Coachella Valley Mosquito and Vector Control District * * * OVERRULED IN PART by City of Roseville (2016) PERB Decision No. 2505-M (PERB 2031M)

OVERRULED IN PART by City of Roseville (2016)
PERB Decision No. 2505-M
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 2001,
Charging Party,
V.
COACHELLA VALLEY MOSQUITO &
VECTOR CONTROL DISTRICT,
Respondent.
Case Nos. LA-CE-123-M
LA-CE-178-M
PERB Decision No. 2031-M
May 29, 2009
Appearances: Christina C. Bleuler, Attorney, for California School Employees Association &
its Chapter 2001; Liebert Cassidy Whitmore by Lisa G. Copeland and Jeffrey C. Freedman,
Attorneys, for Coachella Valley Mosquito & Vector Control District.
Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: This case comes before the Public Employment Relations
Board (PERB or Board) on appeal by the Coachella Valley Mosquito & Vector Control
District (District) of a proposed decision by an administrative law judge (ALJ). The complaint
alleged that the District violated the Meyers-Milias-Brown Act (MMBA)1 by: (1) retaliating
against employees for filing a unit modification petition when it laid off Red Imported Fire Ant
(RIFA) services employees prior to the California School Employees Association & its
Chapter 2001 (CSEA) election; (2) interfering with the rights of RIFA employees by
threatening them with layoff prior to the CSEA election; and (3) failing to meet and confer in
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

good faith with CSEA by refusing to negotiate employee access to its email system. CSEA
alleged that this conduct constituted a violation of MMBA sections 3503 and 3506.
The ALJ found that the District retaliated against RIFA employees because of their
protected activities when it laid off the employees. The ALJ found that the District did not fail
to meet and confer in good faith regarding employee access to its email system, but, found that
the District did interfere with unit employees right to communicate with the union by denying
access to email. The ALJ further found that the District coercively threatened RIFA
employees with layoff if they were to unionize.
We reviewed the entire record in this case, including but not limited to the original and
amended unfair practice charges, the post-hearing briefs, the proposed decision, and the
parties' exceptions and responses to exceptions. Based on this review, we find that the District
retaliated against RIFA employees by laying them off prior to the CSEA election subject to the
discussion below. We further find that the District unlawfully threatened RIFA employees
with layoff. Additionally, we do not reach the merits of the email access issue because we find
this issue to be an unalleged violation, the consideration of which is not warranted based on the
facts of this case, and reverse that portion of the proposed decision on this basis.
FACTUAL BACKGROUND
The District is a public agency within the meaning of MMBA section 3501
subdivision (c), and CSEA is a recognized employee organization within the meaning of
Section 3501 subdivision (b). CSEA represented a bargaining unit of vector technicians, shop
hile there were a myriad of allegations, we do not review those allegations not
excepted to.
2
good faith with CSEA by refusing to negotiate employee access to its email system.2 CSEA
alleged that this conduct constituted a violation of MMBA sections 3503 and 3506.
2
The ALJ found that the District retaliated against RIF A employees because of their
protected activities when it laid off the employees. The ALJ found that the District did not fail
to meet and confer in good faith regarding employee access to its email system, but, found that
the District did interfere with unit employees right to communicate with the union by denying
access to email. The ALJ further found that the District coercively threatened RIF A
employees with layoff if they were to unionize.
We reviewed the entire record in this case, including but not limited to the original and
amended unfair practice charges, the post-hearing briefs, the proposed decision, and the
parties' exceptions and responses to exceptions. Based on this review, we find that the District
retaliated against RIF A employees by laying them off prior to the CSEA election subject to the
discussion below. We further find that the District unlawfully threatened RIFA employees
with layoff. Additionally, we do not reach the merits of the email access issue because we find
this issue to be an unalleged violation, the consideration of which is not warranted based on the
facts of this case, and reverse that portion of the proposed decision on this basis.
FACTUAL BACKGROUND
The District is a public agency within the meaning of MMBA section 3501
subdivision (c), and CSEA is a recognized employee organization within the meaning of
Section 3501 subdivision (b ). CSEA represented a bargaining unit of vector technicians, shop
While there were a myriad of allegations, we do not review those allegations not
excepted to.
W

mechanics, laboratory assistants, and a utility worker (Vector Unit). As explained further
below, CSEA sought and later became the exclusive bargaining representative for RIFA
employees.
On January 11, 2000, the District board passed Resolution No. 2000-04 authorizing a
contract with the California Department of Food and Agriculture (CDFA) establishing RIFA to
be funded entirely by the state. Stated in the resolution was that the contract was "contingent
upon full funding for services as requested in the District's proposal." The District's first
contract with the state for RIFA services covered a period of 18 months with a budget of
$1,540,130.
Originally, the District intended to "jump-start" the RIFA program by using current
vector technicians to begin the RIFA work by working overtime hours. The District and
CSEA, however, were unable to reach an agreement regarding overtime. As such, the District
hired seasonal or limited term, non-unit employees to perform the work. The District later
converted these employees into full-time RIFA premise inspectors (PIs). In January 2000, the
RIFA program consisted of approximately 16 PIs, one clerical, two supervisors, and one
program coordinator.
On March 22, 2001, in response to instructions from CDFA to reduce the budget,
District General Manager Donald Gomsi (Gomsi) submitted two budget proposals to CDFA
for the 2002-2003 fiscal year. In his cover letter to CDFA, Gomsi noted that "[the first
[budget proposal], which totals $871,202.66 will require a reduction of personnel and other
expenses from the current level of operations" while "[the second budget proposal [of
$1,094,318.41] will maintain staff at the current levels and allow for some increase in program
acti ities over the current level."
w3
mechanics, laboratory assistants, and a utility worker (Vector Unit). As explained further
below, CSEA sought and later became the exclusive bargaining representative for RIF A
employees.
On January 11, 2000, the District board passed Resolution No. 2000-04 authorizing a
contract with the California Department of Food and Agriculture (CDFA) establishing RIF A to
be funded entirely by the state. Stated in the resolution was that the contract was "contingent
upon full funding for services as requested in the District's proposal." The District's first
contract with the state for RIF A services covered a period of 18 months with a budget of
$1,540,130.
Originally, the District intended to "jump-start" the RIF A program by using current
vector technicians to begin the RIF A work by working overtime hours. The District and
CSEA, however, were unable to reach an agreement regarding overtime. As such, the District
hired seasonal or limited term, non-unit employees to perform the work. The District later
converted these employees into full-time RIFA premise inspectors (Pis). In January 2000, the
RIF A program consisted of approximately 16 Pis, one clerical, two supervisors, and one
program coordinator.
On March 22, 2001, in response to instructions from CDFA to reduce the budget,
District General Manager Donald Gomsi (Gomsi) submitted two budget proposals to CDF A
for the 2002-2003 fiscal year. In his cover letter to CDFA, Gomsi noted that "[t]he first
[budget proposal], which totals $871,202.66 will require a reduction of personnel and other
expenses from the current level of operations" while "[t]he second budget proposal [of
$1,094,318.41] will maintain staff at the current levels and allow for some increase in program
activities over the current level."	v

On May 18, 2001, Gomsi sent CDFA a letter requesting to roll over $221,147.11 of the
contract unexpended by June 30, 2001. CDFA denied this request.
On July 9, 2001, the state approved an extension of the District's initial RIFA contract
incorporating a budget that included expenses for utilities, attorney fees, janitorial expenses,
uniform expenses, motor fuels, worker's compensation insurance, and other items.
Specifically, the following expenses were budgeted as follows:
Attorney Fees 	$1,000.00
Utilities 	$4,000.00
Janitorial Expense 	$1,000.00
Equipment Parts & Supplies 	$2,000.00
Staff Training 	$6,000.00
Field Supplies 	$5,500.00
Control Products 	$65,000.00
The District submitted a budget to the state on July 31, 2001. While the budget projected
income of $910,400 for fiscal year 2002-2003, the state only granted it $810,400. The District
thereby suffered a shortfall of $100,000. A second modification extending the RIFA program
through June 30, 2004 was signed by the state on October 24, 2001. The state approved
another extension on February 27, 2002.
In April 2002, the District laid off seven RIFA employees. CSEA took no legal action
in protest of these layoffs.
On May 29, 2002, CSEA filed an unfair practice charge in Case No. LA-CE-65-M
(hereinafter "overtime lawsuit"), alleging, inter alia, that the District unilaterally transferred
unit work to seasonal employees, unilaterally converted seasonal employees to permanent
status, told RIFA employees to urge CSEA to waive bargaining regarding implementation of
the RIFA program in exchange for their ability to earn overtime pay, and failed to meet and
confer regarding the distribution of overtime.
On May 18, 2001, Gomsi sent CDF A a letter requesting to roll over $221,147.11 of the
contract unexpended by June 30, 2001. 	CDFA denied this request.
On July 9, 2001, the state approved an extension of the District's initial RIFA contract
incorporating a budget that included expenses for utilities, attorney fees, janitorial expenses,
uniform expenses, motor fuels, worker's compensation insurance, and other items.
Specifically, the following expenses were budgeted as follows:
Attorney Fees 	$1,000.00
Utilities 	$4,000.00
Janitorial Expense 	$1,000.00
Equipment Parts & Supplies 	$2,000.00
Staff Training 	$6,000.00
Field Supplies 	$5,500.00
Control Products 	$65,000.00
The District submitted a budget to the state on July 31, 2001. While the budget projected
income of $910,400 for fiscal year 2002-2003, the state only granted it $810,400. The District
thereby suffered a shortfall of $100,000. A second modification extending the RIF A program
through June 30, 2004 was signed by the state on October 24, 2001. The state approved
another extension on February 27, 2002.
In April 2002, the District laid off seven RIF A employees. 	CSEA took no legal action
in protest of these layoffs.
On May 29, 2002, CSEA filed an unfair practice charge in Case No. LA-CE-65-M
(hereinafter "overtime lawsuit"), alleging, inter alia, that the District unilaterally transferred
unit work to seasonal employees, unilaterally converted seasonal employees to permanent
status, told RIF A employees to urge CSEA to waive bargaining regarding implementation of
the RIF A program in exchange for their ability to earn overtime pay, and failed tomeet and
confer regarding the distribution of overtime.
4

