Rocklin Unified School District (PERB 2376E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
F
ROCKLIN TEACHERS PROFESSIONAL
ASSOCIATION, CTA/NEA,
Charging Party,
V.
ROCKLIN UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SA-CE-2562-E
PERB Decision No. 2376
June 12, 2014
Appearances: California Teachers Association by Laura P. Juran, Attorney, for Rocklin
Teachers Professional Association, CTA/NEA; Kronick, Moskovitz, Tiedmann & Girard
by
Michelle L. Cannon, Attorney, for Rocklin Unified School District.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the Rocklin Unified School District (District) to a proposed
decision (attached) by a PERB administrative law judge (ALJ). The complaint and underlying
charge allege that the District violated section 3543.5, subdivisions (a), (b) and (c),
of the
Educational Employment Relations Act (EERA) 1 when it: (1) took adverse action against four
registered nurses employed by the District (school nurses)2 by issuing each a final notice
of
dismissal based on layoff on or about May 12, 2010, in retaliation for engaging in protected
activities; (2) removed/transferred work exclusively performed by the school nurses from the
bargaining unit during the 2010-2011 school year without prior notice and opportunity to
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 The four nurses are lead nurse Jennifer Hammond (Hammond), Genevieve Sherman,
Susan Firchau (Firchau) and Jennifer Bradley (Bradley).

negotiate in or about August 2010; and (3) subcontracted work from the bargaining unit for the
2010-2011 school year without prior notice and opportunity to negotiate in or about August
2010.
The Office of the General Counsel issued the complaint on April 5, 2011. The District
answered the complaint on April 21, 2011, denying the substantive allegations and asserting
affirmative defenses. The parties participated in a settlement conference on May 4, 2011, but
were unable to reach a resolution of their dispute. A formal hearing was held January 17-20,
2012, and following the filing of written argument, the case was submitted for decision on
March 16, 2012.
On September 26, 2012, the ALJ issued a proposed decision, finding a violation based
on the retaliation allegations, but dismissing the allegations of removal/transfer and contracting
out of bargaining unit work. On November 7, 2012, the District filed exceptions and a
supporting brief, arguing that the ALJ erred in finding the retaliation violation. On
December 11, 2012, the Rocklin Teachers Professional Association, CTA/NEA (Association)
filed its response to the District's exceptions. As the Association did not except to the ALJ's
findings and conclusions of law regarding the removal/transfer and contracting out of
bargaining unit work allegations, those issues are not before us.3 The only issue on appeal is
whether the ALJ erred in finding that the District retaliated against the four school nurses for
engaging in protected activities by issuing each a final notice of dismissal based on layoff.
The Board has reviewed the entire record in this matter, including the complaint and
answer, the hearing record, the District's exceptions and the Association's response thereto.
City of Sacramento (2013) PERB Decision No. 2351-M is the Board's most recent
decision covering the duty to bargain where removal/transfer of bargaining unit work is at
issue. 	Consistent with the decision in City of Sacramento, the ALJ correctly found that the
District had a duty to bargain the removal/transfer and the contracting out of bargaining unit
work. As the ALJ also correctly found, the Association waived its right, a finding to which the
Association did not except.
2

Based on that review, we find that the ALJ' s findings of fact are adequately supported by the
record. 	We also find that the ALJ's conclusions of law are well-reasoned and in accordance
with applicable law. We therefore adopt the proposed decision as the decision of the Board
itself, as supplemented by a discussion of the District's exceptions.
DISCUSSION
The District filed 21 exceptions. They are based on three main arguments. In its first
two arguments, the District contends that the Association has not satisfied its prima facie
burden, taking issue with the protected activity and nexus elements of the ALJ' s retaliation
analysis. In its third argument, the District asserts that notwithstanding the deficiencies in the
prima facie case, the District has satisfied its burden of proving, as an affirmative defense, that
it would have taken the same adverse action against the four school nurses even if they had not
engaged in protected activity, i.e., that the District had a legitimate, non-discriminatory reason
for terminating the nurses' employment with the District. We address the District's arguments
in turn below. In addressing the District's arguments, we have determined the District's
exceptions to be without merit.
The Association's Burden of Proving the Prima Facie Elements of Retaliation
Public school employees have the right to "form, join, and participate in the activities
of employee organizations of their own choosing." (EERA, sec. 3543, subd. (a).) A public
school employer violates this right when it imposes reprisals on employees because of their
participation in protected activities. (EERA, sec. 3543.5, subd. (a).) To demonstrate that an
employer retaliated against an employee in violation of EERA section 3543.5, subdivision (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; (3) the employer took adverse action
3

against the employee; and ( 4) the employer took the action because of the exercise of those
rights. 	(Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
Protected Activity
In its first of three arguments, the District asserts that the proposed decision erroneously
"relies on the school nurses' participation in the layoff hearing for the required element of
protected activity." As the District's argument goes, because the layoff hearing is provided for
under the Education Code, and not EERA, a finding of retaliation based upon attending a
statutorily prescribed layoff hearing is not "sufficient for a prima facie case of retaliation under
EERA."
This argument might have some credence if the nurses' participation in the layoff
hearing was the only basis for the Association's retaliation charge. As recounted in great detail
by the ALJ, however, the four nurses engaged in a continuous course of protected activity
dating back to February 2008, when they first started collectively raising issues with District
administrators regarding staffing, workload, safety, etc. As the nurses' protected activities
continued, they frequently sought the Association's assistance in their communications with
District managers. In February 2010, the nurses met with District Superintendent Kevin
Brown (Brown), at the suggestion of School Board Member Camille Maben with whom they
had met in December 2009, to discuss their concerns. At the end of February 2010, three of
the nurses met with School Board Member Wendy Lang. 	Soon thereafter, on March 4, 2010,
the District issued the initial notices, i.e., the "Notice of Intent to Dismiss." Pertinent to the
District's argument on appeal, the proposed decision states that the "nurses' protected activity
continued by participating in the RIF hearing held April 6-7, 201 0."
We do not read this statement in the proposed decision regarding the nurses'
participation in the layoff hearing to mean that the conduct of the layoff hearing is itself
4

protected activity under EERA. If each nurse's attendance at the layoff hearings had occurred
in isolation, outside the context of a continuous course of concerted and protected activity, and
if the District had taken adverse action against each nurse on that basis alone, we might agree
with the District that such facts would not support a finding of retaliation under EERA. 	As
summarized above, and as fully drawn out in the proposed decision, however, that is not what
occurred.
The nurses' collective invocation of their right to participate in the layoff hearings,
as communicated in an e-mail4 sent by the nurses to their supervisor, Betty Di Regolo
(Di Rego lo), on April 2, 2010, cannot be parsed from the continuous course of concerted and
protected activity in which they had been engaged since 2008. The protected activity for
purposes of the retaliation analysis is not found in each individual nurse's attendance at the
layoff hearing per se. Rather, it is found in the collective joining together of the four nurses as
they, with the assistance of their exclusive representative, continuously stood up to the District
in raising workplace issues such as workload, assignments, scheduling, poor communication,
lack of support for the lead nurse and safety concerns, and defended themselves against the
District's actions leading to the termination of their employment effective June 30, 2010. (See
5
The e-mail stated:
Just a courtesy note to alert you that all four of the nurses will be
attending the RIF hearings on Tuesday and Wednesday of this
coming week. Per our union attorney, Andrea Price, we have the
right to attend uninterrupted and in their entirety on both days, so
the district will be without nurses on those two days. We will not
be answering or [sic] phones or responding to e-mail during the
hearings. It will fall to you to arrange for nursing coverage and
in particular, coverage for our little first grade diabetic at
Antelope Creek on those days.
Brown responded as follows:
Your concern for the well-being of our student's [sic] health is
regrettable. We will definitely find a way to cover in your absence.

Oakdale Union Elementary School District (1998) PERB Decision No. 1246, pp. 17-19
[charging party's report of safety issues to third party safety inspector was consistent with the
parties' collective bargaining agreement and an extension of attempts to resolve issues through
the union and school district].)
Unlawful Motive
In the District's second argument, the District asserts that the proposed decision's
reliance on three nexus (unlawful motive) elements was in error. We disagree. 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, 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
Timing
The proposed decision concluded that the imposition of the adverse action close in time
to the nurses' participation in protected activities satisfies the timing element. The District
erroneously states that the proposed decision "found the attendance at the layoff hearing on
April 6- 7, 2010 to be the protected activity which motivated the District's decision to layoff
[sic] the nurses." Based on that erroneous statement, the District argues that at the time the
school board adopted Brown's recommendation and voted to send out the initial Notice of
Intent to Dismiss on March 3, 2010, "there is little to no evidence of 'unlawful motive'." The
When construing California public sector labor relations statutes, California courts and
PERB rely on National Labor Relations Board decisions 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.)
6

District cites to a very productive meeting between the nurses and Brown in February 2010 as
proof of the absence of unlawful motive. It is unclear whether the District is arguing that the
adverse action was not preceded by protected activity or that there is no evidence of unlawful
motive linking the protected activity to the adverse action. In either event, the District
misconstrues the proposed decision.
As already explained above, the proposed decision found a continuous course of
protected activity dating back to February 2008. Also, at the same meeting between the nurses
and Brown cited by the District as proof of the absence of unlawful motive, Brown told the
nurses that they were increasingly being seen as more adversarial toward the District because
of their involvement with the Association. Brown cites to the mere attendance of Association
representatives at nurses' meetings with District administrators as evidence of what Brown
perceived to be this adversarial quality to their relationship. By equating the Association's
assistance as the exclusive representative with something negative attributable to the nurses
themselves, Brown's statement provides evidence of unlawful motive, i.e., that the District
bore animus toward the nurses' protected activity.
The District also contends that the timing of the layoff was dictated by a "very strict
statutory timeline." (District's brief, p. 7, italics in the original.) Thus, as the District argues,
the timing of the layoff was "merely a function of the District meeting its statutory deadline for
layoffs." (Ibid.) That the timing of the adverse action in relation to the protected activity
coincides with the District's statutory timeline for layoff does not mean that timing cannot be
considered in the determination of unlawful motive. If that were the case, anytime an
employer uses a statutory layoff procedure as the mechanism by which to carry out a
retaliatory dismissal, PERB would be precluded from considering timing as an element of
unlawful motive. Limiting the analytical construct in that way serves no purpose, especially
7

given that timing alone is generally not sufficient to support a finding of unlawful motive.
(North Sacramento School District (1982) PERB Decision No. 264 and Moreland Elementary
School District (1982) PERB Decision No. 227 [although the timing of the employer's action in
close temporal proximity to the employee's protected activity is an important factor, it does not,
without more, demonstrate the necessary nexus between the employer's action and the protected
activity].)
Disparate Treatment
The proposed decision concluded that while Brown notified the school board that the
nurses would not be available to work due to their attendance at the layoff hearings, the
District did not take similar action with respect to the teachers or counselors who attended the
hearings. The District argues that "[a]ny 'disparate' treatment was due to the unique duties
and responsibilities of school nurses. "6 The District also argues that the school board was
notified about the nurses' participation in the layoff hearings because all of the nurses were
being laid off, which was not true for the teachers or counselors. Neither the uniqueness of the
nurses' duties nor the scope of the loss explains why Brown disclosed to the school board only
that the nurses would be attending the layoff hearings, with no mention of the teachers or
counselors also slated for layoff. Moreover, that Brown found the nurses' concern
"regrettable," while refraining from commenting negatively about the teachers and counselors,
is further evidence that the nurses were singled out. The District relies on Brown's testimony
that he copied the school board on his e-mail response to the nurses to apprise the board of
We find this argument disingenuous. While the District describes the duties and
responsibilities of the school nurses as "unique," the District had little difficulty initiating a
process on March 3, 2010, to terminate their employment with no alternate plan in place. 	In
fact, Di Rego lo made a presentation to the school board on April 21, 2010, describing several
alternative options for the delivery of health care services. The presentation concluded that the
best health care delivery scenario was "the status quo," i.e., retention of the nursing team slated
for layoff.
8

