Palo Verde Unified School District (PERB 2337E)

STATEOF
_(;ALIFORNTA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS CHAPTER 111,
Charging Party,
V.
PALO VERDE UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5023-E
PERB Decision No. 2337
October 29, 2013
Appearances: California School Employees Association by Christine
C.
Bleuler, Staff
Attorney, for California School Employees Association and its Chapter 111; Atkinson,
Andelson, Loya, Ruud & Romo by William A. Diedrich, Attorney, for Palo Verde Unified
School District.
Before Huguenin, Winslow and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions to the proposed decision (attached)
of
an administrative law
judge (ALJ). The ALJ ruled that Palo Verde Unified School District (District) violated the
Educational Employment Relations Act (EERA)1 by discharging Eva Guilin (Guilin) in
retaliation for her protected activity, including, inter alia, assisting Guilin's union, the
California School Employees Association and its Chapter 111 (CSEA), to file an unfair
practice charge against the District.
We have reviewed the record, the proposed decision, the District's exceptions and
CSEA's response thereto. The ALJ's findings of fact are supported by the record. We adopt
them as the findings of the Board itself, except as noted specifically below. The ALJ's
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

conclusions
of
law are well reasoned and in accordance with applicable law. We therefore
adopt the ALJ's conclusions
of
law, subject to our discussion below
of
issues raised by the
District's exceptions.
PROCEDURAL HISTORY
On December 7, 2006, CSEA filed an unfair practice charge alleging that the District
had changed unilaterally the work duties for numerous represented classifications, including
that
of
purchasing clerk, then held by Guilin.
On March 14, 2007, CSEA amended its charge, alleging that on December 8, 2006, the
District discharged Guilin in retaliation for protected activities, and in January 2007, retaliated
against CSEA President Donna Vibanco. On July 16, 2007, CSEA supplemented its
allegations in a second amended charge. On March 3, 2008, CSEA withdrew all allegations
except the Guilin discharge.
On March 4, 2008, the PERB' s General Counsel issued a complaint alleging that by
discharging Guilin, the District violated EERA section 3543.S(a), and by the same conduct
violated section 3543.S(b).2 The District answered, denying any wrongdoing.
On April 1, 2008, CSEA moved to amend the complaint to allege that one
of
Guilin's
protected activities was her participation in a CSEA unfair practice charge. The District
opposed the amendment. On September 8, 2008, the ALJ granted CSEA's motion to amend
the complaint.
2 EERA section 3543.S(a) makes it unlawful for a public· school employer to "[i]mpose
or threaten to impose reprisals on employees, to discriminate or threaten to discriminate
against employees, or otherwise to interfere with, restrain, or coerce employees because oftheir exercise of rights guaranteed by this chapter." Section 3543.S(b) makes it unlawful for a
public school employer to "[ d]eny to employee organizations rights guaranteed to them by this
chapter."
2

On September
17
and 18, 2008, the ALJ conducted a formal hearing. On December 19,
2008, with the filing
of
post-hearing briefs, the matter was submitted for decision.
On January 19, 2009, the ALJ issued her proposed decision.
On February 10, 2009, the District timely filed its exceptions, to which CSEA timely
responded on March
9,
2009.
FACTUAL SUMMARY
The ALJ' s findings
of
fact are stated at pages 2-13
of
the proposed decision. We
provide here our own brief summary
of
the events surrounding Guilin's employment.
The Purchasing Clerk Position
Prior to March 2006, the purchasing clerk position had been located at the District's
warehouse. In or about March 2006, while the position was temporarily vacant, the District
reorganized, moving some purchasing clerk duties to a confidential accounting specialist
position at the District headquarters, relocating the displaced accounting duties to a non-
confidential headquarters accounting position, and thus eliminating altogether the position
of
purchasing clerk. In or about May 2006, CSEA objected to this reorganization. Thereafter,
following discussions with CSEA, the District restored the purchasing clerk position.3
Guilin's Employment
On or about June 19, 2006, the District hired Guilin to fill the restored and vacant
position
of
purchasing clerk. The previous purchasing clerk had worked at the District
warehouse and been supervised by Facilities Director Marty Braden. Guilin was told in her
interview that she would report to and assist Business Manager Olivia Aguirre (Aguirre),
would be stationed in the District's headquarters adjacent to Aguirre, would also serve as
purchasing clerk, and would receive a revised job description.
3 In or about September 2006, CSEA and the District agreed, inter alia, to a job analysis
and to negotiate over any further job description changes.
3

Guilin's Service
During the first several months
of
Guilin' s employment, Aguirre advised Guilin from
time to time to refrain from involvement with CSEA. Aguirre told Guilin variously that
involving the union was not the way to advance with the District, union involvement would not
help her, and Aguirre herself was not "big" on the union.
In or about August or September 2006, Guilin spoke by phone with the District's
outside computer consultant. After the phone call, Guilin told Aguirre that the consultant had
been rude and probably would call Aguirre. Thereafter, the consultant did call Aguirre, and
complained that Guilin had been hard to work with. Later Aguirre herself assisted Guilin with
the issue which had prompted Guilin' s call to the consultant. Aguirre neither scolded nor
counseled Guilin over the telephone incident.
Guilin' s duties for Aguirre and her location at the headquarters prevented Guilin from
performing those purchasing clerk duties necessarily performed at the District's warehouse.
Consequently, the District reassigned the warehouse-based duties to a warehouse employee.
Aguirre told Guilin to inform the warehouse employee
of
the reassignment, and that he, not
Guilin, was responsible to perform the duties. Guilin did so.
In or about September and October 2006, Guilin and the warehouse employee assigned
the purchasing clerk duties became embroiled in a dispute arising from that assignment.
Ultimately, their supervisors intervened and counseled them. During the counseling the
warehouse employee admitted to being the aggressor. Both employees were admonished to be
cooperative. Neither was disciplined. Aguirre told Guilin not to worry about the matter. Each
employee received a comment on the respective formal evaluation urging improvement in
relations with co-workers. In addition, the warehouse employee was rated "unsatisfactory" in
4

the "employee contacts" category on his evaluation, and given a "less-than-satisfactory"
overall evaluation. By contrast, Guilin was rated "satisfactory" overall.
Guilin's Evaluation
In early November 2006, Aguirre gave Guilin her evaluation. Aguirre rated her
"satisfactory" in each category, including "employee contacts," and recorded the following
comments:
RECORD JOB STRENGTHS
Responsible and cares about her job and performance.
AREAS WHERE IMPROVEMENT
JS
NEEDED
Continue to learn purchasing galaxy.
Bid processing on rules and regulations.
Respectful communications with co-workers (warehouse dept).
STEPS NEEDED FOR IMPROVEMENT
Ask a lot
of
questions.
Read instructions and handout materials for galaxy and Bids.
Attend training as needed.
Thereafter, November passed without further incident.
Guilin's Protected Activity
On Friday December
1,
2006, two CSEA officials approached Guilin at her desk. They
asked Guilin to assist them in preparing for an imminent meeting with the District by printing
out for them some information. Guilin provided the requested assistance, and ~lso provided
the CSEA officials a listing
of
her job duties - a combination
of
purchasing clerk and other
administrative duties. As Guilin spoke with the CSEA officials, Aguirre's supervisor,
Assistant Superintendent for Business Yul Whitney (Whitney), approached. Whitney, whose
office was nearby, overheard what he described in his testimony as "union stuff," and therefore
promptly ordered Guilin and the two union officials to cease their conversation. They did so.
Whitney testified that he intervened because he deemed it inappropriate for employees to do
5

"union
stuff'
on their work time, although he conceded there was no District rule prohibiting
such casual conversations on working time.
The Discharge
On the following Monday, December 4, 2006, Aguirre and Whitney discussed Guilin's
possible discharge during a meeting
of
the District administrative cabinet. Details
of
this
conversation are not in the evidentiary record. Thereafter, according to Aguirre, she pondered
discharging Guilin until Tuesday, December 5, 2006, when she decided she would do so on
Friday, December 8, 2006. Aguirre claimed the discharge was due to Guilin's personality
conflicts with other employees, but cited no incident which had triggered the discharge.
On Thursday, December 7, 2006, CSEA filed the instant unfair practice charge,
alleging, inter alia, that the District had unlawfully changed duties
of
the purchasing clerk
position held by Guilin. Whitney's office received a fax copy
of
CSEA's charge just before
noon on December 7, 2006.
On Friday, December 8, 2006, Whitney telephoned Aguirre. Guilin, who customarily
screened Aguirre's calls, answered. Whitney at first expressed surprise and then irritation at
speaking with Guilin rather than Aguirre. Guilin put Whitney through to Aguirre. Later that
day Aguirre summoned Guilin into her office, and informed Guilin that she was discharged
effective immediately. Guilin asked "why." Aguirre responded to Guilin that she was "not a
good fit," "it wasn't working out," "you know why already" and that Aguirre need not provide
reasons. No further reasons were given. Guilin departed Aguirre's office, packed her personal
belongings and left.4
4 Several months later the District restored the purchasing clerk position to the
warehouse, and employed a "business secretary" to assist Aguirre at headquarters.
6

PROPOSED DECISION
The ALJ concluded that: (1) CSEA established a prima facie case
of
unlawful
retaliation, to wit, that Aguirre discharged Guilin on December 8, 2006, because
of
Guilin's
protected activity
of
December 1, 2006, assisting CSEA officials and informing them about her
duties and job description, and (2) the District failed to establish that absent Guilin's protected
activity it would have discharged her. We review first the ALJ's analysis
of
CSEA's prima
facie case, and then her analysis
of
the District's affirmative defense.
The ALJ relied on Novato Unified School District (1982) PERB Decision No. 210
(Novato). 	She concluded that CSEA established a prima facie case, as follows: 	(1) Guilin
exercised BERA rights by conferring with CSEA officials on December
1,
2006; (2) the
District knew
of
this protected activity (Whitney witnessed it, and Whitney's knowledge was
either communicated to Aguirre, or is attributable to Aguirre based on circumstantial evidence
and inferences drawn from the record as a whole [suspicious timing, direct evidence
of
anti-
union animus, vague and ambiguous reasons, and disparate treatment]; (3) the discharge was
adverse to Guilin; and (4) the District's animus is established by direct and circumstantial
evidence on the record as a whole, including (a) direct evidence (Aguirre's anti-union advice to
Guilin, and Whitney's objection to Guilin's conferring with CSEA officials), (b) suspicious
timing (Guilin's conversation with CSEA officials preceded by just one day the District's
Cabinet's discussion
of
Guilin's discharge, and CSEA's PERB charge preceded by just one
day Guilin's discharge itself), (c) vague and ambiguous reasons for the discharge (Aguirre's
statements to Guilin during the discharge meeting, the absence
of
District documentation
supporting the discharge, remoteness in time
of
the personality conflict incidents claimed to
support the discharge decision, and the intervening satisfactory evaluation), and (d) disparate
treatment (unlike its treatment of other probationary employees, the District neither warned
7

Guilin that she was in jeopardy
of
discharge nor followed its Facts, Rules, Impact,
Suggestions, Knowledge (FRISK) intervention and assistance procedures) (Proposed Dec., at
pp. 17-18), plus (e) suspicious circumstances (discussion among District officials about Guilin
immediately following her protected conduct), and (f) inherently unbelievable contentions
of
District witnesses (Aguirre's and Whitney's claims that prior to Guilin's discharge on
December 8, 2006, they did not discuss either Guilin's December 1, 2006 protected
conversation with CSEA officials or CSEA's December 7, 2006 PERB charge).
Under Novato, supra, PERB Decision No. 210, once the charging party establishes a
prima facie case, the burden shifts to the employer to establish by a preponderance
of
the
evidence that it had an alternative, non-discriminatory basis for the discharge, and that it acted
on that basis rather than because
of
the employee's protected activity. Here, the District
asserted as an alternative basis for the discharge, that Guilin had personality conflicts with
other employees. ·
The ALJ concluded that the District failed to prove that it acted because
of
the asserted
personality conflicts rather than because
of
Guilin' s protected activity. In support
of
her
conclusion, the ALJ noted: (1) except for two instances
of
personality conflict occurring prior
to Guilin's satisfactory evaluation, the District presented no percipient witness testimony
of
alleged employee complaints about Guilin; (2) the District produced no evidence that it
(a) documented complaints about Guilin's personality conflicts, or (b) offered Guilin
assistance to overcome the problem, or (c) warned Guilin that failure to change her behavior
would lead to discharge; (3) the District offered no proof that it customarily discharged
probationary employees without such documentation; (4) the District admitted it gave Guilin a
satisfactory evaluation, but offered no evidence
of
(a) improper behavior occurring after the
evaluation, or (b) improper behavior which triggered the discharge, or (c) improper behavior
8

which even allegedly triggered the discharge; (5) the District gave a less than satisfactory
rating to, but did not otherwise discipline or terminate, the warehouse employee who displayed
similar, albeit more serious, disrespectful behavior than did Guilin.
Based on the foregoing, the ALJ concluded that the District failed to prove that it was
motivated by Guilin' s alleged personality conflicts with other employees, rather than her
protected activity, when it discharged her on December 8, 2006. In consequence, the ALJ
ruled that: (1) the District failed to prove up its defense
oflawful
motivation; (2) CSEA's
prima facie case would prevail; and (3) the District did violate EERA section 3543.S(a) and
(b), when it discharged Guilin. The ALJ proposed a customary remedy for retaliatory
discharge, including both cease and desist orders, reinstatement, make whole relief, and
posting
of
PERB's
order.
DISTRICT'S EXCEPTIONS
On appeal the District urges that: (1) the ALJ ignored or misapplied Board decisions
governing requirements for a prima facie case
of
discrimination/retaliation; (2) the ALJ made
improper witness credibility determinations; and (3) the ALJ improperly declined to credit
District explanations for its termination
of
Guilin.
CSEA'S RESPONSE
CSEA responds that: (1) the ALJ properly concluded that the District knew
of
Guilin's
protected activity; (2) the ALJ properly found direct evidence
of
improper motive; (3) the ALJ
properly inferred unlawful motive based on the record as a whole, including circumstantial
evidence
of
suspicious timing, vague and ambiguous explanations, and disparate treatment;
and (4) the ALJ properly made witness credibility determinations.
9

