letter also notified Barry that the suspension was being proposed due to his
negligent, inefficient, and/or incompetent job performance, and because of his insubordination
due to excessive socialization, failure to follow directions and undermining of departmental
objectives and procedures.
The September 13, 2005 Suspension
On September 13, 2005, in a memorandum to Barry, Bob Leon (Leon) stated he would
recommend the suspension to the Board of Education (BOE) at its meeting on September 15,
2005. 15 In this memo Leon indicated the reason for this recommendation was Barry's
inappropriate behavior towards his supervisors and other employees, and concern's about
Barry's work completion. BOE adopted the recommendation and Barry served his suspension
from September 19-23, 2005. 16
The September 27, 2005 Revised Improvement Plan
On or about September 27, 2005, Leon, Welser and Spoonemore issued Barry a revised
improvement plan which listed various guidelines Barry was to follow in the future. 	The plan
encouraged Barry to accept his supervisor's directions. Additionally the improvement plan
directed him to refrain from insubordination, modifying equipment and excess socializing, to
plan and complete work in a timely manner, to request permission before having barbecues,
These were the December 6 memo, March 3 memo, July 12 memo, and July 18
reprimand.
15 Leon is the assistant superintendent of human resources for the District.
16 Barry appealed his five-day suspension to the Merit System Commission as
excessive, unreasonable and a product of supervisor abuse. As of the hearing on the instant
unfair practice complaint, this appeal was scheduled for February 1-3, 2006.
13

and to notify his supervisors when he leaves the maintenance yard, where he is going and when
he will return.
DISCUSSION
In considering an appeal, PERB reviews the entire record de novo. It may reverse legal
determinations of an ALJ and, from the factual record, may draw opposite inferences from
those drawn by the ALJ. (Woodland Joint Unified School District (1990) PERB Decision
No. 808a; Santa Clara Unified School District (1979) PERB Decision No. 104 (Santa Clara).)
[W]hile the Board will afford deference to the [ALJ's] findings of
fact which incorporate credibility determinations, the Board is
required to consider the entire record, including the totality of
testimony offered, and is free to draw its own and perhaps
contrary inferences from the evidence presented.
(Santa Clara.)
CSEA' s Retaliation Allegations
To establish a prima facie case of retaliation in violation ofEERA section 3543.S(a)
and (b), CSEA must show that: (1) Barry engaged in protected activity; (2) the District knew
of this activity; and (3) the District took adverse action against him because of the activity.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
Once CSEA has established a prima facie case for the alleged adverse actions, the
burden of proof switches to the District to show evidence that it would have taken the adverse
action even if Barry had not engaged in protected activity. (Novato, supra; Martori Brothers
Distributors v. Agricultural Labor Relations Ed. (1981) 29 Cal. 3d 721, 729-730 (Martori
Brothers); Wright Line (1980) 251 NLRB 1083.) This is the "but for" test which is "an
affirmative defense the employer must establish by a preponderance of the evidence."
(McPherson v. Public Employment Relations Ed. (1987) 189 Cal.App.3d p. 293.)
14

CSEA has alleged four retaliatory adverse actions: the July 12 memo, July 18
reprimand, August 30 notice, and September 13 suspension. We address each of the adverse
actions seriatim.
1. 	The July 12, 2005 Memorandum
The District does not dispute Barry engaged in protected activity when he filed the
instant unfair practice charge on June 3, 2005, but argues that CSEA did not prove a prima
facie case of retaliation for the July 12 memo based on exceptions to the ALJ' s conclusions
that: (1) the District's agents responsible for issuing the memorandum had knowledge of the
filing of this unfair practice charge prior to issuing the July 12 memo; and (2) a nexus existed
between the issuance of the July 12 memo and Barry's protected activity. The District also
challenges the ALJ's determination that the District would not have issued the July 12 memo
in the absence of the protected activity.
a. 	Knowledge
The District claims the ALJ improperly assumed that the District knew of Barry's
involvement in this charge, because Spoonemore was noted in the charge as having retaliated
against Barry and did not deny such knowledge at the hearing. The District argues this
assumption fails because CSEA did not present any direct evidence as to the filing and service
of the charge or that anyone at the District knew of Barry's charge.
The burden of demonstrating the requisite knowledge of Barry's protected activity is on
the charging party. (Novato, supra; PERB Reg. 32178.) 17 We find that the ALJ improperly
placed the burden of proof on the District to affirmatively deny knowledge of Barry's
involvement in protected activity. However, we conclude the record contains sufficient
17 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
15