- 	- 	-
potential liability that might result from the nurses' attendance at the layoff hearings. The
ALJ, however, did not credit this testimony, nor do we. As the proposed decision states:
Brown's response to the nurses indicated only that the District
would "definitely" make sure the necessary health services would
be covered. Nothing in Brown's email alerts the school board
members that the District might not be able to obtain substitute
nurses and that it could potentially be liable for the lack of
nursing services.
Animus
As mentioned above, the nurses informed Di Regolo by e-mail that they would be
attendirnr the lavoff hearinrrs and that the District would need to make alternate arranrrements
for nursing coverage during their absence on those two days. Brown, not Di Regolo,
responded, and he did not respond with a message of appreciation for the advance notice, as
would be expected. Instead Brown responded by characterizing the nurses' concern for the
students' well-being as "regrettable," and copying the entire school board on his e-mail
response. He thought the nurses' plan to attend the layoff hearing would convince one
undecided board member to vote in support of finalizing the layoff. He also thought that it
would provide the 3-2 vote to approve eliminating the nurses' positions altogether.
~
7 As the
ALJ stated, "Brown's email appears to have had the desired effect." At the school board
meeting later that month, School Board Member Todd Lowell specifically credited the nurses'
In a conversation with Di Regolo, Brown communicated that his intent in forwarding
the nurses' e-mail message to the school board members was to sway their vote. This
conversation was overheard by Marsha Wussow (Wussow), assistant to Di Regolo, who was
called by the Association to testify at the PERB formal hearing. In his testimony, Brown
denied making the comment. He testified that he copied the school board members to make
them aware of potential liability. The ALJ found Brown's testimony to be inconsistent with
his e-mail response to the nurses and therefore credited Wussow' s testimony over his, to which
the District excepts. The Board operates under a long established principle not to overrule a
credibility resolution made by the trier of fact absent evidence to support overturning such
resolution. (Lake Elsinore School District (2012) PERB Decision No. 2241.) We have
carefully examined the record and find no basis for reversing the ALJ' s credibility
determination.
9

e-mail, even holding it up and reading it aloud,
as
"solidifying" his support for an alternate
health care delivery system. The proposed decision found, and we agree, that these actions
suggest animus and support a finding
of
nexus. 8
The District argues that the ALJ overlooked the fact that "the nurses' email,
Superintendent Brown's conversation with DiRegolo, and the Board member's statement at the
April 21, 2010 Governing Board meeting all occurred well after Superintendent Brown
recommended the school nurses be laid off and well after the Governing Board took action by
a vote
of
5-0 to eliminate the school nurse positions." The District's argument is premised on
the notion that the layoff
of
the nurses was a done deal at the time the school board voted on
March 3, 2010, to eliminate the positions and send out the initial Notice oflntent to Dismiss;
and that the school board vote taken on May
7,
2010, to finalize the layoff and send out
termination notices was a mere procedural technicality.
The District's argument is flawed in two respects. First, as the District points out,
under the Education Code, a resolution must be adopted and initial layoff notices sent by
March
15
in order to effectuate a layoff for the following school year. This action does not
Further evidence
of
unlawful animus can be found in a number
of
the findings
of
fact.
For example, in the spring
of
2009, Di Rego lo told Bradley, during her performance
evaluation, "it's going to get worse, its' going to get ugly." In August
of
2009, Di Rego lo told
Hammond, during a meeting at a Starbucks coffee shop concerning the lead nurse position,
amongst other topics, that she "needed to be careful" and she "better watch out." Days after
the April 21, 2010, school board meeting, Rocklin Elementary School Principal Jim Trimble
(Trimble) stopped by the nurses' office and told Firchau that
if
anyone other than Hammond
was lead nurse, the terminations would not be happening. In his testimony at the PERB formal
hearing, Trimble denied making this comment. The ALJ credited the testimony
of
Firchau and
Bradley, who overheard the conversation between Firchau and Trimble, because their
recollection was specific and consistent whereas Trimble's recollection was not. The District
excepts to the ALJ's credibility determination. As stated, ante, we generally defer to the
credibility determinations of the trier of fact and find no reason in the record not to do so here.
The District alternatively argues that any comments made by Trimble to the nurses cannot be
attributed to the decision-maker. The evidence was not offered, however, to support a finding
of subordinate bias liability, but rather to confirm that the nurses were being targeted because
of Hammond.
10

preclude a school district from reversing course and finding an alternative to layoff prior to
sending out final termination notices by May 15. Given the severity of a layoff, the pursuit of
alternatives during this two month time period would be expected. In this sense, if one of the
two prescribed statutory actions necessary to implement a layoff may be seen as a procedural
technicality, it is the first action. By sending out initial notices, a governing body has
preserved the option of implementing a layoff in the event that the fiscal issues besetting a
school district cannot be resolved in some other, less drastic, way. A governing body can
always forego a layoff once it takes this first action, but it cannot go back in time to satisfy this
requirement if it subsequently decides that a layoff is necessary.
Second, the evidence demonstrates that the layoff decision was by no means final.
Brown told Di Regolo in April 2010 that he thought the nurses' e-mail would convince one
undecided board member to vote to finalize the layoff. Brown said that the nurses' e-mail
would provide the 3-2 vote to approve eliminating the nurse positions. Accordingly, even
Brown understood that the vote taken by the school board on May 7, 2010, was not a mere
procedural technicality. 9 The District's overt and open animosity toward the nurses lends
further support to the inference that the nurses' protected activities were a motivating factor in
the District's decision to lay them off.
The District counters that Brown valued the school nurses and worked with them to
resolve their concerns. This negates, according to the District, any inference of unlawful
motive. While we appreciate Brown's recognition of the nurses' value and his willingness to
meet with them to attempt to resolve issues, this does not absolve the District of liability for
9 Furthermore, Di Regolo's presentation to the school board about health care delivery
options occurred on April 21, 2010. If a final decision to lay off the nurses had already been
made at the March 3, 2010, school board meeting, Di Regolo's presentation, which included as
an option (if not the best option) the retention of the nurses, would not have been necessary.
11

the retaliatory termination
of
the nurses' employment. We agree with the ALJ that the
Association has proven all four elements
of
the prima facie case. 10
The District's Affirmative Defense
Once the charging party establishes a prima facie case
of
retaliation, the burden shifts to
the employer to prove it would have taken the same adverse action even
if
the employees had
not engaged in protected activity. (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.) Thus, "the question becomes whether the [adverse action] would not
have occurred 'but for' the protected activity." (Martori Brothers Distributors
v.
Agricultural
Labor Relations Bd., supra, 29 Cal.3d 721, 729-730.) The "but for" test is "an affirmative
defense which the employer must establish by a preponderance
of
the evidence." (McPherson
v.
Public Employment Relations
Bd.
(1987) 189 Cal.App.3d 293, 304.) The employer must
prove that it had both an alternative non-discriminatory reason for its challenged action, and that
it acted because
of
this alternative non-discriminatory reason and not because
of
the employee's
protected activity. (Palo Verde Unified School District (2013) PERB Decision No. 2337.)
Further evidence
of
unlawful motive can be found in the manner in which the District
handled the elimination and subsequent restoration
of
the lead nurse position and associated
stipend.
As fully described in the ALJ' s factual findings, Hammond was outspoken in her
advocacy around workplace issues on behalf
of
the school nurses in her position as lead nurse.
The District's decision to remove her from that position, then allow her to continue to perform
the duties
of
lead nurse without pay, then restore the position and stipend, then refuse to
consider Hammond for the position and then fail to fill the position despite the obvious need
that it be filled is further evidence of unlawful motive. These actions present as highly
irregular and animosity-driven. They served no ostensible programmatic purpose and no
rationale for them can be discerned. Along with the other nexus factors of close temporal
proximity, disparate treatment and animus, the facts concerning the elimination and restoration
of the lead nurse position shed further light on the District's unlawful motive for the layoff of
the nurses.
12

The District's position has been that the nurses would have been laid
off
for budgetary
and restructuring reasons even in the absence
of
the nurses' protected activity. Regarding the
budgetary reason, the proposed decision found that the Association and the District reached an
agreement to address the shortfall through the implementation
of
six furlough days in late May
2010.
11
The proposed decision states that there is nothing in the record to show that the
District still faced a shortfall requiring layoff
of
the nurses. Regarding the restructuring
reason, the proposed decision observes that Di Regolo concluded during her presentation to the
school board on April 21, 2010, that the best option for providing health services was
"the
status quo," i.e., maintaining the existing system with school nurses. The proposed decision
concludes that the record does not support the District's claim that a fiscal shortfall or the
desire to restructure health services "precluded the nurses' return from layoff status."
In its third and final argument, the District contends that, contrary to the conclusion
reached in the proposed decision, it met its burden
of
proving its affirmative defense. The
District asserts that the state budget crisis was real and the layoff was necessitated by the
shortfall. The District does not dispute the conclusion reached in the proposed decision that
the collective bargaining negotiations had a positive fiscal effect. 	Specifically, the District
confirms
that"[
a]fter the certificated layoff was complete in May 2010, the District and the
Association negotiated concessions and reached agreement on furlough days which saved the
District enough money that it could bring back many
of
its laid off employees." The District
argues, however, that the ALJ was wrong to focus on the District's failure to return the nurses
from layoff status rather than on the District's decision to subject them to a layoff in the first
place. 	Moreover, according to the District, there were not enough concessions to restore all of
the positions that had been subject to the layoff. 	The District also asserts that the existing
11
Thereafter, 71
of the laid-off full-time equivalent (FTE) certificated positions were
restored.
13

health services system required restructuring to address and resolve issues of communication,
workload and leadership. The District claims that those difficulties made the system
dysfunctional.
We have no reason to question whether the District's budgetary problems were "real"
or that they required some action. Our task is to discern the true motive behind the layoff of
the four nurses in question. In the burden-shifting framework described above, the District
prevails only if it can prove that it had a legitimate, non-discriminatory reason for the layoff of
the four nurses and that it took the action it did because of that reason, and not because of the
nurses' protected activity. 	When conducting the "but for" analysis, "PERB weighs the
employer's justifications for the adverse action against the evidence of the employer's
retaliatory motive." (Baker Valley Unified School District (2008) PERB Decision No. 1993 .)
When evaluating the employer's justification, the question is whether the justification was
"honestly invoked and was in fact the cause of the action." (The TM Group, Inc. and Kimberly
Grover (2011) 357 NLRB No. 98, citing Framan Mechanical Inc. (2004) 343 NLRB 408.) As
discussed below, in conducting this analysis, we conclude that neither of the District's
proffered justifications withstands scrutiny.
Regarding the District's proffered budgetary reason for the nurses' layoff, the only
evidence in the record is from a power point presentation by Di Regolo to the school board on
April 21, 2010, regarding health services delivery options. 	One of the screen shots in the
power point presentation states that the projected cost for the 2010-2011 school year of 4.1
FTE school nurses and 6.22 FTE health aides was $461,117. According to another screen shot
in the power point presentation, in the proposed alternate health services delivery system, the
four school nurses would be replaced by a health services specialist, three licensed vocational
nurses and a contracting out arrangement for mandated health screenings, all at a savings to the
14