DISCUSSION
We first review the prima facie case
of
retaliation and the affirmative defense
of
lawful
motivation, and then tum to the District's contentions.
Discrimination or Retaliation
1.
	The Prima Facie Case
To establish a prima facie case
of
retaliation in violation
of
EERA section 3543.S(a),
the charging party must show that: ( 1) the employee exercised rights guaranteed by EERA;
(2) the employer had knowledge
of
the employee's exercise
of
those rights; (3) the employer
took action against or adverse to the interest
of
the employee; and (4) the employer acted
because
of
the employee's exercise
of
the guaranteed rights. (Novato, supra, PERB Decision
No. 210.)
Unlawful motive is "the specific nexus required in the establishment
of
a prima facie
case"
of
retaliation. "[D]irect proof
of
motivation is rarely possible, since motivation is a state
of
mind which may be known only to the actor. Thus,
...
unlawful motive can be established
by circumstantial evidence and inferred from the record as a whole." (Novato, supra, PERB
Decision No. 210, at p. 6; Carlsbad Unified School District (1979) PERB Decision No. 89;
Republic Aviation Corp.
v.
NLRB (1945) 324 U.S. 793; Radio Officers' Union
v.
NLRB (1954)
347 U.S. 17, 40-43.5)
To assist with assessing circumstantial evidence
of
unlawful motive, PERB has
developed a set
of
"nexus" factors. Although the timing
of
the employer's action in close
temporal proximity to the employee's protected activity is an important factor
5 When construing California Public Sedor Labor Relations statutes, California courts
and PERB rely on National Labor Relations Board (NLRB) and judicial decisions construing ·
similar language in the National Labor Relations Act. (San Mateo City School Dist.
v.
Public
Employment Relations Bd (1983) 33 Cal.3d 850; Fire Fighters Union
v.
City
of
Vallejo (1974)
12 Cal.3d 608.)
10

(North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento)), it
does not, without more, demonstrate the necessary nexus between the employer's action and
the protected activity. (Moreland Elementary School District (1982) PERB Decision No. 227
(Moreland).)
Along with suspicious timing, facts establishing one or more
of
the following factors
must also be present for a prima facie case: (1) the employer's disparate treatment
of
the
employee (State
of
California (Department
of
Transportation) (1984) PERB Decision
No. 459-S); (2) the employer's departure from established procedures and standards when
dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104 (Santa Clara)); (3) the employer's inconsistent or contradictory justifications for its
actions (State
of
California (Department
of
Parks.and Recreation) (1983) PERB Decision
No. 328-S); (4) the employer's cursory investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003)
PERB Decision No. 1560); (5) the employer's failure to offer the employee justification at the
time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the
offering
of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786 (McFarland USD)); (6) employer animosity towards union
activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M; Cupertino
Union Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that
might demonstrate the employer's unlawful motive (North Sacramento, supra, PERB Decision
No. 264; Novato, supra, PERB Decision No. 210).
Where the employer's motive is the central issue, the fact finder must often rely heavily
on circumstantial evidence and inferences. Only rarely will there be probative direct evidence
of the employer's motivation. (Shattuck Denn Mining Corp.
v.
NLRB (9th Cir. 1966)
11

362 F.2d 466 (Shattuck Denn).) An illegal purpose harbored by a discriminating employer
may be inferred from the circumstances surrounding the discipline or discharge. These may
include anti-union animus exhibited by the employer or its agents; the pretextual nature
of
the
ostensible justification; or other failure to establish a business justification. (Shattuck Denn.)
In such cases, the Board is free to draw inferences from all the circumstances, and need not
accept an employer's self-serving declarations
of
intent, even
if
they are uncontradicted.
(NLRB
v.
Walton Mfg.
Co.
(1962) 369 U.S. 404 (Walton Mfg.); NLRB.
v.
Mrak Coal
Co.
(9
th
Cir. 1963) 322 F.2d
311
(Mrak Coal); NLRB
v.
Pacific Grinding Wheel Co., Inc.
(9
th
Cir. 1978) 572 F.2d 1343 (Pacific Grinding Wheel); NLRB
v.
Warren
L.
Rose Castings,
Inc. (9th Cir. 1978) 587 F.2d 1005 (Rose Castings); Royal Packing
Co.
v.
Agricultural Labor
Relations Bd. (1980)
101
Cal.App.3d 826 (Royal Packing).)
2. 	The Affirmative Defense
Upon proof that anti-union animus played a part in the employer's decision to act, the
burden then shifts to the employer to prove that its actions would have been the same
notwithstanding the employee's having engaged in protected activity and the employer's anti-
union animus. (McFarland, supra,
USD,
PERB Decision No. 786, affd McFarland Unified
School Dist.
v.
Public Employment Relations Bd. (1991) 228 Cal.App.3d 166 (McFarland);
McPherson
v.
Public Employment Relations Board (1987) 189 Cal.App.3d 293, 304
(McPherson); Novato, supra, PERB Decision No.
21
O;
Martori Brothers Distributors
v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251
NLRB 1083 (Wright Line).) In such cases the employer has both the burden
of
going forward
with the evidence and the burden of persuasion. (Hunter Douglas, Inc. (1985) 277 NLRB
1179; Hyatt Regency Memphis (1989) 296 NLRB 259.) Proof of an alternative, non-
discriminatory reason for the challenged action is insufficient standing alone to overcome the
12

prima facie case. The employer must prove that it had both an alternative non-discriminatory
reason for its challenged action, and that the challenged action would have occurred regardless
of
the employee's protected activity and the employer's anti-union animus. (Chula Vista
Elementary School District (2011) PERB Decisi~n No. 2221 (Chula Vista), citing The TM
Group, Inc. and Kimberly Grover (2011) 357 NLRB No. 98, citing Hicks Oils & Hicksgas
(1989) 293 NLRB 84, 85; Framan Mechanical Inc. (2004) 343 NLRB 408, 411-412; Roure
Bertrand Dupont, Inc. (1984) 271 NLRB 443 (Roure Bertrand).)
District Contentions
The District excepts to numerous provisions
of
the proposed decision. Nonetheless, in
its supporting brief, the District limits its contentions to the following: 	(1) the ALJ wrongly
concluded that the District knew
of
Guilin's protected activity; (2) the ALJ wrongly concluded
that the District failed to prove it would have discharged Guilin absent her protected activity;
(3) the ALJ wrongly assessed the credibility
of
District witnesses; and (4) the ALJ wrongly
exceeded PERB' s proper scope
of
inquiry when assessing the District's affirmative defense
rationale for discharging Guilin. We address each
of
the District's contentions.
The District's claim that the ALJ wrongly concluded that the District knew
of
Guilin' s protected activity
The District urges that the ALJ erred by attributing to Aguirre knowledge
of
Guilin's
protected activity, notwithstanding Aguirre's testimony that she did not know thereof. We
revisit our standards for assessing employer knowledge
of
protected activity, and then review
the ALJ's conclusions.
We have long held that circumstantial evidence and inferences drawn from the record
as a whole are sufficient to establish the employer knowledge element of a discrimination or
retaliation violation. (Moreland, supra, PERB Decision No. 227, at pp. 12-13, citing NLRB
v.
13

Long Island Airport Limousine Service Corp. (2
nd
Cir. 1972) 468 F.2d 292; NLRB
v.
Wal-Mart
Stores, Inc.
(8
th Cir. 1973) 488 F.2d 114; Rosen Sanitary Wiping Cloth Co., Inc. (1965) 154
NLRB 1185.) The NLRB likewise relies on circumstantial evidence and inferences drawn
from the record
as
a whole to establish employer knowledge
of
an employee's protected.
activity (Regional Home Care, Inc. d/b/a North Atlantic Medical Services (1999) 329 NLRB
85 (Regional); Kajima Engineering & Construction (2000)
331
NLRB 1604 (Kajima); see
Higgins, The Developing Labor Law (6 th Ed. 2012) Ch. 7, pp. 357-360.) and also will infer
employer knowledge
of
employee protected activity from the small size
of
the employer's
plant or other facility. (Id.)
The ALJ inferred Aguirre's knowledge from the following:
1.	
direct, un-rebutted evidence
of
anti-union animus in Aguirre's and Whitney's
statements and conduct; (Proposed Dec., at p. 16.)
2.	
suspicious timing
of
the discharge, which occurred a day after Whitney received
a copy
of
CSEA's unfair practice charge, and a week after Whitney observed, overheard and
directed that Guilin cease a workplace conversation with CSEA officials about "union stuff;"
(Proposed Dec., at pp. 8, 16.)
3. 	vague and ambiguous reasons given to Guilin by Aguirre for the discharge;
(Proposed Dec., at pp. 17-18.)
4. 	disparate treatment
of
Gtiilin vis-a-vis other probationary employees with
workplace problems; (Proposed Dec., at p. 18.)
5.	
suspicious facts surrounding the discharge; (Proposed Dec., at pp. 18-19) and
6. 	witness credibility; (Proposed Dec., at pp. 19-20).
14

On the basis
of
these factors, and the record considered as a whole, the ALJ concluded that
Aguirre knew
of
Guilin's protected activity, and that_Whitney made the discharge decision,
which was motivated by Guilin's protected activity.
The District objects that the ALJ failed to accept on its face either Aguirre's testimony
that she lacked knowledge
of
Guilin' s protected activity or the testimony
of
Aguirre and
Whitney concerning their discussions
of
Guilin. The District, relying principally on this
testimony, rejects the inferences drawn by the ALJ concerning Aguirre's knowledge
of
Guilin's protected conduct. We assess the District's contentions.
We note at the outset that an employer's declarations
of
lawful intent may be deemed
self-serving and therefore not credited, where, as here, they are contradicted by persuasive
circumstantial evidence on the record considered as a whole. (Walton Mfg., supra,
369 U.S. 404; Mrak Coal, supra, 322 F.2d 311; Pacific Grinding Wheel, supra, 572 F.2d 1343;
Rose Castings, supra, 587 F.2d 1005; Royal Packing, supra,
101
Cal.App.3d 826.) With that
principle in mind, we evaluate the District's claim that the record does not support the ALJ' s
inferences regarding the following Novato, supra, PERB Decision No. 210 factors: 	ammus,
timing, vague and ambiguous reasons, and disparate treatment.
Animus: The District urges that there is no direct evidence
of
anti-union animus. It
argues that Guilin's testimony describing Aguirre's statements discouraging union
involvement was hearsay and not supported by other evidence. We are not persuaded. Guilin
was a percipient and competent witness to Aguirre's statements advising Guilin to avoid the
union, and Aguirre did not rebut this testimony. The ALJ properly relied upon it as direct
evidence reflecting Aguirre's animus. Likewise, Whitney admitted his own displeasure at
overhearing Guilin talking with CSEA officials about "union stuff," which supports an
inference that Whitney, too, harbored anti-union animus. Where, as here, a supervisor
15