evidence to support a finding of knowledge by the District of Barry's protected activity prior to
the issuance of the July 12 memo.
It is clear from the record that Welser knew about the unfair practice charge by June 8,
2005, because on June 9, 2005, PERB received a notice of appearance form on behalf of the
District that was signed and dated by Welser on June 8, 2005. 	Welser's testimony indicates
she worked with Spoonmore in the preparation of the July 12 memo. Consistent with Wesler's
testimony, when Spoonemore was asked whether he had help in preparing the July 12 memo or
ifhe had reviewed it with anybody, Spoonemore responded he had reviewed it with Welser
although he did not specify when.
Accordingly, we conclude the evidence justifies a finding that one of the District's
disciplinary agents, Weiser, knew of Barry's protected activity prior to July 12, 2005 and was
involved in the issuance of the July 12 memo to Barry.
b. 	Nexus
When direct evidence of unlawful motive is not available, such motive can be
established through circumstantial evidence and inferred by the record as a whole. (Novato,
supra.) Although relevant, the timing of the adverse action, standing alone, cannot establish
the action was taken because of the protected activities. (Moreland Elementary School District
(1982) PERB Decision No. 227.) Evidence establishing one or more of the following
additional factors must also be present: 	(l) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S; State of
California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S (Parks
and Recreation)); (2) the employer's departure from established procedures and standards
when dealing with the employee (Los Angeles Unified School District (2001) PERB Decision
No. 1469; Alisa! Union Elementary School District (2000) PERB Decision No. 1412); (3) the
16

employer's inconsistent, contradictory or vague justifications for its actions (Parks and
Recreation, supra); (4) the employer's cursory investigation of the employee's misconduct
(Novato, supra); (5) employer animosity toward union activists (Cupertino Union Elementary
School District (1986) PERB Decision No. 572); or (6) any other facts which might
ul motive (Novato, supra).
The District argues on appeal that it was improper for the ALJ to find that timing exists
as a nexus factor because the timing of the July 12 memo had been set by the December 6
memo, which contemplated monitoring Barry's progress in six months. As such, the District
claims any proximity in timing to the filing of Barry's charge does not properly show unlawful
motivation on the part of the District, but rather the District's following up on the December 6
memo.
We find that the ALJ correctly concluded that CSEA established the timing nexus
factor. 	The July 12 adverse action occurred approximately five weeks after the protected
activity. (Mountain Empire Unified School District (1998) PERB Decision No. 1298
(Mountain Empire) [three months sufficient to establish timing].)
The ALJ found further nexus factors establishing an inference of unlawful motivation
on the District's part were based on the following conclusions: 	(1) Spoonemore conducted a
cursory investigation; (2) the memo contained exaggerations because it criticized Barry for
persisting in engaging in activities which are insubordinate, unauthorized and/or detrimental to
department operations based on unreasonable examples; and (3) Spoonemore exhibited a
degree of union animus. The District excepted to all of these findings.
The ALJ concluded that Spoonemore conducted a cursory investigation because he
relied on hearsay reports from Thompson, Daniels and Rouse with whom it was well known
Barry had a hostile relationship. The ALJ found a cursory investigation based on the fact that
17
demonstrate the employer's unlawf