District
of
$100,920. This figure in the power point presentation appears out
of
thin air in that
the
elements
of
the alternate health services delivery option are not costed out. The District
does not dispute that it is required by the state to provide health services for the care
of
children. Despite this mandate, the school board replaced a seemingly successful system
of
health services delivery with another on the basis
of
limited information and unsubstantiated
representations. For this reason, we cannot agree that the District's claim
of
"cost savings"
was honestly invoked and was in fact the true cause
of
the nurses' layoff when weighed against
the evidence
of
retaliatory motive.
The District's alternate justification, that the existing health services system required
restructuring because
of
all the difficulties encountered by the District in dealing with the
school nurses on issues
of
communication, workload and leadership, does not add up either.
This argument stands in contrast to Di Regolo's representation to the school board that, absent
economic considerations, the best health care delivery option was "the status quo," meaning
retention
of
the school nurses. Considering that the very issues at the heart
of
the nurses'
protected activities - communication, workload and leadership - are the same issues cited by
the District as justification for terminating the nurses' employment, we are all the more
persuaded that the District's justifications were pretextual, not the true reason for the layoff
of
the school nurses, and that the District's affirmative defense is wholly without merit.
We do not agree with the District that the ALJ was wrongly focused on the District's
failure to return the nurses from layoff status rather than the District's justifications for the
layoff. Although final layoff notices were issued on May 7, 2010, the nurses' termination did
not take effect until June 30, 2010. In February 2010, the Association and the District opened
negotiations because the District was anticipating a $6-8 million budget shortfall for the
following school year. In late May 2010, the Association agreed to accept six furlough days
15

and 71 FTE certificated positions were restored out of the 77 FTE certificated positions noticed
for layoff. 12 That the District returned that many positions from layoff status but none of the
school nurse positions, despite the state mandated need to provide health services for the care
of children and Di Rego lo' s assessment that the maintenance of the status quo was the best
option available to the District, simply confirms, but does not form the basis for, the
conclusion that the District's budgetary and restructuring justifications were neither honestly
invoked nor the true cause for laying off the school nurses.
In sum, we have weighed the District's justifications for the layoff of the nurses against
the evidence of the District's retaliatory motive. Given the evidence reasonably warranting a
conclusion of unlawful motive, all of the District's proffered justifications are unconvincing.
Thus, we conclude that the District has failed to satisfy its burden to prove that it would have
discharged the four nurses even in the absence of their protected activities. 13
ORDER
Based on the foregoing discussion, the administrative law judge's findings of fact and
conclusions of law, and the entire record in this case, it is found that the Rocklin Unified
School District (District) violated the Educational Employment Relations Act (EERA),
Apart from the school nurses (4.1 FTE), the only other positions not returned from
layoff status were two counselors and two part-time teachers. School Board Resolution
No. 09-10-23 of March 3, 2010, which authorized the reduction or elimination of services,
shows the number of positions noticed for layoff as 77.65. The District excepts to the ALJ's
finding that 71 out of 77 FTE certificated positions noticed for layoff were restored, leaving
only four nurses, two counselors and two part-time teachers on layoff status. For this
exception, the District relies on Brown who testified that there were ten to twelve certificated
employees who were not returned from layoff status. As the Association points out, however,
in referring to ten to twelve positions, Brown was including approximately three administrative
positions not in the Association's bargaining unit. Whatever numerical discrepancy exists in
the record, it is slight and immaterial to the issues presented.
13 Because we find that the District's exceptions and argument in support thereof lack
merit, we pass on the issue raised by the Association regarding the timeliness of the District's
filing.
16

Government Code section 3540 et seq., in Case No. SA-CE-2562-E. The District violated
EERA by laying
off
Jennifer Hammond, Genevieve Sherman, Susan Firchau and Jennifer
Bradley because they engaged in activity protected by EERA. All other allegations are
dismissed.
Therefore, pursuant to EERA section 3541.S(c), it is hereby ORDERED that the
District, its administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
Retaliating against employees because
of
their participation in activities
protected by EERA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Make whole Jennifer Hammond, Genevieve Sherman, Susan Firchau and
Jennifer Bradley by offering them reinstatement, and provide back pay with interest at the rate
of
7 percent per annum for wages lost from the date
of
layoff to the date the offer
of
reinstatement is made.
2. 	Within ten (10) workdays after service
of
a final decision in this matter,
post at all locations where notices to employees in the District 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. 	In
addition to the physical posting requirement, the Notice shall be posted by electronic message,
intranet, internet site, and any other electronic means customarily used by the District to
regularly communicate with its employees in the bargaining unit represented by the
Association. (See City of Sacramento (2013) PERB Decision No. 2351-M.)
17

3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The District shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on the Rocklin Teachers Professional Association, CTA/NEA.
Members Huguenin and Banks joined in this Decision.
18

---------
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
F
After a hearing in Unfair Practice Case No. SA-CE-2562-E, Rocklin Teachers
Association, CTAINEA v. Rocklin Unified School District, in which all parties had the right to
participate, it has been found that the Rocklin Unified School District violated the Educational
Employment Relations Act (EERA), Government Code section 3540 et seq.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Retaliating against employees because of their participation in activities protected by
EERA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
Make whole Jennifer Hammond, Genevieve Sherman, Susan Firchau and Jennifer
Bradley by offering them reinstatement, and provide back pay with interest at the rate of
7 percent per annum for wages lost from the date of layoff to the date the offer of
reinstatement is made.
Dated: 	ROCKLIN 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 F
ROCKLIN TEACHERS PROFESSIONAL
ASSOCIATION, CTA/NEA
Charging Party,
V.
ROCKLIN UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO
..
SA-CE-2562-E
PROPOSED DECISION
(09/26/2012)
.(.a)..ppearances:	
California Teachers
P1.$SOciation
by
Laura P. Juran,
Attorney,
for Rocklii1
Teachers Professional Association, CTA/NEA; Kronick, Moskovitz, Tiedemann & Girard by
Michelle L. Cannon, Attorney, for Rocklin Unified School District.
Before Robin W. Wesley, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges four school nurses were laid off by their employer in
retaliation for their participation in protected activities. The union also alleges the employer
transferred work and contracted work out
of
the bargaining unit without providing notice and
an opportunity to bargain. The employer denies committing any unfair practices.
On July 9, 2010, the Rocklin Teachers Professional Association (Association) filed an
unfair practice charge against the Rocklin Unified School District (District). The Association
filed amended unfair practice charges on November 22, 2010 and March 11, 2011. The
District submitted position statements in response to the original charge and each amended
charge.
On April 5, 2011, the Office
of
the General Counsel
of
the Public Employment
Relations Board (PERB or Board) issued a complaint that alleged the District retaliated against
four school nurses for exercising rights guaranteed by the Educational Employment Relations

Act (EERA) 1 by issuing each
of
them a final notice oflayoff. The complaint also alleged the
District transferred the work
of
the school nurses to non-bargaining unit employees without
providing the Association with notice and
an
opportunity
to
bargain. Additionally, the
complaint alleged the District contracted out school nurse work without prior notice to
the
Association and an opportunity
to
bargain. By this conduct, the District is alleged
to
have
violated EERA section 3543.S(a), (b), and (c).
The District answered the complaint on April 21, 2011, denying the substantive
allegations and asserting affirmative defenses.
The parties participated in a settlement conference on May
4,
2011, but the matter was
not resolved.
A formal hearing was held January 17-20, 2012. Fallowing the filing
of
briefs,
the
case
was submitted for decision on March 16, 2012.
FINDINGS OF FACT
The Association
is
the exclusive representative, within the meaning
of
EERA section
3540.1 (e),
of
a bargaining unit
of
certificated employees
of
the District, including school
nurses. The District is a public school employer within the meaning
of
EERA
section 3540.l(k).
The Association and the District are parties to a collective bargaining agreement (CBA)
effective July
1,
2008 through June 30, 2011. In the 2010-2011 school year, the Association
and the District agreed to extend the contract one year through June 30, 2012. CBA Article IV
covers District Rights and states, in part:
1.1 	It is understood and agreed that the District retains all
of
its
powers and authority to direct, manage and control its operations
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise stated,
all references are to the Government Code.
2

to the full extent
of
the law except
as
specified in provisions
of
this Agreement.
1.2 Except
as
provided for in this Agreement, those duties and
powers are the exclusive right to: determine its organization;
direct the work
of
its employees, determine the times and hours
of
operations, determine the kinds
of
levels
of
services to
be
provided, and the methods and means
of
providing them;
establish its educational policies, goals and objectives; ensure the
rights and education opportunities
of
students; determine staffing
patterns; determine the number and kinds
of
personnel required;
maintain the efficiency
of
District operations; determine the
curriculum; build, move, or modify facilities; establish budget
procedures and determine budgetary allocations; determine the
methods
of
raising revenue; and take action on any matter in the
event
of
an emergency,
1.3 Except as provided for in the Agreement, the Board retains
the right to hire, classify, assign, reassign, transfer, evaluate, and
promote.
School Nurse Duties
School nurses are employed by the District to provide health services to students. 	In
the 2009-2010 school year, the District had approximately 11,000 students and 4.1 full-time
equivalent (FTE) school nurse positions.2
The school nurses are registered nurses (RN) and hold a school nurse services
credential. Prior to 2010-2011, the school nurses exclusively performed certain work. 	School
nurses participated with others as part
of
a team that prepared individualized education plans
(IBPs) for certain students. An IBP determines whether a student is eligible for special
education or other services. The school nurses exclusively prepared the initial student health
assessment portion
of
the IBP, gathering and summarizing information to assess whether there
were any educationally related health issues. Other individuals, including parents, special
In the prior year, 2008-2009, the District had 5.2 FTE school nurse positions. The
District did not fill the position of a retiring school nurse in 2009-2010 due to funding
reductions.
3

education teachers, psychologists, speech pathologists and occupational therapists also
contribute to an IEP. Collectively, the nurses wrote about 500 IEP health assessments each
year.
The nurses also exclusively prepared individual student health care plans for students
with severe medical conditions such as diabetes or asthma. The school nurses gathered
medical histories, met with parents, and developed a health care plan.
State law mandates that students at specified grade levels receive vision, hearing, and
scoliosis screening. The school nurses exclusively performed the vision and scoliosis
screenings. For many years, the District contracted with an outside agency to perform the
hearing screenings. The nurses conducted hearing screenings for students absent for scheduled
screenings, needing follow-up screenings, or were evaluated for an IEP. The District also
contracted for nursing services, when needed, to accompany students on an overnight field trip.
In addition, the District contracted with a physician to provide training to high school staff on
the use of a defibrillator.
The nurses performed many other duties, although not exclusively, including providing
first aid; administering medication (the nurses exclusively administered insulin); training staff
in CPR, first aid, health procedures and administration of medication; counseling parents;
collecting data for mandated immunizations and health physicals, and submitting required
reports; maintaining health records; providing input for health curriculum; making classroom
presentations; developing staff and student health information and newsletters; and, with the
school principal, supervising health aides.
The District designated one school nurse as a "lead nurse." The lead nurse received a
stipend for performing additional duties. In addition to the above duties, the lead nurse
coordinated and scheduled staff training and the vision, hearing and scoliosis screenings; met
4

with the nurses to coordinate training, student screenings, assignments, and implement District
policies; provided feedback to the nurses' supervisor and advised her of new health
requirements and policies; provided input on the budget; ordered supplies; served as the
contact for inquiries of the nursing staff; and acted as the liaison between the District office
and the school nurses.
Each school nurse was assigned responsibility for several schools. The nurses
attempted to visit each school site at least once a week. There was one health aide assigned to
each school. Health aides work approximately 3 .25 hours each day, typically during the
middle of the school day. The health aide positions are not included in the certificated
bargaining unit.
Health aides are supervised primarily by the school principal. The school nurses
supervised the health aides' medical work and trained them in first aid and administration of
medication. The health aides provide routine student care and emergency first aid; maintain
student and health office records; follow up on referrals for vision and hearing care; and
implement health office procedures.
The school nurses were supervised by Betty Di Rego lo (Di Rego lo), director of special
education and special services. Jennifer Hammond (Hammond) started working for the
District as a school nurse in the Fall of 1998. During the 2005-2006 school year, Hammond
was designated as the lead nurse. Genevieve Sherman (Sherman) was hired as a school nurse
by the District in August 2004. In August 2006, Susan Firchau (Firchau) was employed as a
school nurse. Jennifer Bradley (Bradley) began working for the District as a full-time school
nurse in Fall 2007.
5