(Aguirre) who has displayed animus discharges an employee, with the support and ratification
of
the supervisor's own supervisor (Whitney) who himself displays animus, we attribute both
supervisors' actions and animus to the employer. (San Bernardino City Unified School
District (2004) PERB Decision No. 1602, pp. 20-21.) With the ALJ, we credit this direct
evidence
of
animus.
Timing: The District urges that its timing
of
the Guilin discharge was driven not by
Guilin's protected activity and CSEA's ensuing unfair practice charge, as concluded by the
ALJ, but instead by the approaching end
of
Guilin's probationary period, which concluded on
December 18, 2006. We are not persuaded.
If
Guilin's soon-to-end probationary status were
the District's sole motive for the discharge, why discharge her ten days early on December 8,
2006? Why not permit her to work through December 18, 2006, or at least December 15, 2006
(the Friday before December 18, 2006)? Moreover,
if
Guilin's personality conflict incidents
of
September and October 2006, were the basis
of
continued District dissatisfaction with Guilin,
why accord her a satisfactory evaluation in early November plus continued employment
thereafter until she was observed assisting CSEA to prepare and file its unfair practice charge,
following which she promptly was fired? With the ALJ, we conclude that the facts strongly
suggest that Guilin's discharge on December 8, 2006, was triggered by events
of
December 1
and 7, 2006, not by the impending close
of
Guilin's probationary period on December 18,
2006, and not by the personality conflict incidents
of
September and October. (Trustees
of
the
California State University (San Marcos) (2009) PERB Decision No. 2070-H [adverse action
five days following protected activity]; Rio School District (2008) PERB Decision No. 1986
[adverse action one week following protected activity].)
Vague and Ambiguous Reasons: The District labels "false" the ALJ' s conclusion that
reasons given by Aguirre to Guilin for Guilin's discharge were vague and ambiguous. The
16

District relies on its claimed "practice"
of
not providing reasons for termination and on its
claim that Guilin expected the discharge. We are not persuaded. An employer's alleged
practice
of
not providing reasons for discharge does not overcome credible testimony
describing the reasons for discharge actually given an employee by the employee's supervisor.
Whether or not an employer is required to provide reasons for discipline or discharge, or has a
practice thereof, 6 where the employer does offer reasons, the reasons may be considered. With
the ALJ, we conclude that the reasons given Guilin by Aguirre for the discharge were vague
and ambiguous, even though giving them at all may have been gratuitous or contrary to the
District's practice. (Novato, supra, PERB Decision No. 210.)
Moreover, an employee's apprehension
of
impending discharge does not support the
inferences urged here by the District, to wit, that the employee knew the supervisor's reasons
for the discharge. Even
if
Guilin expected the discharge on Friday, December 8, 2006, such
expectation affords no basis for an inference that Guilin either understood Aguirre's
motivation or that the Aguirre's motivation stemmed from alleged personality conflicts rather
than Guilin's protected activity.7 With the ALJ, we conclude that the reasons given Guilin by
Aguirre were vague and ambiguous.
Disparate Treatment: The District claims that it treated Guilin no differently from other
probationary employees. We are not persuaded. The ALJ concluded correctly there was
evidence
of
disparate treatment, in that: (1) probationary employees customarily were given,
6 The Board has ruled that, absent a requirement or practice
of
providing reasons for
discipline or discharge, a failure to do so does not rise to an inference of unlawful motive.
(Sacramento City Unified School District (2010) PERB Decision No. 2129.) Here, however,
there was no failure. Aguirre provided reasons.
7 Indeed, since Aguirre had warned Guilin several times against union involvement and
only a month earlier had given Guilin a satisfactory evaluation, and since Whitney had recently
ordered Guilin to cease conferring with CSEA officials, Guilin would easily have inferred that
Aguirre's vague reasons alluded to her conversation with the CSEA officials and to Aguirre's
several earlier warnings against union involvement.
17

at the least, a pre-discharge warning that their conduct or performance was not acceptable, and
that Guilin was not so warned; and (2) the warehouse employee who admitted he was the
aggressor in an altercation with Guilin which escalated to supervisorial intervention, was
retained in employment and not disciplined. The District rejoins that it counseled Guilin about
her conduct, but not, however, that it warned her that she faced discharge. We conclude, with
the ALJ, that: (1) the failure to warn Guilin was a departure from the District's admitted
customary practice
of
pre-discharge warning and thus evidenced disparate treatment, as was
(2) discharging Guilin while imposing no discipline on the warehouse employee.
In sum, we conclude that the ALJ appropriately relied on circumstantial evidence in
finding that Whitney and Aguirre knew
of
Guilin's protected activity. (Moreland, supra,
PERB Decision No. 227 and cases cited therein; Regional, supra, 329 NLRB 85; Kajima,
supra,
33
l NLRB 1604.)
We conclude with the ALJ that the record as a whole supports the finding
of
knowledge
notwithstanding Aguirre's self-serving, contrary testimony.
2. 	The District's claim that the ALJ wrongly concluded that the District failed to
prove it would have discharged Guilin absent her protected activity
The District urges that it acted against Guilin solely on the basis
of
Guilin' s personality
conflicts with other employees. The District points to the testimony
of
Aguirre and Whitney,
which testimony, it contends, sufficiently establishes its affirmative defense. We revisit our
standards for an affirmative defense to a charge
of
retaliation, and our evidentiary standards
applicable thereto, and then review the ALJ' s determination not to credit certain testimony.
Once a charging party establishes a prima facie case
of
retaliation, the burden shifts to
the respondent to establish both: (1) that it had an alternative non-discriminatory reason for
the challenged action; and (2) that it acted because of this alternative non-discriminatory
18

reason and not because
of
the employee's protected activity. (Novato, supra, PERB Decision
No. 210; Wright Line, supra, 251 NLRB 1083; NLRB
v.
Transportation Management Corp.
(1983) 462 U.S. 393 (Transportation Management).) A responding party must prove up its
affirmative defense through persuasive evidence. Although admissible, hearsay testimony and
documents are insufficient to support a finding. (PERB Reg. 32176.)8 The Board requires
"sufficient independent [non-hearsay] evidence" to conclude that the challenged action would
have occurred in the absence
of
the employee's protected activity. (County
of
Riverside (2009)
PERB Decision No. 2090-M; Escondido Union Elementary School District (2009) PERB
Decision No. 2019 (Escondido); The Regents
of
the University
of
California (1998) PERB
Decision No. 1255-H (Regents); Woodland Joint Unified School District (1987) PERB
Decision No. 628.)9
The District contends that its hearsay and double hearsay evidence
of
employee
complaints, when combined with its witnesses' own first-hand accounts
of
Guilin's pre-
November personality conflicts, provided sufficient independent evidence to prove its
affirmative defense, and that the ALJ's refusal so to find was improper. The District cites
PERB Regulation 32176; County
of
San Joaquin (Health Care Services) (2004) PERB
Decision No. 1649-M (San Joaquin)· and Cantrell
v.
Zolin (1994) 23 Cal.App.4th 128 (Zolin).
We review each authority.
8 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
9 See also Hi/mar Unified School District (2004) PERB Decision No. 1725 (Hilmar)
(district official's testimony regarding alleged complaint from health plan administrator about
union agent's telephone calls to administrator deemed hearsay and insufficient to establish
operational necessity defense to alleged interference); Alamo Rent-A-Car, Inc. (2002) 338
NLRB 275 (Alamo) (absent independent evidence, supervisor's hearsay account of customer
complaint held insufficient to establish Wright Line, supra, 251 NLRB 1083 defense to
General Counsel's prima facie case of retaliation).
19

PERB Regulation 32176 sets forth PERB's unremarkable rule that hearsay evidence is
admissible, but "shall not be sufficient in itself to support a finding unless it would be
admissible over objection in civil actions." Pursuant to this rule hearsay evidence is regularly
admitted PERB in proceedings, but absent other non-hearsay evidence may not be relied upon
to support a finding. Thus, testimony regarding an out-of-hearing statement by a person other
than the witness may be admitted, but not for the truth
of
the matter asserted by the absent
speaker who cannot be cross-examined unless permitted by an exception to the hearsay rule.
An exception exists permitting reliance on such evidence for a finding regarding the state
of
mind
of
the testifying witness, but the exception does not permit use
of
the absent speaker's
account for the truth thereof. (Evid. Code,§§ 1250(b) and 1251.)
In San Joaquin, supra, PERB Decision No. 1649-M, the Board reviewed a charging
party union's objections to an ALJ's determination that a respondent employer had adduced
sufficient evidence to establish its affirmative defense to a prima facie charge
of
retaliation.
The ALJ concluded, on the basis
of
a record containing extensive testimony
of
percipient
witnesses, that the respondent employer had proved up an alternative non-discriminatory
reason for the discharge and that this reason, rather than the employee's protected activity,
motivated the discharge. In discussing the basis for his conclusions, the ALJ referred to, but
did not rely upon except as corroboration, complaints
of
non-witnesses concerning the conduct
of
the discharged employee. On appeal, the Board rejected the contention that the ALJ had
improperly relied on hearsay evidence, ruling that:
First, the findings
of
the ALJ are not based solely on hearsay.
Indeed, even
if
the disputed evidence is not considered, the Board
finds sufficient admissible evidence in the record to support the
decision. 	Second, for the hearsay evidence that was admitted, the
ALJ properly applied exceptions to the hearsay rule. Third, the
County's evidence that numerous complaints were made against
[the employee] was not admitted for the truth of the matter, but to
20

demonstrate the state
of
mind
of
the County's decision-makers.
Submitted for this purpose, such evidence is not hearsay.
(San Joaquin, supra, PERB Decision No. 1649-M, at p. 2.)
In Zolin, supra, 23 Cal.App.4th 128, the court considered whether a statement by a
second peace officer attesting to defendant's erratic driving prior to arrest on a charge
of
drunken driving was inadmissible hearsay when contained in the arresting officer's report.
Neither officer testified at the hearing. The prosecution introduced and relied on the arresting
officer's sworn report pursuant to Vehicle Code sections 23158.2 and 14104.7. On appeal, the
issue presented was whether the arresting officer had reasonable cause to believe that the
defendant had been driving under the influence
of
alcohol. The defendant challenged reliance
on the second officer's statement. The appellate court ruled that the second officer's statement
reported in the arrest report was not hearsay, as it was not offered to prove the truth
of
the
second officer's observations
of
the defendant's driving, but rather to prove that the arresting
officer had reasonable cause to believe that the defendant had been driving under the influence.
In reaching his own conclusion, the arresting officer relied reasonably on the second officer's
statement, concluded the court, because a peace officer may rely on statements
of
victims of,
or witnesses to, criminal conduct who are reporting thereon to law enforcement. (Mueller
v.
Department
of
Motor Vehicles (1985) 163 Cal.App.3d 681, 686.) The court opined that
because the second officer witnessed the defendant's driving, this rule applied as well to the
second officer's report to the arresting officer. (Id. at p. 133.)
We conclude that neither
of
the District's case authorities is persuasive. We distinguish
them as follows: 	In San Joaquin, supra, PERB Decision No. 1649-M, we ruled that the
evidence there challenged as hearsay was unnecessary to the ALJ' s conclusion, and that other
21

admissible evidence was sufficient to sustain the employer's affirmative defense.
10
By
contrast, we conclude here that the admissible non-hearsay evidence
of
Guilin's conduct was
insufficient, on the record as a whole, to establish the District's affirmative defense, namely,
that it both had, and acted because of, an alternative non-discriminatory reason to discharge
Guilin other than her protected conduct. In Zolin, supra, 23 Cal.App.4th 128, the court
construed a particular statutory scheme expressly permitting a reporting peace officer's
determination
of
reasonable cause to be based upon out-of-court statements
of
third parties.
By contrast, we operate here under a different rule, to wit, that to prove up an affirmative
defense to unlawful discrimination, independent evidence is required to establish both the
existence
of
an alternative, non-discriminatory reason for challenged discipline, and that the
employer acted because
of
that reason and not because
of
the protected conduct
of
the
employee.
We conclude, with the ALJ, that much
of
the District's proffered evidence
of
Guilin's
alleged inappropriate conduct is hearsay inadmissible for the truth
of
the matter asserted, to
wit, Guilin's alleged inappropriate workplace behavior. Percipient witness testimony
concerning Guilin's alleged improper conduct was provided only by Aguirre and Whitney, and
only as to events which occurred prior to Aguirre's early November evaluation
of
Guilin. The
other accounts
of
Guilin's allegedly inappropriate workplace conduct were out-of-hearing
statements by other employees, none
of
whom testified. Because out-of-hearing statements
describing Guilin's alleged improper workplace conduct cannot be cross-examined, we find the
hearsay and double hearsay testimony by District supervisors insufficiently reliable to establish
the District's affirmative defense.
to Such admissible evidence included, without limitation, non-hearsay testimony of
complaining employees with firsthand experience of the bad conduct alleged by the employer,
plus numerous additional corroborating complaints.
22