In August 2002, CSEA initiated a campaign to organize the RIFA employees. CSEA
representatives contacted RIFA employees and held meetings. CSEA organizer, Andy Evano
(Evano), collected authorization cards.
On September 17, 2002, CSEA filed a unit modification petition with PERB, requesting
that the existing CSEA unit of vector technicians be modified to include the RIFA employees.
There were eleven RIFA premise inspectors at the time the petition was filed. On October 2,
2002, CSEA withdrew the PERB unit modification petition and, subsequently, on October 1 1,
2002, submitted a written demand on the District requesting recognition under MMBA
section 3507.1 subdivision (c). On October 19, 2002, the District denied CSEA's request for
recognition pursuant to Section 3507.1 subdivision (c).
On November 5, 2002, CSEA submitted a unit modification petition pursuant to
District Resolution 87.2, along with cards showing majority support. Because of an incorrect
zip code, the District did not receive the petition until November 21, 2002. On December 19,
2002, the District rendered a decision denying CSEA's request to modify the unit to include
the RIFA employees in the same unit as the vector control employees but offered to create a
separate bargaining unit of employees "entitled to independent self-determination," i.e., to an
election after the expiration of the 30-day open period. CSEA agreed to proceed to an election
but did not agree to give up its right to pursue the District's legal obligation to recognize the
RIFA unit as part of the Vector Unit based on a card check pursuant to MMBA section 3507.1
subdivision (c). The District attempted to set an election for January 2003. The RIFA election
was delayed until March 13, 2003. Between December 19, 2002 and March 13, 2003, the
District met three times with CSEA.
In August 2002, CSEA initiated a campaign to organize the RIF A employees. 	CSEA
representatives contacted RIF A employees and held meetings. CSEA organizer, Andy Evano
(Evano ), collected authorization cards.
On September 17, 2002, CSEA filed a unit modification petition with PERB, requesting
that the existing CSEA unit of vector technicians be modified to include the RIF A employees.
There were eleven RIF A premise inspectors at the time the petition was filed. 	On October 2,
2002, CSEA withdrew the PERB unit modification petition and, subsequently, on October 11,
2002, submitted a written demand on the District requesting recognition under MMBA
section 3507.1 subdivision (c). On October 19, 2002, the District denied CSEA's request for
recognition pursuant to Section 3507.1 subdivision (c).
5
On November 5, 2002, CSEA submitted a unit modification petition pursuant to
District Resolution 87 .2, along with cards showing majority support. Because of an incorrect
zip code, the District did not receive the petition until November 21, 2002. 	On December 19,
2002, the District rendered a decision denying CSEA's request to modify the unit to include
the RIF A employees in the same unit as the vector control employees but offered to create a
separate bargaining unit of employees "entitled to independent self-determination," i.e., to an
election after the expiration of the 30-day open period. CSEA agreed to proceed to an election
but did not agree to give up its right to pursue the District's legal obligation to recognize the
RIFA unit as part of the Vector Unit based on a card check pursuant to MMBA section 3507.1
subdivision (c ). The District attempted to set an election for January 2003. The RIF A election
was delayed until March 13, 2003. Between December 19, 2002 and March 13, 2003, the
District met three times with CSEA.

After the unit modification petition was filed, but before the RIFA election, Gomsi met
with the RIFA employees in the RIFA room. RIFA employees Diane Greeman (Greeman) and
Luz Ginn (Ginn) both testified that Gomsi, who did not customarily come to the RIFA office
area, appeared there and told RIFA employees that he was disappointed and that if they went
with the union, funds would be depleted and there would be layoffs.' Gomsi testified that what
he said to the employees was that the District was having some difficulties with CSEA, which
were creating legal expenses and the only budget item those expenses could come from was
salaries and benefits. He testified that he assured employees they were free to join the union
and he wanted the RIFA program to continue, but he was disappointed that the program might
die. Gomsi further testified that he was not anti-union but was troubled by "the costs
associated with it."
Brian Passaro (Passaro), the District Supervisor for the Eye Gnat/Fly and Rat Program,
took over the duties of RIFA Program Director, after the October 5, 2002, resignation of
Program Director Rob Garcia." Passaro testified that upon becoming the RIFA program
Coordinator, he inherited financial issues. Both Passaro and Gomsi blamed the problems on
Garcia, stating that Garcia had underbudgeted for the program. Passaro stated that he had to
redo the entire budget because Garcia budgeted on the presumption that the program was going
to get an additional $100,000 from SB 204 (1999-2000 leg. sess., ch. 1010). This did not come
to fruition. As a consequence, Passaro needed to reduce the budget by $100,000. In addition,
Greeman specifically testified, Gomsi "did advise everyone there that the budget
would really suffer if they chose to vote to be in the Union, and that there would be layoffs."
She further testified that when CSEA "came in . . . Don did change his demeanor . . .
something had happened that day with the Union, . . . he did come into -- He was disappointed,
were his words."
Passaro took over these duties half time and remained a District supervisor as well.
After the unit modification petition was filed, but before the RIF A election, Gomsi met
with the RIF A employees in the RIF A room. RIF A employees Diane Greeman (Greeman) and
Luz Ginn (Ginn) both testified that Gomsi, who did not customarily come to the RIF A office
area, appeared there and told RIF A employees that he was disappointed and that if they went
with the union, funds would be depleted and there would be layoffs.3 Gomsi testified that what
he said to the employees was that the District was having some difficulties with CSEA, which
were creating legal expenses and the only budget item those expenses could come from was
salaries and benefits. He testified that he assured employees they were free to join the union
and he wanted the RIF A program to continue, but he was disappointed that the program might
die. 	Gomsi further testified that he was not anti-union but was troubled by "the costs
associated with it."
Brian Passaro (Passaro), the District Supervisor for the Eye Gnat/Fly and Rat Program,
took over the duties of RIPA Program Director, after the October 5, 2002, resignation of
Program Director Rob Garcia.4 Passaro testified that upon becoming the RIF A program
Coordinator, he inherited financial issues. Both Passaro and Gomsi blamed the problems on
Garcia, stating that Garcia had underbudgeted for the program. Passaro stated that he had to
redo the entire budget because Garcia budgeted on the presumption that the program was going
to get an additional $100,000 from SB 204 (1999-2000 leg. sess., ch. 1010). This did not come
to fruition. As a consequence, Passaro needed to reduce the budget by $100,000. In addition,
3 Greeman specifically testified, Gomsi "did advise everyone there that the budget
would really suffer if they chose to vote to be in the Union, and that there would be layoffs."
She further testified that when CSEA "came in ... Don did change his demeanor ...
something had happened that day with the Union, ... he did come into -- He was disappointed,
were his words."
4 Passaro took over these duties half time and remained a District supervisor as well.
6

Passaro testified that he was told that the Vector and RIFA were to split everything fifty-fifty.
Although he could not remember who told him this, he believed it was an internal District
decision, and that the state did not tell RIFA how to spend its money. In reviewing the budget,
Passaro realized that the RIFA program was not supporting itself but rather that the Vector
budget carried the lion's share of expenses. Passaro, working with Gomsi, thereby changed
line items and adjusted monies around to create a revised budget. The revisions included
increasing the annual RIFA budget for utilities from $6,000 to $16,000, janitorial expenses
from $500 to $7,000, equipment parts and supplies from $1,500 to $3,000, staff training from
$200 to $1,200, field supplies from $3,000 to $4,500, attorney fees from $900 to $45,000, and
control products from $40,000 to $80,000. The budget also included a $100,000 contingency
representing monetary claims relative to the existing overtime lawsuit. As a result of the
increases in these other areas, the District decreased salary and benefits from $638,973 to
$402,923.
Passaro testified that while making the budget adjustments, he was aware of, but not
completely familiar with the unionizing efforts of the RIFA employees. Passaro further
testified that the budget adjustments were not motivated by the RIFA employees attempts to
unionize. Nonetheless, as a result of these budget cuts, the District announced that it was
going to lay off two RIFA employees immediately and, most likely, more in the future.
The District met with CSEA and RIFA employees on January 9, 2003. Prior to this
meeting, the District circulated a memorandum to CSEA and RIFA employees regarding
"Issues for RIFA Unit Meeting January 9, 2003." The issues included establishing a separate
bargaining unit, the secret ballot election, RIFA wages, potential monetary damages from the
pending overtime lawsuit, and layoffs. CSEA organizer Evano and CSEA Field Director, Julie
Passaro testified that he was told that the Vector and RIF A were to split everything fifty-fifty.
Although he could not remember who told him this, he believed it was an internal District
decision, and that the state did not tell RIF A how to spend its money. In reviewing the budget,
Passaro realized that the RIF A program was not supporting itself but rather that the Vector
budget carried the lion's share of expenses. Passaro, working with Gomsi, thereby changed
line items and adjusted monies around to create a revised budget. The revisions included
increasing the annual RIF A budget for utilities from $6,000 to $16,000, janitorial expenses
from $500 to $7,000, equipment parts and supplies from $1,500 to $3,000, staff training from
$200 to $1,200, field supplies from $3,000 to $4,500, attorney fees from $900 to $45,000, and
control products from $40,000 to $80,000. The budget also included a $100,000 contingency
representing monetary claims relative to the existing overtime lawsuit. As a result of the
increases in these other areas, the District decreased salary and benefits from $638,973 to
$402,923.
Passaro testified that while making the budget adjustments, he was aware of, but not
completely familiar with the unionizing efforts of the RIFA employees. Passaro further
testified that the budget adjustments were not motivated by the RIF A employees attempts to
unionize. Nonetheless, as a result of these budget cuts, the District announced that it was
going to lay off two RIF A employees immediately and, most likely, more in the future.
The District met with CSEA and RIFA employees on January 9, 2003. Prior to this
meeting, the District circulated a memorandum to CSEA and RIF A employees regarding
"Issues for RIFA Unit Meeting January 9, 2003." The issues included establishing a separate
bargaining unit, the secret ballot election, RIF A wages, potential monetary damages from the
pending overtime lawsuit, and layoffs. CSEA organizer Evano and CSEA Field Director, Julie
7