Office Space
In 2008, the nurses requested office space where they could use a computer, make
confidential phone calls, write reports, and keep resource materials. As a group, the nurses
first met with the Association president at the time, Mary Dick (Dick).
	In
February 2008, the
nurses and Dick met with Di Regolo and District Superintendent Kevin Brown (Brown) to
discuss the office space request. After a productive meeting, the District provided the nurses
with office space at Rocklin Elementary School.
Bus Driver Training
In
August 2008, Director
of
Transportation Kim Thomas (Thomas) asked Hammond to
train a bus driver on how to suction a student's trachea tube. Hammond reviewed the student's
medical records, visited with the parent, and talked with the bus driver. Hammond concluded
that training the bus driver was probably not safe. Hammond discussed the matter with
Di Regolo several times, letting Di Regolo know she had difficulty with the request and did not
think she should train the bus driver. Hammond then informed Thomas she would not
be
able
to train the bus driver to perform the procedure. Thomas told Hammond that she needed to do
what she was told and her opinion did not matter. Hammond did not train the bus driver.
ROP Medical Assistant Students
Also in August 2008, Di Regolo informed the nurses that medical assistant students
from a county Regional Occupational Program (ROP) would volunteer in the health offices.
Di Regolo asked the nurses to supervise the student medical assistants and train them to
perform certain tasks, including emergency medical procedures. The nurses questioned
whether they could supervise and train the ROP students because licensed medical assistants
work under the supervision of a physician. Hammond did some research and contacted the
Board of Registered Nursing. The nurses concluded they could not supervise or train the
6

student medical assistants because there was no physician on site and because the medical
assistant students were not school employees.
Hammond spoke to Di Regolo and Deputy Superintendent Linda Rooney (Rooney),
telling them the nurses could not train or supervise the medical assistant students. Hammond
indicated the students should be limited to nonmedical tasks in the health offices. Di Regolo
and Rooney said they would develop a list of approved tasks for the ROP students and that the
school principals would supervise them.
In November 2008, Bradley became aware that a medical assistant student at one of her
school sites had treated a student with a head injury. Bradley was concerned because the ROP
student had not been trained in the District's procedures for treating head injuries. Bradley
also learned that the student was filling in for the health aide and seeing other students who
came to the health office. Bradley was unaware of the student's training and judgment and felt
this could be an unsafe situation. Bradley sent an email to Di Regolo expressing her concerns.
Rooney responded, stating she was developing a list of appropriate clerical tasks for the
students and had provided a draft for Hammond's review.
In December 2008, Firchau became concerned about the medical assistant student
assigned to one of her school sites. Firchau concluded the ROP student had made many
documentation errors and had also given medical advice to parents. Firchau expressed her
concerns to Di Regolo and Rooney in a December 15, 2008 email.
Elimination of Lead Nurse Position and Stipend
At some point, Hammond reduced her work time by one day per week to take a position
with the infant development program in Placer County. Another school nurse, Judy Allen
(Allen), added Hammond's day to her work schedule. In late December 2008, Assistant
Superintendent for Human Resources Dave Pope (Pope) informed Hammond that the lead
7

nurse position had been eliminated and her stipend would stop at the end of the year. Allen
was notified that the extra day she was working had also been eliminated.
Hammond met with Di Regolo and the other nurses to discuss the lead nurse duties.
They decided Hammond would continue to serve as the lead nurse through the end of the
school year without the stipend.
The four school nurses continued to discuss the lead nurse issue with Di Regolo and
Rooney through the remainder of the school year, asserting the lead nurse position needed to
be maintained. The nurses stressed the importance of having a lead nurse and stated they
suppo1ied Hammond for the position.
CPR Training
During Spring 2009, the four nurses raised concerns with Di Regolo regarding
scheduling the annual CPR training for the upcoming 2009-2010 school year. Prior to 2009-
2010, the nurses provided CPR training to teachers on the afternoons of short instructional
days. As the lead nurse, Hammond consulted with the other nurses about their work schedules,
set dates at various school sites, and teachers would sign up for available slots. The nurses
taught CPR to nearly 400 teachers and staff.
In Spring 2009, Rooney informed the nurses that afternoons on short instructional days
were no longer available for CPR training, and they would have to start training sessions at
4:00 p.m. This time was outside the nurses' regular work hours as their work day ended at
3:30 p.m. 	The nurses complained to Di Regolo and Rooney that they had family obligations
and other commitments that conflicted with the new CPR training schedule. The nurses said
they could not teach the CPR classes after their work day ended.
School nurse Jo Froehlich (Froehlich) was retiring at the end of the 2008-2009 school
year. Froehlich offered to teach CPR classes for the 2009-2010 school year. The District
8

agreed and contracted with Froehlich
to
teach the CPR classes.
Field Trip Fonns
When students participate in extended or overnight field trips, parents are required to
complete field trip forms with information about student medical conditions and medications.
Prior to 2009,
if
the forms were not completed correctly, the teachers were responsible for
contacting the parents to obtain the complete information.
In Spring 2009, Rooney revised the field trip form without consulting the nurses. 	The
new form required a nurse's signature, which implied a nurse had reviewed a doctor's order
and the medication a student brought for the field trip. When a teacher brought Bradley a large
stack
of
forms and asked her to call parents to obtain complete information, Bradley
complained to the school principal and Di Regolo that she was too busy performing health
services to call parents about deficiencies on the field trip forms.
The nurses met with Di Regolo and Rooney about the field trip forms in May 2009.
Rooney told the nurses she wanted them to call the parents to have the forms completed
correctly. The nurses replied that they did not have time and the task had previously been done
by teachers and school site staff. Hammond adamantly refused to call parents to correct the
field trip forms.
Also, during the meeting, the nurses again raised the issue
of
the lack
of
a lead nurse.
They expressed the view that a lead nurse was essential and Hammond was the person best
qualified for the position because she had been doing it for years, and she was willing to do it
without the stipend.
Bradley's Evaluation
During the Spring of 2009, Bradley received a performance evaluation from Di Rego lo.
Di Regolo wrote that communication between the District and the nurses had been challenging.
9

Bradley and Di Regolo discussed ways that communication could improve. Both agreed there
had been some tense situations that year. Di Regolo said to Bradley, "it's going to get worse,
it's going to get ugly." Bradley believed the comment was directed at Hammond because she
had several issues with the District that year, including losing the lead nurse position.
Lead Nurse Discussions
The nurses continued to express their desire for a lead nurse, and that Hammond be
appointed to the position. In a meeting with the nurses, Di Regolo indicated the lead nurse
position would be restored in 2009-2010 with a stipend. Based on Di Regolo's comments and
because the other nurses did not want to serve as lead nurse, Hammond believed she would be
the lead nurse for the upcoming school year.
In June 2009, Di Regolo asked Hammond to reduce her assignment by 0.1 FTE so the
District could hire a full-time nurse. Thinking she would be receiving the lead nurse stipend
for 2009-2010, Hammond agreed to reduce her work time. 	Shortly thereafter, Di Regolo
offered the lead nurse position first to Bradley and then to Sherman; both declined the offer
because they believed Hammond was the most qualified.3
In late June 2009, Hammond and Di Regolo exchanged email about the lead nurse
position. Hammond expressed frustration about how the lead nurse issue was handled and a
perceived lack of consideration of the nurses' views on workplace issues. Hammond copied
Brown, Pope, outgoing Association President Dick, and incoming Association President
Barbara Scott (Scott) on her email.
3 Di Regolo testified the lead nurse position was not offered to Hammond because she
was no longer full-time, working only three days per week. Di Regolo said the lead nurse
needed to be available to take care of things as they arose and provide consistency throughout
the District. Bradley worked full-time and Sherman worked four days per week. The only
other full-time nurse position was filled with a new employee in August 2009.

At the beginning of the 2009-2010 school year, Hammond sought the advice of Scott
and California Teachers Association (CTA) staff representative Joella Aragon (Aragon) about
the unpaid lead nurse stipend. The Association took the position that Hammond had continued
to perform the lead nurse duties after the stipend was stopped in December 2008 and should be
compensated for the work. Hammond and Aragon met with the new Assistant Superintendent
of Human Resources, Robert Lee (Lee), to discuss the unpaid portion of the lead nurse stipend.
The District agreed to compensate Hammond for performing the lead nurse duties for the
second half of the 2008-2009 school year.
Further Demands for Lead Nurse and First Responder Training
Rebecca Dittemore-Escalante (Dittemore-Escalante) began working for the District as a
full-time school nurse in August 2009. At that time, Hammond and Firchau each worked three
days per week, 0.6 FTE. Sherman worked four days each week, a 0.8 FTE position, and
Bradley worked full-time, 1.0 FTE. Together the work time made up 4.1 FTE school nurse
positions in the District.
Each year, the lead nurse would schedule various trainings at the beginning of the
school year addressing first responders, CPR, and transportation. However, with no lead nurse
designated for 2009-2010, Di Rego lo scheduled the training. First responder training was for
the health aides and designated school site staff who respond to a student medical issue if a
nurse was not on site.
On August 10, 2009, the nurses sent an email to Di Rego lo listing the functions of a
lead nurse, and the necessary experience and qualities. They asserted the lack ofleadership
without a lead nurse could impact their ability to provide quality health services. The nurses
copied Scott, Brown, Lee and School Board Member Todd Lowell (Lowell) on the email.
11

Di Regolo responded to the nurses on August 11, 2009, welcoming them back to school
for the new year, encouraging their continued participation as a team, and thanking them for
the list
of
tasks that needed to be accomplished at the beginning
of
the school year. Di Rego lo
referenced the first responder training sessions, stating, in part:
One
of
the first tasks is the First Responder training. We have
had excellent response from the principals and have a full session
on each day. For those
of
you who do not work full time, I am
requesting that you arrange your schedules as you have in the
past, to assist in making this training successful.
If
you are
unable to do so, please let me know so that we can make sure that
the sessions are staffed.
Di Regolo also stated:
I would like to meet with Jennifer Hammond before I address the
issues that you raise below. We have a nurses meeting scheduled
for August 26th and I look forward to the discussion.
Hammond individually replied to Di Regolo on August 11, 2009, stating in part:
Thank you for glossing over a HUGE problem as usual. Thank
you for ignoring our concerns and suggestions regarding the Lead
Nurse, trainings, and orientation
....
I am not, as I have previously indicated available for the
trainings. Nor do any
ofus
need to 'adjust our schedules', we
have checked
....
We have not scheduled any nurse meetings so I am unaware
of
anything on the 26th. 	I am not available to meet after school
beyond 3 :30.
If
you would like to meet with me prior I would highly suggest as
a professional, that you ask me to do so. Passive e-mails and
messages through friends is not acceptable. I am happy to meet
with you providing I am the Lead Nurse this school year and that
you will supp01i our role as indicated. Anything less is
unacceptable to us.
After receiving this email from Hammond, Di Regolo informed her that she would no
longer acknowledge email received from Hammond. Hammond reported this to Scott, who
suggested the nurses send future emails as a group.
12