Spoonmore never spoke to Barry about the specific incidents alleged in the July 12 memo.
While we affirm the ALJ' s finding that CSEA established the District conducted a cursory
investigation, we disagree with her reasoning.
Under PERB case law, absent evidence casting suspicion on the employer's actions, the
failure
of
a second line supervisor to conduct an independent investigation
of
a direct
supervisor's charges
of
misconduct or poor
job
performance does not reflect unlawful
motivation. (Riverside Unified School District (1987) PERB Decision No. 639 (Riverside).)
It is CSEA's burden
of
proof to show that evidence exists casting suspicion on the
District because
of
Spoonemore's reliance on his first line supervisors. We do not find
evidence
of
such suspicion in this case. Regarding his July 12 memo, Spoonemore testified that
it was based on a combination
of
reports from Rouse or Thompson (the leads), his custodial
supervisor Daniels, and feedback Spoonemore gets from the school principals, office managers
and teachers. 	In general, Spoonemore testified that he is more in an administrative role in the
office so his crew leaders and maintenance leaders are his eyes and ears in the field.
Spoonemore's testimony was corroborated by Wesler who testified that, based on her
conversations with Spoonmore in preparing each
of
the disciplinary memos, he received
information from the leads, Rouse and Thompson, as well as office managers at District school
sites, school principals and in some instances by library staff.
There is no evidence that Thompson and Daniels had a hostile relationship with Barry.
We agree that there is evidence that Rouse and Barry had a hostile relationship, but do not find
that this by itself constitutes an inference
of
unlawful motivation on Spoonemore's part under
. 	f h" 	is	th e circumstances o t
1s
case.
18
Barry and 17 other coworkers signed a letter of no confidence in Rouse's
involvement in the alleged improper removal of asbestos, which was presented to Spoonemore
18

For instance, we would find differently had CSEA shown Spoonemore knew Rouse had
provided false reports or that there was some other factual reason Spoonemore had reason to
believe Rouse's reports should be discounted. But that is not the case. Under cross-
examination Spoonemore testified that Rouse was the source of the criticism of Barry for
talking on the phone June 29 and 30, 2005; and that Rouse was the observer of the barbeque and
reported that the doors were partially down. Barry admitted that he had been on the phone on
June 29 and 30 and claimed it was on union business. Regarding the barbeque information
from Rouse, there is no evidence that Rouse reported to Spoonemore that Barry was the
organizer of the barbeque. To the contrary, Wesler testified that after meeting with
Spoonemore, Rouse and Thompson, to be satisfied that the information in the July 12 memo
was correct, she concluded that Barry was not the prime organizer of the barbeque as stated in
the July 12 memo. 19
We also do not find that Spoonemore's failure to speak to Barry about each of the
incidents in the July 12 memo establishes an unlawful motivation on Spoonemore's part. 	The
failure of an employer to interview an employee in connection with a disciplinary related
action may give rise to an inference of unlawful motivation, but only when there is evidence
that the employer routinely interviews employees in such circumstances. (State of California
(Department of Health Services) (1999) PERB Decision No. 1357-S.) In this case, there was
no evidence that either the District or Spoonemore had a consistent practice of interviewing
employees prior to their discipline. In fact, evidence to the contrary was introduced.
in December 2003. Additionally, Thompson testified that there is discord between Barry and
Rouse.
19 The ALJ found that that Rouse exhibited union animus, but that Rouse's union animus
was not imputed to Spoonemore because there was no evidence that Spoonemore and Rouse
ever discussed Rouse's animus or that Spoonemore shared his sentiments. Neither party filed
an exception to this finding.
19

[ALJ]: Do you check with the accused?
The Witness [Spoonemore]: At times I do.
[ALJ]: But not all the time?
The Witness: Not all the time.
Our finding that the District conducted a cursory investigation in issuing the July 12
memo is based on the District's assertions in the memo that Barry had organized a barbeque.
According to the July 12 memo, Barry "organized an unauthorized and secret barbeque" which
was conducted near flammable materials, and was a clear and reckless disregard for basic fire
safety rules, exposed the District to significant liability and Barry's co-workers to injury.
Barry testified that he did not organize the barbeque. Hagerty testified that Barry did
not organize this barbeque but just showed up and ate. Hagerty admitted he had done the
grocery shopping for the barbeque and the cooking. As to how the barbeque came about,
Hagerty explained that it was just a bunch of guys who regularly eat together deciding to have
a barbeque and that they did it quite frequently. 	Hagerty was not disciplined for this barbeque.
Wesler admitted that she was not sure if Barry had organized the barbeque and that after
looking at it she did not believe he was the prime organizer.
Given the severity of the alleged barbeque offense by Barry detailed in the July 12
memo, at a minimum the District would be expected to conduct an investigation sufficient to
confirm that Barry was in fact the organizer. The record indicates that this was not done prior
to issuing the memo. The evidence at the hearing indicated this criticism of Barry was without
basis.
These findings regarding the barbeque alone support our conclusion that CSEA met its
burden to prove there was a nexus between the protected activity and the July 12 memo.
20