Kossick (Kossick) testified that prior to this memorandum, they were unaware of any claim
that the budget needed to be adjusted or of the possibility of the layoffs. Gomsi and Lisa
Garvin Copeland, attorney for the District, represented the District. Kossick, Evano, CSEA
Representative Tim Taggart, and CSEA Chapter President Mike Martinez (Martinez)
represented CSEA. In addition, RIFA employees also attended the meeting. The District
presented Passaro's revised mid-year RIFA budget.
CSEA objected to the District's revisions. In an attempt to alleviate the budget
deficit, CSEA stated its intent not to seek any monetary damages from the overtime lawsuit.
CSEA claimed that the main issue in that case was the District's bypassing the representative
to speak to the Vector Unit employees regarding overtime.
In a follow-up memo dated January 13, 2003, from the District to CSEA, the District
stated in part:
6. As a result of the meeting on January 9, 2003 the following
issues were discussed and, in some cases tentative agreement
reached, subject to written confirmation.
a. Regarding the $100,000 contingency built into the RIFA
budget, the District explained that the contingency represents
overtime claims of an uncertain nature that are included in
CSEA's pending RIFA unfair practice complaint (case
no. LA-CE-65-M). The following general agreement was
reached subject to a formal signed agreement that I will be
providing for signature as follows:
1. CSEA agrees to withdraw any claims for overtime from any
fund of the District including the District's general fund and the
RIFA state funding.
2. The issue of overtime in the pending ULP is restricted to the
issue of the District's alleged negotiations directly with District
employees . . . .
8
Kossick (Kossick) testified that prior to this memorandum, they were unaware of any claim
that the budget needed to be adjusted or of the possibility of the layoffs. Gomsi and Lisa
Garvin Copeland, attorney for the District, represented the District. Kossick, Evano, CSEA
Representative Tim Taggart, and CSEA Chapter President Mike Martinez (Martinez)
represented CSEA. In addition, RIF A employees also attended the meeting. The District
presented Passaro's revised mid-year RIFA budget.
CSEA objected to the District's revisions. In an attempt to alleviate the budget
deficit, CSEA stated its intent not to seek any monetary damages from the overtime lawsuit.
CSEA claimed that the main issue in that case was the District's bypassing the representative
to speak to the Vector Unit employees regarding overtime.
8
In a follow-up memo dated January 13, 2003, from the District to CSEA, the District
stated in part:
6. As a result of the meeting on January 9, 2003 the following
issues were discussed and, in some cases tentative agreement
reached, subject to written confirmation.
a. Regarding the $100,000 contingency built into the RIF A
budget, the District explained that the contingency represents
overtime claims of an uncertain nature that are included in
CSEA's pending RIFA unfair practice complaint (case
no. LA-CE-65-M). The following general agreement was
reached subject to a formal signed agreement that I will be
providing for signature as follows:
1. CSEA agrees to withdraw any claims for overtime from any
fund of the District including the District's general fund and the
RIF A state funding.
2. The issue of overtime in the pending ULP is restricted to the
issue of the District's alleged negotiations directly with District
employees ....

There was a board of trustees meeting on January 16, 2003, where the District board adopted
the revised budget.
On January 17, 2003, the District issued a memo announcing that two RIFA employees
were going to be laid off. Additionally, the memo stated that the District and CSEA were
considering a settlement of all outstanding legal issues in connection with the RIFA program.
The District and CSEA exchanged emails pertaining to the agreement not to seek
overtime. The District directed CSEA to draft the formal terms. On January 20, 2003, CSEA
forwarded this suggested language:
4) Here is the proposed release of the issue of the $100,000 overtime
issue. CSEA hereby withdraws any and all claims for overtime
against the RIFA budget, or for claims that the district failed [to] pay
overtime to the Mosquito Vector Control Technicians in or about
2000 when the RIFA contract with the state was being initiated.
CSEA does not seek any monetary compensation for overtime arising
from any claims that CVMVCD failed to pay overtime to the unit
members in or about 2000. The only claim that CSEA asserts is that
the district negotiated directly with the unit members on the overtime
issue and seeks orders directing the district to cease and desist in such
conduct in the future.
The parties met again on February 6 to commence negotiations for a RIFA bargaining
agreement. The District presented another spreadsheet containing the same revisions as the
January 9, 2003, revised budget increases to: utilities, attorney fees, janitorial expense,
equipment parts and supplies, staff training, field supplies, and control products. This
spreadsheet, while containing similar information to the revised budget distributed by the
District at the January 9 meeting, was more detailed. The February 6 budget showed the actual
expenses from July through January, the amount budgeted for July through January, the budget
9
There was a board of trustees meeting on January 16, 2003, where the District board adopted
the revised budget.
On January 17, 2003, the District issued a memo announcing that two RIFA employees
were going to be laid off. Additionally, the memo stated that the District and CSEA were
considering a settlement of all outstanding legal issues in connection with the RIF A program.
9
The District and CSEA exchanged emails pertaining to the agreement not to seek
overtime. The District directed CSEA to draft the formal terms. On January 20, 2003, CSEA
forwarded this suggested language:
4) Here is the proposed release of the issue of the $100,000 overtime
issue. CSEA hereby withdraws any and all claims for overtime
against the RIF A budget, or for claims that the district failed [to] pay
overtime to the Mosquito Vector Control Technicians in or about
2000 when the RIF A contract with the state was being initiated.
CSEA does not seek any monetary compensation for overtime arising
from any claims that CVMVCD failed to pay overtime to the unit
members in or about 2000. The only claim that CSEA asserts is that
the district negotiated directly with the unit members on the overtime
issue and seeks orders directing the district to cease and desist in such
conduct in the future.
On January 28 and 30, 2003, the District laid off two RIFA employees.	On January 28 and 30, 2003, the District laid off two RIFA employees.
The parties met again on February 6 to commence negotiations for a RIF A bargaining
agreement. The District presented another spreadsheet containing the same revisions as the
January 9, 2003, revised budget increases to: utilities, attorney fees, janitorial expense,
equipment parts and supplies, staff training, field supplies, and control products. This
spreadsheet, while containing similar information to the revised budget distributed by the
District at the January 9 meeting, was more detailed. The February 6 budget showed the actual
expenses from July through January, the amount budgeted for July through January, the budget

variance, and the projections for each remaining month of the fiscal year. Additionally, the
$100,000 contingency fee for pending RIFA litigation remained in the budget. Gomsi testified
that he never knew whether CSEA was actually dropping the claim for overtime monies,
especially considering Taggert's request for overtime records on October 25, 2008.
At the February 14, 2003, meeting, the District presented a written agreement regarding
the RIFA overtime claim. CSEA never ratified the agreement claiming it was over-inclusive
and could be read to dismiss all pending claims.
On February 20, 2003, the District laid off four more RIFA employees.
On March 12, 2003, the District issued a memo to the RIFA staff entitled "CSEA
Petition for Unit Modification," in which it notified the five remaining RIFA employees of the
election.' The next day, the five employees voted and recognized CSEA as its exclusive
bargaining representative.
The purpose of this memo is to update you on the status of
attempts by the [District] to work with CSEA concerning the
RIFA program.
1. You should have received notice that a secret ballot election is
to be held next Thursday at 3:00 pm for the 5 RIFA Premise
Inspectors to vote about whether they want to be represented by
CSEA or not. RIFA Premise Inspectors can also vote to be self
represented.
2. CSEA continues its lawsuit against the District which includes
claims of up to $100,000 in overtime that may be claimed by
vector employees to be taken from the RIFA budget. The District
may be forced to discontinue the RIFA Program if this amount is
required to be deducted from the RIFA budget.
10
variance, and the projections for each remaining month of the fiscal year. Additionally, the
$100,000 contingency fee for pending RIF A litigation remained in the budget. Gomsi testified
that he never knew whether CSEA was actually dropping the claim for overtime monies,
especially considering Taggert's request for overtime records on October 25, 2008.
At the February 14, 2003, meeting, the District presented a written agreement regarding
the RIF A overtime claim. 	CSEA never ratified the agreement claiming it was over-inclusive
and could be read to dismiss all pending claims.
On February 20, 2003, the District laid off four more RIPA employees.
On March 12, 2003, the District issued a memo to the RIPA staff entitled "CSEA
Petition for Unit Modification," in which it notified the five remaining RIF A employees of the
election. 5 The next day, the five employees voted and recognized CSEA as its exclusive
bargaining representative.
5The memo stated, in pertinent part:	The memo stated, in pertinent part:
The purpose of this memo is to update you on the status of
attempts by the [District] to work with CSEA concerning the
RIPA program.
1. You should have received notice that a secret ballot election is
to be held next Thursday at 3:00 pm for the 5 RIF A Premise
Inspectors to vote about whether they want to be represented by
CSEA or not. RIF A Premise Inspectors can also vote to be self
represented.
2. CSEA continues its lawsuit against the District which includes
claims of up to $100,000 in overtime that may be claimed by
vector employees to be taken from the RIF A budget. The District
may be forced to discontinue the RIF A Program if this amount is
required to be deducted from the RIF A budget.