Nor is this hearsay testimony sufficient
if
considered as "state
of
mind" evidence. The
ultimate issue here is whether the employer established by independent competent evidence
both that it had an alternative non-discriminatory reason to discharge Guilin and that it acted
because
of
that reason and not because
of
Guilin's protected activity. Our analysis
of
the
prima facie case and the affirmative defense accords to each party certain burdens. Once the
charging party establishes that the responding party was motivated in whole or part by
statutorily protected conduct, the burden shifts to the respondent to demonstrate that the
employer had, and acted because of, an alternative non-discriminatory reason. Where such
alternative reason is alleged to be improper workplace conduct
of
the charging party, which is
claimed to give the employer cause for non-discriminatory discipline or discharge, the
employer must prove through independent and competent evidence both the existence
of
such
improper workplace conduct and that this conduct it motivated the employer's response.
Recitation by employer agents
of
a litany
of
hearsay reports cannot, absent competent, direct
and independent evidence, meet the employer's burden
of
proof that it acted for a lawful, non-
discriminatory reason. (Hi/mar, supra, PERB Decision No. 1725; Alamo, supra,
338 NLRB 275; Escondido, supra, PERB Decision No. 2019; Regents, supra, PERB Decision
No. 1255-H.)
Here, the ALJ concluded that the District failed to carry its burden. (Proposed Dec., at
pp. 20-22.) She found the District defense case both insufficient and unpersuasive. Due to the
paucity
of
admissible evidence
of
the personality conflict problem itself or
of
District actions
taken in response (Proposed Dec., at pp. 20-21), the ALJ concluded the District had not proved
that Guilin had personality conflicts with other employees. On the same basis, the ALJ
declined to find that either Aguirre or Whiney believed the complaints they received about
Guilin were "serious enough to investigate, warn her about, include in her evaluation, note in
23

her personnel file, or terminate her." (Proposed Dec., at p. 22.) The ALJ concluded, therefore,
that: (1) the District failed to carry its burden
of
proof that it was motivated to discharge
Guilin by her alleged personality conflicts with other employees, and (2) by its failure to
establish an alternative non-discriminatory reason for discharge, the District also failed to
demonstrate that it would have discharged Guilin in the absence
of
her protected activities.
(Proposed Dec., at p. 22.)
We conclude, with the ALJ, that under our evidentiary standards, hearsay and double
hearsay accounts
of
occurrences are not reliable or persuasive evidence, are inadmissible for
the truth
of
the matter stated, and i~sufficient by themselves to support a finding as to such
matter. (Hilmar, supra, PERB Decision No. 1725; North Sacramento, supra, PERB Decision
No. 264.) The Board requires "sufficient admissible evidence in the record to support" a
respondent's Novato, supra, PERB Decision No. 210 affirmative defense.
11
(San Joaquin,
supra, PERB Decision No. 1649-M, at p. 2.) Employee conduct asserted by a responding party
to establish its affirmative defense under Novato, supra, PERB Decision No. 210 must be
proved by "sufficient independent evidence," and where, as here, the independent evidence is
insufficient, a proposed finding concerning the asserted conduct is properly refused. Hearsay
may corroborate, but not serve in lieu of, admissible evidence. (PERB Reg. 32176.)
Although admissible, the role
of
hearsay remains supplementary. Hearsay may explain
or support otherwise admissible evidence, but by itself, even in abundance, hearsay is
insufficient for a finding either
of
the existence
of
an alternative, non-discriminatory reason or
11
The District's authorities to the contrary are inapposite. In Zolin, supra, 23
Cal.App.4th 128, under the Vehicle Code provision there controlling which permit reliance by
peace officers on extra judicial statements of witnesses there was sufficient admissible and
non-hearsay evidence in the record. And in San Joaquin, supra, PERB Decision No. 1649-M,
the Board concluded there was also sufficient admissible and non-hearsay evidence in the
record.
24

that a respondent acted therefor. (Hilmar, supra, PERB Decision No. 1725;
North Sacramento, supra, PERB Decision No. 264.)
3. 	The District's claim that the ALJ wrongly assessed the credibility
of
District
witnesses
The District claims that: (1) an ALJ's credibility determination is entitled to deference
only to the extent the ALJ identifies the "specific evidence
of
the observed demeanor, manner
or attitude
of
the witness that supports the determination;" (2) here the ALJ "repeatedly failed
to discuss
...
the witnesses' demeanor, manner or attitude;" and (3) therefore the Board on
appeal must itself review and reconsider the ALJ' s credibility determinations rather than
deferring thereto. We discuss first our standard
of
review
of
an
ALJ's
findings. We then take
up the District's objections to the
ALJ's
findings which rest on the ALJ's credibility
determinations.
Under the Board's statutes, the Board itself, not the ALJ, is the ultimate finder
of
fact.
(McPherson, supra, 189 Cal.App.3d 293.) "Findings
of
fact
of
PERB administrative law
judges, who are mere delegates
of
the Board itself, are entitled to that amount
of
deference
which the Board, in its discretion, wishes to afford them. In accordance with this rule, the
Board has determined that it will normally afford deference to administrative law judges'
findings
of
fact involving credibility determinations unless they are unsupported by the record
as a whole." (Anaheim City School District (1984) PERB Decision No. 364a, pp. 3-4, fn.
omitted.) "[W]hile the Board will afford deference to the hearing officer's findings
of
fact
which incorporate credibility determinations, the Board is required to consider the entire
record, including the totality
of
testimony offered, and is free to draw its own and perhaps
contrary inferences from the evidence presented." (Santa Clara, supra, PERB Decision
No. 104, at p. 12.)
25

Relying on section 11425 .50(b), the District urges that the Board may defer to its ALJ' s
credibility determinations only to the extent that a reviewing court must accord them "great
weight." We are not persuaded. We explain.
Section 11425.S0(b) provides:
The statement
of
factual basis for the decision may be
in
the
language of, or by reference to, the pleadings.
If
the statement is
no more than mere repetition or paraphrase
of
the relevant statute
or regulation, the statement shall be accompanied by a concise
and explicit statement
of
the underlying facts
of
record that
support the decision.
If
the factual basis for a decision includes a
determination based substantially on the credibility
of
a witness,
the statement shall identify any specific evidence
of
the observed
demeanor, manner or attitude
of
the witness that supports the
determination, and on judicial review the court shall give great
weight to the determination to the extent the determination
identifies the observed demeanor, manner, or attitude
of
the
witness that supports it.
Section 11425.50(b) was enacted in 1995, to be effective July 1, 1997. Its origin was a
recommendation by the California's Law Revision Commission (CLRC),
12
in which the CLRC
commented,
13
in pertinent part:
Subdivision (b) adopts the rule
of
Universal Camera Corp. v.
NLRB, 340 U.S. 474 (1951), requiring that the reviewing court
weigh more heavily findings by the trier
of
fact (the presiding
officer in an administrative adjudication) based on observation
of
witnesses than findings based on other evidence. This
generalizes the standard
of
review used by a number
of
California
agencies. See, e.g., Garza v. Workmen's Compensation Appeals
Bd., 3 Cal. 3d 312, 318-19, 475 P. 2d 451, 90 Cal. Rptr. 355
(1970) (Workers' Compensation Appeals Board); Millen v.
12
The CLRC is an independent state agency charged with recommending reforms
ofstate law to the Legislature. (§ 8289.)
13
"[O]fficial comments
of
the California Law Revision Commission 'are declarative
ofthe intent not only
of
the draftsman
of
the code but also
of
the legislators who subsequently
enacted it' [citation], the comments are persuasive, albeit not conclusive, evidence
of
that
intent." (Department
of
Alcoholic Beverage Control
v.
Alcoholic Beverage Control Appeals
Bd. (2006) 40 Cal.4th 1, 12, fn. 9, quoting Bonanno
v.
Central Contra Costa Transit Authority
(2003) 30 Cal.4
th
139, 148.)
26

Swoap, 58 Cal. App. 3d 943, 947-48, 130 Cal. Rptr. 387 (1976)
(Department
of
Social Services); Apte v. Regents
of
Univ.
of
Cal., 198 Cal. App. 3d 1084, 1092, 244 Cal. Rptr. 312 (1988)
(University
of
California); Unemp. Ins. App. Bd., Precedent
Decisions P-B-10, P-T-13, P-B-57; Lab. Code 1148 (Agricultural
Labor Relations Board). It reverses the existing practice under
the administrative procedure act and other California
administrative procedures that gives no weight to the findings
of
the presiding officer at the hearing. See Asimow, Toward a New
California Administrative Procedure Act: Adjudication
Fundamentals, 39 UCLA L. Rev. 1067, 1114 (1992), reprinted in
25 Cal. L. Revision Comm'n Reports 321, 368 (1995).
Findings based substantially on credibility
of
a witness must be
identified by the presiding officer in the decision made in.the
adjudicative proceeding. This requirement is derived from
Washington law. See Wash. Rev. Code
Ann.§§
34.05.461(3),
34.05.464(4) (West 1990). However, the presiding officer's
identification
of
such findings is not binding on the agency or the
courts, which may make their own determinations whether a
particular finding is based substantially on credibility
of
a
witness. Even though the presiding officer's determination is
based substantially on credibility
of
a witness, the determination
is entitled to great weight only to the extent the determination
derives from the presiding officer's observation
of
the demeanor,
manner, or attitude
of
the witness. Nothing in subdivision (b)
precludes the agency head or court from overturning a credibility
determination
of
the presiding officer, after giving the
observational elements
of
the credibility determination great
weight, whether on the basis
of
nonobservational elements
of
credibility or otherwise. See Evid. Code 780. Nor does it
preclude the agency head from overturning a factual finding
based on the presiding officer's assessment
of
expert witness
testimony.
[Italics in original.] (Recommendation on Administrative Adjudication by State
Agencies (January 1995) 25 Cal. Law Rev. Com. Rep. (1995), pp. 160-161.)14
Government Code section 11425.50(b) established statewide the rule
of
Universal
Camera Corp.
v.
NLRB (1951) 340 U.S. 474, that upon judicial review great weight be
accorded by the court to findings by the trier of fact based on observation
of
demeanor, manner
14
The Board reviewed and discussed these administrative adjudication changes in City
of
Torrance (2009) PERB Decision No. 2004.
27

or attitude
of
witnesses. In California Youth Authority
v.
State Personnel Bd. (2002)
I 04 Cal.App.4th 575 (CYA), cited by the District, a reviewing court concluded that an ALJ's
proposed decision identified no specific evidence
of
the observed demeanor, manner or attitude
of
the witness. The court held that absent such evidence, section 11425.S0(b) did not "come
into play." The court declined to give special weight to the
ALJ's
credibility findings
grounded on inferences unrelated to demeanor, etc., but cautioned that it was not holding that
the ALJ's proposed decision was defective because it failed to identify demeanor, etc.,
of
witnesses to support its credibility determinations. (Id. at p. 596.)
We read Government Code section 11425.S0(b), as construed in CYA, to provide that:
(I)
credibility may be determined on the basis
of
both observational factors, viz., demeanor,
manner and attitude, and non-observational factors including those specified in Evidence Code
section 780; (2) reviewing courts are obliged by section 11425.50(b) to give "great weight" to
observational factors only when the proposed decision contains information specified by
section 11425.50(b); and (3) when the proposed decision fails to contain this information,
section 11425.S0(b) does not come into play. This construction is common sense. ALJs and
the Board make credibility determinations based on both observational and non-observational
factors. 	When reviewing a Board decision which assesses credibility based on non-
observational factors, a court nonetheless approaches the Board's findings, including
credibility determinations, with deference.
15
Moreover, for those credibility determinations
15
Findings
of
the Board with respect to questions
of
fact, including ultimate facts,
if
supported by substantial evidence on the record considered as a whole, are conclusive.
(EERA, § 3542(c).) Courts must accept PERB's factual findings as conclusive
if
they are
supported by substantial evidence in the record; and the courts may not reweigh the evidence
and may not consider that an alternative finding may be equally reasonable, or even more
reasonable, than the finding made by PERB. (Inglewood Teachers Assn.
v.
Public Employment
Relations Bd. (1991) 227 Cal.App.3d 767, 781.) When PERB chooses between two conflicting
views, a reviewing court may not substitute its judgment for that of the Board. (Regents
ofUniversity
of
California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 617-618.)
28

turning on observational factors, which are appropriately documented as required by
section 11425.S0(b), the court must accord "great weight" to the Board's findings as so
determined.
Here, the ALJ relied on both observational and non-observational factors16
when
assessing credibility
of
witnesses. (Proposed Dec., at pp. 19-20.) The ALJ described in detail
the demeanor, manner and attitude
of
witness Whitney on which she relied in assessing his
credibility. (Proposed Dec., at p. 19.) The ALJ likewise described in detail
.the
non-observable
factors on which she relied in assessing the credibility
of
both witness Aguirre and witness
Whitney. (Proposed Dec., at pp. 19-20.)
We have reviewed the hearing record. We conclude that the ALJ appropriately
assessed the credibility
of
witnesses appearing before her, and made appropriate findings
describing such credibility determinations. The ALJ' s findings
of
fact, including her
resolution
of
credibility issues
of
the several witnesses, are supported by substantial evidence
on the record considered a whole. Consequently, we reject the contentions
of
the District that
in assessing the credibility
of
witnesses the ALJ either exceeded her authority, or failed
sufficiently to document her conclusions.
16
PERB and the NLRB have long recognized the appropriateness
of
assessing witness
credibility on non-observational criteria. (Regents
of
the University
of
California (1984) PERB
Decision No. 449-H [inconsistent pretrial statements; selective memory on cross examination;
evasive, exaggerated, or inconsistent testimony; inherently unbelievable testimony];
North Sacramento 1 supra1 PERB Decision No. 264 [inconsistent testimony, contradictory
documentary evidence]; Daikichi Sushi (2001) 3 35 NLRB 622 [all the circumstances,
including a party's failure to offer available witness testimony]; Shen Automotive Dealership
Group (1996) 321 NLRB 586 [weight of the respective evidence, established or admitted facts,
inherent probabilities, reasonable inferences which may be drawn from the record as a whole].)
29