c. 	"But for" Test
Where as here, it appears that the employer's adverse action was motivated by both
valid and invalid reasons, "the question becomes whether the [adverse action] would not have
occurred 'but for' the protected activity." (Martori Brothers, supra, 29 Cal. 3d 721.) In
Novato, supra, PERB adopted the Wright Line, supra, 251 NLRB 1083, "but for" test for
mixed motive cases.20 In Wright Line, the NLRB 21 made two important points regarding its
"but for" test. First, the NLRB noted that placing the burden on the employer to prove that the
non-discriminative reason actually motivated the adverse action "represents a recognition of
the practical reality that the employer is the party with the best access to proof of its
motivation." Second, the NLRB stated that the goal in a mixed motive case is "to analyze
thoroughly and completely the justification for the [adverse action] presented by the
employer. "22
In retaliation cases, PERB does not determine whether the employer had cause to
discipline the employee. (San Bernardino City Unified School District (2004) PERB Decision
No. 1602.) PERB's function in retaliation cases is to determine whether the employer took the
action for an unlawful reason. 	(McFarland U11ified Sch. Dist. v. Public Employment Relations
Bd. (1991) 228 Cal.App.3d 166, 169.)
20 Wright Line established a definitive rule for mixed motive cases under the National
Labor Relations Act.
21 NLRB refers to the National Labor Relations Board.
22 The United States Supreme Court approved the Wright Line test in National Labor
Relations Bd. v. Transportation Management Corp. (1983) 462 U.S. 393. It stated that the
burden shift to the employer was reasonable.
21

With these principles in mind, we examine the record to determine
if
the District met its
burden
of
proof that it would have issued the July
12
memo even if Barry had not filed this
unfair practice charge.
We find the District has not met its burden
of
proof.
	It
failed to put on sufficient
evidence for the Board to determine that the District would have issued the criticisms in the
July
12
memo notwithstanding the filing
of
Barry's unfair practice charge.
For instance, Spoonemore testified generally about his dissatisfaction with Barry's
work productivity without specifying that it applied to the time period covered by the July
12
memo and also failed to provide justification for any
of
his criticisms
of
Barry itemized in the
July 12 memo.23 Thompson who was one
of
the line supervisors Spoonemore relied on for
information about Barry in the July
12
memo testified, but he too failed to offer any
justification for the criticisms
of
Barry in the July
12
memo. 24 Rouse, Barry's lead who
Spoonemore also relied on for information did not testify. Daniels, a custodial supervisor on
whom Spoonemore relied on for information testified as to only one incident in the July 12
memo: Barry's interrupting a meeting Daniels was having with a vendor and handing Daniels
a note with the word "CHAOS" on it.
According to Wesler the primary justification for the July
12
memo was the
productivity issue regarding Barry. 	She testified that she did not personally verify Barry's low
Spoonemore did testify regarding the barbeque incident as to his justification for
concluding it was secret, unauthorized and hazardous. 	Spoonemore did not testify that Barry
had organized the barbeque or why Spoonemore's criticisms related to the barbeque incident
should be made against Barry. 	Spoonemore's lack
of
testimony on this issue is explained by
Wesler' s testimony that after looking at the barbeque incident "they" did not believe Barry was
the prime organizer.
24 Thompson did testify in detail about a June 16, 2005 memo he had written regarding
the dissatisfaction of the Grant School's librarian with Barry's work product at some
unspecified time prior to June 16, 2005, however, Barry's failure to perform work at Grant
School was not mentioned in the July 12 memo.
22

