Anaheim Union High School District (PERB 2434E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANAHEIM UNION HIGH SCHOOL DISTRICT,

Charging Party,
v.
AMERICAN FEDERATION OF STATE, .
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 3112,

Respondent.

AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 3112,

Charging Party,

Vv.

ANAHEIM UNION HIGH SCHOOL DISTRICT,

Respondent.

Case No. LA-CO-1451-E

Case No. LA-CE-5535-E

PERB Decision No. 2434

June 19, 2015

Appearances: Pete Schnaufer, Business Representative, for American Federation of State,
County and Municipal Employees, Local 3112; Stutz Artiano Shinoff & Holtz by Jack M.
Sleeth Jr., Attorney, and Parker & Covert by Spencer E. Covert, Jr., Attorney, for Anaheim

Union High School District.

Before Martinez, Chair; Winslow and Banks, Members.

DECISION

MARTINEZ, Chair: This case is before the Public Employment Relations Board

(PERB or Board) on exceptions filed by American Federation of State, County and Municipal

Employees, Local 3112 (AFSCME) and cross-exceptions filed by Anaheim Union High School

District (District) to a proposed decision (attached) by a PERB administrative law judge

(ALJ). In two cases consolidated for the formal hearing, the District and AFSCME charge
each other with multiple violations of the duty to negotiate in good faith pursuant to
sections 3543.5, subdivision (c), and 3543.6, subdivision (c), of the Educational Employment
Relations Act (EERA).1 In addition, AFSCME alleges unlawful retaliation by the District
against its Vice-President and bargaining team member Dan Clavel (Clavel) pursuant to EERA
section 3543.5, subdivisions (a) and (b). After a hearing conducted over 11 days, the ALJ
issued a proposed decision concluding that both sides violated their duty to negotiate in good
faith. 	The retaliation claim was dismissed.
The Board itself has reviewed the formal hearing record in its entirety and considered
the parties' respective exceptions and responses thereto. The record as a whole supports.the
factual findings. The proposed decision is well-reasoned and consistent with applicable law.
Accordingly, the Board hereby affirms the ALJ'srulings, :findings and conclusions and adopts.
the proposed decision as the decision of the Board itself subject to the following discussion.
DISCUSSION
The exceptions are limited in number and scope. The attached 106-page proposed
decision is thorough in its coverage of the procedural history of this case, the factual
background
of
the parties' various disputes, the issues raised by the unfair practice complaint,
and the legal analysis supporting the outcome reached. Therefore, the substance of the
proposed decision is not repeated here, except as necessary to provide factual context for the
discussion.
1 EERA is codified at Government Code section 3540 et seq. Undesignated code
sections are to the Government Code.
2

The proposed decision reaches three legal conclusions. The first conclusion
(proposed dee., pp. 46-65) is that AFSCME violated its duty to negotiate in good faith.2 No
exceptions were taken to this conclusion. The second conclusion (proposed dee., pp. 65-78) is
that the District violated its duty to negotiate in good faith.3 Although the District did not
except to this conclusion or to the corresponding proposed remedial order, it did except to the
The proposed decision states:
After examining the totality
of
the parties' bargaining conduct, in
particular Local 3 l 12's conduct after the parties reached
Tentative Agreement, it is concluded that Local 3112 violated the
duty to negotiate in good faith. Its disinterested approach to
finalizing the parties' agreement, together with its attempt to
introduce new issues into bargaining after the Tentative
Agreement, and its false communications to its members
collectively indicate an attempt to entangle and even subvert
progress made in negotiations. Evidence
of
Local 3112's delays
in making its initial proposal is consistent with this conclusion
and is further evidence of bad faith under the circumstances.
Therefore, Local 3 l 12's bargaining conduct violated BERA
section 3543.6(c).
(Proposed dee., p. 65.)
3 The proposed decision states:
After reviewing the parties' bargaining conduct as a whole,
including the District's multiple per se bargaining violations, its
failure to adequately work with Local 3112 in finalizing the
parties' Tentative Agreement, and its premature imposition
of
the
July 2010 layoff, the record shows that the District lacked the
intent to bargain with Local 3112 in good faith. Under the
specific circumstances in this dispute, this conduct violates
EERA section 3543.S(c) under a "totality
of
the bargaining
conduct" theory. [fn. 38: The mere existence of per se violations
does not necessarily also equate to a surface bargaining violation.
(Chula Vista City School District, supra, PERB Decision
No. 834, pp. 72-73.)] This conduct also amounts to q.erivative
violations of EERA sections 3543.5(a) and (b). (Oakland Unified
School District (1985) PERB Decision No. 540, p. 25.)
(Proposed dee., pp. 77-78.)
3

following intermediary conclusion leading to the overall conclusion. The
AU
concluded that
the
District's
refusal to
meet
with
AFSCME's
bargaining team so long as it included Clavel
was a
per
se violation
of
the District's duty to negotiate in good faith. 	The third conclusion
(proposed dee., pp. 78-99) is that although
AFSCME
established all
of
the elements
of
a prima
facie case for retaliation, the District
met
its burden
of
proving that the District would have
dismissed Clavel even had he not engaged
in
protected activity.
AFSCME's
three exceptions
concern the retaliation analysis.
We
begin with
AFSCME's
three exceptions to the retaliation analysis, and conclude
with the District's single exception to the analysis
of
the District's violation
of
its duty to
negotiate in good faith.
AFSCME's
Exceptions4
First,
AFSCME
asserts that the ALT misconstrued the phrase "reckoning period," as
used in the District's progressive discipline policy set forth in District Board
of
Trustees Policy
(Board Policy) 6417.02. Second, AFSCME excepts to the
ALJ's
discussion
of
Clavel's2009
performance evaluation. Last, AFSCME takes issue with the
ALJ'
s discussion
of
a "secret or
side file" maintained on Clavel by the District. .
I. 	The Reckoning Period
District Board Policy 6417 .02 governs the District's policy
of
progressive discipline for
classified employees. (Joint Exhibit III (part 1
of
2), exh. 76.) It states that disciplinary action
4
AFSCME requests the right to appear before the Board itself, which we construe as a
request for oral argument under PERB Regulation 32315. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties have had an
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (Los Angeles
Community College District (2009) PERB Decision No. 2059.) That is the case here.
Accordingly, AFSCME's request is denied.
4

for a minor offense is for the purpose
of
correction. Corrective (progressive) discipline is not
utilized for major offenses because the "purpose
of
discipline in these matters is
of
deterrence,
which justifies the severe penalty even though an employee's past record may be exemplary."
(Ibid.) Progressive discipline is explained as follows:
The concept
of
progressive discipline recognizes that as
violations reoccur, without correction, despite disciplinary action,
the severity
of
the disciplinary measures taken must increase. It
also provides that as the seriousness
of
the violation increases, the
seriousness
of
the disciplinary action taken must also increase.
(Ibid.)
Under the District's system
of
progressive discipline, first level offenses, such as
frequent unexcused absence or tardiness, warrant discipline ranging from a verbal warning for
the first infraction to 15 working days suspension without pay, demotion or discharge for the
sixth infraction. For first level offenses, there is a one year "reckoning period." Second level
offenses, such as threatening, intimidating, coercing or interfering with other employees or
supervisors, will draw discipline ranging from a written warning/reprimand for the first
infraction to 15 working days suspension without pay, demotion or discharge for the third
infraction. For second level offenses, there is also a one year "reckoning period." Third level
offenses, such as dishonesty or theft, draw the highest level
of
discipline, 15 days suspension
without pay, suspension or discharge, for the first infraction. There is no "reckoning period"
for third level offenses.
Limited evidence was presented at the formal hearing about the meaning
of
"reckoning
period." AFSCME President Gerald Adams (Adams) testified at Clavel's dismissal hearing
5

before the District's Personnel Commission5 that reckoning period means "after one year, that
issue will be gone." District Assistant Superintendent
of
Human Resources Russell Lee-Sung
(Lee-Sung) testified at the PERB formal hearing that reckoning period means that an employee
may request that discipline be removed from his or her personnel file, at the District's
discretion,
if
there are no similar offenses
of
the same type after one year. The
ALT
credited
Lee-Sung's testimony over Adams' testimony on the grounds that Lee-Sung's testimony was
more detailed and also that it was more consistent with the District's progressive discipline
policy.
In analyzing the issue whether the District met its burden of proof on its affirmative
defense in the retaliation claim, the AI.J noted that there was no evidence Clavel requested
removal of any of his discipline for first and second level offenses pursuant to the reckoning
periods set forth in Board Policy 6417.02. The proposed decision then goes on to say,
"Clavel' s latest examples
of
harassing behavior constitute his sixth Second Level offense
which, under Board Policy 6417.02, warrants the most serious discipline."
AFSCME argues that the
ALT
erred in crediting the testimony
of
Lee-Sung over the
testimony of Adams on the meaning
of
"reckoning period." According to AFSCME, the
phrase carries a more logical meaning in the context of progressive discipline than the meaning
attributed to it by Lee-Sung. According to AFSCME, the reckoning period is "the time period
over which the penalties for unacceptable employee behavior for minor offenses are to become
more severe." Based on our reading
of
Board Policy 6417.02, AFSCME's argument has some
merit. The one year reckoning period for first and second level offenses appears to refer to that
5 The parties stipulated to the admission
of
the record from Clavel' s 16-day Personnel
Commission dismissal hearing, including the testimony and the exhibits. The parties agreed
that the testimony would be treated as though it were produced during the course of the PERB
formal hearing for admissibility and hearsay purposes. 	·
6