4. 	The District's claim that the ALJ wrongly exceeded PERB's proper scope
of
inquiry
when assessing the District's rationale for discharging Guilin
The District contends that the ALJ exceeded the proper scope
of
PERB' s inquiry by
considering, inter alia, whether the District investigated alleged employee complaints
regarding Guilin or extended to Guilin the benefits
of
the District's FRISK intervention and
assistance policy. By considering such issues, claims the District, the ALJ improperly
infringed the District's discretion to determine grounds for employee discipline and to impose
discipline on those grounds. The Board's proper inquiry, asserts the District, is confined to
whether the employer acted for a reason proscribed by statute, viz., because
of
an employee's
protected activity.
The District cites two PERB ALJ decisions, one
of
which became final (Newman-
Crows Landing Unified School District (1989)
13
PERC 120164, (1989) PERB Decision
No. HO-U-414 [13 PERC 120177]), and the other
of
which was appealed to Board and
thereafter subsumed by the Board's decision. (Central Union High School District (1982)
6 PERC 113252, (1983) PERB Decision No. 324 [7 PERC ,14189].) Neither ALJ decision is
precedential.17 Relying on the Board's Moreland, supra, PERB Decision No. 227 decision,
18
17
PERB Regulation 32215 provides, in pertinent part: "Unless expressly adopted by
the Board itself, a proposed or final Board agent decision, including supporting rationale, shall
be without precedent for future cases."
18
In Moreland, supra, PERB Decision No. 227, the Board ruled that the charging party
failed to establish a prima facie case, since there was no direct evidence
of
employer
knowledge
of
the employee's protected activ_ity, and the circumstantial evidence did not
support imputing such knowledge to the employer. The charging party urged that among the
facts from which to impute employer knowledge was the employer's failure to establish just
cause for disciplining the employee. The Board disagreed, ruling that, standing alone, the
mere absence of just cause is insufficient to support an inference
of
unlawful motive necessary
to support an imputation of employer knowledge of the employees protected conduct. The
Board wrote:
30

ALJs
in
both these cases rejected allegations by a charging party attempting to establish a
prima facie case, that the absence
of
just
cause for imposed discipline alleged to be retaliatory
was sufficient evidence
of
the employer's anti-union motivation. By contrast, we here
consider whether the District established
an
affirmative defense. As explained below, we
deem this distinction significant to our analysis.
For
the reasons which follow, we conclude that the scope
of
PERB's
proper inquiry
when assessing an employer's affirmative defense under Novato, supra, PERB Decision
No. 210 includes the matters here considered by the ALJ, and thus we conclude further that by
considering such matters, the ALJ did not infringe the District's disciplinary discretion.
It is significant that here we treat an affirmative defense. Once a charging party
establishes its prima facie case for discrimination or retaliation, the burden shifts to the
respondent to prove,
if
it can, an affirmative defense, to wit: (1) that it had an alternative non-
discriminatory reason for the challenged action; and (2) that it acted because
of
this alternative
non-discriminatory reason and not because
of
the employee's protected activity. (Novato,
supra, PERB Decision No. 210; Wright Line, supra, 251 NLRB 1083; Transportation
Management, supra, 462 U.S. 393.) An employer defending against a prima facie case
of
retaliation "cannot simply present a legitimate reason for its action but must persuade by a
[L]ack
of
"just cause" is not synonymous with anti-union animus.
By itself, it does not permit such a finding. 	Disciplinary action
may be without just cause where it is based on any
of
a host
of
improper or unlawful considerations which bear no relation to
matters contemplated by EERA and which this Board is therefore
without power to remedy. 	[Charging party] bore the burden
of
producing evidence which would permit the conclusion that the
injustice here was an act
of
employer retaliation against Doe for
his organizing efforts. The totality
of
its evidence is insufficient
to permit an inference that the District was unlawfully motivated
against Doe. Therefore, there is no basis for inferring that the
District had knowledge of his activities."
(Emphasis in original, fn. omitted.) (Id. at p. 15.)
31

preponderance
of
the evidence that the same action would have taken place even in the absence
of
the protected conduct." (Roure Bertrand, supra, 271 NLRB 443.)
We concur with an observation made by the ALJ in one
of
the opinions cited by the
District, to wit, that PERB lacks "general authority to determine whether or not the District
was justified in dismissing a coach or whether its reasons were valid or not," and is "only
concerned with such reasons, in order to determine whether or not they support an inference
that the true motivation
of
such dismissal was the employees' protected activities." (New-
Crows Landing Unified School District (1989)
13
PERC 120164, at p. 584.) "[T]he crucial
factor is not whether the [justification put forward] by [the employer was] good or bad, but
whether [it was] honestly invoked and [was], in fact, the cause
of
the [employer's challenged
action]." (Ryder Distribution Resources (1993) 311 NLRB 814, 816, citing NLRB
v.
Savoy
Laundry, Inc. (2d. Cir. 1964) 327 F.2d 370, 371.) ·Thus, PERB must "analyze thoroughly and
completely the justification for the
...
action presented by the employer" (Escondido, supra,
PERB Decision No. 2019, at p. 21) in order to determine whether the justification constituting
an employer's affirmative defense was "honestly invoked" and whether the employer's proof
establishes that its justification "was in fact the cause
of
the [employer's] action." (Chula
Vista, supra, PERB Decision No. 2221, at p. 21.)
Here the ALJ did analyze "thoroughly and completely" the employer's justification for
its discharge
of
Guilin. (Proposed Dec., at pp. 20-22.) The District contended that it
discharged Guilin solely because
of
her personality conflicts with other employees. The ALJ
appropriately weighed the evidence, both evidence supporting and that contradicting the
District's claimed justification for the discharge and the District's claim that it acted therefor
and not because of Guilin's protected activity. The ALJ found the evidence insufficient to
prove that other employees complained about Guilin. Likewise, the ALJ found the evidence
32

insufficient to establish that Guilin' s supervisors deemed Guilin' s personality issues were
sufficiently serious to justify discharge.
The District counters that the ALJ exceed her authority, and that
of
PERB, when she
examined the record for, and noted the presence or absence of, evidence that: (1) the District
treated Guilin in accordance with procedures the District applied to other probationary
employees (implementation
of
the FRISK intervention and assistance policy, and warning a
probationary employee
of
possible discharge); (2) the District considered Guilin's alleged
shortcomings sufficient to document; and (3) following the early November evaluation Aguirre
received and investigated complaints about Guilin, thus triggering the early December
discharge. In so doing, urges the District, the ALJ imposed on the District disciplinary
standards differing from those
of
District officials. We disagree.
To succeed under Novato, supra, PERB Decision No. 210, the employer must meet or
exceed a charging party's prima facie case with equally or more persuasive affirmative
defense. The degree
of
persuasion required
of
the employer will depend on the extent and
persuasiveness
of
the prima facie case. Absent unlawful motivation, California statutory and
common law often afford wide discretion to an employer to discharge an at-will or
probationary employee with little or no warning, reason, notice or hearing. However, under
our statutes once the charging party presents a persuasive prima facie case that the employer
acted against an at-will or probationary employee because
of
the employee's protected
conduct, the employer's burden under Novato, supra, PERB Decision No. 210 attaches. To
succeed, the employer must then demonstrate persuasively that it had both a permissible
(alternative and non-discriminatory) reason for its action and. that it acted because of this
reason and not the employee's protected conduct.
33

Our statutes protect the right
of
at-will and probationary employees to engage in
protected activity and to be free
of
discrimination or retaliation therefor. (McFarland, supra,
228 Cal.App.3d 166.) A PERB ALJ hearing a retaliation case, including one brought on behalf
of
an at-will or probationary employee, must "inquire fully into all issues and obtain a
complete record upon which the decision can be rendered"19
and "issue a written proposed
decision. "20 Thus, when the burden in a PERB hearing shifts to an employer to establish an
affirmative defense to a charge
of
discrimination or retaliation, the employer must demonstrate
that it exercised its statutory or common law discretion in a manner consistent with the
employee's rights under our statutes. We acknowledge that such demonstration imposes on an
employer a greater burden
of
proof than would be required to sustain a routine discharge
within its discretion where there has been no allegation
of
unlawful motivation.
We hold that under Novato, supra, PERB Decision No. 210, PERB's duty is to
"analyze thoroughly and completely the justification for the . . . action presented by the
employer" (Escondido, supra, PERB Decision No. 2019, at p. 21), and that in so doing PERB
may "inquire fully into all issues" bearing on the employer's Novato, supra, PERB Decision
No. 210 burden to establish that employer's affirmative defense was "honestly invoked" and its
justification "was in fact the cause
of
the employer's action." (Chula Vista, supra, PERB
Decision No. 2221, at p. 21.) We likewise hold that the employer's Novato, supra, PERB
Decision No. 210 defensive burden is not limited by the extent
of
the employer's statutory or
common law duty to the employee(s), but is measured rather by the extent and persuasiveness
of
the employee(s) prima facie case which a successful affirmative defense must either meet or
exceed.
19
PERB Regulation 32170(a).
20 PERB Regulation 32215.
34

In sum, we conclude, with the ALJ, that the employer failed to mount a sufficient
defense to meet the
CSEA's
prima facie case. We also conclude, with the ALJ, that the
District failed to prove up that it had, or acted on, an alternative non-discriminatory reason for
Guilin's discharge.
CONCLUSION
We affirm the ALJ' s conclusion that the District retaliated against Guilin because
of
Guilin's protected conduct, viz., conferring with and assisting CSEA officials on December 1,
2006, by discharging her
on
December 8, 2006. We likewise affirm the
ALJ's
proposed
remedy.
ORDER
Upon the findings
of
fact and conclusions
of
law herein, and the entire record in the
case, it is found that the Palo Verde Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3540 et seq. The District
violated the Act by discharging Eva Guilin (Guilin) in retaliation for her protected activities,
and by the same conduct, denying to the California School Employees Association and its
Chapter 111 (CSEA) the right to represent its members.
Pursuant to EERA section 3541.S(c), it is hereby ORDERED that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Terminating or otherwise retaliating against employees in retaliation for
their engagement in protected activity;
2. 	Denying recognized employee organizations the right to represent their
members.
35

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Offer Guilin reinstatement to her former position
of
employment or,
if
that position no longer exists, then to a substantially similar position;
2. 	Make Guilin whole for lost benefits, monetary and otherwise, which she
suffered as a result
of
the District's conduct, including back pay, plus interest at the rate
of
7 percent per annum, from the date
of
her discharge, December 8, 2006, to the date the offer
of
reinstatement is made to her.
3. 	Within 10 workdays
of
the service
of
a final decision in this matter, post
at all work locations where notices to District employees customarily are posted, copies
of
the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of
the District, indicating that it will comply with the terms
of
this Order. Such posting shall be
maintained for a period
of
30 consecutive workdays. Reasonable steps shall be taken to ensure
that the Notice is not reduced in size, altered, defaced or covered with any other material.
4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board, or the General
Counsel's designee. Respondent 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 CSEA.
Members Winslow and
Ba~s
joined in this Decision.
36