Two months later, on May 12 and May 19, 2003, the District issued a-recall notices to
the six RIFA employees laid off in January and February. Gomsi testified that the timing of
the notices was predicated on the District's need to know who would accept the offer prior to
the start of the new fiscal year on July 1.
The RIFA program terminated in October 2003. Passaro testified after the RIFA
program ended, the only impact to the District operating expenses by RIFA's absence was a
slight reduction in utilities because the RIFA side of the building was no longer in use.
ALJ'S PROPOSED DECISION
The ALJ held that the layoffs of six RIFA employees in January and February 2003
were motivated by retaliation against RIFA employees for filing the unit modification petition
and to interfere with the election, but not for legitimate business reasons. The ALJ found that
the District failed to establish a compelling financial reason to transfer operating costs from the
Vector budget to the RIFA budget, and that the District's purported -need to have a $100,000
3. Even though CSEA representatives have told the District that
it is not making claims for up to $100,000 in overtime its attorney
has refused to sign an agreement for this.
4. CSEA has filed a new lawsuit against the District in the past
few weeks. The legal fees alone for the two lawsuits show a
budget deduction for $45,000 in legal fees.
5. CSEA has advised the District's negotiators that RIFA
employees have directed CSEA to bring a third lawsuit against
the District if it holds the secret ballot election which will cost
more in legal fees.
6. CSEA representative Tim Taggart has contacted the State of
California about the District's RIFA Program and has falsely
accused the District of mishandling RIFA funds. The State of
California can terminate the RIFA Program with only 30 days
notice for no reason, anytime it wishes. The District believes that
CSEA's contact with the State creates a risk that the state could
terminate the RIFA Program.
11
Two months later, on May 12 and May 19, 2003, the District issued a--recall notices to
the six RIF A employees laid off in January and February. Gomsi testified that the timing of
the notices was predicated on the District's need to know who would accept the offerprior to
the start of the new fiscal year on July 1.
The RIFA program terminated in October 2003. Passaro testified after the RIF A
program ended, the only impact to the District operating expenses by RIFA's absence was a
slight reduction in utilities because the RIF A side of the building was no longer in use.
ALJ'S PROPOSED DECISION
The ALJ held that the layoffs of six RIF A employees in January and February 2003
were motivated by retaliation against RIF A employees for filing the unit modification petition
and to interfere with the election, but not for legitimate business reasons. The ALJ found that
the District failed to establish a compelling financial reason to transfer operating costs from the
Vector budget to the RIF A budget, and that the District's purported -need to have a $100,000
3. Even though CSEA representatives have told the District that
it is not making claims for up to $100,000 in overtime its attorney
has refused to sign an agreement for this.
4. CSEA has filed a new lawsuit against the District in the past
few weeks. 	The legal fees alone for the two lawsuits show a
budget deduction for $45,000 in legal fees.
5. CSEA has advised the District's negotiators that RIF A
employees have directed CSEA to bring a third lawsuit against
the District if it holds the secret ballot election which will cost
more in legal fees.
6. CSEA representative Tim Taggart has contacted the State of
California about the District's RIF A Program and has falsely
accused the District of mishandling RIF A funds. 	The State of
California can terminate the RIF A Program with only 30 days
notice for no reason, anytime it wishes. The District believes that
CSEA's contact with the State creates a risk that the state could
terminate the RIF A Program.
11

contingency fee put in the RIFA budget was not credible in light of CSEA's assertions that it	contingency fee put in the RIFA budget was not credible in light of CSEA's assertions that it
did not intend to seek monetary damages in settling the overtime claims. Additionally, the	did not intend to seek monetary damages in settling the overtime claims. Additionally, the
timing of the layoffs weeks before the election and offers of recall made within months after	timing of the layoffs weeks before the election and offers of recall made within months after
the election was indicative of unlawful motive.	the election was indicative of unlawful motive.
The ALJ found that Gomsi coercively threatened RIFA employees with layoff if they
exercised rights by unionizing. The ALJ noted that Gomsi only discussed the problems CSEA
was creating regarding legal expenses. Gomsi never discussed with RIFA employees the
increased operating expenses, the decrease in revenue, or his belief that the budget was in
trouble. The ALJ rejected the District's legitimate budget defense.
The complaint alleged that the District violated MMBA sections 3505 and 3506 by
refusing to bargain in good faith regarding the issue of email access. The ALJ found that the
District did not refuse to bargain in good faith but rather maintained an adamant position that
the Vector Unit employees did not need email as they worked primarily out in the field. The
ALJ did find, however, that by denying email access to unit employees while providing it for
its non-unit employees constituted discrimination against unit employees and interference with
their right to communicate with their union. The ALJ noted that while retaliation was not
alleged as an independent violation, it was intimately related to the subject matter of the
complaint, part of the same course of conduct alleged in the complaint, and was fully litigated
DISTRICT'S EXCEPTIONS
The District filed five exceptions. Each exception is discussed in turn.
The ALJ erred in finding that "the District's revised RIFA budget and the
layoffs of six RIFA employees in January and February 2003 were not for legitimate business
12
The ALJ found that Gomsi coercively threatened RIF A employees with layoffif they
exercised rights by unionizing. The ALJ noted that Gomsi only discussed the problems CSEA
was creating regarding legal expenses. 	Gomsi never discussed with RIF A employees the
increased operating expenses, the decrease in revenue, or his belief that the budget was in
trouble. 	The ALJ rejected the District's legitimate budget defense.
The complaint alleged that the District violated MMBA sections 3505 and 3506by
refusing to bargain in good faith regarding the issue of email access. The ALJ found that the
District did not refuse to bargain in good faith but rather maintained an adamant position that
the Vector Unit employees did not need email as they worked primarily out in the field. 	The
ALJ did find, however, that by denying email access to unit employees while providing it for
its non-unit employees constituted discrimination against unit employees and interference with
their right to communicate with their union. The ALJ noted that while retaliation wasnot
alleged as an independent violation, it was intimately related to the subject matter of the
complaint, part of the same course of conduct alleged in the complaint, and was fully litigated
by the parties.	by the parties.
DISTRICT'S EXCEPTIONS
The District filed five exceptions. Each exception is discussed in turn.
1 .	l. 	The ALJ erred in finding that "the District's revised RIFA budget andthe
layoffs of six RIF A employees in January and February 2003 were not for legitimate business
12

reasons, but rather were motivated by the District's desire to retaliate against RIFA employees
for filing a unit modification petition and to interfere with" an election. The District argues
that CSEA failed to demonstrate a prima facie case by a preponderance of the evidence.
Specifically, CSEA did not establish union animus. The District contends that the ALJ
improperly recharacterized the complaint which charged that the District transferred the
expenses to substantially increasing the expenses. They argue that CSEA failed to show that
the District shifted expenses from the Vector Unit to RIFA for the first time after the unit
modification petition was filed. The categories were not transferred because said categories
were always in the budget. The District argues that even if the Board were to adopt the ALJ's
recharacterization, CSEA failed to demonstrate the baseline expenses to show any increase in
the expenses. The District further argues that the ALJ improperly invaded the District's
budgetary prerogative when the ALJ found that there was no compelling reason to transfer
expenses from the Vector Unit to RIFA. The District also argues that the litigation
contingency fee did not impact the layoffs and was necessary because of the confusion
concerning CSEA's overtime claims. Finally, the District argues that were the Board to find
that the ALJ properly found that CSEA established a prima facie case, the ALJ erred in
rejecting the District's business reason. The District laid off employees because of state
budget cuts and over expenditures.
The ALJ erred in finding that Gomsi coercively threatened RIFA employees
with layoff. The District contends that the ALJ erroneously found a violation based on what
Gomsi should have stated as opposed to what he said. The District further argues that the
evidence did not demonstrate that Gomsi made the alleged statements that there would be
layoffs if the employees unionized. Finally, the District asserts that the ALJ's conclusion
13
reasons, but rather were motivated by the District's desire to retaliate against RIP A employees
for filing a unit modification petition and to interfere with" an election. The District argues
that CSEA failed to demonstrate a prima facie case by a preponderance
of
the evidence.
Specifically, CSEA did not establish union animus. The District contends that the ALJ
improperly recharacterized the complaint which charged that the District transferred the
expenses to substantially increasing the expenses. They argue that CSEA failed to show that
the District shifted expenses from the Vector Unit to RIF A for the first time after the unit
modification petition was filed. 	The categories were not transferred because said categories
were always in the budget. The District argues that even
if
the Board were to adopt the ALJ's
recharacterization, CSEA failed to demonstrate the baseline expenses to show any increase in
the expenses. The District further argues that the ALJ improperly invaded the District's
budgetary prerogative when the ALJ found that there was no compelling reason to transfer
expenses from the Vector Unit to RIPA. The District also argues that the litigation
contingency fee did not impact the layoffs and was necessary because
of
the confusion
concerning CSEA's overtime claims. Finally, the District argues that were the Board to find
that the ALJ properly found that CSEA established a prima facie case, the ALJ erredin
rejecting the District's business reason. The District laid off employees because
of
state
budget cuts and over expenditures.
2.	2. 	The ALJ erred in finding that Gomsi coercively threatened RIP A employees
with layoff. The District contends that the ALJ erroneously found a violation based on what
Gomsi should have stated as opposed to what he said. The District further argues that the
evidence did not demonstrate that Gomsi made the alleged statements that there wouldbe
layoffs if the employees unionized. Finally, the District asserts that the ALJ' s conclusion
13