time period "in which penalties for unacceptable employee behavior become progressively
more severe in accordance with progressive seriousness
of
the infraction(s)." (Joint Exhibit III
(part 1
of
2), exh. 76.) If the one year reckoning period passes without a recurrence of the
same level of offense, presumably a new reckoning period takes effect.6 There is no
requirement contained in Board Policy 6417.02 that the employee request removal
of
the
discipline after a year free of similar offenses lest the reckoning period continue in perpetuity.7
Building on what it contends is the correct meaning of reckoning period, AFSCME
asserts that the ALJ erred in "treat[ing], as fresh, charges about events which occurred in 2002,
2003, 2005, and 2006." AFSCME appears to argue that the reckoning period serves as a time
limit for taking adverse action, and that the ALJ erred in considering incidents of misconduct
that occurred outside the one year reckoning period in his analysis
of
the District's affirmative
defense. The District counters that AFSCME conflates the reckoning period with a limitations
This interpretation comports with the dictionary definition
of
"reckoning": "the time
when your actions are judged as good or bad and you are rewarded or punished." (Merriam-
WebsterDictionary at <http://www.merriam-webster.com/dictionary/reckoning> [as
of
May 29, 2015].) (See Hammond
v.
Agran (1999) 76 Cal.App.4th 1181, 1189 ["[I]n the absence
of specifically defined meaning, a court looks to the plain meaning of a word as understood by
the ordinary person, which would typically be a dictionary definition."].)
7 As Hearing Officer Terri Tucker (Tucker), who presided over Clavel's Personnel
Commission dismissal hearing, explained in her Findings and Recommendation sustaining the
penalty of dismissal:
Loosely put, in many employers' statements
of
disciplinary
policy, there is a reckoning period that refers to a period of time
during which an employee who does not repeat his or her offense
during the reckoning period, will, at the end of the reckoning
period, begin again as if there had been no earlier first offense. If
there are additional instances of the same category of misconduct,
the discipline increases progressively and with appropriate
consequences, and is intended as a way of addressing repeated
misconduct within a relatively short period of time.
(District Exhibit, exh. 48, p. 5, fn. 2.)
7

period. We agree with the District on this point. The reckoning period under Board
Policy 6417.02 refers to the timeframe in which an employee's conduct is evaluated for
purposes
of
applying progressive discipline. A limitations period, in this context, refers to the
time limit for bringing a personnel action based on the date when the misconduct occurred. 8
A reckoning period is not a limitations period. They are distinct in nature and purpose.9
Moreover, whether the
AU
used the correct timeframe in counting a particular instance
of misconduct as the first or the sixth infraction, as contemplated by Board Policy 6417.02 for
the purpose of applying progressive discipline, is immaterial to the issue before the Board,
which is whether the District would have dismissed Clavel even had he not engaged in
protected activity. We conclude, along with the
AU,
that the District carried its burden of
proof on this issue. As the
ALJ
found, Clavel had a long history
of
disciplinary problems pre-
dating his protected activity and continuing throughout his employment. Leaving aside the
first and second level offenses, Clavel committed multiple third level offenses, for which
reckoning periods do not apply, and which, according to Board Policy 6417.02, justify "the
severe penalty even though an employee's past record may be exemplary." (Joint Exhibit III
(part 1 of 2), exh. 76.)
8 See, e.g., STATUTE OF LIMITATIONS, Black's Law Dictionary (10th ed. 2014).
9 Tucker similarly observed in her Findings and Recommendation:
Appellant [Clavel] alleges that there is a "one year 'reckoning
period' beyond which earlier minor discipline - or lack of
discipline - cannot extend" and that this "is the outward, outward
limit on any statute
of
limitations." Yet Appellant dos not
provide authority to establish that a "reckoning period" is the
equivalent of a statute of limitations upon the imposition of
discipline.
(District Exhibit, exh. 48, pp. 4-5, fn. 2.)
8

II.	
Clave! 's 2009 Evaluation
Clavel began employment with the District in or around 1989 and was dismissed
effective August 5, 2010. In or around June 2007, Clavel was transferred from Savanna High
School to Western High School.
In
May 2009, Principal Paul Sevillano (Sevillano) issued
Clavel a performance evaluation with an overall rating
of
"Requires Improvement" Clavel
was rated as "Not Satisfactory" in the area
of
contact with other employees and coordinating
his work; and he was rated as "Requires Improvement" in the area
of
accepting direction and
responsibility. Clavel was rated as "Effective - Meet Standards" in areas including attendance,
compliance with rules, quality of work and care for equipment.
AFSCME's exception takes issue with statements in the following passage in the
proposed decision, discussing:
[T]he deficiencies identified in the nexus analysis, above, do not
detract from the seriousness of the above-referenced offenses.
For example, none of the [dismissal] charges identified here were
inconsistent with Clavel's 2009 evaluation. Principal Sevillano
did not appear to know about Clavel' s falsification
of
documents,
the e-mail message about [Jose] Vazquez, or the damage to the
baseball field. 	Sevillano specifically rated Clavel as "Not
Satisfactory," the lowest possible rating in contact with
employees and coordinating his work with others.
(Proposed decision, p. 98.)
The reference to the falsification of documents in the above quote refers to forms
signed by Clavel in March 2008 claiming union leave for days in which he had been
incarcerated in Arizona for a misdemeanor conviction of interfering with a judicial proceeding.
The reference to an e-mail message about Jose Vazquez (Vazquez) refers to a message sent by
Clavel to a television news organization using his District e-mail account on or around July 1,
2008, referring to a former supervisor as a "sexual predator" and suggesting that he might be
9

sexually harassing students. The reference to damage to the baseball field appears to refer to
an incident
in
which Clavel overwatered the field, and thereby unnecessarily delayed the work
of
his co-workers in chalking the baselines before a game.
AFSCME asserts that there is no evidence the baseball field was damaged by the
overwatering or that the game was delayed. AFSCME misses the
ALJ's
point. The point is
that, without knowledge
of
the overwatering incident and the fact that it caused a delay in the
work to be performed by his co-workers, Sevillano independently rated Clavel as Not
Satisfactory in contact with employees and coordinating his work with others consistent with
Clavel's dismissal charges.
AFSCME also argues that Sevillano had to have known about the overwatering
of
the
baseball field because it occurred six weeks prior to the 2009 evaluation and because the
Athletic Director must have reported it to him. Alternately, AFSCME argues that
if
Sevillano
did not know about the overwatering incident it is because the Athletic Director thought it too
insignificant to report. As AFSCME summarized:	
"If
she reported it, they [Sevillano and the
Assistant Principal] knew about it. If she didn't, it was inconsequential."
AFSCME's detailed examination
of
the overwatering incident is in service
of
its
broader argument that the incident does not qualify as a second level offense. As stated above,
the overwatering incident was just one
of
many incidents involving Clavel and the baseball
field. Moreover, the PERB formal hearing is not an opportunity to retry the issue before the
Personnel Commission at Clavel's dismissal hearing, i.e., whether the District had reasonable
cause to dismiss Clavel. (Findings and Recommendations, pp. 1-2, District Exhibit, exh. 48.)
Regardless of whether the overwatering incident qualifies as a second level offense under
Board Policy 6417 .02, the
AU
relied on a long history of disciplinary events pre-dating
10

Clavel's proteeted activity and continuing throughout his employment to conclude that the
District met its burden of proving that it would have dismissed Clavel even in the absence
of
protected activity.
For the District to prevail, it must prove that it had both an alternative non-
discriminatory reason for dismissing Clavel, and that it acted because
of
this alternative non-
discriminatory reason and not because of Clavel's protected activity. (Palo Verde Unified
School District (2013) PERB Decision No. 2337.) When analyzing the employer's affirmative
defense in a retaliation case, PERB weighs the employer's justifications for the adverse action
against the evidence
of
the employer's retaliatory motive. (Chula Vista Elementary School
District (2011) PERB Decision No. 2221, p. 21.) When evaluating the employer's
justification, the question is whether the justification was "honestly invoked and was in fact the
cause
of
the [adverse] action." (Ibid. quoting The TM Group, Inc. and Kimberly Grover (2011)
357 NLRB No. 98.)
Notably absent from AFSCME's first or second exception to the ALJ's analysis of the
District's affirmative defense is the proffer
of
any argument or citation to the evidentiary
record meant to persuade us that, in taking adverse action against Clavel, the District was
motivated by anti-union animus or protected activity, rather than Clavel's disciplinary history.
Clavel's disciplinary problems predate his protected activity. Prior to Clavel's protected
activity, he received multiple counseling memoranda, a demotion, multiple written reprimands,
a suspension, and placement on administrative leave. The problems that led to Clavel's
dismissal follow a familiar pattern unrelated to Clavel's union activities. At the PERB formal
hearing, the District moved to dismiss the retaliation claim on the grounds that such claim had
already been decided at the Personnel Commission dismissal hearing. Citing the differences in
11