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-5023-E, California School
Employees Association and its Chapter 111
v.
Palo Verde Unified School District, in which all
parties had the right to participate, it has been found that Palo Verde Unified School District
(District) violated the Educational Employment Relations Act (EERA), Government Code
section 3540 et seq., by discharging Eva Guilian (Guilian) in retaliation for her protected
activities, and by denying to the California School Employees Association and its Chapter
111
(CSEA) the right to represent its members.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Terminating or otherwise retaliating against employees in retaliation for
their engagement in protected activity;
2. 	Denying recognized employee organizations the right to represent their
members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Offer Guilin reinstatement to her former position
of
employment or,
if
that position no longer exists, then to a substantially similar position;
2. 	Make Guilin whole for lost benefits, monetary and otherwise, which she
suffered as a result
of
the District's conduct, including back pay, plus interest at the rate
of
7 percent per annum, from the date
of
her discharge, December 8, 2006, to the date the offer
of
reinstatement is made to her.
Dated: 	PALO VERDE UNIFIED SCHOOL DISTRICT
By: Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 111,
Charging Party,
v.
PALO VERDE UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5023~E
PROPOSED DECISION
(January 16, 2009)
Appearances: Dale Wissman, Labor Relations Representative, for Charging Party; Atkinson,
Andelson, Loya, Ruud & Romo by Sherry G. Gordon, Attorney, for Respondent.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
On December 7, 2006, California School Employees Association & Its Chapter 111
(CSEA) filed an unfair practice charge alleging that the Palo Verde Unified School District
(District) unilaterally changed work duties for a number
of
represented classifications,
including that
of
purchasing clerk, then held by Eva Guilin (Guilin). On March 14, 2007,
CSEA filed an amended charge also alleging that the District discharged Guilin on
December 8, 2006, in retaliation for her protected activities, and retaliated against CSEA
president Donna Vibanco (Vibanco) in January 2007. On July 16, 2007, CSEA filed a second
amended charge supplementing its factual allegations. On March 3, 2008, CSEA withdrew all
allegations except Guilin's discharge. On March 4, 2008, the General Counsel
of
the Public
Employment Relations Board (PERB or Board) issued a complaint alleging that by discharging
Guilin, the District violated the Educational Employment Relations Act (EERA) section

3543.S(a), and by the same conduct violated section 3543.S(b).1 In its answer, the District
denied any wrongdoing.
On April 1, 2008, CSEA moved to amend the complaint to change a typographical error
and to allege that one
of
Guilin's protected activities was her participation in a CSEA unfair
practice charge, rather than her participation in a grievance. The District opposed the motion.
An informal settlement conference was held at the PERB offices on April 9, 2008, but the
matter was not resolved. On September 8, 2008, the undersigned granted CSEA's motion to
amend the complaint.
Formal hearing was held before the undersigned on September 17 and 18, 2008. After
the filing
of
post-hearing briefs, the matter was submitted for decision on December 19, 2008.
FINDINGS OF FACT
The District is a public school employer within the meaning
of
EERA section
3540. l(k). CSEA is a recognized employee organization within the meaning
of
section
3540.1(1), representing a bargaining unit
of
the District's classified employees.
Guilin was hired in June 20062 as a purchasing clerk in the bargaining unit represented
by CSEA.3 She began work on June 19 and was discharged on December 8. Under the
District's six-month probationary period, she would have completed her probation on
EERA is codified at Government Code section 3540 et seq. Section 3543.S(a) makes
it unlawful for a public school employer to "[I]mpose or threaten to impose reprisals on
employees, to discriminate or threaten to discriminate against employees, or otherwise to
interfere with, restrain, or coerce employees because
of
their exercise
of
rights guaranteed by
this chapter." Section 3543.S(b) makes it unlawful for a public school employer to "[D]eny to
employee organizations rights guaranteed to them by this chapter."
2 All dates refer to the year 2006 unless otherwise specified.
3 Guilin had applied for the position in April, but, as explained below, at that time it
did not exist.
2

December 18. The job description for purchasing clerk contains the following general
definition:
Under general supervision, to perform specialized clerical work
involved in the procurement
of
stock items, materials and
equipment for the District; maintain records and inventory
of
stock items; and to do other related work as may be required.
The specific duties listed therein involve primarily the handling
of
purchase orders, inventory
of
stock items, and ordering the repair
of
equipment, all
of
which are related to the operation
of
the warehouse. Historically, the purchasing clerk was stationed at the warehouse, a separate
building located four blocks from District headquarters. The only other employee working
there was storekeeper4 Larry Schneider, Jr. (Schneider), who has primary responsibility for
warehouse operations. The warehouse supervisor is Facilities Director Marty Braden
(Braden).
After Guilin's predecessor left the job in March 2006, the District had unilaterally
reorganized some purchasing and payroll functions, and eliminated the position
of
purchasing
clerk. Purchasing clerk duties were transferred to a confidential, non-unit accounting
employee stationed at District headquarters, and the District intended to transfer some
of
that
employee's duties to another accounting employee holding a non-confidential unit position.
By letter
of
May 16 to the District, CSEA strongly objected to these "unilateral changes" in
both the purchasing clerk's and accounting specialist's duties and threatened to file an unfair
practice charge. In addition, CSEA and the District held many conversations on the subject,
both during contract negotiations and informally, some
of
which became heated, according to
4 Storekeeper is not a unit position.
3

CSEA president Donna Vibanco (Vibanco).5 As a result, the position
of
purchasing clerk was
reinstated, Guilin was hired into that position, and by tentative agreement
of
September
18
the
District agreed to undergo a job analysis
of
selected job descriptions, to seek input from the
affected employees and their supervisors, and to meet and negotiate with CSEA prior to any
job
description changes. A Focus Group comprised
of
unit employees and management was
formed for this purpose; Guilin, among others, was invited to participate, but she declined.
During her interview just prior to her hire, Guilin was told by Business Manager Olivia
Aguirre (Aguirre) that she would be assisting Aguirre as well as acting as purchasing clerk,
and that a new job description would be forthcoming. Upon Guilin's hire, the purchasing clerk
work station was relocated from the warehouse to the administration building, to a desk just
outside Aguirre's office formerly occupied by Aguirre's business assistant, and Aguirre
became her supervisor instead
of
Braden. Because Guilin was not in the warehouse, she was
not able to perform several
of
the duties listed in the purchasing clerk job description, e.g.,
arranging for equipment repair, warehouse inventory, ordering warehouse materials and
supplies, filling orders in storekeeper Schneider's absence, and securing warehouse facilities.
Schneider complained several times to Aguirre that ever since Guilin' s predecessor left
the job, he had been forced to perform purchasing clerk duties in addition to his own
responsibilities, and urged that Guilin be moved to the warehouse. In her testimony, Aguirre
admitted that she anticipated Schneider would be unhappy when the purchasing clerk was
relocated to the administration building. Schneider also complained to his CSEA
representative, who said she would look into the matter. In addition, Schneider had heated
·conversations with Guilin, including one "shouting match," because he believed Guilin was
5 ViBanco has been CSEA president since 2000, except for a brief period in
2005/2006.
4

giving him "orders" by telling him that he had to do warehouse duties and that he knew it.
According to Guilin, Aguirre had instructed her to tell Schneider what tasks he was responsible
for, even though she said she would rather not do that and even though it led to confrontations.
Aguirre denied giving her these instructions.
More than once Guilin informed Aguirre
of
the confrontations, and Aguirre told her to
just ignore Schneider's anger. But the confrontations continued, and after a particularly heated
one in early October, Schneider and Guilin were called to meet with Aguirre, ·Braden, and
Assistant Superintendent Dr. Yul Whitney (Whitney). Neither Braden nor Dr. Whitney had
witnessed the confrontation, but heard about it from Aguirre. At the meeting, Schneider
admitted to being the aggressor. Aguirre, Whitney and Braden said that Guilin was doing what
she was instructed to do, that Schneider had to do what he was instructed to do, and that the
arguments which had gone on between the two
of
them would not be tolerated. 6 After the
meeting, according to Guilin, Aguirre told her not to worry about it. Thereafter, Schneider
decided to avoid all contact with Guilin;
if
he had to bring papers concerning the warehouse to
her desk, he would just drop them off without comment. There is no evidence that Guilin and
Schneider had any further arguments, although their relationship remained hostile. There is no
evidence that either one
of
them was spoken to again by Aguirre, Braden, or Dr. Whitney
Also because
of
the relocation, Guilin was performing some administrative duties. She
testified that her workday started by unlocking Aguirre's office, checking her phone messages,
getting her mail, and briefing her when she arrived. Guilin also screened Aguirre's phone
6 Neither Guilin nor Schneider were disciplined because of these confrontations.
5

calls7 and visitors. Vibanco testified that she saw Guilin answering Aguirre's phone calls,
using the copy machine, and "playing a traditional secretary role." Alfonso Hernandez
(Hernandez), former Director
of
Facilities and Special Programs, testified that he also observed
Guilin performing some administrative tasks which Aguirre's former business assistant had
performed, and when he himself needed help with an administrative task, Aguirre advised him
to instruct Guilin on how to do it. According to Hernandez, Aguirre told him that the District
was in the process
of
reevaluating Guilin's position to upgrade her classification and job
description. In his testimony, Dr. Whitney acknowledged that there was a "business function"
to Guilin's job.
Guilin' s only written performance evaluation was done by Aguirre on November 3,
four months after her hire; all the ratings were "satisfactory" and the following comments were
made:
Record
job
strengths
Responsible and cares about her job and performance.
Areas where improvement is needed
Continue to learn purchasing galaxy.
Bid processing on rules and regulations.
Respectful communications with co-workers (warehouse dept.).8
Steps needed for improvement
Ask a lot
of
questions.
Read instructions and handout materials for galaxy and bids.
Attend training as needed.
7 Aguirre had the phone on Guilin's desk connected to the one in her office. She
contends that Guilin only answered calls when she was out
of
the office; however, she
acknowledged that Guilin also answered her calls when she was busy.
8 Schneider testified that because of his arguments with Guilin, he received a similar
comment on his next evaluation, as well as an "unsatisfactory" rating in the "Employee
contacts" category, but he was not disciplined.
6

No incident reports accompanied the evaluation, and Guilin was never disciplined or warned
about her performance or behavior, and there were no negative documents in her personnel
file. 	Aguirre testified that when she gave Guilin her evaluation, she told her that the note on
"respectful communications with co-workers" applied not only to Schneider but to other
employees as well; that Guilin asked who they were, but Aguirre did not tell her because she
was afraid Guiiin would confront them and it would lead to more hostility. Aguirre contended
that she did not document any personality problems in the evaluation because Guilin was
trying and she wanted to give her "the benefit
of
the doubt."
According to Ouilin, Aguirre mentioned only her conflict with Schneider at the
evaluation meeting. I credit Guilin in this regard, as the evaluation cites the warehouse
department not as an example, but as a clarification. Guilin testified that she got along well
with Aguirre, to which Aguirre agreed, and had no personality conflicts or arguments with any
co-workers except Schneider.
On December 1 Vibanco and CSEA vice president Tony Cisneros (Cisneros) were at
District headquarters for a meeting with Dr. Whitney and District Superintendent Allen Jensen
(Jensen) regarding salary negotiations. Prior to the meeting, Vibanco and Cisneros were at
Guilin's desk getting payroll data from her computer in preparation for the meeting; they were
also speaking with Guilin about her duties. Guilin was telling them that Aguirre was giving
her business assistant duties; she said she wasn't sure whether she was supposed to do that, and
was concerned about her purchasing clerk duties, as she did not believe she had an accurate job
description. Dr. Whitney, who was headed to his office nearby, asked in passing what they
were doing; Vibanco replied that they were just printing something out from Guilin's
computer. Dr. Whitney told them to promptly end their conversation. In his testimony,
Dr. Whitney admitted knowing that it was "related to something to do with the Association,
7

which I knew was not appropriate during work time," because it was "not related to what I was
paying [her] for," and "not appropriate during work time" and that they might have been
discussing Guilin's job duties. Dr. Whitney admitted that he told Vibanco to end the
conversation precisely because they were discussing union business. He testified that this was
the first time he ever observed Vibanco talking to an employee at their workplace about "union
stuff," but acknowledged that the District has no policy against brief small-talk among
employees.
Vibanco then phoned CSEA's labor representative and told him to file an unfair
practice charge regarding unilateral transfers
of
job duties, including Guilin's; the instant
original charge was filed on Thursday, December 7. There is a question as to when the District
received it: a conformed copy
of
the docketed charge was received by CSEA on Thursday. It
was also received by the facsimile machine in Dr. Whitney's office at
11
:30 a.m. on Thursday.
Dr. Whitney testified that it would have been put on his desk immediately; he could not recall
exactly when he first saw it, but it was some time between the fax receipt and
11
a.m. on
Friday, December 8, when he signed a Notice
of
Appearance form for the District's then-
attomey.
Guilin testified that she had never before gone to CSEA for help regarding her duties
because she was afraid
of
losing her job. She related that on occasion Aguirre would tell her
that
if
she wanted to advance with the District, being involved with the union wouldn't help
her, and that Aguirre was not "big" on the union. Aguirre did not rebut this testimony. Even
on December 1, Guilin did not go to CSEA; they came to her.
On December 8, Dr. Whitney phoned Aguirre. Although Aguirre was in her office,
Guilin answered the call; she testified that Dr. Whitney seemed frustrated and ask why she
answered instead of Aguirre; she connected the call to Aguirre. Guilin contended that the call
8