productivity but that she got her information from Spoonemore or Barry's lead workers.
However, Wesler's testimony failed to provide specific examples of Barry's low productivity
on which she was relying for her justification of the memo. Alternatively, the District could
have adduced this evidence directly from the supervisors on whom Wesler relied. The record
indicates no such evidence to support the District's justification for the July 12 memo was
presented.
The criticisms contained in the July 12 memo are hearsay and by themselves and
without independent evidence supporting them, cannot suffice to meet the District's burden of
proof that it would have issued the July 12 memo's criticisms of Barry even had the instant
unfair practice charge not been filed. 	(PERB Reg. 32176; Regents of the University of
California (1998) PERB Decision No. 1255-H; see Woodland Joint Unified School District
(1987) PERB Decision No. 628.) The only independent evidence justifying the July 12 memo
was Barry's interruption of a vendor meeting which had nothing to do with Barry's
productivity, claimed by the District to be the reason for the memo. 	Accordingly, we conclude
that the District has failed to meet its burden of proof under the "but for" test which results in a
finding that the July 12 memo was in retaliation for the filing of this unfair practice charge.
We therefore find that the District retaliated against Barry when it issued the July 12
memo.
2. 	The July 18, 2005 Letter of Reprimand
Neither party has appealed the ALJ's findings that the July 18 reprimand constitutes an
adverse action and that the filing of this charge was protected. The ALJ did not specifically
find the District had knowledge that Barry engaged in protected activity before issuing the
reprimand. We find such knowledge is established given the reprimand criticizes Barry for
23

stating that PERB had issued a complaint on his unfair practice charge at a staff meeting on
July 13, 2005.
We first review the record to determine whether sufficient indicia of unlawful
motivation exists to show that the reprimand was retaliatory. We agree with the District that
CSEA failed to demonstrate a nexus between Barry's protected activity and the July 18
reprimand.
The reprimand concerned allegations regarding the comments Barry made at the
July 13 staff meeting and an incident involving Rouse's tools that same day. The ALJ found
that unlawful motivation existed because the District failed to explain what was insubordinate
or undermining about Barry's comments at the staff meeting, and because the criticism
regarding Rouse's tools was inaccurate and exaggerated, as well as, the product of a cursory
investigation in that Spoonemore did not interview Barry. 	We find that the ALJ incorrectly
placed the burden of proof on the District.
The District's July 18 reprimand stated that at a staff meeting a group of employees
were reading information about safety and using trained personnel when Barry interrupted
them and commented with sarcasm that "these guys [meaning the supervisors] would probably
send in subs." In addition, following Barry's budget update which he had requested and
received permission to give, Barry, without permission, discussed the complaint PERB had
issued on Barry's unfair practice charge, Barry's personal disciplinary situation and how Barry
felt he was being treated unfairly by the District. The reprimand also indicated Barry gave
misinformation about how PERB processes charges resulting in frightening other employees.25
25 The reprimand is the only evidence as to what transpired at the meeting except for
Barry's written response dated July 24, 2005, which does not contradict the reprimand.
24