ignores CSEA's legal challenges and argues that it was proper under Rio Hondo Community
College District (1980) PERB Decision No. 128 (Rio Hondo) for the District to relate the
impact of CSEA's threatened and pending legal action.
3 . 	The ALJ correctly determined that the District did not fail to negotiate the email
access but rather maintained a firm and hard position, however, the ALJ committed prejudicial
error by converting the allegation into a discrimination charge. The District argues that CSEA
failed to establish it had inadequate access in communicating with bargaining unit members in
that (1) Martinez testified he accessed his own email to communicate, (2) other members have
personal emails; (3) vector technicians have no email because they work in the field, and (4)
there are alternative means of access via the bulletin board and copy machine.
The ALJ was biased. The District cites the following conduct as demonstrative
of bias:
ignores CSEA's legal challenges and argues that it was proper under Rio Hondo Community
College District (1980) PERB Decision No. 128 (Rio Hondo) for the District to relate the
impact of CSEA's threatened and pending legal action.
3. 	The ALJ correctly determined that the District did not fail to negotiate the email
access but rather maintained a firm and hard position, however, the ALJ committed prejudicial
error by converting the allegation into a discrimination charge. The District argues that CSEA
failed to establish it had inadequate access in communicating with bargaining unit members in
that (1) Martinez testified he accessed his own email to communicate, (2) other members have
personal emails; (3) vector technicians have no email because they work in the field, and (4)
there are alternative means of access via the bulletin board and copy machine.
4. 	The ALJ was biased. The District cites the following conduct as demonstrative
of bias:
a. 	The ALJ refused to stay the hearing while another case concerning the
statute of limitations was before the California Supreme Court;
The ALJ refused to stay the hearing while another case concerning the
statute of limitations was before the California Supreme Court;
b. 	The ALJ included alleged inflammatory quotes by Gomsi even though
only one person testified to such while failing to include the surrounding facts;
The ALJ included alleged inflammatory quotes by Gomsi even though
only one person testified to such while failing to include the surrounding facts;
C. 	The ALJ precluded the District from presenting evidence of the baseline
charges to the RIFA program;
The ALJ precluded the District from presenting evidence of the baselin
charges to the RIF A program;
d. 	The ALJ referenced testimony in the proposed decision that was
excluded; and
The ALJ refused to find vandalism by CSEA.
The organizational structure of PERB violates due process rights of parties
because it fails to adequately separate its adjudicationrom its investigative functions.
14
4.
a.
e
b.
c.
d. 	The ALJ referenced testimony in the proposed decision that was
excluded; and
e. 	The ALJ refused to find vandalism by CSEA.
5.
14
5. 	The organizational structure of PERB violates due process rights of parties
because it fails to adequately separate its adjudicative from its investigative functions.

Specifically, PERB failed to adequately separate its adjudication function from its other
functions.
CSEA'S RESPONSE
CSEA argues that the ALJ properly found that the District's motive in revising the
budget and laying off employees was reprisal for and interference with the unit modification
petition and upcoming election, not for legitimate business reasons. CSEA stated that the
District knew in 2001 that the fiscal year 2002-2003 budget was $910,000, and that the January
2003 increases to portions of the budget were unnecessary. These increases did not come from
CDFA. Additionally, CSEA points out that there was no evidence that RIFA incurred used
half of the operating expenses as argued by the District, and that because the expenses
remained basically the same after the RIFA program terminated. Further, the District relied on
the sole testimony of Gomsi regarding how the previous director under budgeted. CSEA
argues that this testimony is suspect because Gomsi signed off on all the previous budgets.
CSEA also argues that the contingency fee was unnecessary because CSEA relinquished all
claims to $100,000 to prevent layoffs. Lastly, CSEA argues that the ALJ did not invade the
District's budgetary business prerogative. Rather, the ALJ examined the District's budgetary
figures and rationale for those figures.
CSEA agrees with the ALJ's conclusion that Gomsi interfered with employee rights by
informing employees that there would be layoffs if they unionized. Gomsi's statements were
not good faith predictions.
CSEA did not respond to the District's third exception.
In response to the fourth exception, CSEA argues that the District failed to demonstrate
bias by the ALJ. CSEA asserts that the District does not list any instances of alleged bias, but
15
Specifically, PERB failed to adequately separate its adjudicative function from its other
functions.
CSEA'S RESPONSE
CSEA argues that the ALJ properly found that the District's motive in revising the
budget and laying off employees was reprisal for and interference with the unit modification
petition and upcoming election, not for legitimate business reasons. CSEA stated that the
District knew in 2001 that the fiscal year 2002-2003 budget was $910,000, and that the January
2003 increases to portions of the budget were unnecessary. These increases did not come from
CDFA. Additionally, CSEA points out that there was no evidence that RIF A incurred W3-ed
half of the operating expenses as argued by the District, and that because the expenses
remained basically the same after the RIF A program terminated. Further, the District relied on
the sole testimony of Gomsi regarding how the previous director under budgeted. CSEA
argues that this testimony is suspect because Gomsi signed off on all the previous budgets.
CSEA also argues that the contingency fee was unnecessary because CSEA relinquished all
claims to $100,000 to prevent layoffs. Lastly, CSEA argues that the ALJ did not invade the
District's budgetary business prerogative. Rather, the ALJ examined the District's budgetary
figures and rationale for those figures.
CSEA agrees with the ALJ's conclusion that Gomsi interfered with employee rights by
informing employees that there would be layoffs if they unionized. 	Gomsi's statements were
not good faith predictions.
CSEA did not respond to the District's third exception.
In response to the fourth exception, CSEA argues that the District failed to demonstrate
bias by the ALJ. CSEA asserts that the District does not list any instances of alleged bias, but
15

rather refers to instances of decision-making by the ALJ in the course of the hearing. For
example, the ALJ cited testimony of an alleged inflammatory statement by Gomsi, but also
noted that Gomsi denied making the statement. Regarding the alleged reference to excluded
evidence, CSEA contends that the District was allowed to introduce evidence regarding
allocation of funds without interference by the ALJ as evidenced by a total of 94 exhibits
including all the CDFA and RIFA budgets. Additionally, CSEA asserts that the ALJ's
statement regarding not finding that CSEA engaged in vandalism was reasonable.
In regards to the District's last exception, that the organizational structure violates the
District's due process rights, CSEA points out that the District failed to raise said issue at the
hearing. CSEA further notes that the District does not provide any specific facts but simply
makes a legal conclusion.
DISCUSSION
First Exception: Layoffs
To establish a prima facie case of discrimination in violation of Section 3506 and PERB
Regulation 32603(a)," the charging party must show that: (1) the employee exercised rights
under MMBA; (2) the employer had knowledge of the exercise of those rights; and (3) the
employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained or coerced the employee because of the
exercise of those rights. (Campbell Municipal Employees Assn. v. City of Campbell (1982)
131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Assn. v. City of San Leandro
(1976) 55 Cal.App.3d 553 (San Leandro).)
PERB regulations are codified at the California Code of Regulations, title 8, section 31001
et seq.
16
rather refers to instances of decision-making by the ALJ in the course of the hearing. For
example, the ALJ cited testimony of an alleged inflammatory statement by Gomsi, but also
noted that Gomsi denied making the statement. Regarding the alleged reference to excluded
evidence, CSEA contends that the District was allowed to introduce evidence regarding
allocation of funds without interference by the ALJ as evidenced by a total of 94 exhibits
including all the CDFA and RIFA budgets. Additionally, CSEA asserts that the ALJ's
statement regarding not finding that CSEA engaged in vandalism was reasonable.
In regards to the District's last exception, that the organizational structure violates the
District's due process rights, CSEA points out that the District failed to raise said issue at the
hearing. CSEA further notes that the District does not provide any specific facts but simply
makes a legal conclusion.
DISCUSSION
I.1. 	First Exception: Layoffs
To establish a prima facie case of discrimination in violation of Section 3506 and PERB
Regulation 32603(a),6 the charging party must show that: (1) the employee exercised rights
under MMBA; (2) the employer had knowledge of the exercise of those rights; and (3) the
employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained or coerced the employee because of the
exercise of those rights. (Campbell Municipal Employees Assn. v. City of Campbell (1982)
131 Cal.App.3d 416 ( Campbell); San Leandro Police Officers Assn. v. City of San Leandro
(1976) 55 Cal.App.3d 553 (San Leandro).)
6 PERB regulations are codified at the California Code of Regulations, title 8, section 31001
et seq.
16

Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate
the necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing
one or more of the following nexus factors should be present: (1) the employer's disparate
treatment of the employee (Campbell, supra); (2) the employer's departure from established
procedures and standards when dealing with the employee (San Leandro, supra, 55
Cal.App.3d 553); (3) the employer's inconsistent or contradictory justifications for its actions
(San Leandro); (4) the employer's cursory investigation of the employee's misconduct; (5) the
employer's failure to offer the employee justification at the time it took action or the offering
of exaggerated, vague, or ambiguous reasons; or (6) employer animosity towards union
activists (San Leandro; Los Angeles County Employees Assn. v. County of Los Angeles (1985)
168 Cal.App.3d 683).
To prove retaliation, CSEA must establish that the District took adverse action against
the RIFA employees because they engaged in activity protected by MMBA. The test for an
adverse action is "whether a reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's employment." (City and County of
San Francisco (2004) PERB Decision No. 1664-M.)
Within this framework, we now examine the facts of this case. There is no dispute that
the District was well aware that the RIFA employees exercised rights under the MMBA when
they filed a unit modification petition nor that it took adverse action in laying off RIFA
employees. We, therefore, turn to whether the District took the adverse action because of the
exercise of protected conduct.
17
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate
the necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing
one or more of the following nexus factors should be present: (1) the employer's disparate
treatment of the employee (Campbell, supra); (2) the employer's departure from established
procedures and standards when dealing with the employee (San Leandro, supra, 55
Cal.App.3d 553); (3) the employer's inconsistent or contradictory justifications for its actions
(San Leandro); (4) the employer's cursory investigation of the employee's misconduct; (5) the
employer's failure to offer the employee justification at the time it took action or the offering
of exaggerated, vague, or ambiguous reasons; or (6) employer animosity towards union
activists (San Leandro; Los Angeles County Employees Assn. v. County of Los Angeles (1985)
168 Cal.App.3d 683).
To prove retaliation, CSEA must establish that the District took adverse action against
the RIF A employees because they engaged in activity protected by MMBA. The test for an
adverse action is "whether a reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's employment." (City and County of
San Francisco (2004) PERB Decision No. 1664-M.)
Within this framework, we now examine the facts of this case. There is no dispute that
the District was well aware that the RIF A employees exercised rights under the MMBA when
they filed a unit modification petition nor that it took adverse action in laying off RIF A
employees. We, therefore, turn to whether the District took the adverse action because of the
exercise of protected conduct.
17