jurisdiction between the Personnel Commission dismissal hearing and the PERB formal
hearing, the ALJ denied the District's motion, ruling that the Personnel Commission's finding
should not be given collateral estoppel effect. We
do
not disturb that ruling here. (See, e.g.,
State
of
California (Department
of
Corrections) (2001) PERB Decision No. 1435-S, adopting
proposed dee. at p. 43, fn. 20.) We note, however, that these two adjudicative bodies, the
Personnel Commission and PERB, independently arrived at conclusions regarding Clavel' s
dismissal that are consistent in material respects. 	In her Findings and Recommendations,
Personnel Commission Hearing Officer Tucker stated:
Although Appellant [Clavel] relied at least in part upon a theory
that his Union affiliation was a motivating factor in his dismissal,
there is not the slightest hint in the record that anyone in the
District's administration ever took an action or made a decision
that was motivated by protected activity, or anti-union animus.
(District Exhibit, exh. 48, p. 6, italics in the original.)
The ALJ's point in the portion
of
the proposed decision to which AFSCME objects is
that Sevillano's impressions about Clavel's contact with employees and coordination
of
his
work with others, as reflected in the 2009 evaluation, is consistent with the charges that led to
Clavel's dismissal. We agree with the ALJ that this point supports the conclusion that the
justification given by the District for Clavel's dismissal was "honestly invoked."10
10
In this exception, AFSCME also asserts that Sevillano must have known about the
incident involving the falsification
of
documents. AFSMCE argues, "Dr. Sevillano knew,
because his secretary was pursuing the issue." Whether this is a valid conclusion or deductive
fallacy cannot be resolved on this record. Either way, its relevance is lacking. AFSCME's
argument lacks merit for similar reasons AFSCME's argument regarding the overwatering
of
the baseball field lacks merit. First, the ALJ hedged his point by stating that Sevillano "did not
appear to know about" the falsification of documents, the e-mail message to Vazquez or the
damage to the baseball field. 	(Proposed dee., p. 98, italics added.) But the broader point is
that the deficiencies noted by Sevillano in the 2009 evaluation are consistent with the charges
that led to Clavel's dismissal. And, again, AFSCME's argument is not tethered to the key
issue here, i.e., whether the justification given by the District for Clavel's dismissal was
12

honestly invoked or, rather, either a pretext for retaliating against Clavel based on his union
activity or not the real motivating cause for his dismissal. AFSCME's exceptions quibble with
perceived slights in the proposed decision, but as noted above, do not engage on this key issue.
III. 	The Secret or Side File
The proposed decision states:
The Dismissal Charges also referenced documents not contained
in Clavel's personnel file such as records
of
when Vazquez or
Oatman called the police. Some
of
these documents were located
in what was referred to in the record as a "site file," or files
maintained by school site administration. During the PERB
hearing, Clavel admitted to knowing that about his site files. He
said he never asked to review those files.
(Proposed dee., p. 45.)
In the analysis
of
nexus, the fourth element
of
the prima facie retaliation case, the
proposed decision discusses AFSCME's argument that the District failed to follow its
disciplinary procedures by relying on documents not contained in Clavel's official personnel
file. Relying on Board precedent,
11
the A1J concluded that AFSCME did not establish that the .
District's maintenance or use
of
the District's site files, which were maintained on Clave!
separate from Clave!' s official personnel file, was evidence
of
nexus. As stated in the
proposed decision, the District's site files were not secret, nor were they hidden from Clavel.
Clavel testified that he knew about the District's site files and never asked to review them.
The District had complied with AFSCME's request to inspect material reviewed by a private
investigator hired by the District to conduct the personnel investigation, and even delayed the
11 See Novato Unified School District (1982) PERB Decision No. 210 in which the
Board held that a "secret file" maintained at an employer's school site suggested retaliatory
motive where employee was never informed of the file and maintenance of the file appeared to
violate the employer's personnel practices. See also Woodland Joint Unified School District
(1987) PERB Decision No. 628, in which the Board held that a "working file" maintained
separate from an employee's personnel file is not evidence of retaliatory motive if consistent
with personnel practices, but the employer's failure to provide the content of the file to an
employee on request is evidence of retaliatory motive absent a reasonable explanation.
13

disciplinary proceedings to allow sufficient time for AFSCME's review. Implicitly, based on
that example, there is no reason to conclude that the District would have responded any
differently to a request by AFSCME to review the content
of
the District's site files.
In its exception, AFSCME argues that the District's use
of
the site files violates
"Education Code section 44103 [sic]," the Labor Code and "Chino State case law and its
progeny." Education Code section 44031, subdivision (a) (and its Labor Code equivalent,
section 1198.5) generally provides that employees have the right to inspect their personnel
records. Subdivision (b) provides that derogatory information shall not be entered into a
school district employee's records unless and until the employee is given notice
of
the
information and opportunity to comment. The California Supreme Court in Miller
v.
Chico
Unified School Dist. Board
of
Education (1979) 24 Cal.3d 703 held that a school district
employer must comply with the requirements of subdivision (b) prior to reaching any decision
affecting the employee's employment status. School districts may not avoid the requirements
of this statute by placing derogatory written material in a file not designated as the employee's
official personnel file. (Ibid.)
Apart from critiquing the ALJ for referring to the files as "site files" rather than "side
files," AFSCME fails to state the specific issues of procedure, fact, law or rationale to which
this exception is taken, as required by PERB Regulation 32300, subdivision (a)(l). While
PERB has no authority to enforce provisions of the Education Code (Whisman Elementary
School District (1991) PEJ:lB Decision No. 868, p. 13), AFSCME does not argue that the
District denied Clavel the right to inspect his personnel records upon request regardless of their
location. Nor does AFSCME argue that Clavel was deprived notice of, and opportunity to
comment on, derogatory written material that the District used as a basis for dismissal.
14

Moreover, although the ALJ found that the maintenance and use
of
the files is not evidence
of
retaliatory motive for purposes
of
establishing the nexus element
of
the prima facie case, the
ALJ ultimately concluded that AFSCME had nonetheless established the nexus element based
on other facts. Therefore, even
if
the ALJ had concluded that the maintenance or use
of
such
files is evidence
of
nexus, the outcome
of
this case would be no different. The outcome was
determined by the District's success in prevailing on its affirmative defense despite
AFSCME's success in establishing its prima facie case.
The District's Cross-Exception
12
By way
of
factual background to this exception, AFSCME and the District were
signatories to a collective bargaining agreement
in
effect at all times relevant to the parties
bargaining claims. Consistent with that agreement, the parties reopened negotiations on
wages, benefits and other items during both the 2006-2007 year and the 2007-2008 year.
Neither party requested reopener negotiations for the 2008-2009 year. In or around September
2009, Lee-Sung sought to commence bargaining for the 2009-2010 year, and requested that
AFSCME submit its initial proposal. On November 5, 2009, the District submitted its initial
proposal, and on December 9, 2009, AFSCME submitted its initial proposal. The parties
commenced negotiations on January 26, 2010. They reached a tentative agreement, a
"handshake" deal, on July 29, 2010. 	On the evening
of
August 5, 2010, the District Board
of
12
AFSCME filed a response to the District's cross-exception pursuant to PERB
Regulation 32310, which included argument more directly related to the issue
of
retaliation
than to the limited issue raised in the District's cross-exception regarding the District's refusal
to negotiate with AFSCME's bargaining team so long as it included Clavel. The Board
declines to review that portion of AFSCME's response that is not directly related to the
District's cross-exception. Allowing AFSCME a second opportunity to argue in support of its
exceptions to the retaliation analysis under the guise of responding to the District's cross-
exception is not contemplated by our regulatory scheme. (See, e.g., County
of
Santa Clara
(2012) PERB Decision No. 2267-M, p. 2, fn. 3.)
15

Trustees held a special meeting to approve a draft three-year agreement. At a regular meeting,
which followed the special meeting, the Board
of
Trustees voted to approve Clave I's dismissal.
Clavel had been placed on administrative leave on October 12, 2009, but continued to
participate in negotiations for the 2009-2010 year. Although the parties reached a tentative
agreement, there was no final agreement in place as
of
the August
S,
2010, meeting
of
the
District Board of Trustees. Following the meeting,
AFSCME suggested that the parties
reconvene their bargaining teams, but Lee-Sung refused to meet with AFSCME's bargaining
team so long as it included Clavel. Lee-Sung said that he was concerned about Clavel's
presence because multiple employees had filed complaints against him and would likely testify
against him at his Personnel Commission dismissal hearing.
13
To address Lee-Sung's
concerns, AFSCME offered to meet at the union offices, but Lee-Sung found that suggestion
unacceptable. Lee-Sung also questioned the need for the bargaining teams to meet because he
felt the parties already had reached agreement.
In general "EERA gives the parties the right to appoint their own negotiators and
forbids either side from dictating who their opposing representatives may be." (Yolo County
Superintendent
of
Schools (1990) PERB Decision No. 838, proposed dee. at p. 33, citing
San Ramon Valley Unified School District (1982) PERB Decision No. 230.) In Yolo County
Superintendent
of
Schools, the Board held that an employer committed a "per se" violation
of
the duty to bargain by demanding that a union remove a particular member from its bargaining
team in the middle of negotiations. The
AU
relied on this authority to conclude that the
. District's refusal to meet with AFSCME's bargaining team with Clavel violated its duty to
bargain in good faith pursuant to BERA section 3543.S, subdivision (c).
13
The Personnel Commission dismissal hearing took place over 16 days beginning on
October 3, 2011, and ending on November 27, 2012. 	·
16

In the proposed decision, the ALJ addressed two arguments raised in the District's
closing brief. Relying on Savanna School District (1982) PERB Decision No. 276, which sets
forth a test for determining the legality
of
"coordinated bargaining,"14 the District argued that
there is an exception to the general rule that a union has the right to select its negotiators where
the employer can show a "clear and present danger to the bargaining process." (Ibid. quoting
General Electric Co.
v.
NLRB (2d Cir. 1969) 412 F.2d 512, 517.) Unless.the employer can
show concrete examples
of
actual disruption to the bargaining process or evidence of an
ulterior motive by the union to undermine bargaining, the union will not be found to have
violated its duty to bargain in good faith by engaging in coordinated bargaining.
0tate
of
California (Department
of
Personnel Administration) (1998) PERB Decision No. 1305-S.)
The ALJ concluded that the District did not establish that the test for determining the
legality of coordinated bargaining even applied to the facts in this case given that the
bargaining process engaged in by the parties did not involve coordinated bargaining. The ALJ
also concluded that, even
if
the test applied, the District did not establish that Clave!' s
continued participation in negotiations presented a "clear and present danger" to the bargaining
process. As the proposed decision states:
There was no evidence, for example, that Clavel was disruptive,
threatening, intimidating, or otherwise unproductive during
negotiations. Nor was evidence presented that any employees
that had filed complaints against Clavel would be present or even
nearby during the parties' negotiations. Lee-Sung was the only
member
of
the District's negotiating team that testified against
Clavel in his dismissal hearing. He never expressed any fear of
14
With coordinated bargaining, employees who are not part of a union's bargaining
unit are allowed to serve on that union's negotiating team. 0avanna School District, supra,
PERB Decision No. 276, proposed dee. at p. 3.)
17