The burden was on CSEA to demonstrate unlawful motivation. CSEA did not present
any testimony regarding the staff safety meeting and no questions about the incident were
asked of Barry, Spoonemore or Thompson. Similarly, the record contains no evidence that the
criticism in the reprimand that other employees were frightened or intimidated by Barry's
comments about the authority of the PERB Board agent to subpoena witnesses, was an
exaggeration. We find CSEA failed to establish a nexus based on this part of the July 18
reprimand.
The same is true as to the July 18 reprimand's charge against Barry for dumping
Rouse's tools. The evidence shows that two maintenance employees put a pile of Rouse's
tools on an area in the carpentry shop that Barry had cleared for a project. There is no
testimony contradicting that Daniels, one of Barry's leads, observed Barry and his assistant
move Rouse's equipment from the carpentry shop to the lead worker's office. When Daniels
testified, he was not questioned by CSEA regarding these observations.
Thompson testified that there was sufficient room in the workshop for the tools which
Barry moved to the lead office and that in fact some of the equipment belonged in the
carpentry shop. This shop was originally a bus garage and was 45-feet by 60-feet which was
more than sufficient room for Barry's work and Rouse's equipment. According to Thompson,
he wrote Barry up because the equipment obviously did not belong in the lead worker's office
and he felt Barry's actions were inappropriate and provoked an unnecessary problem because
there was already discord between Barry and Rouse.
It is clear from the record that Spoonemore based his criticism in the reprimand on the
report he received from Thompson. CSEA proffered no evidence that Spoonemore
embellished or exaggerated that report. Absent evidence casting suspicion on the employer,
25

the reliance on direct supervisors' reports for disciplinary action is not evidence of unlawful
motivation. (Riverside, supra.)
3. 	The August 30, 2005 Notice of Disciplinary Action and the September 13, 2005
Decision to Recommend that the BOE Impose the Suspension
a. 	Nexus
The District excepted to the ALJ' s finding of unlawful motivation based on: (1) both
adverse actions being tainted because they derived from Spoonemore's retaliatory July 12
memo and July 18 reprimand; and (2) the conclusion that the August 30 notice and
September 13 suspension constituted additional punishment for the same conduct that Barry
had already been disciplined for in the July 12 and July 18 adverse actions.
While we disagree with the ALJ' s finding that there was unlawful motivation because
Barry had already been disciplined for the incidents raised in July 12 memo and July 18
reprimand, we do find that CSEA established a prima facie case.
No unlawful motivation can be found based on Barry's being suspended for acts cited
in the previous disciplinary memos given the District's progressive disciplinary system.
Building discipline incrementally upon prior documentation is the hallmark of the District's
progressive disciplinary system of which the August 30 notice and September 13 suspension
are a part.
The July 12 memo to Barry indicated that it was also recommending that the
superintendent consider appropriate disciplinary action up to and including dismissal. 	The
July 18 reprimand similarly provided that Barry's continuing inappropriate behavior
necessitated a recommendation to the superintendent of disciplinary action up to and including
dismissal. 	The August 30 notice and September 13 suspension carried out these earlier
recommendations consistent with the District's progressive discipline policy.
26

The August 30 notice informed Barry of his right under Personnel Commission
Rule 8.300.3 to request a conference with the District superintendent or designee (Leon), in
order to review materials and respond to the charge prior to final action by the BOE. 26 Barry
availed himself of this right and met with Leon on September 9, 2005. Personnel Commission
Rule 8.300.3(A)(3) provides that "The employee shall be served with the Superintendent's
decision prior to the date of intended final action by the [BOE]." It is clear that pursuant to
the District's progressive discipline system, once Barry met with Leon to respond to the
August 30 notice, Leon was required to serve Barry with his decision before action could be
taken by the BOE on Leon's recommendation. The September 13 suspension was the
progression to the next discipline step based on the results of the interview with Barry.
The record demonstrates the District's pattern of progressive discipline as applied to
Barry was in keeping both with the District's Personnel Commission rules and with its practice
and procedure under these rules. The evidence established that the District treated another
disciplined employee, Lloyd, the same way under the District's progressive discipline policy.
Four memoranda from Spoonemore to Lloyd dated January 8, 2004, January 23, 2004,
February 5, 2004 and March 11, 2004, respectively, each contain criticisms of poor work
performance and judgment on Lloyd's part. Each memorandum indicated that it will be placed
in Lloyd's personnel file and warns that further discipline may result due to these and other
incidents. 	There is also a notice of disciplinary action dated March 30, 2004, from Caston to
Lloyd. That notice, much like Barry's August 30 notice, contained the criticisms from all of
Lloyd's previous memoranda, and recommended that Lloyd be terminated.
26 Rule 8.300 of the District's personnel commission rules sets forth the procedure for
disciplinary action. Rule 8.300.2 provides that whenever the superintendent (Dr. Robert
Caston (Caston)) or director of classified personnel (Welser) intends to recommend a
suspension to the BOE, he or she shall cause a notice of discipline to be prepared.
27