The District received the unit modification petition and cards showing majority support
on November 21, 2002. Shortly thereafter, on January 9, 2003, the District met with CSEA
and RIFA employees and informed them that budget revisions necessitated the layoff of
ultimately six employees in January and February. This closeness in time between the RIFA
employees protected activity and the District's adverse actions supports an inference of
retaliation.
Having satisfied the time factor, CSEA must also show at least one additional factor to
establish retaliation. Exaggerated reasons given by the employer or its agents for the alleged
unlawful conduct, also support an inference of retaliation. The District revised its budget
shifting expenses from salaries and benefits to attorney fees, utilities, janitorial expense, and
equipment parts and supplies. Such action necessitated laying off employees. The District
justified revising the budget by its claim that RIFA needed to be self-sustaining (and thus pay
for half of the operating expenses) and by its claimed need to include a contingency for the
overtime lawsuit.
In regards to the overtime lawsuit, CSEA repeatedly told the District that it did not seek
to recover a monetary award. Rather, CSEA simply desired the District to cease and desist
from negotiating directly with employees. The District failed to set forth a credible need to
continue to include the $100,000 contingency fee in the February 6" revised budget. We,
therefore find the District's reason for of including the $100,000 contingency fee exaggerated."
We also find the District's reason claiming that it needed to increase utilities, attorney
fees, janitorial expenses, and equipment parts and supplies because RIFA was to be self-
The Board understands that the contingency fee was not actually factored into the
budget. However, the contingency fee repeatedly appeared at the bottom of the budget
documents and was discussed.
18
The District received the unit modification petition and cards showing majority support
on November 21, 2002. Shortly thereafter, on January 9, 2003, the District met with CSEA
and RIP A employees and informed them that budget revisions necessitated the layoff
of
ultimately six employees in January and February. This closeness in time between the RIP A
employees protected activity and the District's adverse actions supports an inference
of
retaliation.
Having satisfied the time factor, CSEA must also show at least one additional factor to
establish retaliation. Exaggerated reasons given by the employer or its agents for the alleged
unlawful conduct, also support an inference
of
retaliation. The District revised its budget
shifting expenses from salaries and benefits to attorney fees, utilities, janitorial expense, and
equipment parts and supplies. 	Such action necessitated laying
off
employees. The District
justified revising the budget by its claim that RIPA needed to be self-sustaining (and thus pay
for half
of
the operating expenses) and by its claimed need to include a contingency for the
overtime lawsuit.
In regards to the overtime lawsuit, CSEA repeatedly told the District that it did not seek
to recover a monetary award. Rather, CSEA simply desired the District to cease and desist
from negotiating directly with employees. The District failed to set forth a credible need to
continue to include the $100,000 contingency fee in the February 6th revised budget. 	We,
therefore find the District's reason for
ef
including the $100,000 contingency fee exaggerated.7
We also find the District's reason claiming that it needed to increase utilities, attorney
fees, janitorial expenses, and equipment parts and supplies because RIP A was to be self-
7 The Board understands that the contingency fee was not actually factored into the
budget. However, the contingency fee repeatedly appeared at the bottom of the budget
documents and was discussed.
18

sustaining, exaggerated. First, Gomsi knew of the need for budget cuts on March 22, 2001,
when he submitted a budget proposal which ultimately resulted in Gomsi laying off two
employees." Next, in regards to the intent of RIFA to be self sustaining, and Gomsi's claim
that Garcia under-budgeted, we note that Gomsi was involved with and approved the budget
set by Garcia. He cannot turn around and now say that he was unaware that the program it was
under-budgeted. Additionally, when approving the budget, Gomsi should have noticed that the
RIFA program was not self sustaining as it was clearly only paying a minimal amount of
money for utilities, janitorial expense, and equipment parts and supplies. To later increase the
amount, so soon after the filing of the unit modification petition, is suspicious. Additionally,
the amount of increase was inordinately substantial. For example, the janitorial expense for
the prior years was budgeted at approximately $1,000 and now was $7,000. In the past,
utilities were budgeted approximately from $4,000 to $14,000 and with the revised budget at
$16,000. The District failed to establish any legitimate justification for such large increases."
Therefore, we find that CSEA demonstrated a prima face case of retaliation.
Once the charging party establishes a prima facie case of retaliation, as CSEA has done
here, the employer then bears the burden of proving that it would have taken the adverse action
even if the employee had not engaged in protected activity. (Novato Unified School District
(1982) PERB Decision No. 210; Matori Bros. Distributors v. Agricultural Labor Relations Bd.
(1981) 29 Cal.3d 721, 729-730 (Martori Brothers); Wright Line, Inc. (1980) 251 NLRB 1083.)
Thus, where, as here, it appears that the employer's adverse action was motivated by both valid
The April 26, 2002, layoffs are not at issue in this case.
"The fact that the RIFA program was not allowed to roll over money or did not receive
funding from SB 204 does not change our conclusion because that money was never included
in the budget.
19
sustaining, exaggerated. First, Gomsi knew of the need for budget cuts on March 22, 2001,
when he submitted a budget proposal which ultimately resulted in Gomsi laying off two
employees. 8 Next, in regards to the intent ofRIFA to be self sustaining, and Gomsi's claim
that Garcia under-budgeted, we note that Gomsi was involved with and approved the budget
set by Garcia. He cannot turn around and now say that he was unaware that the program i-t was
under-budgeted. Additionally, when approving the budget, Gomsi should have noticed that the
RIF A program was not self sustaining as it was clearly only paying a minimal amount of
money for utilities, janitorial expense, and equipment parts and supplies. To later increase the
amount, so soon after the filing of the unit modification petition, is suspicious. Additionally,
the amount of increase was inordinately substantial. For example, the janitorial expense for
the prior years was budgeted at approximately $1,000 and now was $7,000. In the past,
utilities were budgeted approximately from $4,000 to $14,000 and with the revised budget at
$16,000. The District failed to establish any legitimate justification for such large increases. 9
Therefore, we find that CSEA demonstrated a prima face case of retaliation.
Once the charging party establishes a prima facie case of retaliation, as CSEA has done
here, the employer then bears the burden of proving that it would have taken the adverse action
even if the employee had not engaged in protected activity. (Novato Unified School District
(1982) PERB Decision No. 210; Matori Bros. Distributors v. Agricultural Labor Relations Bd.
(1981) 29 Cal.3d 721, 729-730 (Martori Brothers); Wright Line, Inc. (1980) 251 NLRB 1083.)
Thus, where, as here, it appears that the employer's adverse action was motivated by both valid
19
8 The April 26, 2002, layoffs are not at issue in this case.
9 The fact that the RIF A program was not allowed to roll over money or did not receive
funding from SB 204 does not change our conclusion because that money was never included
in the budget.

and invalid reasons, "the question becomes whether the [adverse action] would not have
occurred 'but for' the protected activity." (Martori Brothers.) The "but for" test is "an
affirmative defense which the employer must establish by a preponderance of the evidence."
(McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
As stated previously, the District justified its actions noting that the RIFA program was
intended to be self sufficient and it was not. RIFA was not paying for half of the utilities, etc.
Additionally, the District noted that the previous program coordinator misbudgeted. In regards
to attorney fees, the District stated that these fees were estimated costs of possible litigation
regarding CSEA's unit modification and its efforts to bring the RIFA employees into the
Vector Unit, and CSEA's unfair practice charges and threats to file charges regarding
voluntary recognition by card check. The District also asserted that it needed to set aside an
additional contingency amount of $100,000 in anticipation of CSEA's claims in the overtime
lawsuits. As found above, the District's claims regarding the necessity of these substantial
changes are not credible and are without merit. These exaggerated reasons support an
inference of retaliation. The Board, therefore, affirms the ALJ's decision that the layoffs of six
RIFA employees in January and February 2003 were motivated by retaliation against RIFA
employees for filing the unit modification petition and to interfere with the election and not for
legitimate business reasons.
II. 	Second Exception: Interference
The District contends that the ALJ erred in finding Gomsi's statements to the RIFA
employees, regarding potential layoffs, to be interference. The District first argues that the
ALJ's factual conclusions were not supported by the record testimony. We disagree and agree
20
and invalid reasons, "the question becomes whether the [adverse action] would not have
occurred 'but for' the protected activity." (Martori Brothers.) The "but for" test is "an
affirmative defense which the employer must establish by a preponderance of the evidence."
(McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
As stated previously, the District justified its actions noting that the RIF A program was
intended to be self sufficient and it was not. RIF A was not paying for half of the utilities, etc.
Additionally, the District noted that the previous program coordinator misbudgeted. In regards
to attorney fees, the District stated that these fees were estimated costs of possible litigation
regarding CSEA' s unit modification and its efforts to bring the RIF A employees into the
Vector Unit, and CSEA's unfair practice charges and threats to file charges regarding
voluntary recognition by card check. The District also asserted that it needed to set aside an
additional contingency amount of $100,000 in anticipation of CSEA' s claims in the overtime
lawsuits. 	As found above, the District's claims regarding the necessity of these substantial
changes are not credible and are without merit. These exaggerated reasons support an
inference of retaliation. The Board, therefore, affirms the ALJ' s decision that the layoffs of six
RIFA employees in January and February 2003 were motivated by retaliation against RIFA
employees for filing the unit modification petition and to interfere with the election and not for
legitimate business reasons.
II. 	Second Exception: Interference
The District contends that the ALJ erred in finding Gomsi' s statements to the RIF A
employees, regarding potential layoffs, to be interference. The District first argues that the
ALJ's factual conclusions were not supported by the record testimony. We disagree and agree
20