Clavel. Local 3112 even offered
to
ameliorate the District's
stated concerns by meeting at the AFSCME offices. The District
offered no explanation for rejecting that proposal.
(Proposed dee., p. 72.)
The second issue raised in the District's closing brief to the
AU
concerned the
necessity
of
additional bargaining sessions. The District asserted that the parties were no
longer negotiating after July 29, 2010. The
AU
rejected this argument, relying
on
the
principle that the parties' mutual duty to negotiate in good faith includes the obligation to
cooperate in preparing the final written agreement. (EERA, § 3540.1, subd. (h); NLRB
v.
Auciello Iron Works, Inc. (1
st
Cir. 1992) 980 F.2d 804, 808; Albertson's,
Inc.
(1993)
312 NLRB 394, 397.)
In its exception, the District continues to contend that its refusal to meet with
AFSCME's bargaining team so long as it included Clavel was not a violation
of
its duty to
negotiate irt good faith. In support
of
its exception, the District relies on Lee-Sung's testimony
at the PERB formal hearing that transferring Clavel to another site was not an option because
Lee-Sung had determined that Clavel created a hostile work environment at Western High.
(PERB formal hearing, Reporter's Transcript, vol. X, pp. 120:27-121:8.) Each
of
the District's
arguments in support
of
its exception is addressed next.
First, the District argues that the
AU
misapplied authority regarding coordinated
bargaining. The District, not the
AU,
first raised PERB precedent on coordinated bargaining
in its closing brief to the
AU.
The
AU
questioned the applicability
of
the precedent to a case
not involving coordinated bargaining, but in response to the District's argument, faithfully
applied the test and concluded appropriately that the District had not established that Clavel's
continued participation in negotiations presented a "clear and present danger" to the bargaining
18

process. Contrary to the District's contention, Clavel's "voluminous disciplinary record" does
not ipso facto make Clavel's presence or participation a "clear and present" danger to the
bargaining process. No concrete examples
of
actual disruption to the bargaining process were
provided by the District in support
of
its argument. Nor did the District point to any evidence
that AFSCME had an ulterior motive to undermine the bargaining process in its inclusion
of
Clavel on the bargaining team after his dismissal. (Savanna School District, supra, PERB
Decision No. 276; State
of
California (Department
of
Personnel Administration), supra, PERB
Decision No. 1305-S.)
The District is incorrect in asserting that the ALJ "misconstrued the 'clear and present
danger"' as only applying
if
members
of
the District's bargaining team were intimidated by or
fearful
of
Clave!. The
ALT
correctly construed the phrase to focus on danger to the bargaining
process posed by Clavel's presence or participation. In pointing out that Lee-Sung, the only
member
of
the District's negotiating team to testify against Clavel at his dismissal hearing,
never expressed any fear
of
Clavel, the ALJ was merely using that fact as further support for
his conclusion that Clavel's inclusion
on AFSCME's bargaining team did not present a clear
and present danger to the bargaining process.
It
is true that the decisional law concerning
coordinated bargaining does not predicate a finding
of
clear and present danger on evidence of
fear or intimidation on the part of specific negotiating team members, as the District asserts.
It
is also true, under the decisional law, that the production of a "voluminous disciplinary record"
does not prove a clear and present danger to the bargaining process. While the District
correctly asserts that danger to the bargaining process is the proper focus of the inquiry in
coordinated bargaining cases, it then incorrectly asserts that "there was ample evidence
presented in this case during Clavel's termination hearing." Clavel's termination hearing
19

concerned an unrelated issue, i.e., whether the District had reasonable cause for dismissal.
Reasonable cause for dismissal is not the same as a clear and present danger to the bargaining
process.
After initially raising the coordinated bargaining cases to the ALJ, the District next
contends that "this should not be the test." The District argues that the ALJ failed to
consider the applicable test as set forth in National Labor Relations Board (NLRB) authorities,
Fitzsimons Mfg. Co. (1980) 251 NLRB 375, enfd. (6 th Cir. 1982) 670 F.2d 663 and KDEN
Broadcasting
Co.
(1976) 225 NLRB 25 (KDEN)). Both cases acknowledge the general rule
that employees may choose whomever they desire to represent them in formal negotiations
with the employer. These cases stand for the principle that a limitation or exception to this rule
will only be found where there is "persuasive evidence that the presence of the particular
individual would create ill will and make good-faith bargaining impossible." (KDEN, supra,
225 NLRB 25, 35, italics
in
the original.) Where the limitation or exception applies, the other
party is relieved of its duty to deal with that particular individual. (Fitzsimons Mfg. Co., supra,
251
NLRB.
375, 379.)
In
KDEN, the employer refused to negotiate with the union's bargaining team so long
as it included a particular individual who had been discharged for a course of conduct on his
final day of employment that was embarrassing to the president of the company and amounted
to insubordination. The NLRB found that the circumstances surrounding the discharge were
"hardly persuasive evidence that he could not fruitfully participate on the Union's negotiating
team." (Id. at p. 35.) The NLRB stated that the employer's position was "purely anticipatory
and speculative." (Ibid.) The NLRB held that the employer violated its good faith bargaining
20

obligation by refusing
to
meet with the duly certified collective bargaining representative of an
appropriate bargaining unit for purposes of bargaining.
The NLRB reached the opposite result in Fitzsimons Mfg. Co., supra, 251 NLRB 375,
the other NLRB authority cited by the District. That case involved a fifth-step grievance
meeting between representatives
of
the employer and the union's international servicing
representative and bargaining team. At the meeting, the following occurred:
Mastos then said that he would punch Vogel in the mouth and
knock him on his ass
if
the subject was brought up again.
The bargaining committee then reentered the room, and Vogel
said, "I have one comment to make about.
...
" Mastos
interrupted Vogel, reached across the desk, grabbed Vogel by his
tie, and pulled upwards. Vogel came to his feet. Foltz then
separated Mastos and Vogel, and Mastos challenged Vogel to
come outside to the parking lot.
...
At sometime following the June 29 incident, Vogel was treated at
a hospital for alleged back pains. Vogel filed a lawsuit against
Mastos and the Union alleging assault and battery, negligence,
and personal injuries. Mastos countersued Vogel for intentional
and negligent infliction of emotional distress and for breach of an
oral contract
of
confidentiality.
(Id. at pp. 376-377.)
The NLRB concluded that Mastos's unprovoked physical assault was sufficiently
egregious to make bargaining impossible. The NLRB cited to the fact that the conduct
occurred at a grievance session and took place in the presence
of
the bargaining unit's
bargaining committee, whose members looked to Mastos for leadership. As the NLRB
concluded: "The nature of the attack involved here 	sudden, unprovoked, and in the presence
of both management and union officials - is a sufficient foundation for concluding that the
presence of Mastos in future bargaining sessions would create such an atmosphere as to render
21

good-faith bargaining impossible." (Fitzsimons Mfg. Co., supra, 251
NLRB
375,380,
emphasis added.)
Relying on the general principles set forth in the above NLRB authority, the District
asserts that "Clavel' s contentious, lengthy termination proceeding clearly establishes that good
faith bargaining would be impossible with his continued presence on the Local 3112
bargaining team." To the contrary, the District's assertion
of
impossibility is far from clearly
established by such evidence. First, the "lengthy" disciplinary proceeding itself did not begin
until October 3, 2011, over a year after Clavel's dismissal. Second, the District presented no
evidence that bargaining would be rendered impossible with Clave!' s continued presence on
AFSCME's bargaining team. 	Simply proffering Clavel's voluminous disciplinary record and
lengthy disciplinary proceedings is not sufficient to meet that bar. There must be persuasive
evidence of its effect on the bargaining process. The District presented no such evidence.
"[I]mpossible" is a high bar to reach for a party that refuses to deal with the selected
representative
of
the other party to a collective bargaining relationship, as it should be. A
bargaining unit cannot be deprived of its most fundamental right to select a representative
of
its own choosing for purposes of collective bargaining unless bargaining is in fact rendered
impossible. (Yolo County Superintendent
of
Schools, supra, PERB Decision No. 838,
proposed dee. at p. 33, citing San Ramon Valley Unified School District, supra, PERB
Decision No. 230.) As was true in KDEN, the District's position here is "purely anticipatory
and speculative."
The Board's conclusion on this issue finds further support in a more recent NLRB
authority, Neilmed Products, Inc. (2012) 358 NLRB No. 8 (Neilmed Products). In that case,
the NLRB found that the employer unlawfully refused to allow the union's business agent
22