The nurses jointly replied to Di Regolo, again expressing frustration in being without a
lead nurse. 	They also told Di Regolo the first responder training needed to be rescheduled
because there were not enough nurses working on the days the training was scheduled. 	The
nurses also stated the lead nurse matter needed to be resolved before the first nurses' meeting.
Di Regolo and the nurses exchanged several more email messages through August 18,
2009. Di Rego lo noted that all of the nurses except Firchau were scheduled to work on the
days set for training. The nurses continued to demand that the first responder training be
rescheduled. In an August 18 email to Di Regolo, the nurses stated, "We need to make it
perfectly clear as a group that the First Responder Trainings need to be rescheduled. In order
to adequately provide a quality training, we need time to organize and we need the availability
of all of our nurses." First responder training was eventually rescheduled.
In August 2009, Hammond and Di Regolo met at a Starbucks to discuss several issues,
including the lead nurse, first responder training, and the flu clinic. Hammond felt that
Di Regolo needed her help in coordinating the trainings and other activities. Hammond
indicated that since she would not be the lead nurse, she was not willing to help coordinate
these activities. Di Regolo told Hammond she "needed to be careful" and she "better watch
out."
In October 2009, the nurses, Scott, and Aragon met with Di Regolo and Lee to discuss
the importance of a lead nurse. The nurses reaffirmed their desire that Hammond be
designated the lead nurse. Lee replied that Hammond would never again be the lead nurse in
the District. Lee suggested the lead nurse duties and the stipend be divided between two
nurses, covering administrative tasks and liaison work. The nurses rejected Lee's proposal and
no lead nurse was selected for 2009-2010.
13

Complaint to Board
of
Registered Nursing
In October 2009, Dittemore-Escalante made a medication error. Hammond notified
Di Rego lo and told her she was going to report the matter to the Board
of
Registered Nursing.
Di Regolo asked Hammond to wait, stating the District was conducting an investigation and
requesting that Hammond "respect the process that the district has in place." Hammond told
Di Rego lo she was going to file a complaint with the Board
of
Registered Nursing, which she
did thereafter.
On October 14, 2009, the nurses sent an email to Di Regolo expressing concerns
regarding Dittemore-Escalante's nursing practices. They suggested that Dittemore-Escalante
receive orientation and mentoring support. Di Regolo replied by email stating:
An email regarding the district mentoring program for new staff
will be going out this week. In the meanwhile it is helpful for
new staff to have ongoing contact with their district peers on an
informal basis, like we did before a mentoring program was
established.
Subsequently, Firchau and Sherman provided some mentoring assistance to Dittemore
Escalante.
Instruction to Health Aides
When Hammond served as the lead nurse, she sent informational emails to the health
aides a couple
of
times a year. The memos reminded health aides to tum in mandated reports,
reported schedule changes, and provided other news. Although not the lead nurse in 2009-
2010, on October 13, 2009, Hammond sent an email to the health aides with similar
information. In addition, the email included information regarding the Hl Nl flu epidemic,
including the following:
It has come to my attention that some schools are either asking
the health office to visually inspect kids they think are sick or
have been out sick in order to make a determination of health.
This is not practical and more important, not legal. The only
14

person who can legally assess is an RN. Please
do
not
do
this,
you are not licensed to
do
this.
	If
you are being asked to
do
this
kindly say no and explain why, asking the admin. to contact your
school nurse for more information, and let your school site nurse
know.
(Emphasis in original.)
On October 14, 2009, Rocklin High School Principal Michael Garrison (Garrison)
replied to Hammond's email noting that most
of
the information sent to the health aides
seemed to be helpful. Garrison told Hammond, however, that
if
she had an issue with
the
direction provided to health aides, she should discuss it with the school principal before
sending such information directly to the health aides.
Hammond responded, with a copy to Scott, stating in part:
The health aides work under our license. Any decision that is
made that impacts the health office and nursing practice also
affects the RN's. I would respectfully request that in the future
you may want to partner with your school nurse when planning to
implement a process that impacts the health office and nursing
practice. We had previously told our health aides that they
cannot do this.
Garrison replied:
Let me make myself perfectly
clear-
IF YOU HA VE
SOMETHING TO SAY TO OUR HEALTH AIDES IN
REGARDS TO A PRACTICE OR PROTOCOL OUR
ADMINISTRATION HAS ESTABLISHED YOU NEED TO
TALK WITH MARY ANN KNOX OR MYSELF BEFORE
YOU TELL THEM TO DO SOMETHING CONTRARY TO
WHAT WE HAVE INSTRUCTED!
If
having health aide's [sic] talk with students who are not feeling
well was an issue for you, you should have contacted us (RHS
Admin) and talked with us first. Our aides are not making
evaluations or assessments.
(Emphasis in original.)
Hammond continued to defend her position to Garrison, responding, in part:
15

I am fortunate at the sites I work at that I am treated as a team
member and my nursing expertise is utilized when decisions are
made that affect the health office. The school nurse is the only
legally recognized medical authority in a school district and is the
only person that can make decisions that affect those that work
under his/her license in regards to medical/health implications.
When something like this has come up at my sites I collaborate as
a team member and any issues are easily resolved. Additionally,
I feel your e-mails to me are rude and unprofessional. I will not
be addressed in this manner. 	I would prefer to be addressed in
the same professional tone I have used with you.
HlNl Vaccination Clinic
In November 2009, the District began working with the Placer County Health
Department (County Health) to hold community flu vaccination clinics at District school sites.
Initially, the nurses received some information from County Health. However, at some point,
Brown assigned the task of arranging the County Health clinics to Di Rego lo. On November 2,
2009, the nurses sent an email to Di Regolo, with a copy to Scott, complaining about being
"left out of the loop," and seeking information on their role in the clinics. The nurses
expressed concern about a clinic being located at Rocklin High School, believing the principal
had been rude to Hammond. The nurses also inquired whether they would be paid for
attending the clinics because they were scheduled after work hours.
Brown responded, commenting on the tenor of the nurses' email and noting it was
unfortunate the District and the nurses had not been able to restore better communications.
Brown stated there was a role for the nurses at the community flu clinics to assist in reviewing
permission slips and being available at the site. He indicated, however, the work was
voluntary.
A flu clinic was held at Spring View Middle School. Firchau was the only school nurse
to participate. She was not paid for her time.
16

Health Aide Performance Issues
In late 2009, Hammond had concerns about the performance
of
a health aide at
Twin
Oaks Elementary School. Hammond discussed the matter with Di Regolo and the school
principal, Sarah James (James). James was aware
of
the concerns and asked Hammond
to
copy her on any email she sent to the health aide.
In December 2009, the health aide made a significant error. James gave her a
reprimand. The health aide complained to Lee that James and Hammond were picking
on
her.
On January 6, 2010, James told Hammond she had met with Lee regarding the
health
aide's complaints. James indicated that Lee was going to ask Hammond to "soften"
her
emails
to the health aide.
Hammond met with Lee and Di Regolo on January 6, 2010, to discuss ways to
effectively communicate with the health aide. The meeting quickly deteriorated. During the
meeting, Lee yelled at Hammond and slammed his hand on the table. Lee told Hammond that
she could not send email to the aide as she was not the aide's supervisor. Hammond felt
threatened and intimidated, and responded
by
telling Lee the meeting was over. Hammond
was told to "please sit down" to finish the discussion. Lee told Hammond it was his meeting
and
if
she left, he would write her up and have her fired. Hammond said she would continue
the meeting when she could have a union representative present. Hammond then left the room.
On January 13, 2010, Hammond sent an e-mail to Di Regolo, Brown and the school
board members, listing her concerns about the health aide's performance. Hammond said she
would continue to copy James on her email to the health aide.
Hammond's Reprimand and Grievance
On January 14, 2010, Lee gave Hammond a letter
of
reprimand for leaving the
January 6, 2010 meeting. Scott was present when Hammond received the reprimand.
17

Thereafter, the Association filed a grievance on Hammond's behalf. Both
Bradley
and
Firchau accompanied Hammond to grievance meetings held in February and March 2010.
Training Unlicensed Personnel to Administer Diastat
In January 2010, the parent
of
a student with a seizure disorder insisted that a
number
of
staff, including classroom aides,
be
trained to administer Diastat, a rectally administered
seizure medication. The school nurses had provided training to unlicensed personnel to
administer medications to students. In this case, however, the nurses informed Di Regolo and
several other administrators, they could not conduct the training because they believed
unlicensed personnel should not administer this medication.
After the nurses objected to training unlicensed personnel in Diastat administration,
Di Rego lo contracted with a doctor used
by
the Placer County Office
of
Education to
train
unlicensed personnel to administer the medication.
Nurses' Meeting with School Board Member Camille Maben
In
December 2009, Scott helped set up a meeting between the nurses and School Board
Member Camille Maben (Maben). The nurses expressed concerns about a variety
of
issues,
including the need for a lead nurse and the lack
of
communication with the District office.
Maben advised the nurses to meet with Brown.
Nurses' Meetings with Superintendent Brown
On February 3, 2010, the nurses and Scott met with Brown to discuss many
of
the
nurses' concerns, including communication, poor working relationship with Di Regolo, lead
nurse, and nurse staffing. Dittemore-Escalante had just announced she would leave later in
February 2010 to take a position in another school district.4 The nurses were also concerned
4 Brown testified that Dittemore-Escalante confided that she was disappointed to be
leaving, but based on her interactions with the other nurses she felt like an outcast, not
appreciated or supported by her colleagues.
18

that further budget reductions would lead
to
nurse layoffs.
Brown acknowledged the communication issues and committed to working on building
better working relationships. Brown told them there was a perception the nurses were saying
"no" to many things and then claiming their nursing licenses would not let them perform the
work. Brown cited the nurses' refusal to work with the ROP medical assistant students as an
example. Brown indicated that rather than just saying "no," the nurses and the District needed
to find a way
to
collaborate to come up with alternatives. Brown also said there was a
perception the nurses were becoming more adversarial toward the District because Scott was
attending more
of
their meetings with administrators. Brown acknowledged the nurses were
understaffed, and further budget reductions could mean the District would consider contracting
out nursing services or replacing them with licensed vocational nurses (LVNs). Brown
suggested the nurses make a presentation to the school board about the work they perform.
Brown and the nurses discussed the need to cover Dittemore-Escalante's workload.
Brown stated that since it was late in the school year and layoffs were a possibility, it could be
difficult to quickly recruit a replacement. Brown offered the part-time nurses the option to
pick up some
of
Dittemore-Escalante's time. The part-time nurses declined to take on more
hours. 	The nurses did agree to work on a plan to cover the additional work, and Brown said
the District would compensate them for their extra work time, including time they worked
from home completing paperwork.
On February 9, 2010, the nurses submitted a plan to Brown to address the additional
work. Brown found the plan reasonable and later met with Hammond, Sherman and Firchau to
clarify responsibilities under the plan.
During a school board meeting on April 7, 2010, Brown erroneously informed the
school board members that the nurses were receiving overtime pay for the additional work.
19