with the ALJ's factual conclusions that Gomsi stated he was disappointed and that if
employees chose to be represented, there would be layoffs.
Next, the District argues that it "had an absolute right to relate [to the RIFA employees]
the impact of CSEA's threatened and pending legal actions on its RIFA budget" pursuant to
Rio Hondo, supra. In Rio Hondo, the Board held that while a letter "criticized the CTA
lawsuit and, based on the arguments contained therein, sought to persuade District employees
to convince the Association to withdraw the civil actions[,] [the document cannot, however,
be read to contain a threat of reprisal or force directed at employees should they disagree with
the District's position and/or choose to continue to support maintenance of the lawsuit."
Moreover, the Board noted that the hearing officer correctly found that "the Jenkins' letter
referred to events which were demonstrably predictable results of the lawsuit and not effects
within the District's control." (Emphasis in original, fn. omitted.) Here, Gomsi's statements
did contain a threat of reprisal or force directed at employees, that they would be laid off.
Further, unlike in Rio Hondo, the layoffs referred to by Gomsi were not demonstrably
predictable results of the lawsuit and effects within the District's control.
We, therefore, find that the ALJ properly concluded that Gomsi coercively threatened
RIFA employees with layoff in violation of MMBA section 3506 and adopt the ALJ's rationale
incorporated herein:
The test for whether a respondent has interfered with the rights of
employees under the MMBA does not require that unlawful motive
be established, only that at least slight harm to employee rights
results from the conduct. The courts have described the standard as
follows: All [a charging party] must prove to establish an
interference violation of section 3506 is: (1) That employees were
engaged in protected activity; (2) that the employer engaged in
conduct which tends to interfere with, restrain or coerce employees in
21
with the
ALJ'
s factual conclusions that Gomsi stated he was disappointed and that
if
employees chose to be represented, there would be layoffs.
Next, the District argues that it "had an absolute right to relate [to the RIF A employees]
the impact
of
CSEA' s threatened and pending legal actions on its RIF A budget" pursuant to
Rio Hondo, supra. In Rio Hondo, the Board held that while a letter "criticized the CT A
lawsuit and, based on the arguments contained therein, sought to persuade District employees
to convince the Association to withdraw the civil actions[,] [t]he document cannot, however,
be read to contain a threat
of
reprisal or force directed at employees should they disagree with
the District's position and/or choose to continue to support maintenance
of
the lawsuit."
Moreover, the Board noted that the hearing officer correctly found that "the Jenkins' letter
referred to events which were demonstrably predictable results
of
the lawsuit and not effects
within the District's control." (Emphasis in original, fn. omitted.) Here, Gomsi's statements
did contain a threat
of
reprisal or force directed at employees, that they would be laid off.
Further, unlike in Rio Hondo, the layoffs referred to by Gomsi were not demonstrably
predictable results
of
the lawsuit and effects within the District's control.
We, therefore, find that the ALJ properly concluded that Gomsi coercively threatened
RIF A employees with layoff in violation
of
MMBA section 3 506 and adopt the ALJ' s rationale
incorporated herein:
The test for whether a respondent has interfered with the rights
of
employees under the MMBA does not require that unlawful motive
be established, only that at least slight harm to employee rights
results from the conduct. The courts have described the standard as
follows: 	All [a charging party] must prove to establish an
interference violation
of
section 3506 is: (1) That employees were
engaged in protected activity; (2) that the employer engaged in
conduct which tends to interfere with, restrain or coerce employees in
21

the exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons. (Public Employees
Association of Tulare County, Inc. v. Board of Supervisors of Tulare
County (1985) 167 Cal.App.3d 797, 807 [213 Cal. Rptr. 491.)
As to the employer threatening adverse consequences, in NLRB v.
Gissel Packing Company (1969) 395 U.S. 575, 618-619 [71 LRRM
2481], an employer's threat to close the plant if the employees
organized was unlawful. The Court held that, while the employer
could lawfully predict circumstances beyond its control, its
statements "must be carefully phrased on the basis of objective fact."
Thus in NLRB v. River Togs, Inc. (2nd Cir. 1967) 382 F.2d 198, 202
[65 LRRM 2987], the court stated that "[conveyance of the
employer's belief, even though sincere, that unionizing will or may
result in the closing of the plant is not a statement of fact unless,
which is most improbable, the eventuality of closing is capable of
proof." Following the reasoning of the courts, the NLRB has
declared that a prediction of job loss without the "necessary objective
basis for the claim" (Bi-Lo Foods (1991) 303 NLRB 749
[139 LRRM 1021] and a veiled threat to discharge employees for
engaging in union activities for supporting the union (Kona 60
Minute Photo (1985) 277 NLRB 867 [ 120 LRRM 1313] are
unlawful. Similarly, PERB has held that telling employees they will
suffer adverse consequences if they seek assistance from their union
is unlawfully coercive. (Sacramento City Unified School District
(1985). In all these cases, the standard is an objective one, not based
on the employer's motive or even his "sincere belief," but rather on
the tendency of his statement to coerce employees.
As noted above, shortly after the filing of the UM petition and before
the January and February layoffs, Gomsi spoke to the RIFA
employees. According to Greeman and Ginn, he told them that he
was disappointed and that if they went with the union there would be
layoffs. According to Gomsi, he told them that although they were
free to join the union, problems with CSEA were creating legal
expenses and the only budget item those expenses could come from
was salaries and benefits. He also admitted that he was
"disappointed" at the costs caused by the appearance of a union. I
find that, whether crediting Gomsi or Greeman and Ginn, the
reasonable interpretation of Gomsi's statements to the RIFA
employees is that unless they reject CSEA altogether or at the least
dissuade it from pursuing its legal actions, they would be subject to
layoff. The District contends that Gomsi was merely stating an
honest and reasonable projection of future layoffs because of budget
22
the exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons. (Public Employees
Association of Tulare County, Inc. v. Board of Supervisors of Tulare
County (1985) 167 Cal.App.3d 797, 807 [213 Cal. Rptr. 491.)
22
As to the employer threatening adverse consequences, in NLRB v.
Gissel Packing Company (1969) 395 U.S. 575, 618-619 [71 LRRM
2481], an employer's threat to close the plant if the employees
organized was unlawful. The Court held that, while the employer
could lawfully predict circumstances beyond its control, its
statements "must be carefully phrased on the basis of objective fact."
Thus in NLRB v. River Togs, Inc. (2nd Cir. 1967) 382 F.2d 198,202
[65 LRRM 2987], the court stated that "[c]onveyance of the
employer's belief, even though sincere, that unionizing will or may
result in the closing of the plant is not a statement of fact unless,
which is most improbable, the eventuality of closing is capable of
proof." Following the reasoning of the courts, the NLRB has
declared that a prediction of job loss without the "necessary objective
basis for the claim" (Bi-Lo Foods (1991) 303 NLRB 749
[139 LRRM 1021] and a veiled threat to discharge employees for
engaging in union activities for supporting the union (Kona 60
Minute Photo (1985) 277 NLRB 867 [ 120 LRRM 1313] are
unlawful. Similarly, PERB has held that telling employees they will
suffer adverse consequences if they seek assistance from their union
is unlawfully coercive. (Sacramento City Unified School District
(1985). In all these cases, the standard is an objective one, not based
on the employer's motive or even his "sincere belief," but rather on
the tendency of his statement to coerce employees.
As noted above, shortly after the filing of the UM petition and before
the January and February layoffs, Gomsi spoke to the RIF A
employees. According to Greeman and Ginn, he told them that he
was disappointed and that if they went with the union there would be
layoffs. According to Gomsi, he told them that although they were
free to join the union, problems with CSEA were creating legal
expenses and the only budget item those expenses could come from
was salaries and benefits. He also admitted that he was
"disappointed" at the costs caused by the appearance of a union. I
find that, whether crediting Gomsi or Greeman and Ginn, the
reasonable interpretation of Gomsi' s statements to the RIF A
employees is that unless they reject CSEA altogether or at the least
dissuade it from pursuing its legal actions, they would be subject to
layoff. The District contends that Gomsi was merely stating an
honest and reasonable projection of future layoffs because of budget

deficits. However, as discussed above, the District did not implement
the January and February layoffs because of a legitimate budget
deficit, but rather to retaliate against the RIFA employees. But even
taking the District's budget defense as legitimate, it is not based
solely on legal expenses but on the entire RIFA budget, including the
increased operating expenses and the $100,000 decrease in revenue.
By his own admission, Gomsi discussed with the RIFA employees
neither the increased operating expenses, the decrease in revenue, nor
his purported belief that the RIFA budget was in trouble. He
mentioned only the legal expenses caused by CSEA. Thus, he did not
give his employees an honest and reasonable projection of even his
own view of the possibility of future layoffs, but was focusing only
on the detrimental effect of unionization.
Accordingly, I conclude that Gomsi coercively threatened RIFA
employees with layoff in violation of MMBA section 3506.
III. 	Third Exception: Email
We agree with the District's third exception. Discrimination and interference with unit
employees right to communicate with the union by denying them email access while providing it
for non-unit employees is an unalleged violation. We find no compelling reason to entertain
unalleged violations in this case. Should it become necessary to entertain unalleged violations,
each of the four requirements for allowing consideration of the unalleged violation must be
discussed. In this case, CSEA had ample opportunity to move to amend the complaint prior to
hearing, but did not. Therefore, in the absence of clearly articulated rationale in support of the
requirements for consideration of the unalleged violation, the issue will not be considered.
IV. Fourth Exception: ALJ Bias
The District asks that the Board reverse certain findings in the proposed decision
because the ALJ was biased. In Gonzales Union High School District (1985) PERB Decision
No. 480, the Board considered a party's appeal of the ALJ's refusal to disqualify himself
23
deficits. However, as discussed above, the District did not implement
the January and February layoffs because of a legitimate budget
deficit, but rather to retaliate against the RIF A employees. But even
taking the District's budget defense as legitimate, it is not based
solely on legal expenses but on the entire RIF A budget, including the
increased operating expenses and the $100,000 decrease in revenue.
By his own admission, Gomsi discussed with the RIF A employees
neither the increased operating expenses, the decrease in revenue, nor
his purported belief that the RIF A budget was in trouble. He
mentioned only the legal expenses caused by CSEA. Thus, he did not
give his employees an honest and reasonable projection of even his
own view of the possibility of future layoffs, but was focusing only
on the detrimental effect of unionization.
Accordingly, I conclude that Gomsi coercively threatened RIFA
employees with layoff in violation ofMMBA section 3506.
III. 	Third Exception: Email
We agree with the District's third exception. Discrimination and interference with unit
employees right to communicate with the union by denying them email access while providing it
for non-unit employees is an unalleged violation. We find no compelling reason to entertain
unalleged violations in this case. Should it become necessary to entertain unalleged violations,
each of the four requirements for allowing consideration of the unalleged violation must be
discussed. In this case, CSEA had ample opportunity to move to amend the complaint prior to
hearing, but did not. Therefore, in the absence of clearly articulated rationale in support of the
requirements for consideration of the unalleged violation, the issue will not be considered.
IV. 	Fourth Exception: ALJ Bias
The District asks that the Board reverse certain findings in the proposed decision
because the ALJ was biased. In Gonzales Union High School District (1985) PERB Decision
No. 480, the Board considered a party's appeal of the ALJ's refusal to disqualify himself
23