took place at 5:00
p.m.,just
before she was summoned to Aguirre's office. Dr. Whitney
contended that the call was in the morning, at 8:30-9:00 a.m., and that he left the office for the
weekend at
11
:00 a.m. Aguirre did not testify as to the time
of
the call. I do not find it
necessary to determine whether the call was made in the morning or afternoon, as the same
events would have proceeded in either case. I do, however, find that Dr. Whitney had already
seen the unfair practice charge when he phoned Aguirre on the 8th, as it had been put on his
desk on the 7th and he would have seen it when he first arrived at the office on the 8th.
Neither Dr. Whitney nor Aguirre testified as to the contents
of
their conversation.
In Aguirre's office, she told Guilin that the District decided she was "not a good fit"
and was letting her go.9 When Guilin asked for reasons, Aguirre only repeated that she was
not a good fit, that it "wasn't working out." Aguirre said, "You know why already," and that
she did not need to give any more reasons. Guilin testified that she did not know what Aguirre
meant and was completely surprised by the meeting; she had brought paper and pen into the
office, prepared to take dictation. Aguirre claimed that Guilin knew she was to be discharged,
told Aguirre that she expected it and that she had a box ready to pack up her things. Guilin
denied having previously packed up her things, and that Aguirre and Jacob Jensen watched her
do so after the meeting. However, she did not deny telling Aguirre that she expected the
discharge and had a box ready at her desk. I therefore credit Aguirre in this regard. However,
there is no evidence as to why Guilin may have expected to be discharged.
Since Guilin's discharge, the purchasing clerk position has been relocated to the
warehouse, and a new classification
of
business secretary has been assigned to the desk outside
9 Aguirre testified that she wanted to have someone else in the room to observe; she
went looking for Dr. Whitney but could not find him, so she asked Jacob Jensen, Director ofSpecial Services and son of District Superintendent Jensen, to attend; he attended but did not
participate in the discussion. He did not testify at the hearing.
9

Aguirre's office. A new
job
description was written for business secretary, but no existing
job
descriptions were changed.
District defense
The District contends that the decision to terminate Guilin was made solely by
Aguirre. 10 According to Aguirre, ever since August she had received complaints about Guilin
from others on her own staff and from other supervisors who related complaints from their
respective staffs. Aguirre named a few complainers and their complaints, all
of
which took
place prior to Guilin's evaluation and were, in essence, that Guilin was bossy and talked down
to people. Aguirre did not personally witness any
of
these incidents, and none
of
these
employees or supervisors testified at the hearing. There is no evidence that Aguirre conducted
any investigation on these complaints, Aguirre claimed that several times, both before and
after the November evaluation, she spoke to Guilin about her behavior. However, Aguirre
admittedly put it to Guilin in general terms, e.g., that she should not be rude; she did not
describe any specific incident, any specific behavior, or name any coworkers; she contended
this was because she did not want Guilin to "retaliate." Nor did Aguirre ever give Guilin any
warning that she risked being disciplined or discharged. Aguirre testified that she was always
trying to help Guilin, who frequently broke into tears, and she did not want to issue any written
reprimands or warnings because Guilin was "trying."
Aguirre described one occasion, prior to the evaluation, when she overheard Guilin
sounding upset while talking on the phone. After the call, Guilin came into Aguirre's office
and said she was upset with the caller, Kevin (last name unknown) (Kevin), an employee
of
Riverside County assigned to help District employees with certain computer procedures.
Io The complaint cites "Guery and Jacob Jensen" as the District agents responsible for
the adverse action. It is obvious, and I so find, that "Guery" is Olivia Aguirre.
10

Guilin said Kevin had been rude to her and was probably going to call Aguirre. Whereupon
Kevin did call Aguirre and complained that Guilin was difficult to work with. However,
Aguirre did not scold or counsel Guilin, but rather showed her the procedures herself. Aguirre
explained that at the time, the District was installing a new software system; she understood
this was creating some tension, and it was appropriate for Guilin to express some frustration.
According to Aguirre, the next day Guilin brought her a box
of
chocolates, which she took to
be an apology. Guilin did not rebut any
of
this testimony.
Aguirre testified that she also discussed Guilin with the District's Cabinet, which
includes herself, Dr. Whitney, and Jensen,
11
several times both before and after the evaluation,
the last time on Monday, December 4 (one business day after Guilin's conversation with
Vibanco and Cisneros). Aguirre testified that she went to Dr. Whitney's office after that
Cabinet meeting and told him she had decided to terminate Guilin "for the sake
of
the
District," but she wanted to sleep on it. Aguirre claimed that her decision was not based on
Guilin' s work performance but on her personal conflicts with other employees. The next day,
Tuesday December 5, she told Jensen she was going to terminate Guilin, but wanted to wait
until Friday to notify her, so that the other employees would not be gossiping about the
termination all week but would have the weekend to absorb the news. On Friday, December 8,
she called Guilin into her office and notified her
of
the discharge.
Aguirre acknowledged that she had seen CSEA's May 16 letter to Dr. Whitney
complaining about changes to the purchasing clerk position and other positions under her
supervision. However, she claimed that at the time she made her discharge decision, she had
no knowledge
of
Guilin's conversation with Vibanco and Cisneros on December 1, or of the
PERB charge, the latter
of
which she first learned of about a month after it was filed. Aguirre
ii	
Jensen did not testify. 
11

testified that in prior consultations with Dr. Whitney, he told her that
if
she had a disruptive
employee who improved, she should keep her, but
if
there was no improvement, she should
discharge her. She knew that Dr. Whitney believed Guilin was not a good employee, and that
he would be displeased
if
she was not terminated but was instead allowed to pass probation.
Dr. Whitney testified that shortly after Guilin's hire, he heard from another (unnamed)
employee that Guilin had personality problems at a previous job. He did not contact the
previous employer, but put this information "in the recesses
of
my mind."12
No such employee
testified at the hearing. When asked to state specifically why Guilin was terminated,
Dr. Whitney said that it was not because
of
how she performed her duties, but rather because
of
her "interaction with other employees." He claimed that he received reports from
employees and supervisors
of
their difficulty in getting along with her, but he gave no
specifics. He himself never witnessed any such incidents or problems, a fact which he kept
trying under cross-examination to avoid admitting, but ultimately did admit. None
of
the
observers to those alleged events testified at the hearing. Dr. Whitney concurred with Aguirre
that Guilin was discussed at Cabinet meetings, and stated that it was highly unusual for a
probationary employee to be discussed.
The District has in place a disciplinary guide entitled FRISK: Facts - the facts relating
to the situation; Rules - the rule which was broken; Impact - on the work environment;
Suggestions - made to the employee; Knowledge - letting the employee know something is
being put in his/her personnel file. Dr. Whitney testified that FRISK can apply to probationary
as well as permanent employees, depending on the level
of
misconduct, to be determined by
the employee's supervisor. He contended that the District usually documents major employee
12
Guilin testified that the previous employer told her that, after her discharge,
Dr. Whitney sought information about her.
12

incidents, but not always; however, probationary employees, unlike permanent employees, are
frequently let go without any prior discipline or supporting documentation; he did not provide
any examples. He did, however, testify that probationary employees in danger
of
being
discharged are warned that "there's something amiss, things aren't working out
...
Absolutely."
It is undisputed that FRISK was not implemented with regard to Guilin, that none
of
her
alleged personality problems were documented, and that she was never warned that her
behavior might lead to discipline or discharge. When asked why not, Dr. Whitney responded
that her evaluation does document the problem, that she had been warned by Aguirre and by
himself (referring to the October meeting with Schneider), and that "I don't think that there has
to be five thousand pieces
of
paper in someone's personnel file."
Dr. Whitney acknowledged that CSEA and the District had conflicts regarding job
descriptions and job duties, including those
of
purchasing clerk, but he kept downplaying it
and repeatedly testified that the problem was resolved when the purchasing clerk position was
relocated to the warehouse. However, under cross-examination, he admitted that the relocation
did not take place until March 2007, after Guilin' s discharge.
ISSUE
Did the District discharge Guilin in retaliation for her protected activities?
CONCLUSIONS OF LAW
To demonstrate a violation ofEERA section 3543.S(a), the charging party must show
that: (1) the employee exercised rights under EERA; (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 employees because of the exercise of those rights. (Novato Unified School District (1982)
13

PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), 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
additional factors must also be present: (1) the employer's disparate treatment
of
the employee
(State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S); (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; (6) employer animosity towards union activists (Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (Novato, supra, PERB Decision No. 210; North
Sacramento School District, supra, PERB Decision No. 264.)
There is no question that Guilin engaged in protected activities, the first Novato
requirement, by discussing concerns about her job duties with Vibanco and Cisneros on
December 1, and by providing the information which led to the filing of the original unfair
practice charge which complained, inter alia, about those job duties.
14

Knowledge
of
her protected activities, the second Novato requirement, appears to be an
issue here. Not with regard to Dr. Whitney, as
by
his own admission he knew that the
December I conversation concerned "union business" and was related to Guilin's
job
duties;
and he had seen the unfair practice charge at the latest on the morning
of
December 8,
just
hours before Guilin's discharge. 	It would take no leap
of
faith to connect the two events, as
the charge complained about the very matters discussed in the December I conversation, i.e.,
Guilin's
job
duties. It is also undisputed, from Aguirre's testimony, that Dr. Whitney did not
approve
of
Guilin and did not want her to pass probation. However, both he and Aguirre
contend that Aguirre alone made the decision to terminate Guilin, that she was not influenced
by Dr. Whitney, and that she knew nothing at that time about the December I conversation or
the unfair practice charge.
	If
their contentions are taken at face value, without more, then this
essential element fails, as knowledge
of
one manager cannot be attributed to another
if
the
latter was the sole decision-maker and was not influenced
by the motivation
of
the former.
(Sacramento City Unified School District (1985) PERB Decision No. 492.)
However, in Moreland Elementary School District, supra, PERB Decision No. 227, the
Board noted that "several federal circuits have held that knowledge
of
the protected activity
can be inferred from circumstantial evidence or anti-union motive," and cited the following
principle stated in NLRB v. Long Island Airport Limousine Service Corp. (2d Cir. 1972) 468
F.2d 292:
[T]here is no good reason why the two factual propositions -
employer knowledge
of
general union activity and employer anti-
Union motivation in discharging a particular employee - need be
proved by different types
of
evidence. As to each, direct
evidence may not be obtainable and circumstantial evidence and
"inferences
of
probability drawn from the totality
of
other facts"
[citation omitted] are perfectly proper.
15

A later NLRB case, Regional Home Care, Inc. (1999) 329 NLRB 85, makes this principle even
more clear:
It is well established that the "knowledge" element
of
a violation
[
of
federal labor law] need not be established by direct evidence,
but
"may
rest
on
circumstantial evidence [from] which a
reasonable inference
of
knowledge may be drawn." ·Montgomery
Ward & Co., 316 NLRB 1248, 1253(1995), enfd 97 F.3d 1448
(4th Cir. 1996). We may infer knowledge based on such
circumstantial evidence as the timing
of
the alleged
discriminatory actions; the Respondent's general knowledge
of
its employees' union activities; the Respondent's animus against
the Union; and the pretextual reasons given for the adverse
personnel actions." [Italics in original.]
(See also, Kajima Engineering and Construction, Inc. (2000) 331 NLRB 1604.)
I shall therefore look at other indicia to determine whether the totality
of
evidence
allows for an inference that Guilin's protected activities were known, and that her termination
was wrongfully motivated.
I start with timing: Guilin' s protected conversation with CSEA officers occurred on
December
1,
and the unfair practice charge arising from that conversation was filed and
received by the District on December 7 and seen by Dr. Whitney no later than the morning
of
December 8. Guilin was terminated shortly after 5:00 p.m. on the 8th. The timing cannot get
much closer. I also find evidence, not circumstantial but direct,
of
anti-union animus, in (1)
Guilin's unrebutted testimony that Aguirre told her more than once that
if
she wanted to
advance in her job, the union would not help her and that Aguirre did not like the union; and
(2) Dr. Whitney's admission that he objected to her talking at her desk with CSEA
representatives about her job duties because that was "not related to what I was paying for,"
and "not appropriate during work time," notwithstanding that the District had no rule or policy
restricting such conversations.
16