access to the employer's facility on the grounds that the employer failed to prove that the
presence of the business agent, a former employee terminated for a picket~line incident,
15
would create ill-will and make good-faith bargaining impossible. As the NLRB stated:
[T]he Respondent failed to present any evidence establishing that
the Union acted in bad faith in appointing Cisneros as business
agent. That the Respondent had terminated Cisneros and refused
to reinstate him does not establish bad faith, as such actions
would not serve to disqualify Cisneros from serving as a
bargaining representative. See, e.g., Caribe Staple Co.,
313 NLRB 877, 889 (1994) (finding that an employer may not
insist that a bargaining representative be excluded. from
negotiations solely because that individual has been terminated.)
·
(Neilmed Products, supra, 358
NLRB
No. 8, p. 2, fn. 2.)
The employer in N eilmed Products made the same argument before the NLRB that the
District makes here. The employer inNeilmed Products contended that it could not allow
Cisneros into its facility because employees feared him. But, as stated inNeilmed Products,
"requiring persuasive evidence of ill.will and making good-faith bargaining impossible,
subsumes the single issue
of
workplace safety." (NeilmedProducts, supra 358 NLRB No. 8,
ALJ decision at p. 28.) The NLRB concluded that Cisneros's actions did not constitute
persuasive evidence that his presence at the employer's facility to negotiate and to administer
the contract would create ill will and make good faith bargaining impossible. Although the
employer inNeilmed Products presented evidence.that some of the employees were frightened
by Cisneros, more relevant was the fact that none of these employees were involved in
·
15
Cisneros, while on the picket line, broke a windshield with his fist, yelled at
employees crossing the picket line and stood in front of the cars of some employees as they
drove across the picket line. (Neilmed Products, supra 358 NLRB No. 8, p. 29.) Throughout
his suspension and after his termination, Cisneros continued to serve as picket captain during
the strike and an elected member
of
the bargaining unit's bargaining committee. At the time
the employer denied Cisneros further access to the employer's facility, he had been named
business agent for the union and was on the employer's premises to discuss a grievance.
23

negotiations and the conduct that led to Cisneros's discharge was not directed toward the
bargaining process. (Neilmed Products, supra, 358 NLRB No. 8,
AU
decision at p. 31.)
Third, the District argues that it never "refused" to continue bargaining with Clavel
because AFSCME discontinued including Clavel in negotiations following Clavel's dismissal
on August 5, 2010. The employer inNeilmed Products made a similar argument, asserting that
the ALJ erred
in
failing to consider its assertion that the union did not have a "superseding
need" for Cisneros to be its business agent. We reject the District's argument for the same
reason that the employer's argument inNeilmedProducts was rejected:
[S]uch evidence is irrelevant because the Board does not require
a party to demonstrate a particular need for its chosen bargaining
representative. See Fitzsimons Mfg. Co., 251 NLRB 375, 378-379
(1980) (reciting the general rule that each party may select
whomever it wishes to be its bargaining representative and the
other party has a duty to bargain with that individual), enfd.
670 F.2d 663 (6
th
Cir. 1982).
(Neilmed Products, supra, 358 NLRB No. 8, p. 2, fn. 2.)
Last, the District argues that it had an affirmative legal obligation to prevent
discrimination and harassment from occurring under section 12940, subdivisions (j) and (k) of
the California Fair Employment and Housing Act. While PERB does not enforce anti-
discrimination laws found in other statutory schemes (San Bernardino City Unified School
District (2012) PERB Decision No. 2278), the District put on no evidence that it was mandated
by law to exclude Clavel from negotiations lest it be found liable under the state's anti-
discrimination laws. Even if the District believed that Clavel should not be present at any of
the campuses where complaining employees worked, that does not explain why negotiations
could not take place at union offices, as AFSCME had offered in at'tempting to address the
District's concerns, or anywhere else the complaining employees did not work. The District
24

also presented no evidence that Clavel ever engaged in discriminatory
or
harassing conduct
toward an employee at a bargaining session, which might reasonably lead the District to be
concerned about the possibility
of
recurrence in this otherwise controlled and structured
setting.
There is a certain irony in the District's position on appeal. The District placed Clavel
on administrative leave on October 12, 2009. Clavel continued to participate in the bargaining
process all the way up to the August 5, 2010, meeting
of
the District Board
of
Trustees to first
approve an agreement Clavel helped negotiate, and then to approve Clavel's dismissal. Clavel
presented no greater risk to the complaining employees and no greater harm to the bargaining
process after the District's Board
of
Trustees voted to approve his dismissal than he did during
the preceding ten months on administrative leave while negotiating the new agreement.
Less than a week prior to the August 5, 2010, vote
of
the District's Board
of
Trustees,
Clavel and Lee-Sung exchanged the following e-mail messages:
Hello, Russell,
If
you
don't
mind, I really need to get this notification
of
our
ratification out to all our members. I will need to post and hand
deliver these flyers to our members.
It's important to have all our members notified
of
this tentative
agreement, and be given a vote to ratify, we hope.
I also have others helping with this task.
If
you have any questions, my cell number is [deleted].
Thank you,
Daniel Clavel,
Chief Steward,
AFSCME 3112
25

Clavel sent Lee-Sung that message at 9:22 a.m.
on
Friday, July 30, 2010. Lee-Sung
responded at 12:07 p.m. on Saturday, July 31, 2010, as follows:
Dan,
Getting the message out is important. Please have other AFSCME officers
deliver notices to Western and Savanna. You are free to visit other campuses as
necessary.
Russell
(AFSCME Exhibit, exh. V.)
Clavel and Lee-Sung's exchange is telling for a variety
of
reasons. At the time
of
the
events in question, Lee-Sung did not consider Clavel' s presence on District premises as posing
any liability issues for the District as a general matter. There were only two schools, Savanna
and Western, which Lee-Sung asked Clavel not to visit, presumably because the complaining
employees worked at those schools.
More importantly, Lee-Sung did not view Clavel's participation as a clear and present
danger to the bargaining process; nor did Lee-Sung view Clavel's presence as creating ill will
or making good-faith bargaining impossible. Lee-Sung may have wanted to portray Clavelin
a different light two years later at the PERB formal hearing, but this e-mail exchange between
Lee-Sung and Clavel on July 30 and 31, 2010, represents far more reliable evidence
of
Lee-
Sung's estimation
of
Clavel at the relevant time in question. In sum, the District's exception
fails both on the facts and the law.
ORDERS
I. 	Order in Case No. LA-CO-1451-E
Upon the foregoing findings of fact and conclusions of law, and the entire record in
Case No. LA-C0-1451-E,Anaheim Union High School District
v.
American Federation of
26

State, County and Municipal Employees, Local 3112, it is found that the American Federation
of State, County and Municipal Employees (AFSCME) violated the Educational Employment
Relations Act (EERA), Government Code section 3543.6(c). AFSCME violated EERA by
negotiating with the Anaheim Union High School District (District) in bad faith. All other
claims are dismissed.
Pursuant to Government Code section 3541.S(c), it hereby is ORDERED that
AFSCME, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Negotiating with the District in bad faith.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees in AFSCME's bargaining unit
customarily are posted, copies
of
the Notice attached hereto as Appendix A. The Notice must
be signed by an authorized agent of AFSCME, indicating that it will comply with the terms of
this Order. Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material. 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 AFSCME to regularly communicate with employees in the bargaining
unit. 	(City
of
Sacramento (2013) PERB Decision No. 2351~M.)
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board or the General
Counsel's designee. Respondent shall provide reports, in writing, as directed by the General
27

Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on the District.
II. 	Order in Case No. LA-CE-5535-E
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record
in Case No. LA-CE-5535-E, American Federation
of
State, County and Municipal Employees,
Local 3112
v.
Anaheim Union High School District, it is found that the Anaheim Union High
School District (District) violated the Educational Employment Relations Act (EERA),
Government Code section 3543.5, subdivisions (a), (b), and (c). The District violated EERA
by negotiating with the American Federation of State, County and Municipal Employees
(AFSCME) in bad faith, including unilaterally imposing unpaid furloughs on AFSCME's
bargaining unit. All other claims are dismissed.
Pursuant to Government Code section 3541.S(c), it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Negotiating with AFSCME in bad faith;
2. 	Refusing to meet with AFSCME's chosen negotiators in bargaining;
3. 	Unilaterally implementing policies within the scope of representation;
4. 	Interfering with AFSCME's right to represent its members;
5. 	Interfering with employees' right to be represented by AFSCME.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Bargain with AFSCME, upon demand, over the language and format of
the furlough and layoffs agreement at issue in the parties' 2009-2010 negotiations. AFSCME
28

must demand to bargain over this issue within ten (10) days from a final decision in this
matter.
2. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees in AFSCME's bargaining unit
customarily are posted, copies
of
the Notice attached hereto as Appendix B. 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 thirty (30) consecutive workdays.
Reasonable.steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material. 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 employees in the bargaining
unit represented by AFSCME. (City
of
Sacramento (2013) PERB Decision No. 2351-M.)
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. Respondent shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on AFSCME.
Members Winslow and Banks joined in this Decision.
29

. ... . .. .. .. ...