pursuant to PERB Regulation 32115 subdivision (d)." In finding that the disqualification was
inadequate as a matter of law, the Board noted the following:
1 . 	It has long been held that a judge's opinion concerning a question of law or any
error of law, no matter how gross, does not constitute bias or prejudice;
2. 	Erroneous factual rulings against a litigant, even when numerous and
continuous, form no grounds for a charge of bias or prejudice, especially when they are subject
3 . 	For bias or prejudice to be found, there must be evidence of a "fixed
anticipatory prejudgment" against a party by the judge; and
4. 	Factual or legal determinations adverse to a party do not establish prejudice or
bias.
The District failed to allege any evidence of bias other than the fact that the ALJ
resolved factual questions contrary to its position. Similarly here, the District fails to allege
any other evidence. Additionally, the District failed to properly request that the ALJ disqualify
"PERB Regulation 32155 subdivision (d) provides:
If the Board agent does not disqualify himself or herself and
withdraw from the proceeding, he or she shall so rule on the
record, state the grounds for the ruling, and proceed with the
hearing or investigation and the issuance of the decision. The
party requesting the disqualification may, within ten days, file
with the Board itself a request for special permission to appeal
the ruling of the Board agent. If permission is not granted, the
party requesting disqualification may file an appeal, after hearing
or investigation and issuance of the decision, setting forth the
grounds of the alleged disqualification along with any other
exceptions to the decision on its merits.
24
pursuant to PERB Regulation 32115 subdivision (d).10 In finding that the disqualification was
inadequate as a matter of law, the Board noted the following:
1. 	It has long been held that a judge's opinion concerning a question oflaw or any
error of law, no matter how gross, does not constitute bias or prejudice;
2. 	Erroneous factual rulings against a litigant, even when numerous and
continuous, form no grounds for a charge of bias or prejudice, especially when they are subject
to appellate review;	to appellate review;
3. 	For bias or prejudice to be found, there must be evidence of a "fixed
anticipatory prejudgment" against a party by the judge; and
4. 	Factual or legal determinations adverse to a party do not establish prejudice or
bias.
The District failed to allege any evidence of bias other than the fact that the ALJ
resolved factual questions contrary to its position. Similarly here, the District fails to allege
any other evidence. Additionally, the District failed to properly request that the ALJ disqualify
10 PERB Regulation 32155 subdivision (d) provides:
If the Board agent does not disqualify himself or herself and
withdraw from the proceeding, he or she shall so rule on the
record, state the grounds for the ruling, and proceed with the
hearing or investigation and the issuance of the decision. The
party requesting the disqualification may, within ten days, file
with the Board itself a request for special permission to appeal
the ruling of the Board agent. If permission is not granted, the
party requesting disqualification may file an appeal, after hearing
or investigation and issuance of the decision, setting forth the
grounds of the alleged disqualification along with any other
exceptions to the decision on its merits.
24

herself pursuant to PERB Regulation 32155 subdivision (c)." We, therefore, find that the
District's contention that the ALJ is biased groundless.
V. 	Fifth Exception: Due Process
The Board also rejects the District's exception arguing that the layout of the
Los Angeles Office violates its due process. The District does not present any facts in support
of this argument. As such, we find the District's exception without merit.
ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that the Coachella Valley Mosquito & Vector Control District (District)
violated the Meyers-Milias-Brown Act (MMBA), Government Code section 3506, and by the
same conduct violated Sections 3503 and 3505 by threatening lay offs, and later by laying off
six Red Imported Fire Ant (RIFA) services employees in January and February 2003.
Pursuant to MMBA sections 3509 subdivision (a) and 3541.5 subdivision (c), it is
hereby ORDERED that the District and its representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Coercively threatening employees with layoff; and
"PERB Regulation 32155 subdivision (c) provides, in pertinent part:
Any party may request the Board agent to disqualify himself or
herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned. Such request shall be
written, or if oral, reduced to writing within 24 hours of the
request. The request shall be under oath and shall specifically set
forth all facts supporting it. The request must be made prior to
the taking of any evidence in an evidentiary hearing or the actual
commencement of any other proceeding.
25
herself pursuant to PERB Regulation 32155 subdivision (c
).
11
We, therefore, find that the
District's contention that the ALJ is biased groundless.
V. 	Fifth Exception: Due Process
The Board also rejects the District's exception arguing that the layout
of
the
Los Angeles Office violates its due process. The District does not present any facts
in
support
of
this argument. As such, we find the District's exception without merit.
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, it is found that the Coachella Valley Mosquito & Vector Control District (District)
violated the Meyers-Milias-Brown Act (MMBA), Government Code section 3506, and by the
same conduct violated Sections 3503 and 3505 by threatening lay offs, and later by laying
off
six Red Imported Fire Ant (RIFA) services employees in January and February 2003.
Pursuant to MMBA sections 3509 subdivision (a) and 3541.5 subdivision (c), it is
hereby ORDERED that the District and its representatives, shall:
A. 	CEASE AND DESIST FROM:
1.	
Coercively threatening employees with layoff; and
11
PERB Regulation 32155 subdivision (c) provides, in pertinent part:
Any party may request the Board agent to disqualify himself or
herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned. Such request shall be
written, or if oral, reduced to writing within 24 hours of the
request. The request shall be under oath and shall specifically set
forth all facts supporting it. The request must be made prior to
the taking of any evidence in an evidentiary hearing or the actual
commencement of any other proceeding.
25

2. 	Laying employees off in retaliation for their filing a unit modification petition.
B. 	TAKING THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
. 	Within twenty (20) workdays following the date this Decision is no
longer subject to appeal, provide back pay to all former RIFA employees who were laid off in
January or February 2003 from the date of their layoff until the District's offer of recall on
May 19, 2003, augmented by interest at the rate of 7 percent per annum.
Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees customarily are posted,
and to mail to all former RIFA employees at their last known addresses, copies of the Notice
attached hereto as an Appendix. The Notice must be signed by an authorized agent of the
District, indicating that 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.
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
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on the California School Employees Association & its Chapter 2001.
Members Mckeag and Wesley joined in this Decision.
26
2. 	Laying employees off in retaliation for their filing a unit modification petition.
B. 	TAKING THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
11. 	Within twenty (20) workdays following the date this Decision is no
longer subject to appeal, provide back pay to all former RIF A employees who were laid off in
January or February 2003 from the date of their layoff until the District's offer of recall on
May 19, 2003, augmented by interest at the rate of 7 percent per annum.
2.	2. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees customarily are posted,
and to mail to all former RIFA employees at their last known addresses, copies of the Notice
attached hereto as an Appendix. The Notice must be signed by an authorized agent of the
District, indicating that 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.
3.	3. 	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
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on the California School Employees Association & its Chapter 2001.
Members McKeag and Wesley joined in this Decision.
26

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 Nos. LA-CE-123-M and LA-CE-178-M,
California School Employees Association & Its Chapter 2001 v. Coachella Valley Mosquito &
Vector Control District , in which all parties had the right to participate, it has been found that
the Coachella Valley Mosquito & Vector Control District (District) violated the Meyers-
Milias-Brown Act (MMBA), Government Code section 3506, and by the same conduct
violated Sections 3503 and 3505 by threatening lay offs, and later by laying off six Red
Imported Fire Ant (RIFA) services employees in January and February 2003.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1 . 	Coercively threatening employees with layoff; and
2. 	Laying employees off in retaliation for their filing a unit modification
petition.
B 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1 . 	Provide back pay to all former RIFA employees who were laid off in
January or February 2003 from the date of their layoff until the District's offer of recall on
May 19, 2003, augmented by interest at the rate of 7 percent per annum.
2. 	Mail a copy of this Notice to all former RIFA employees at their last
known address.
Dated: 	COACHELLA VALLEY MOSQUITO &
VECTOR CONTROL 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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
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 Nos. LA-CE-123-M and LA-CE-178-M,
California School Employees Association & Its Chapter 2001 v. Coachella Valley Mosquito &
Vector Control District , in which all parties had the right to participate, it has been found that
the Coachella Valley Mosquito & Vector Control District (District) violated the Meyers-
Milias-Brown Act (MMBA), Government Code section 3506, and by the same conduct
violated Sections 3503 and 3505 by threatening lay offs, and later by laying off six Red
Imported Fire Ant (RIF A) services employees in January and February 2003.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Coercively threatening employees with layoff; and
2. 	Laying employees off in retaliation for their filing a unit modification
petition.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Provide back pay to all former RIF A employees who were laid off in
January or February 2003 from the date of their layoff until the District's offer of recall on
May 19, 2003, augmented by interest at the rate of 7 percent per annum.
2. 	Mail a copy of this Notice to all former RIFA employees at their last
known address.
Dated: --------- COACHELLA VALLEY MOSQUITO &
VECTOR CONTROL 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.