Brown admitted that he misspoke when trying to explain the arrangement to the school board.
Nurses' Meeting with School Board Member Wendy Lang
Hammond, Firchau and Sherman met with School Board Member Wendy Lang
in
late
February 2010, to discuss the same concerns they raised with Maben and Brown, covering
communication, staffing and workload, lead nurse and poor relationships. The nurses also
expressed a concern the District would "get rid
of'
the nurses and contract out the work
or
form a consortium with other school districts to provide nursing services.
Reduction in Force (RIF)
As a result
of
state school funding reductions, on March
3,
2010, the school board
adopted a resolution approving the reduction
of
77
.65 FTE certificated positions for the 2010-
2011 school year, including all school nurse positions. On March 4, 2010, all four school
nurses received a Notice
of
Intent to Dismiss. The notice advised employees they could
request a RIF hearing.
On March 17, 2010, Firchau, Sherman and Bradley attended a school board meeting
and made a presentation, including presenting a video, showing the services provided
by
the
school nurses.
A RIF hearing was scheduled to be conducted by an administrative law judge on
April 6-7, 2010. On April 2, 2010, the nurses sent Di Regolo an email:
Just a courtesy note to alert you that all four
of
the nurses will be
attending the RIF hearings on Tuesday and Wednesday of this
coming week. Per our union attorney, Andrea Price, we have the
right to attend uninterrupted and in their entirety on both days, so
the district will be without nurses on those two days. We will not
be answering or [sic] phones or responding to e-mail during the
hearings. 	It will fall to you to arrange for nursing coverage and
in particular, coverage for our little first grade diabetic at
Antelope Creek on those days.
20

Superintendent Brown replied
to
the nurses on April 5,2010, and copied the school
board members, stating:
Your concern for the well-being
of
our student's health is
regrettable. We will definitely find a way to cover in your
absence.
The District contracted with a service and had an RN in the District during the RIF
hearing.
Marsha Wussow (Wussow), Assistant to Di Regolo, testified that she overheard Brown
tell Di Regolo he thought the nurses' email would convince one board member who had not
yet decided, to vote to layoff the nurses. Wussow further testified that Brown said the email
would provide the 3-2 vote to approve eliminating the nurse positions.
Brown admitted having a conversation with Di Regolo about finding replacements to
cover the nurses' absence. He denied, however, commenting on how the school board
members would vote because the board had already voted 5-0 to provide layoff notices to the
four nurses and other certificated employees. 5 Brown testified that he routinely informed the.
school board
of
matters that could escalate to their level, and copied the board members with
his email to make them aware
of
the potential liability to the District
if
they were unable to
find substitute nursing services.
I credit Wussow's testimony. Brown's response to the nurses indicated only that the
District would "definitely" make sure the necessary health services would be covered. Nothing
in Brown's email alerts the school board members that the District might not be able to obtain
substitute nurses and that it could potentially be liable for the lack
of
nursing services.
Brown and Di Regolo testified during the April 6-7, 2010 RIF hearing that the District
was considering another method for providing health services, such as joining a consortium
The school board subsequently approved the final layoffs by a 5-0 vote.
21

with the Placer County Office of Education, contracting for health services, or obtaining
LVNs.
On April 12, 2010, the nurses sent three separate emails to the school board members.
First, the nurses provided the school board with a "position statement" explaining why
unlicensed personnel should not be allowed to administer the Diastat medication. In the
second email, the nurses expressed concern that administrators were defaming them for
exercising their right to attend the RIF hearings. Finally, the nurses sought to correct Brown's
statement that the nurses were charging the District overtime for covering Dittemore
Escalante's work. The nurses asserted they were saving the District money, charging only for
the extra hours they worked to complete assignments.
April School Board Meeting
During a school board meeting on April 21, 2010, Di Rego lo made a presentation about
options for providing health services in 2010-2011. Firchau, Sherman, Bradley and Scott
attended the school board meeting. Di Regolo's presentation included a discussion on
restructuring health services to cover only mandated services, eliminating things like the
nurses' participation in curriculum development and classroom presentations. Di Regolo
described several options, including maintaining the existing system of health services
provided by school nurses. Other options were eliminating eitl1er the health aides or the
nurses, contracting out health services, or joining a consortium. The presentation indicated
that the option to hire a health services supervisor and LVN s to replace the nurses would save
the District $100,920. An option to reduce nursing staff by 1.0 FTE, saved the District
$64,709. The presentation concluded that the best option for providing health services was
"the status quo." With reduced funding, however, the presentation recommended restructuring
22

health services. The presentation was for information purposes and the school board did not
vote on any changes to the provision
of
health services.
After Di Regolo's presentation, school board member Lowell stated, in part:
The budget situation drives us to evaluate everything we do and
find greater efficiencies and savings. And so I was interested to
hear what the details were to support alternative structure for
delivering our health services, but what also helps inform me is
e-mail that was sent
by
the [school nurses].
Lowell then read the April 2, 2010 email the nurses sent to Di Rego
lo
notifying her they
planned to attend the RIF hearing. Lowell continued:
This has solidified for me the need to look in an alternative, more
cost-effective way to deliver health services in the District. So, I
still support the change.
Firchau and Sherman testified that Lowell appeared angry when he read the email.
Brown testified that Lowell did not appear angry, instead he was disappointed.
Within days after the April 21, 2010 school board meeting, Rocklin Elementary School
Principal Jim Trimble (Trimble) stopped at the nurses' office, located on his school site.
Firchau and Bradley were in the office. Firchau asked Trimble what he thought about Lowell's
comments at the school board meeting. Firchau testified that Trimble said it was a shame what
was happening, and
if
anyone other than Hammond was the lead nurse, none
of
it would be
happening. Bradley testified that she overheard the conversation between Firchau and
Trimble.	•
Trimble testified that he did not stay for the entire school board meeting, and did not
recall hearing Lowell's comments about the nurses. He denied making the comments about
Hammond, or having heard any other administrator say that the nurses would not be laid off if
not for Hammond. Trimble knew Hammond was the lead nurse in 2008-2009 but did not
know she was not the lead nurse in 2009-2010. He believed Hammond was the nurse assigned
23

to his school. Trimble admitted he and Brown were friends, and had golfed together. 	Trimble
stated that he and Brown did not discuss personnel issues or budget matters while golfing, only
during work time.
I credit the testimony
of
Firchau and Bradley. Their recollection
of
the conversation
with Trimble was specific and consistent. Trimble's recollection about attending the school
board meeting was vague, stating in part:
I think I was there because I think that was my time I needed to
be there to serve for the time and was there and then left. So,
when
I'm
there, l
'm
just sort
of
seeing what's happening in the
general aspect and not anything specific.
Trimble also did not know that Hammond was not the nurse assigned to his school site.
Furlough Negotiations
In
February 2010, the Association and the District opened negotiations because the
District was anticipating a $6-8 million budget shortfall for 2010-2011. Initially, the District
provided the Association with several options reflecting different scenarios comprised
of
layoffs, increased class sizes and program reductions, and the corresponding savings for each
option. The District sought input from the Association, asking
if
they preferred one option
over another. The Association refused to indicate a preference for any option, stating they did
not want to pick one group
of
members over another.
After the school board adopted the layoff resolution on March 3, 2012, more formal
negotiations began. The Association asked how health services would be provided
if
the
nurses were laid off, and whether teachers would have any additional responsibilities for
student health. The District provided information and assured the Association that teachers'
duties in this area would not change. 6
6 Scott testified she did not ask any questions about how the District would provide
health services, or about increased responsibilities of teachers for student health, nor did she
24

The District decided to narrow the focus
of
health services to mandated services, and
providing services
to
students who had identified health needs under the health services
supervisor/LVN option. Di Rego lo believed the health services staff needed more supervision
by a person with a nursing background. Di Regolo was not an RN and she did not have a
school nurse credential. At the bargaining table, the Association repeatedly stated it would not
take a position on options pitting one group
of
employees against another. The Association did
not demand
to
bargain any changes to the health services program.
In early May 2010, the administrative law judge in the RIF hearing issued a decision
affinning the layoffs recommended by the District, including all school nurses. 	On May 7,
2010, final notices oflayoffwere issued. On May 19, 2010, the school board adopted a
job
description for the health services supervisor. Scott was present during this school board
meeting.
Thereafter, in late May 2010, the Association agreed to accept six furlough days,
hoping that would generate enough savings with other retirements and resignations to bring
back all employees who received layoff notices. 7 Ultimately,
71
FTE certificated positions
were restored. Further, as a result
of
increased student enrollment and the opening
of
a new
recall anyone else asking these questions "in her presence." Scott testified she did not recall
the "specifics"
of
discussions during negotiations about how health services would be
provided. I credit the testimony
of
Brown and Lee; their recollections
of
discussions at the
bargaining table were detailed and consistent. Scott was present at the school board meeting
when Di Regolo described options for providing mandated health services. Scott's testimony
that she did not recall the "specifics" of the discussions about health services indicates the
subject
of
health services was raised at the bargaining table. It is simply not credible there was
no discussion at the table about the provision of health services if the nurses were laid off,
given the District's earlier presentations on health services at the RIF hearing and before the
school board.
7 Brown testified that the layoff of school nurses had been considered in the two prior
years due to budget reductions. However, no employees were laid off in the two prior school
years.
25

elementary school, the District hired 42 additional teachers and a health aide for the new
school. The four school nurses, two counselors and two part-time teachers were laid
off
effective the end
of
the school year.
Health Services Supervisor and LVNs
On June 16, 2010, the school board adopted a job description for LVN
s.
	Again, Scott
was present
at
this school board meeting.
The health services supervisor is a management level position and must be an
RN and
have a school nurse credential. The supervisor is responsible for the day-to-day operation
of
the health services program. The position supervises the work
of
the LVN s and the health
aides with input from the school principals. The LVN positions are classified positions.
The health services supervisor position was posted in June 2010. Firchau applied but
was not selected. The District hired Bonnie Magnetti (Magnetti) and she started working for
the District in August 2010. The District also hired three LVNs for the 2010-2011 school year.
Magnetti coordinates and schedules mandated health services such
as
vision and
hearing screenings;8 jointly supervises the LVNs and the health aides with the school
principals; implements and monitors staff training; prepares initial IEP health assessments and
individual student health care plans, although the LVNs assist in collecting information from
parents and physicians; prepares required state and federal reports; and supervises first aid,
medication, and specialized medical treatment.
The LVN s travel to assigned school sites and provide first aid; administer medication,
including insulin; collect health and medication information from parents and physicians;
maintain health records; and assist with training.
The requirement that the District perform scoliosis screening was waived in 2010-
2011.
26

In August 2010,
Di
Rego lo contacted each
of
the four nurses and offered them limited
hours to perform the annual vision screenings. Each
of
the nurses declined for various reasons.
Thereafter, the District contracted with a retired school nurse and an optometrist to perform the
vision screenings.9 The nurses were also offered an on-call nurse position. After the District
received a grant, Di Rego lo also offered each
of
the nurses a part-time position, two half-days
per week, in the preschool program. Each
of
the nurses declined these offers.
The District contracted with Maxim, a professional staffing agency, to provide
substitute LVNs
if
the District LVNs were absent. Maxim also provided a substitute RN on
days Magnetti was away from the District. At the beginning
of
2010-2011, the District had
difficulty locating health plan documentation, so some plans had
to
be recreated or updated.
The District contracted with an RN to help Magnetti catch up with preparation
of
these health
assessments.
10
ISSUES
1.	
Did the District retaliate against the four school nurses for engaging in protected
activity when it issued them final layoff notices?
2.	
Did the District transfer work out
of
the bargaining unit without providing the
Association with notice and an opportunity to bargain?
9 For the 2011/12 school year, the District again offered the nurses temporary positions
to conduct vision screenings. The nurses declined this offer as well.
1°Firchau met Magnetti at meetings at the Placer County Office
of
Education in
October 2010 and January 2011. Firchau testified that Magnetti said the new system
of
delivering health services in the District was not working, and she was overwhelmed and
overworked. Firchau testified that Magnetti had asked Brown for more nurses, but Brown
replied the District could not hire more RNs because they would have to rehire the laid off
nurses. Firchau's testimony is uncorroborated double-hearsay and does not qualify under any
exceptions for admissible hearsay evidence. 	It cannot therefore serve as the basis for a finding
of fact under PERB Regulation 32176. (PERB Regulations are codified at California Code of
Regulations, title 8, section 31001 et seq.)
27