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CO-1451-E, Anaheim Union High
School District
v.
American Federation
of
State, County and Municipal Employees, Local 3112
in which all parties had the right
to
participate, it has been found that the American Federation
of State, County and Municipal Employees violated the Educational Employment Relations
Act (EERA), Government Code section 3540 et seq., by negotiating with the Anaheim Union
High School District (District) in bad faith.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Negotiating with the District in bad faith.
Dated:
---------
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL3112
By:
--------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

APPENDIXB 
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-5535-E, American Federation
of
Sta,te, County and Municipal Employees, Local 3112
v.
Anaheim Union High School District in
which all parties had the right to participate, it has been found that the Anaheim Union High
School District violated the Educational Employment Relations Act (BERA), Government
Code section 3540 et seq., by negotiating with the American Federation
of
State, County and
Municipal Employees (AFSCME) in bad faith, including unilaterally imposing unpaid
furloughs on AFSCME's bargaining unit.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Negotiating with AFSCME in bad faith;
2. 	Refusing to meet with AFSCME's ehosen negotiators in bargaining;
3. 	Unilaterally implementing policies within the scope
of
representation;
4. 	Interfering with AFSCME's right to represent its members;
5. 	Interfering with employees' right to be represented by AFSCME.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE
POLICIES
OF BERA:
Bargain with AFSCME, upon demand, over the language and format
of
the
furlough and layoffs agreement at issue in the parties' 2009-2010 negotiations. AFSCME must
demand to bargain over this issue within ten (10) days from a final decision in this matter.
Dated: 	ANAHEIM UNION HIGH 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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ANAHEIM UNION HIGH SCHOOL DISTRICT,
Charging Party,
V.
AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES,
LOCAL 3112,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CO-1451-E;
.
AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES,
LOCAL 3112,
Charging Party,
V.
ANAHEIM UNION HIGH SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5535-E
PROPOSED DECISION
(03/19/2014)
Appearances: Parker & Covert, LLP, by Spencer Covert, Attorney, and Stutz, Artiano, Shinoff
& Holtz, by Jack M. Sleeth, Jr., Attorney, for Anaheim Union High School District; Pete
Schnaufer, Business Representative, for American Federation of State, County, and Municipal
Employees, Local 3112.
Before Eric J. Cu, Administrative Law Judge.
PROCEDURAL HISTORY
In these two cases, a public school employer and an exclusive representative accuse
each other of multiple violations of the duty to negotiate in good faith under the Educational
Employment Relations Act (EERA).1 The exclusive representative also alleges unlawful
retaliation against one of its officers. Each party denies that it has violated EERA.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

I. 	The Pre-Hearing History
On
September 27, 2010, the Anaheim Union High School District (District) filed an
unfair practice charge with the Public Employment Relations Board (PERB
or
Board) asserting
that American Federation
of
State, County, and Municipal Employees, Local 3112 (Local 3112
or AFSCME) violated the duty to negotiate in good faith contained in EERA section 3543.6(c)
under multiple theories. The District's charge against Local 3112 was based on the parties'
negotiations for the 2009-2010 and 2010-2011 years. The PERB Office
of
the General
Counsel assigned this matter PERB case number LA-CO-1451-E.
On
January 28, 2011, Local 3112 filed its own unfair practice charge concerning the
District's bargaining conduct during the same time period. Local 3112 alleged that the
District's conduct violated the duty to negotiate in good faith under EERA section 3543.S(c)
and also violated EERA section 3543.S(d). Local 3112 also alleged that the District retaliated
against one
of
its bargaining team members in violation
ofEERA
sections 3543.S(a) and (b).
The General Counsel's Office assigned this matter PERB case number LA-CE-5535-E.
On July 3, 2012, the General Counsel's Office
of
PERB issued a complaint in case
number LA-CO-1451-E, alleging that Local 3112 violated the duty to negotiate in good faith
both
by
individual acts and by the totality
of
its conduct. On July 13, 2012, Local 3112
withdrew the claim that the District violated EERA section 3543.S(d). That day, the General
Counsel's Office issued a complaint in case number LA-CE-5535-E, alleging that the District
unilaterally adopted policy changes and additionally violated the duty to negotiate in good faith
both by individual acts and by the totality
of
its conduct. The complaint also alleged that the
District terminated Local 3112 Officer Dan Clavel in retaliation for his role in AFSCME.
2

On July 20, 2012, Local 3112 filed an answer to the PERB complaint in LA-CO-1451-
E, denying the substantive allegations and asserting multiple affirmative defenses. On
August 3, 2012, the District filed an answer to the PERB complaint in LA-CE-5535-E, also
denying the substantive allegations against it and asserting multiple affirmative defenses. The
District did not argue in its answer that some or all of the claims in the LA-CE-5535-E
complaint should be deferred to the parties' grievance arbitration process.
The two cases were consolidated for further proceedings. An informal settlement
conference was held on September 18, 2012, but the disputes were not resolved. The matter
was then set for formal hearing.
II. 	The Formal Hearing
The PERB formal hearing took place over 11 days between February 11 and August 12,
2013. There were multiple motions and stipulations during the hearing process.
A. 	The District's Motion for Deferral to Arbitration
Prior to the commencement of the hearing on February 7, 2013, the District filed a
motion to defer the retaliation claims in the LA-CE-5535-E complaint to the parties' grievance
arbitration process. Local 3112 filed its opposition to the motion on February 11, 2013, the
first day of hearing. The Administrative Law Judge (ALJ) denied the motion on the grounds
that the District failed to assert that defense in its answer to the PERB complaint. He noted
that PERB Regulation 32644(b )(6)2 requires that a respondent's answer include "[a] statement
of any affirmative defense" applicable to the case. PERB has held that deferral to arbitration is
an affinnative defense that must be timely raised or else it is waived. (East Side Union High
School District (2004) PERB Decision No. 1713.)
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3

B. 	The District's Motion to Admit Evidence From Clavel's Dismissal Hearing
Before the District Personnel Commission
On the first day of hearing, the District also moved to admit the transcripts from a 16-
day hearing before the District's Personnel Commission concerning Clavel' s dismissal
(Clavel's Dismissal Hearing). The issue before the Personnel Commission was whether the
District had good cause to dismiss Clavel. The District's request was that the testimony and
exhibits from Clavel's Dismissal hearing be treated, for all evidentiary purposes, as though it
were produced during the course of the PERB hearing. The ALJ denied the District's motion
due to opposition from Local 3112.
C. 	The District's Motion to Dismiss Claims From the LA-CE-5535-E Complaint
On July 30, 2013, which was not a hearing day, the District filed a motion to dismiss
the retaliation allegations on the grounds that those claims were already decided at Clavel's
Dismissal Hearing before the Personnel Commission. On August 1, 2013, which was a hearing
day, the ALJ issued a Tentative Order denying the District's motion and gave both parties the
opportunity to argue the matter further on the next scheduled hearing date, August 5, 2013.
On August 5, 2013, each party submitted additional documents regarding the District's
motion. After hearing oral argument, the ALJ issued a written Order denying the District's
motion. The ALJ reasoned that the District's Personnel Commission lacked jurisdiction to
address whether the District retaliated against Local 3 l 12's bargaining team member because
of his union activity. The ALJ accordingly found that the Personnel Commission's findings in
that area should not be given collateral estoppel effect.
4

D. 	The Parties' Stipulation Regarding Clavel's Dismissal Hearing Transcripts
On August 12, 2013, the last day of the hearing, the parties stipulated to the admission
of the record from Clavel's 16-day Dismissal Hearing, including both testimony and exhibits.
As part of that stipulation, the parties agreed that the testimony produced during Clavel' s
Dismissal Hearing would be treated as though it were produced during the course of the PERB
hearing for admissibility and hearsay purposes. The parties further agreed that each party
could raise objections to evidence presented before the Personnel Commission and that the
ALJ would rule on any objections, where necessary, in his proposed decision.3
III. 	The Closing Briefs
The parties filed closing briefs on or before November 12, 2013. Neither party
objected to any evidence presented at Clavel's Dismissal Hearing. Thereafter, the record was
closed and the matter was submitted for decision.
FINDINGS OF FACT4
I. 	Factual Findings Related to the Parties' Bargaining Claims
A. 	The Parties
The District is a public school employer within the meaning of EERA section
3540.l(k). Local 3112 is an exclusive representative within the meaning ofEERA section
3 The transcripts from Clavel's Dismissal Hearing were admitted into the PERB record
as Joint Exhibit I. The exhibits were admitted as follows: joint exhibits from the Personnel
Commission hearing were admitted as Joint Exhibit II; the District's exhibits were admitted as
Joint Exhibit III; and Local 3112's exhibits were admitted as Joint Exhibit IV.
4 The factual record in these two cases is immense. For ease of discussion concerning
the issues raised by the two PERB complaints, the ALJ's findings of fact will be separated into
two main sections: (I) facts related to both parties' bargaining claims; and (II) facts related to
Local 3112 's retaliation claim. This division results in some events being discussed out of
chronological order and some findings discussed more than once but represents the most
effective way to present the factual findings cohesively.
5

3540.l(e). Local 3112 is one of two classified bargaining units at the District. It represents a
bargaining unit of operations and support personnel at the District, commonly referred to as the
"blue collar unit." The other classified unit was not described in detail for the record, but it
appears to consist of various office and technical positions. That unit is represented by a
chapter of the California School Employees Association (CSEA).
Prior to his termination, Clavel was a public school employee of the District within the
meaning of EERA section 3 5_40 .1 (i) and, except for a brief stint as a supervisory employee,
was a part of the blue collar unit throughout his employment. At all times relevant to the
parties' bargaining claims, Clavel was Vice President of Local 3112 and served on its
bargaining team.
B. 	The Collective Bargaining Agreement
The parties were signatories to a Collective Bargaining Agreement (CBA) that
remained in effect at all times relevant to the parties' bargaining claims. Consistent with the
terms of that agreement, the parties reopened negotiations on wages, benefits, and other items
during both the 2006-2007 year and the 2007-2008 year. Agreements were reached in each of
those years and the parties' memorialized those agreements by drafting and executing
Memoranda of Understanding (MOUs) on the new agreements and renewing the remainder of
the negotiated terms in the CBA for a new duration. According to Local 3112 President Gerry
Adams and AFSCME Business Representative Pete Schnaufer,5 the parties have a consistent
practice of executing an MOU prior to any new agreement taking effect. This testimony was
undisputed. Neither party requested reopener negotiations for the 2008-2009 year.
5 Schnaufer is employed by Local 3 l 12's regional affiliate and, unlike all other Local
3112 officers, is not employed by the District.
6