Providing vague and ambiguous reasons for the discharge is also a factor. In the recent
Baker Valley Unified School District (2008) PERB Decision No. 1993, the Board noted that its
own cases, as well as those from the National Labor Relations Board, "establish that to be
vague or ambiguous, the reason [for the adverse action] must be essentially meaningless to the
employee under the circumstances." Using that guideline, the Board dismissed the complaint
as to one employee who was told he was discharged because
of
his "classroom management"
difficulties, as that employee had a known and documented history
of
classroom management
problems. However, the Board upheld the complaint as to the other employee who was told he
was being non-renewed because
of
unexplained "inconsistencies" in his classroom, as the
school district had never before discussed this matter with him, it was not documented, and he
had no reason to be aware
of
it.
Here, Guili~ was told by Aguirre on December 8 only that she was "not a good fit," that
it "wasn't working out," and that "[Y]ou know why already." However, although she may
have expected to be discharged, there is no evidence as to why she thought so. It is plausible
that, already fearing retaliation
if
she complained to CSEA about her job, she expected an
adverse result after Dr. Whitney saw her talking with Vibanco and Cisneros on December 1
and told them to immediately cease their conversation. There was no reason for her to fear
discharge for any other reason: there were no documents in her file nor conversations with
Aguirre which could warn her
of
a discharge, her evaluation was satisfactory, her one-time
phone conversation with Kevin was long-past, and she had no more confrontations with
Schneider after the October meeting. She was aware, from the evaluation and the Schneider
meeting, that the District wanted her to get along with Schneider, and notwithstanding the
absence of verbal arguments, they remained hostile toward each other. However, nothing
indicated that she was in danger of being disciplined because of their relationship, and it was
17

not spoken
of
again after the October meeting. I find, therefore, that Aguirre's stated reasons
for the discharge were vague and ambiguous, another indicia
of
unlawful motivation.
Finally, there is evidence that Guilin was treated disparately from other probationary
employees. By Dr. Whitney's own testimony, they are given, at the least, pre-discharge
warnings that their behavior or performance is unacceptable; Guilin was not given any
warning. Disparate treatment is yet another sign
of
unlawful motivation. (State
of
California
(Department
of
Transportation), supra, PERB Decision No. 459-S.) In this regard, I note that
even probationary employees, while they ordinarily may be discharged without cause, are
entitled to engage in protected activities and may not be discharged in retaliation. (Livingston
Union School District (2004) PERB Decision No. 1657; (McFarland Unified School District
(1990) PERB Decision No. 786 (McFarland), aff' d McFarland Unified School District v.
Public Employment Relations Board (1991) 228 Cal.App.3d 166.)
In summary, we have a close coincidence in timing, direct evidence
of
anti-union
animus, vague and ambiguous reasons given for the discharge, and disparate treatment.
Further, there are some suspicious facts surrounding the discharge: It is difficult to believe
that,
if
Dr. Whitney thought Guilin was abusing her position by talking about union matters
while at work on December
1,
he would not have shared this with her direct supervisor, or that
he would not have mentioned it at the Cabinet meeting on December 4 when they discussed
Guilin. It is also difficult to believe that Dr. Whitney did not tell Aguirre about the unfair
practice charge as soon as he saw it, as it was directed against the duties
of
positions under her
supervision. It is clear that Aguirre liked Guilin and wanted to keep her, while Dr. Whitney
did not; and to him, Guilin's December 1 conversation with CSEA and the unfair practice
charge may have been the last straw. It is reasonable to infer that this attitude accounted for
Dr. Whitney's being upset when Guilin initially answered Aguirre's phone on December 8, and
18

that it formed the basis for his ensuing conversation with Aguirre. As noted above, neither Dr.
Whitney nor Aguirre testified as to the contents
of
their conversation. Further, I do not credit
Aguirre's claim that she made her final decision on December 5 and told Jensen about it.
Jensen did not testify, thus her claim was not corroborated. Nor is Aguirre's purported reason
to delay telling Guilin until the 8th, i.e., so that other employees would not have the rest
of
the
week to gossip, supported by any other evidence nor does it ring true; employees could
certainly spend the following week gossiping
if
that was their bent.
Both PERB and the NLRB have declared that credibility resolutions may be made on
the basis
of
such factors as demeanor, selective memory on cross examination, inconsistent
testimony, or testimony which is inherently unbelievable, e.g., defenses to a discharge based
on unsubstantiated and unsupported allegations, or on the record as a whole. (Regents
of
the
University
of
California (1984) PERB Decision No. 449-H; North Sacramento School District,
supra, PERB Decision No. 264; Daikichi Sushi (2001) 335 NLRB 622; Shen Automotive
Dealership Group (1996) 321 NLRB 586.)
For the reasons stated above, I find Aguirre's and Dr. Whitney's contentions, that
Aguirre had no knowledge
of
Guilin's protected activities and that she alone made the
termination decision, inherently unbelievable. I further find Dr. Whitney's demeanor as a
witness less than candid, e.g., when he tried to avoid admitting that he never observed any
incident involving Guilin and when he downplayed the District's dispute with CSEA over job
duties by contending that it was resolved when the purchasing clerk position was moved back
to the warehouse, an event which took place after Guilin's discharge. I also find his
exaggerated answer to why Guilin's alleged behavioral problems were not documented, i.e., "I
don't think that there has to be five thousand pieces of paper in someone's personnel file," to
be cavalier and unprofessional. Thus, I find sufficient evidence, based on strong probabilities
19

and the record as a whole, to reasonably infer that Dr. Whitney told Aguirre about Guilin's
December 1 conversation and the unfair practice charge, that the decision to terminate Guilin
was not made until December 8 after Dr. Whitney's phone call, and that he was the principal
decision-maker.
The Board has long recognized that direct proof
of
a discriminatory motive is rarely
found and, therefore, allows circumstantial evidence to satisfy the burden. (Santa Paula School
District (1985) PERB Decision No. 505.) Based on the totality
of
the circumstances, I find that
Aguirre knew ~f Guilin's protected activities, that Dr. Whitney decided on the discharge and
Aguirre went along with it, and that it was motivated by Guilin's protected activities.
Accordingly, I find that CSEA has satisfied the Novato criteria for a prima facie case
of
retaliation.
The burden now shifts to the District to show that it would have discharged Guilin in
the absence
of
her protected activities. (Novato, supra, PERB Decision No.
21
0; Martori
Brothers Distributors v. Agricultural Labor Relations Board (1981) 29 Cal.3d 721; Wright
Line, A Division
of
Wright Line, Inc. (1980) 251 NLRB 1083 (Wright Line).) This is referred
to as the "but for" test, "an affirmative defense which the employer must establish by a
preponderance
of
the evidence." (McPherson v. Public Employment Relations Board (1987)
189 Cal.App.3d 293, 304.) For the following reasons, I find that the District failed to meet this
burden.
The District proffers a single reason for Guilin's termination, i.e., her personality
conflicts with other employees. Yet there is no documentation
of
any such problem, nor did
the District apply its FRISK program, although it has been used in the past regarding actions
against other probationary employees. Dr. Whitney declared that there need not be "five
thousand pieces of paper in someone's personnel file," and testified that probationary
20

employees are often discharged without any documentation, but he provided no examples
of
such. He also testified that probationary employees are usually warned when they are in
danger
of
termination, but there were no warnings given to Guilin. Aguirre claims to have
counseled Guilin a number
of
times, but no specifics were given, no names were mentioned,
and she was never put on a performance improvement plan, sent to the District's Anger
Management class, or warned by Aguirre about losing her job. Even with the Kevin and
Schneider incidents, she was not warned. To the contrary, Aguirre understood Guilin's
frustration regarding the new software program which Kevin was trying to teach her, thus
Aguirre herself instructed Guilin; and after the Schneider meeting in October, Aguirre told her
not to worry about it. Her November 1 performance evaluation was satisfactory, and the only
mention
of
an interpersonal problem was the third item under "Areas where improvement is
needed .
..
Respectful communications with co-workers (warehouse dept.)," which I have
found referred only to Schneider. Schneider received a similar comment on his evaluation, and
even a less than satisfactory overall rating, but he was not disciplined or terminated. There is
no evidence
of
any specific incident occurring after the evaluation. Nor is there evidence, or
even allegation,
of
any misconduct to trigger the discharge.
Importantly, except for Kevin and Schneider, neither Aguirre nor Dr. Whitney
witnessed first-hand any conflict between Guilin and her co-workers. None
of
these co-
workers testified at the hearing, thus I cannot credit the validity
of
their complaints. (Hilmar
Unified School District (2004) PERB Decision No. 1725; North Sacramento School District
(1982) PERB Decision No. 264, citing PERB Regulation 32176(a);
13
Alamo Rent-A-Car
(2002) 338 NLRB 275 (employer defense discredited in absence of independent evidence
of
13
Regulation 32176(a), which has since become Regulation 32176, provides in part:
"Hearsay evidence is admissible but shall not be sufficient in itself to support a finding
....
"
21

customer complaints about discharged employee.) Further, there is no evidence that Aguirre or
Dr. Whitney investigated any
of
the alleged complaints. Failure to investigate has been held as
another indicia
of
unlawful motivation. (Coast Community College District (2003) PERB
Decision No. 1560; California State University, Fresno (1990) PERB Decision No. 845 (CSU
Fresno), regarding a probationary employee.) (See also, Novato, where the school district's
defense, that it received several complaints against the discharged teacher, was discounted
because the complaints were neither investigated nor discussed with the teacher.)
I therefore do not find that Guilin had personality conflicts with co-workers in fact, or
that either Aguirre or Dr. Whitney believed that any complaints they received about her were
serious enough to investigate, warn her about, include in her evaluation, note in her personnel
file, or terminate her. Accordingly, I conclude that the District was not motivated by Guilin's
problems with other employees and has not sustained its Wright Line burden with sufficient
evidence to show that it would have discharged Guilin in the absence
of
her protected
activities.
I find that the District discharged Guilin in retaliation for her protected activities, in
violation
of
EERA section 3543.5(a), and that by the same conduct the District interfered with
the Association's right to represent its members, in violation
of
section 3543.5(b).
REMEDY
EERA section 3541.5(c) gives PERB:
[T]he power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action
...
as will effectuate the policies
of
this
chapter.
It has been found that the District discharged Guilin in retaliation for her protected
activities. It is therefore appropriate that the District be directed to cease and desist from such
22

conduct. The District should also be ordered to
off
er reinstatement to Guilin to her former
position
of
employment and to make her whole for any financial losses she suffered as a result
of
the District's conduct, including back pay together with interest at the rate
of
7 percent per
year. (San Jacinto Unified School District (1994) PERB Decision No. 1078; Oakland Unified
School District (1985) PERB Decision No. 540.)
It is also appr9priate that the District be required to post a notice incorporating the
terms
of
the order. Posting
of
such a notice, signed by an authorized agent
of
the District, will
provide employees with notice that the District has acted in an unlawful manner, is being
required to cease and desist from this activity, and will comply with the order. It effectuates
the purposes
of
the EERA that employees be informed
of
the resolution
of
this controversy and
of
the District's readiness to comply with th~ ordered remedy. (Placerville Union School
District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the Palo Verde Unified School District (District) violated the Educational
Employment Relations Act (Act), Government Code section 3540 et seq. The District violated
the Act by discharging Eva Guilin (Guilin) in retaliation for her protected activities, and by the
same conduct, denying to the California School Employees Association & Its Chapter 111
(CSEA) the right to represent its members.
Pursuant to EERA section 3541.S(c), it hereby is ORDERED that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Terminating or otherwise retaliating against employees in retaliation for
their engagement in protected activity;
23

2. 	Denying recognized employee organizations the right to represent their
members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Offer Guilin reinstatement to her former position
of
employment or,
if
that position no longer exists, then to a substantially similar position;
14
2. 	Make Guilin whole for lost benefits, monetary and otherwise, which she
suffered as a result
of
the District's conduct, including back pay,
15
plus interest at the rate
of
seven percent per annum, from the date
of
her discharge, December 8, 2006, to the date the
offer
of
reinstatement is made to her.
3. 	Within 10 workdays
of
the service
of
a final decision in this matter, post
at all work locations where notices to District employees customarily are posted, copies
of
the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of
the District, indicating that it will comply with the terms
of
this Order. Such posting shall be
maintained for a period
of
30 consecutive workdays. Reasonable steps shall be taken to ensure
that the Notice is not reduced in size, altered, defaced or covered with any other material.
4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent 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 CSEA.
14
Reinstatement
of
a probationary employee has been held to mean reinstatement to
permanent status. (Livingston, supra, PERB Decision No. 1657; McFarland, supra, PERB
Decision No. 786; CSU Fresno, supra, PERB Decision No. 845.)
15
Santa Clara Unified School District (1979) PERB Decision No. 104.
24

Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB
or
Board) itself within 20 days
of
service
of
this
Decision. 	The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code
section 11020(a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number
of
copies
and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
25
Ann L. Weinman
Administrative Law Judge