3. Did the District contract work out of the bargaining unit without providing the
Association with notice and an opportunity to bargain?
CONCLUSIONS OF LAW
Retaliation
Public school employees have the right to "form, join, and participate in the activities
of employee organizations of their own choosing." (EERA section 3543(a).) A public school
employer violates this right when it imposes reprisals on employees because of their
participation in protected activities. (EERA section 3543.5(a).) To demonstrate that an
employer retaliated against an employee in violation of EERA section 3543.5(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; (3) the employer took adverse action against the
employee; and (4) the employer took the action because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210.)
Protected Activity and Knowledge
Each of the four nurses engaged in multiple activities protected by the EERA. On
several occasions the nurses jointly sought assistance from the Association by having
Association representatives, primarily Scott, attend several of their meetings with Di Rego lo,
Lee, Brown, and school board members. (County of Merced (2008) PERB Decision No. 1975-
M; Los Angeles Unified School District (1992) PERB Decision No. 957; The Regents of the
University of California (1995) PERB Decision No. 1087-H [assistance from a union
representative to address working conditions is protected activity].) In addition, with the
assistance of a CTA staff representative, Hammond met with Lee and Di Rego lo at the
beginning of the 2009-2010 school year, seeking compensation for continuing to perform the
duties of the lead nurse after the stipend was eliminated. Hammond also utilized the grievance
28

procedure with the assistance
of
the Association after receiving a letter
of
reprimand in
January 20 I
0.	
(Trustees
of
the California State University (2008) PERB Decision No. 1970-H
[filing grievance is protected].) Firchau and Bradley supported Hammond in the grievance
procedure by accompanying her to grievance meetings.
Further, as a group, the nurses complained about workload and safety issues to
Di Regolo, Brown, and school board members. Due to budget reductions, the District did not
replace a full-time nurse who retired in June 2009. During a meeting with the nurses in
February 2010, Brown acknowledged the nurses were understaffed based on workload. 	The
nurses jointly expressed workload concerns, including complaining about taking on
responsibility for completion
of
the field trip forms. 	In addition, the nurses reported safety
concerns regarding appropriate health care. (Los Angeles Unified School District (1995) PERB
Decision No. 1129 [reporting safety incident was protected].) For example, in August 2008,
Hammond expressed to Di Rego lo her belief it was unsafe to train a bus driver to suction a
student's trachea tube. In late 2008, Bradley and Firchau each separately communicated to
Di Rego lo and Rooney concerns about the performance
of
the medical assistant students at
their school sites. Furthermore, all
of
the nurses exercised their right to participate in the RIF
process by attending the layoff hearing held in April 2010.
The District clearly had knowledge
of
these events as District managers and school
board members were present at meetings where the nurses were accompanied by Association
representatives. In the February 2010 meeting, Brown even commented on the presence
of
Association representatives at many of the nurses meetings. In addition, each
of
the
complaints or safety concerns were made to managers.
29

Adverse Action
In
determining whether evidence
of
adverse action is established, the Board uses
an
objective test and will not rely upon the subjective reactions
of
the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) This element has also been
met
as
the termination
of
an employee's employment through layoff has been held
to
be an adverse
act. (Klamath-Trinity Joint Unified School District (2005) PERB Decision No. 1778; County
of
Contra Costa (2011) PERB Decision No. 2174-M.) Here, all four nurses received final
layoff notices in May 2010 that were effective at the end
of
the school year.
Unlawful Motive
Unlawful motivation is an essential element
of
a charging party's case. In the absence
of
direct evidence, an inference
of
unlawful motivation may be drawn from the record as a
whole,
as
supported by circumstantial evidence. (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
30

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); (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 School
District, supra, PERB Decision No. 264; Novato Unified School District, supra, PERB
Decision No. 210).
The nurses engaged in protected activity dating back to February 2008, when they
obtained the assistance of the Association president to meet with Brown and Di Rego lo to
request office space. The protected activity continued well into 2009-2010 with complaints
about workload and student safety, and frequently seeking the Association's assistance in their
communications with District managers. Finally, in February 2010, the nurses took their
complaints directly to Brown. On March 4, 2010, the District issued the initial notices of
layoff to the nurses and other certificated employees. The nurses' protected activity continued
by participating in the RIF hearing held April 6- 7, 2010. Thereafter, on May 7, 2010, the
nurses received a final notice oflayoff. Thus, the imposition of the adverse action close in
time to the nurses' participation in protected activities satisfies the timing element.
The record also demonstrates evidence of other nexus factors. The evidence reveals
disparate treatment of the nurses for participating in the RIF hearing. Brown notified the
school board that the nurses would not be available to work because they planned to attend the
RIF hearing. There is no evidence the District similarly identified teachers or counselors who
31

attended the layoff hearing. Furthermore, the tone
of
Brown's email suggests, at minimum,
disappointment in the nurses' decision to attend the layoff hearing rather than forego the
hearing to provide for student health care needs.
Brown also commented
to
Di Rego lo that the nurses' plan to attend the layoff hearing
might convince school board members to support the nurses' final layoff. Brown's email
appears to have had the desired effect. 	One school board member read the nurses' email
during the school board meeting and then stated the email solidified his support for an alternate
health care system. These actions suggest union animus and support a finding
of
nexus. 	The
Association therefore established a prima facie case
of
retaliation.
District's Burden
Once the charging party establishes a prime facie case ofretaliation, the burden shifts
to
the employer
to
prove it would have taken the adverse action even
if
the employees had
not
engaged in protected activity. (Novato, supra, PERB Decision No. 210; Martori Brothers
Distributors
v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line
( 1980) 251 NLRB 1083.) Thus, "the question becomes whether the [adverse action] would not
have occurred 'but for' the protected activity." (Martori Brothers.) The "but for" test is "an
affirmative defense which the employer must establish by a preponderance
of
the evidence."
(McPherson
v.
Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
The District contends the layoff
of
the nurses was necessary for two reasons, due to a
budget shortfall and to restructure a program that was not working well.
In negotiations with the Association, the District explained it was anticipating a $6-8
million shortfall. The District was seeking concessions from the Association to assist in
bridging the gap between revenue and expenses. The goal was that concessions from the
32

Association combined with teacher retirements and resignations would be enough to
cover
all
the laid
off
employees.
During the April 21, 2010 school board meeting, Di Regolo made a presentation about
the provision
of
health services. Di Rego lo described various options and the corresponding
savings
of
each option to the District. For example, the option to restructure health services by
replacing the nurses with a health services supervisor and LVNs, was projected
to
save
the
District approximately $100,000.
In
late May 2010, the Association and the District reached an agreement on six
furlough days. Thereafter,
71
of
the 77 FTE certificated positions that were noticed for layoff
were restored. In addition, 42 new certificated positions were added
to
accommodate
increased student enrollment. The four school nurses, two counselors and two part-time
teachers were not returned from layoff status. There is nothing in the record, however, to show
where the District stood financially at this point. The evidence does not establish that
following negotiations with the Association, the District still faced a revenue shortfall that
necessitated the layoff
of
the nurses.
The District also claims the nurses were laid
off
for the purpose
of
restructuring health
services to focus on mandated services. Yet, in the April 21, 2010 health services options
presentation to the school board, Di Regolo concluded the best option for providing health
services was "the status quo," maintaining the existing system with school nurses. Only
if
faced with reduced funding did Di Regolo's presentation recommend restructuring health
services. Thus, the record does not support the District's claim that a fiscal shortfall or the
desire to restructure health services precluded the nurses' return from layoff status. Thus, the
District has not met its burden to show it would have laid off the nurses notwithstanding their
participation in protected activity.
33

Timeliness
of
Transfer and Contracting Out Allegations
The District contends the removal
of
work allegations were untimely filed by
the
Association and should not have been included in the complaint.
11
EERA section 3541.S(a)(l)
prohibits PERB from issuing a complaint with respect to "any charge based upon an alleged
unfair practice occurring more than six months prior to the filing
of
the charge." The
limitations period begins to run once the charging party knows, or should have known,
of
the
conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.) A charging party bears the burden
of
demonstrating that the charge is
timely filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
The Association filed its charge on July
9,
2010, and filed amended charges on
November 18, 2010 and March 10, 2011. The District asserts the Association did not raise the
removal
of
work allegations until filling the March 10, 2011 second amended charge.
	The
District contends the Association knew or should have known by February 3, 2010, when
Brown met with Scott and the nurses, that the District intended to remove the nurses' work
from the unit. The District argues this is well outside the six month statute
of
limitations from
the filing
of
the March 10, 2011 second amended charge.
The Association alleged in its original charge that in February 2010, Brown told Scott
and the nurses the District was considering eliminating the nurses and obtaining nurses and
LVN s from an agency. The original charge also alleged facts about the April 21, 2010 school
board meeting when the health services supervisor/LVN option was presented. The charge
11
On September 26, 2011, the District filed a motion to dismiss the transfer and
contracting out allegations from the complaint as untimely filed. On November 15, 2011, the
motion was dismissed without prejudice to reassert timeliness following the evidentiary
hearing. The District reasserted this contention in its post-hearing brief.
34

alleged the nurses received their final layoff notices on May
7,
2010, and that the District
advertised to hire the health services supervisor in June 2010. These facts address the
layoff of
the nurses and removal
of
bargaining unit work.
	In
its first amended charge, the Association
specifically cited EERA section 3543.5(c), asserting the District engaged in bad faith
bargaining. The second amended charge supplemented the facts alleged in the original charge
by providing more detail on the duties
of
the nurses and other employees.
The original charge focused primarily on the nurses' retaliation allegation. However,
the charge provided sufficient factual allegations to raise the removal
of
work claims. Once
timely raised, a charging party may supplement factual allegations and legal theories in
subsequent amendments
to
the charge. PERB Regulation 32620 authorizes a Board agent
assigned to investigate a charge to "make inquiries" and "assist the charging party to state in
proper form the information" required in the charge. This authority includes asking a charging
party for clarification
of
facts and assisting with identifying proper legal theories. (Los Banos
Unified School District (2007) PERB Decision No. 1935; SEIU-United Healthcare Workers
West Local 2005 (Hayes) (2011) PERB Decision No. 2168-M; Monterey County Office
of
Education (1991) PERB Decision No. 913.) Accordingly, the claim that these allegations are
untimely filed is dismissed.
Transfer
of
Bargaining Unit Work
To determine whether a party has violated EERA section 3543.5(c), PERB utilizes
either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved
and the effect of such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if
certain criteria are met. Those criteria are: 	(1) the employer implemented a change in policy
by altering the parties' written agreement or established past practice; (2) the change was
35