C. 	Commencing Bargaining in the 2009-2010 Year
In
or
around May 2009, the parties were negotiating over the effects
of
certain blue
collar unit layoffs. Local 3112's chief negotiator and spokesman was Schnaufer. The
District's chief negotiator and spokesman was Assistant Superintendent
of
Human Resources,
Russell Lee-Sung. During one negotiation session, in or around June 2009, Lee-Sung raised
three cost saving ideas not directly related to the ongoing negotiations. The two sides
discussed those issues, but no resolution was immediately reached.
That Summer, then-Superintendent Dr. Joseph Farley began discussing with Local 3112
President Adams the need for furlough days to avoid "devastating" layoffs. Adams agreed that
furloughs were preferable to layoffs. Neither side talked in specifics at the time.
In or
around September 2009, Lee-Sung informed Adams and Clavel that the District
sought to reopen bargaining for the 2009-2010 year. Lee-Sung requested that Local 3112
submit its initial proposal as soon as possible so it could be "sunshined" at the District's
governing Board
of
Trustees October meeting.6 Neither Adams nor Clavel objected to
negotiating with the District but neither took any action on the District's request for a proposal.
Lee-Sung did not mention his request to Schnaufer at the time. Around the same time, Lee-
Sung had been meeting with representatives from all District bargaining units about l<?oming
budget concerns. He stressed the need for negotiations because the District expected a "major
budget crisis" in both the 2009-2010 and 2010-2011 fiscal years due to"a structural deficit"
where expenses exceeded revenue.
6 The term "sunshining" in this proposed decision refers to the parties' obligation under
EERA section 3547 to provide public notice
of
their initial bargaining proposals prior to
commencing negotiations.
7

On November 5, 2009, the District drafted its initial proposal for the 2009-2010 year.
By then, all unions except Local 3112 submitted initial bargaining proposals. That month, the
District reached agreements with those three unions providing for no furlough days, but also
including "contingency language" to revisit the issue
if
the District's finances deteriorated
further. The District made the same offer to Local 3112.
On November 13, 2009, Lee-Sung sent Adams a memorandum again requesting Local
3112's initial proposal for the 2009-2010 year. In the memorandum, Lee-Sung intimated that
the District would later also seek reductions for the 2010-2011 year. Shortly afterwards, Lee-
Sung met with Schnaufer and asked him for Local 3112's initial proposal. Neither Adams nor
Clavel told Schnaufer about the District's earlier requests.
Local 3112 submitted its initial proposal on December 9, 2009. The proposal was
sunshined at the December 10, 2009 Board
of
Trustees meeting. The parties commenced
negotiation on January 26, 2010.
D. 	Superintendent Farley's Layoffs/Furloughs Informational Meeting
On February 22, 2010, Farley held a meeting with the leadership
of
all four unions,
including Local 3 112. At the beginning
of
the meeting, Adams conveyed Local 3112 's
position that it would "discuss any proposed wage reductions only at the bargaining table with
our full negotiating teams."
During the meeting, Farley said that the District was planning layoffs for the 2010-2011
fiscal year, but that layoffs could be reduced
if
the various groups agreed to furlough days.
Farley estimated that around six or seven furlough days would reduce the need for layoffs.
Farley expressed his hope that the various groups would "pre-agree," meaning that they would
present the idea favorably to their respective membership before formal negotiations began.
8

Schnaufer said that Local 3112 would not agree to furloughs without first receiving approval
from its membership.
E. 	The Parties' Negotiations Over Financial Issues
Starting in or around March 2010, the parties began discussing financial proposals in
greater detail. On March 9; 2010, the District proposed, among other things, increasing health
benefits co-pay amounts, temporarily suspending the right to personal necessity days, and a
salary re-opener if the District's budget deteriorated.
1. 	The District's Layoffs/Furloughs Proposal
Later in March 2010, Lee-Sung met privately with Adams and another Local 3112
bargaining team member, Jack Janee, and told them that the District would be proposing two
layoff lists; one list if Local 3112 agreed to furlough days in negotiations and a second, longer
list, without a furlough agreement.
On April 1, 2010, the District submitted its initial proposal for the 2010-2011 year,
including seven furlough days and the right to reopen negotiations if the District's budget
worsened. There were no layoffs included in the text of its proposal.
2. 	Local 3112's "Package Proposal"
In April 2010, Local 3112 held a membership meeting to discuss the union's bargaining
position. A majority of members favored trying to eliminate the layoffs completely through
negotiated concessions. The membership directed Local 3112 's bargaining team to pursue that
as an option.
Local 3112 made a "package" proposal at the April 29, 2010 bargaining session. Local
3112 accepted the District's proposal to increase medical co-pay amounts, proposed changes to
the District's investigation and evaluation procedures, and proposed 12 furlough days for all
9

full-time employees, with fewer days for others. In exchange, Local 3112 sought the District's
assurance that it would not lay
off
any unit members during the 2010-2011 school year. Local
3112 also proposed that both sides withdraw all other proposals for the 2009-2010 year. This
proposal included the following statement:
THIS IS A PACKAGE ONLY: (and includes mandatory and
non-mandatory subjects
of
bargaining - please be advised that the
subject
of
furlough days are not being included, formally or
informally, into bargaining between the parties, this is just an
exploratory attempt by AFSCME to induce the District into
reversing course and laying
off
no District employees represented
by AFSCME).
3. 	The District's 2010 Layoff Resolution
Concurrent with the parties' April 2010 negotiations, the District's Board
of
Trustees
approved a resolution eliminating several positions from both classified bargaining units,
including 26 full-time Custodians, 2 Equipment Operators, 2 Maintenance Service Workers,
and 1 Auditorium Operations Technician from the blue collar unit. The effective date
of
the
layoff was July 1, 2010. According to Lee~Sung, the District needed to approve the layoff
resolution by April 29, 2010 in in
order_
to satisfy Education Code requirements for notifying
employees
of
their layoff sufficiently in advance
of
July 1, 2010.
The text
of
the layoff resolution referenced the District's unfavorable financial outlook
and the need to cut expenses. However, there was no evidence presented about the need to
enact the layoffs on July 1, 2010 as opposed to some later date. By this time, the District had
reached agreements with all other units for between six and seven furlough days for 2010-
2011. The agreed-upon furloughs with those groups lessened, but did not eliminate layoffs for
each
of
those units.

The Custodian position is generally the lowest paid position in the blue collar unit and
is often an entry-level position. As a result, when a higher-level position, such
as
an
Equipment Operator, is eliminated in a layoff, the incumbent in that position often has the right
to displace, or "bump" back into a Custodian position
if
he or she held that position before and
was more senior than another Custodian employee.
Around the time
of
the layoff resolution, the District began referring to its proposed
layoff plans as having two "Phases." The "Phase I" layoff included
18
Custodian positions.
The "Phase II" layoff included eight additional Custodian positions, two Equipment Operators,
two Maintenance Service Workers, and one Auditorium Operations Technician. The District's
initial position was that the Phase II layoffs could be mitigated or eliminated by negotiated
concessions, but that the Phase I layoffs were necessary regardless
of
negotiations. At some
point prior to July 1, 2010, the District voluntarily rescinded the two Maintenance Service
Worker positions from the Phase II layoffs .
.On May 20, 2010, the District continued to propose seven furlough days for full-time
staff in the 2010-2011 year along with reopeners. It agreed to Local 3112's proposal for a
three-year contract term. The District's written proposals did not express any link between its
furlough proposal and its planned layoffs, but it was generally understood that the District
would cancel the Phase II layoffs
if
Local 3112 agreed to take seven furlough days. This was,
essentially, the same agreement reached with other District bargaining units.
4. 	The Parties' Common Understanding About Financial Issues
Later in May 2010, Local 3112 requested information about the anticipated savings
from both the District's furlough proposal as well as its layoff plans. The District responded
and the parties subsequently reached a common understanding that the cost of one custodian
11

position was roughly $65,000 and the savings from one furlough day for unit members was
around $53,000.
By June 2010, Local 3112 began to accept that it "would be too rich for the District's
purse" to cancel all of both layoff phases in the blue collar unit. It decided to focus on
eliminating all of the Phase II layoffs and at least a portion of the Phase I layoffs.
5. 	Local 3112's "PLAN B" Proposal
That month, Local 3112 sent the District a document entitled "PLAN B," which
proposed a combination of seven furlough days and salary cuts in exchange for canceling all
the Phase II layoffs and reducing the number of Custodian employees eliminated from the
Phase I layoffs from 18 to 15. Local 3112 modified its proposal a few days later seeking to
reduce the Phase I layoffs from 18 to 10 Custodian employees. The proposals, as revised,
included the statement that "THIS IS NOT NEGOTIATIONS, WE ARE NOT
NEGOTIATING. (PACKAGE ONLY. AFSCME HAS A RIGHT TO WITHDRAW THIS
PLAN AT ANY MOMENT.)"
On June 30, 2010, the District made a counter-proposal to Local 3112's "PLAN B"
document, but no agreement was reached. The classified layoffs took effect, as scheduled, on
July 1, 2010. Again, there was no evidence of an immutable need or deadline for
implementing the layoffs on July 1, 2010.
6. 	Local 3 l 12's "PLAN C" Proposal
On July 14, 2010, submitted a document entitled "PLAN C." Like "PLANB," this
document was a comprehensive package covering both the parties' CBA negotiations, 2010
layoffs, and furloughs. Local 3112 proposed accepting 12 furlough days for full-time
employees in 2010-2011, with fewer days for those employees working less than full-time. In
12