However, we do find a nexus exists between Barry's protected activity and the
August 30 notice and resulting September
13
suspension. First, we find that the temporal
proximity between the protected activity and these disciplinary related documents
of
three and
one-half months is sufficient to support an inference
of
retaliation. (Mountain Empire, supra.)
But, as we held above, timing alone cannot establish the requisite nexus between the adverse
action and Barry's protected activity, there must be an additional nexus factor.
Second, we consider the fact that the August 30 notice was based in part on the
criticism
of
Barry that he either organized or was one
of
the organizers
of
an unauthorized and
secret barbeque. As we discussed above, Barry and Hagerty testified Barry was not a
organizer but simply showed up at the barbeque and ate. Wesler admitted in her testimony that
they were not sure Barry had organized the barbeque and after looking into it did not believe
he was the prime organizer. This evidence establishes that this criticism in the August 30
notice was the result
of
a cursory investigation. The evidence also established that Barry was
discriminated against by this criticism given none
of
the other employees attending the
barbeque, including Hagerty who testified he had done the actual barbequing, were disciplined
for the barbeque.
Accordingly, we find that a nexus exits between this adverse action and the August 30
notice. Wesler' s testimony that the barbeque criticism was included in the August 30 notice
because there was a history
of
many, many things in Barry's file does not change our
conclusion. Given the September 13 suspension resulted from the August 30 notice under the
District's progressive discipline policy, we also find that the a nexus between the September 13
suspension and Barry's protected activity has been established.
28

b. 	"But for" Test
We turn now to the "but for" test and examine the evidence to determine if the District
met its burden of proof as to the August 30 notice. As we held above, a disciplinary memo
such as the August 30 notice is hearsay and cannot by itself meet the District's burden of proof
therefore we must examine the record for supporting independent evidence.
Much of the August 30 notice is based on the July 12 memo for which, with one
exception, there is no independent evidence justifying the District's criticisms in the memo.
However, there was evidence which showed the District's justification seeking to discipline
Barry for modifying his saw in February 2005 and the June 2005 interruption of Daniels with
the "CHAOS" note. 	These constituted two of the twelve criticisms of Barry in the August 30
notice. The remainder of the criticisms were related to Barry's lack of production. As with the
July 12 memo, we cannot find that the District has met its burden of proof that it would have
issued the August 30 notice had this unfair practice charge not been filed because there is no
independent evidence of Barry's production problems.
This is not to say that an employer must justify each and every criticism in a
disciplinary memo to satisfy this burden of proof, but there must be sufficient independent
evidence for us to conclude that the disciplinary action based on the hearsay criticisms would
have occurred notwithstanding the employee's protected activity. 	In this case Barry's
supervisors who were responsible for the information criticizing Barry for lack of work
productivity, Rouse, Thompson and Spoonemore, did not testify as to the basis of any of their
work productivity criticism in the disciplinary memos. Rouse did not testify and Thompson's
testimony did not deal with Barry's lack of work productivity. The only work product
testimony by Spoonemore was a simple "No he has not" when asked if Barry had complied
with the December 6 memo's directives that Barry was to complete all assignments in a timely
29