implemented before the employer notified the exclusive representative and gave it an
opportunity to request negotiations; (3) the change was not merely an isolated breach
of
the
contract or practice, but amounted to a change
of
policy that had a generalized effect
or
continuing impact upon bargaining unit employees' terms and conditions
of
employment; and
(4) the change in policy concerned a matter within the scope ofrepresentation. (Walnut Valley
Unified School District (1981) PERB Decision No. 160; Grant Joint Unified High School
District (1982) PERB Decision No. 196.)
The transfer
of
work from bargaining unit employees to employees in another
bargaining unit or to non-unit employees is a matter within the scope ofrepresentation. 	(Rialto
Unified School District (1982) PERB Decision No. 209.) The Board has held, however, that
not all transfers
of
bargaining unit work are negotiable. In Eureka City Schools (1985) PERB
Decision No. 481, the Board concluded that a change in the distribution
of
duties between unit
and non-unit employees, where there is an established practice
of
overlapping duties, does not
always give rise to a duty to bargain. In Eureka, the Board stated:
In our view, in order to prevail on a unilateral transfer
of
work
theory, the charging party must establish, as a threshold matter,
that duties were, in fact, transferred out
of
the unit; that is, that
unit employees ceased to perform work which they had
previously performed or that nonunit employees began to perform
duties previously performed exclusively by unit employees.
However, where, as here, unit and nonunit employees have
traditionally had overlapping duties, an employer does not violate
its duty to negotiate in good faith merely by increasing the
quantity
of
work which nonunit employees perform and
decreasing the quantity
of
work which unit employees perform.
(Emphasis in original; footnote omitted.)
Here, the District has effected a transfer
of
work out
of
the bargaining unit to other
District employees. There is evidence of overlapping work performed by school nurses, health
aides and others. Once the school nurses were laid off, much of the overlapping work formerly
36

performed by the nurses ceased
to
be performed by bargaining unit employees. Some
overlapping work did continue
to
be performed by unit employees. For example, other
bargaining unit employees continued
to
participate in preparing IEPs, and acted as first
responders in providing first aid, and administered medication. The work exclusively
performed by the school nurses, however, was removed from the unit. The nurses' exclusively
prepared initial student health assessments and individual student health care plans; performed
vision screening and administered insulin. After the nurses were laid off, two
of
these tasks,
preparing initial student health assessments and individual student health care plans, were
transferred out
of
the unit
to
the newly created classification
of
health services supervisor. 	The
LVNs, classified bargaining unit positions, were assigned to administer insulin, a task
previously exclusively performed by the school nurses. Thus, the evidence establishes the
District transferred work out
of
the bargaining unit to other District employees.
Contract Out Bargaining Unit Work
The Board has held that a decision to subcontract work formerly performed by
bargaining unit members is a matter within the scope ofrepresentation when the decision
would simply "substitute one group
of
employees for another performing the same work, [and]
does not effect a change in the nature and direction
of
operations." (Trustees
of
the California
State University (2006) PERB Decision No. 1839-H; Lucia Mar Unified School District (2001)
PERB Decision No. 1440; Redwoods Community College District (1997) PERB Decision
No. 1242; see also, San Diego Adult Educators
v.
Public Employment Relations Board (1990)
223 Cal.App.3d 1124.)
Further, "where the decision to subcontract is related to overall enterprise costs, it is
within the scope of representation regardless of whether the decision can be characterized as a
decision 'at the core of entrepreneurial control."' (Ventura County Community College
37

District (2003) PERB Decision No. 1547, quoting Fibreboard Paper Products Corp.
v.
National Labor Relations Board (1964) 379 U.S. 203.) "This is because subcontracting
decisions motivated by an employer's enterprise costs are 'peculiarly suitable for resolution
through the collective bargaining framework."' (Ventura County Community College District,
supra, PERB Decision No. 1547, quoting First National Maintenance Corp.
v.
National Labor
Relations Board (1981) 452 U.S. 666, 680; see also, Lucia Mar Unified School District, supra,
PERB Decision No. 1440, and Otis Elevator Company (1984) 269 NLRB 891, 900-901.)
Before the nurses were laid off, the District contracted out some
of
the work the nurses
performed. 	The District contracted for hearing screenings; and training in CPR, use
of
a
defibrillator, and administration
of
medication. The District also contracted for nursing
services to accompany students on overnight field trips, and a substitute RN when the nurses
attended the RIF hearing. As noted in the prior discussion, some
of
the nurses' work
overlapped that
of
contractors,
as
well
as
other employees.
After the nurses were laid off, the District contracted with two individuals to conduct
vision screenings. Vision screening is an assignment that was exclusively performed
by
the
nurses. As a state mandated function, the District did not have the option to eliminate this
work or change the "nature or direction"
of
this work. In essence, the District simply
substituted contractors to perform the same work the school nurses previously performed.
The District also contracted with a professional staffing agency to provide substitute
LVN s and RN s when necessary. However, the work performed by the substitute LVN s and
RNs had already been transferred out
of
the unit to other District employees. As to this work,
the District contracted out work that had already been transferred out of the unit to other
employees.
38

Thus, the District contracted out bargaining unit work when it obtained a retired RN
and an optometrist to perform mandatory vision screenings.
Waiver
The District asserts the Association waived the right to bargain the removal of work
from the bargaining unit. First, the District contends the District Rights clause in the parties'
CBA authorized its unilateral action, by granting the District the exclusive right to determine
its organization; direct the work of its employees; determine the kinds and levels of services to
be provided, and the methods and means for providing them; determine staffing patterns;
determine the number and kinds of personnel required; and exercise the right to hire, classify,
assign, reassign, and transfer employees.
An employer may take unilateral action if the exclusive representative waived its right
to bargain. (Trustees of the California State University (San Marcos) (2004) PERB Decision
No. 1635-H.) A waiver of the right to bargain, however, will not be lightly inferred. (Oakland
Unified School District (1982) PERB Decision No. 236.) Parties may waive the right to
bargain by including a comprehensive provision in their CBA. (Placentia Unified School
District (1986) PERB Decision No. 595.) But any waiver must be clear and unmistakable.
(Amador Valley Joint Union High School District (1978) PERB Decision No. 74.) A generally
worded management rights clause will not be construed as a clear and unmistakable waiver of
bargaining rights. 	(Mammoth Unified School District (1983) PERB Decision No. 371;
San Jacinto Unified School District (1994) PERB Decision No. 1078.) Rather, such a waiver
must specifically reserve to the employer the right to take certain action or implement specific
unilateral changes. (Lucia Mar Unified School District, supra, PERB Decision No. 1440.)
The management rights clause in the parties' CBA describes the general authority of
the District to manage its operations. The provision lacks the specific language to demonstrate
39

a clear and unmistakable waiver
of
the Association's right
to
bargain removal
of
work from the
unit either by transfer or contracting out work. An employer's authority to act described in
general terms, as here, does not support a clear waiver
of
the statutory right to bargain matters
within the scope
of
representation. For example, in Desert Sands Unified School District
(2004) PERB Decision No. 1682, the Board found the term "assign" did not authorize the
unilateral transfer
of
work to a different classification. In Lucia Mar Unified School District,
supra, PERB Decision No. 1440, the Board held the lack
of
any specific reference in the
management rights clause to contracting out work precluded a finding the union "consciously
yielded its right to negotiate." A waiver must specifically reserve to the employer the right to
take certain action or implement specific unilateral changes. (Lucia Mar Unified School
District, supra, PERB Decision No. 1440)
As
such, the term "transfer" in the District Rights
clause in the present case, standing alone, does not demonstrate the Association's clear intent
to waive the right to bargain the transfer
of
work out
of
the unit. Accordingly, the District
Rights clause does not provide the District with the authority to unilaterally remove work from
the bargaining unit.
The District also contends the Association waived its right to bargain by failing to
demand to bargain once it learned
of
the proposal to restructure health services. The District
argues it raised the matter with the Association multiple times, including at the bargaining
table.
Notice and an opportunity to bargain over a matter within the scope ofrepresentation
must be communicated sufficiently in advance to ensure a reasonable opportunity for
meaningful negotiations. (Victor Valley Union High School District (1986) PERB Decision
No. 565.) Where an employer does not provide formal notice, but the union has actual or
constructive notice of the proposed change and does not request negotiations, the failure to
40

give formal notice has no legal consequence. (Klamath-Trinity Joint Unified School District,
supra, PERB Decision No. 1778; Sylvan Union Elementary School District (1992) PERB
Decision No. 919; Regents of the University a/California (1987) PERB Decision No. 640-H.)
Waiver can be established by an exclusive representative's inaction or acquiescence indicating
a relinquishment of the right to bargain. (Los Angeles Community College District ( 1982)
PERB Decision No. 252; San Francisco Community College District (1979) PERB Decision
No. 105.)
In Santee Elementary School District (2006) PERB Decision No. 1822, the union
learned of the district's proposal to modify its policy, internally discussed the proposed
changes, and raised concerns with the district, but did not demand to bargain until after the
district board adopted the changes. The Board found the union waived its right to bargain by
clearly foregoing the right to bargain.
Similar circumstances are present here. The Association and the District engaged in
negotiations to address the projected budget shortfall. During bargaining sessions, the District
presented the Association with several options involving layoffs, increased class sizes and
program reductions. The District sought input from the Association asking if they preferred
one option over another. The Association refused to declare a preference for any option,
indicating they did not want to pick one group of employees over another.
After the layoff notices were issued on March 4, 2010, negotiations with the
Association became more fonnal. 	The parties expressly discussed at the bargaining table how
health services would be provided without the school nurses. Although asking questions about
how health services would be provided, the Association admitted it continued to refuse to
bargain, stating it would not negotiate matters that would pit one group of employees over
another. Negotiations continued after final layoff notices were issued on May 7, and after the
41

school board adopted the health services supervisor job description on May 19, 2010.
	The
Association continued to refuse to negotiate any subject but furloughs. 	Finally, in late
May
2010, the parties reached agreement on six furlough days.
The District repeatedly asked the Association for input, presented several options for
reducing services and expenses, answered questions at the table about how health services
could be provided, publicly presented options for the school board's consideration, issued final
layoff notices to the nurses, and finally adopted a job description for a health services
supervisor, all while negotiations with the Association continued. While aware
of
all these
actions, the Association admitted it refused to negotiate over any subject but furloughs. 	The
Association had ample notice and opportunity to bargain but admittedly declined to bargain
over how health services would be provided. By this conduct, the Association waived its right
to bargain the removal
of
work from the bargaining unit. Therefore, the transfer and
contracting out
of
bargaining unit work allegations are dismissed.
REMEDY
PERB has broad remedial powers to effectuate the purposes
of
EERA. EERA
section 3541.S(c) provides:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affinnative action, including but not
limited to the reinstatement
of
employees with or without back
pay, as will effectuate the policies
of
this chapter.
In this case, the District has been found to have violated EERA section 3543.5 when it
retaliated against the four school nurses for engaging in protected activity by terminating their
employment by layoff. It is appropriate to order the District to cease and desist from
retaliating against its employees because
of
their protected activities and to make the
employees whole for any losses suffered as a result of the District's conduct. Furthermore, it is
42

appropriate that the District be ordered to post a notice incorporating the terms
of
the
order
at
all locations where notices to public employees are customarily posted. Posting such a notice
will provide employees with notice that the District has acted in an unlawful manner, it is
required to cease and desist from such activity, and it will comply with the order. (Placerville
Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
oflaw,
and the entire record in the
case, it is found that the Rocklin Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3540 et seq. The District
violated the EERA
by
laying
off
Jennifer Hammond, Genevieve Sherman, Susan Firchau and
Jennifer Bradley, because they engaged in activity protected by EERA. All other allegations
are dismissed.
Therefore, pursuant to EERA section 3541.S(c), it hereby is ORDERED that the
District and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Retaliating against employees because
of
their participation in activities
protected
by
the EERA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Make whole Jennifer Hammond, Genevieve Sherman, Susan Firchau and
Jennifer Bradley by offering them reinstatement, and provide back pay with interest at the rate
of
7 percent per annum for wages lost from the date
of
layoff to the date the offer
of
reinstatement is made.
2. 	Within 10 workdays after service
of
a final decision in this matter, post
at all work locations where notices to employees in the District customarily are posted, copies
43

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.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. The District shall provide reports, in writing, as directed
by the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on the Association.
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
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, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (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,
44

subdivision (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, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 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, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Robin W. Wesley
Administrative Law Judge
45