manner, not delegate assigned work unless approved and to inform his lead worker if there will
be any delays in completion of his work. This testimony does not by itself support a finding in
the District's favor on the "but for" test.
Our interpretation of the September 13 suspension language indicates that its basis was
Barry's work productivity and his inappropriate behavior towards his supervisors and other
employees. Because the September 13 suspension is hearsay, the District was obligated to
prove by independent evidence that the suspension would have been recommended
notwithstanding Barry's protected activity. 	The criticisms on which the August 30 notice is
based and which the District failed to prove would not have been made but for the protected
activity are also the basis of the September 13 suspension. We therefore find that the District
failed to meet its burden of proof under the "but for" test for the September suspension.
September 27, 2005 Revised Improvement Plan
The District excepts to the ALJ's conclusion that the September 27 plan was issued in
violation ofEERA, because it was based on the July 12 memo and July 18 reprimand and
constituted unjust additional discipline for conduct previously addressed.
We conclude that no findings can be made as to the September 27 plan because it was
not alleged in the complaint. The Board can only address an adverse action which is not
alleged in a retaliation complaint if the test for reviewing an unalleged violation is met.
Unalleged violations may only be considered when: 	"(1) adequate notice and opportunity to
defend has been provided the respondent; (2) the acts are intimately related to the subject
matter of the complaint and are part of the same course of conduct; (3) the unalleged violation
has been fully litigated; and (4) the parties have had the opportunity to examine and be cross-
examined on this issue." (Fresno County Superior Court (2008) PERB Decision No. 1942-C.)
30

The unalleged violation also must have occurred within the applicable statute
of
limitations
period. 	(Ibid.)
We find that the criteria for us to consider the September 27 plan as an adverse action
was not met because there was no notice to the District
of
a need to defend and the unalleged
violation was not fully litigated. 	Although the September 27 plan was introduced into
evidence and Barry testified that he disagreed with it, there was no additional examination or
cross-examination and none
of
the parties made any arguments in their post-hearing briefs
regarding the September 27 plan. 	On this basis we decline to make any findings as to the
September 27 plan.
In summary, we agree with CSEA that the July 12 memo, August 30 notice and
September
13
suspension were retaliatory. We agree with the District that the July 18 memo
was not a retaliatory act. 	Having concluded that the September 27 plan is an unalleged
violation we make no findings as to it.
ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-4862-E
are hereby DISMISSED to the extent that they allege the Escondido Union Elementary School
District (District) retaliated against Lance Barry (Barry) by issuing the July 18, 2005
reprimand. 	The charge and complaint are UPHELD to the extent that they allege the District
retaliated against Barry by issuing the follow-up memorandum dated July 12, 2005, the notice
of
disciplinary action dated August 30, 2005, and the five-day suspension in September 2005,
in violation of the Educational Employment Relations Act (EERA), Government Code
section 3543.5(a) and (b).
31

Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District and its
representatives shall:
A. 	CEASE AND DESIST FROM:
Retaliating against Barry-because of his exercise of protected activity.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE PURPOSES OF EERA:
1. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, make Barry whole by paying him back pay with interest at the rate of
7 per cent annum for all wages and benefits lost as a result of his five-day suspension in
September 2005.
2. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, remove from Barry's personnel file and all District files, all references to the
July 12 memorandum, the August 30 notice of disciplinary action, and the September 2005
five-day suspension.
3. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily posted,
copies of the Notice attached hereto. The Notice must be signed by an authorized agent of the
District, indicating the District will comply with the terms of this Order. Such posting shall be
maintained for a period of thirty (30) consecutive workdays. 	Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The District shall provide reports, in writing, as directed by the General
32

33
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on the California School Employees Association & its Chapter 150.
Members Neuwald and Wesley joined in this Decision.
33

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-4862-E, California School
Employees Association & its Chapter 150 v. Escondido Union Elementary School District in
which all parties had the right to participate, it has been found that the Escondido Union
Elementary School District (District) violated the Educational Employment Relations Act
(EERA), Government Code section 3543.5(a) and (b), when it issued to Lance Barry (Barry)
the follow-up memorandum dated July 12, 2005, the notice of disciplinary action dated
August 30, 2005, and the five-day suspension in September 2005.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
Retaliating against Barry-because of his-exercise of protected activity.
A.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Make Barry whole by paying him back pay with interest at the rate of
7 per cent annum for all wages and benefits lost as a result of his five-day suspension in
September 2005.
2. 	Remove from Barry's personnel file and all District files, all references
to the July 12 memorandum, the August 30 notice of disciplinary action, and the September
2005 five-day suspension.
Dated: 	ESCONDIDO UNION ELEMENTARY SCHOOL
DISTRICT
By: ------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.