exchange, Local 3112 proposed that the District recall all
of
the employees laid
off
from the
Phase II layoffs and "reduce the number
of
custodian [employees from Phase
I]
from 18 to
10."
To help achieve this reduction in employees laid
off
under Phase I, Local 3112
proposed giving the District up to five "credits" for certain types
of
attrition. For example, it
was expected that the two Equipment Operator employees (from the Phase II layoff) recalled
from layoff would vacate two additional Custodian positions.
If
the District filled those two
Custodian positions with laid
off
people, it would receive "credit" for restoring two additional
people to work, without restoring any new Custodianpositions. Similarly,
if
the District filled
vacancies created
by
three Custodian employees known to be retiring around the time
of
negotiations, with laid-offpeople, the District would receive three additional "credits" without
restoring additional Custodian positions.
Schnaufer made it clear in negotiations that Local 3112' s goal was to minimize the
number
of
people left without a job, such that only the last 10people on the District's
custodian seniority list would remain laid off. As stated in Local 3112's proposal, "[t]o go
right to the point, the District commits through this Memorandum
of
Agreement that not more
than ten (I 0) custodians 	no. 1 through 10 [from the District's Custodian employee seniority
list]- will be laid off." It was understood that Local 3l 12's "credits" proposal was attractive to
the District because it allowed Local 3112 to receive acknowledgement for returning laid-off
people to work without the need to restore additional Custodianpositions.
7. 	The July 15, 2010 Board
of
Trustees Meeting
Schnaufer spoke during the public portion of the District Board of Trustees' July 15,
2010 meeting. He spoke about a variety of issues involving the blue collar unit. Relevant to
13

the present dispute is his statement that "[w]e have
11
employees being held hostage so that
AFSCME will accept the furlough plan." Schnaufer later said the "11 employees" referenced
the eight Custodians, two Equipment Operators, and one Auditorium Operations Technician
from the Phase
Il
layoffs. At the end
of
his comments, Schnaufer invited anyone to come and
speak with him for more details, but there was no evidence that anyone did so. Lee-Sung
testified that a District employee, Sylvia Dominguez, said that Adams was at the meeting and
distributed copies
of
Local 3112' s "PLAN C" document to everyone at the meeting. Schnaufer
and Adams deny this. Dominguez did not testify.
F. 	The Parties' Tentative Agreement
On July 29, 2010, the parties met for another negotiation session. After some
discussion about the negotiability
of
the District's proposal to reduce layoffs through furloughs
and about the possibility
of
impasse, the parties separated for a private caucus. When
negotiations resumed, the two sides began discussing "PLAN C" in greater detail. Late that
evening, the parties reached an agreement in principle over a successor CBA, furloughs, and
the 2010 layoffs (Tentative Agreement). Gennane to the instant dispute is that the parties
agreed to
12
furlough days for all full-time unit members, a proportionate number
of
furloughs
for other employees, recalling all the employees laid
off
in Phase Il, and reducing the
Custodian employees laid off in Phase I from
18
to 10. There was also an understanding that
the District would fill newly vacated custodian positions with people from the Custodian layoff
list in seniority order. Those ideas were written on a white board but not finalized at the time.
Both parties characterized it as a "handshake" deal that evening.
14

The parties did not discuss the final format or language of the final agreement at the
time. Nor did the parties discuss how many Custodian positions the District needed to restore
to recall the number of people under the Tentative Agreement.
G. 	The District's Draft Agreement
On August 2, 2010, Lee-Sung provided Local 3112 with a draft of the parties' July 29,
2010 Tentative Agreement, as he understood it (August 2, 2010 Draft). Lee-Sung mentioned
that some of the terms might need to be part of a separate MOU as opposed to part of the CBA.
Lee-Sung included some sample MOUs between the District and other unions, noneof which
involved terms similar to the Tentative Agreement,
Lee-Sung did not specify which parts of the Tentative Agreement he thought should be
included in the MOU. Nor did he mention the possibility that the either thepositions or the
people being recalled from layoff would not be referenced in the final agreement. At the end
of his draft, Lee-Sung included two sections with the headings "Effects of Layoffs" and
"Layoff Reinstatements." He did not explain how those headings would be incorporated into
the final agreement.
The "Effects of Layoffs" section included various agreements for conditions and
benefits for those laid off. The "Layoff Reinstatements" section listed the eight Custodians,
two Equipment Operators, and one Auditorium Operations Technician from the Phase II
layoff. In an apparent reference to Custodian employees from the Phase I layoffs the parties
agreed to recall, the "Layoff Reinstatements" also included the statement that the District
would "[ r ]educe the number of custodians to be laid off from 18 to 10 taking into account
attrition and restored positions." Nothing in the July 29, 2010 Draft Agreement expressly
15

referenced the Phase I layoffs or the agreement to fill future Custodianposition vacancies with
laid-off Custodian employees.
H. 	Schnaufer's August 4, 2010 E-Mail Message
On August 4, 2010, Schnaufer informed Lee-Sung by e-mail that the Local 3112
membership voted to ratify the Tentative Agreement and that "you may consider this our
official word." (Emphasis in original.) Schnaufer also suggested to meet to "make sure any
language problems are resolved" and indicated that he had "a few infonnal suggestions" for
modifying Lee-Sung's draft. During the hearing, Schnaufer admitted that he did not present
Lee-Sung's August 2, 2010 Draft during the ratification vote. He instead used a modified
version of Local 3112's "PLAN C" proposal. A Board of Trustees meeting was scheduled for
August 5, 2010, to, among other things, approve the parties' agreements.
I. 	The August 5, 2010 Board of Trustees Meeting
On the morning of August 5, 2010, Schnaufer presented some changes to the July 29,
2010 Draft Agreement to Lee-Sung. The proposals relevant to the present dispute concern
changes to the "Effects of Layoffs" section. Schnaufer proposed expressly referencing the
Phase I layoffs including the eight Custodian employees being recalled. He also proposed
language changing the description of the "credits" agreement. 7 Schnaufer also added a new
provision referencing the parties' agreement to fill future Custodian vacancies with laid off
Custodian employees.
Like Lee-Sung, Schnaufer did not specify which provisions of the Tentative Agreement
should be part of the CBA, an MOU or some other document. In a telephone conversation that
day, Lee-Sung agreed to all of Schnaufer' s proposed changes without significant discussion.
7 It is undisputed that this change did not alter the substance of the "credits" term from
the Tentative Agreement.
16

Neither side presented the other with final drafts of the written agreement. Neither side
· discussed which aspects.of the Tentative Agreement should be incorporated into the CBA, an
MOU or some other document.
Lee-Sung said that it was a challenge to incorporate all of Schnaufer's changes into the
final agreement documents because the Board of Trustees meeting was scheduled for that
evening. However, he knew that everyone was eager to implement the terms of the Tentative
Agreement, including recalling laid-off employees as soon as possible. That afternoon, Lee-
Sung produced a three-year agreement including the agreed-upon changes to the CBA, a 2010-
2011 Effects of Layoffs MOU (collectively, the August 5, 2010 Draft), and a Board of Trustees
resolution modifying the July 1, 2010 layoff to restore blue collar unit positions (the August 5,
2010 Resolution). The August 5, 2010 Draft included a space for both parties to sign the
documents. The August 5, 2010 Resolution did not. Lee-Sung did not provide any of these
documents directly to Local 3112.
On the evening of August 5, 2010, the District Board of Trustees held both a regular
and a special meeting. The purpose of the special meeting was to approve the August 5, 2010
Draft and the August 5, 2010 Resolution. A copy of each of those documents was available to
the public immediately before the meeting. Schnaufer and Adams reviewed the documents.
They found no significant issues regarding the successor CBA relevant to the present matter.
Regarding the Effects of Layoff MOU, Schnaufer noticed that Lee-Sung adopted his
suggested reference to the Phase I layoff. However, the draft MOU did not reference the Phase
II layoffs as Schnaufer had expected. In fact, nothing in the August 5, 2010 Draft included
anything from the "Layoff Reinstatements" section of Lee-Sung's earlier August 2, 2010 Draft.
17

The August 5, 2010 Resolution modified the July 1, 2010 layoff already in effect. That
document restored 12 Custodian positions, 2 Equipment Operator positions, and 1 Auditorium
Operations Technician position. The document did not reference the number of people
returning to work as a result of the changes. The resolution also did not use the terms "Phase
I" or "Phase II" layoff. The parties never previously discussed the number of Custodian
positions needed in order to recall the agreed-upon 16 Custodian employees. However, the
evidence showed that the August 5, 2010 Resolution was accurate; because of attrition and
bumping, the District only needed to restore 12 Custodian positions to recall 16 Custodian
employees, as per the Tentative Agreement.
Schnaufer concluded that there was a problem with the documents and Local 3112
refused to sign them. The District Board of Trustees approved both the August 5, 2010
Resolution and the August 5, 2010 Draft without Local 3 l 12's approval.
The August 5, 2010 regular Board of Trustees meeting immediately followed the
special meeting. Relevant to the present dispute, the Board of Trustees voted to approve Vice
President Clavel's termination from employment for cause by a vote of three to two. 8
J. 	Local 3112 's Proposed Letter of Understanding
The next day, August 6, 2010, Schnaufer sent Lee-Sung a document entitled "Letter of
Understanding." The document stated that the parties agree that the Board of Trustees' actions
from the day before caused all of the Phase II layoffs to be rescinded. The document included
space for both Local 3112 and the District to sign. Lee-Sung said he heard from then-Interim
Superintendent Dr. Sandra Barry that Schnaufer delivered a copy of the Letter of
Understanding to her as well. Schnaufer denies this and Barry did not testify.
8 The circumstances regarding Clavel's ter~ination will be discussed in more detail
below.
18

Lee-Sung met with Schnaufer and Adams to discuss the Letter
of
Understanding on or
around August 8, 2010. Lee-Sung said that referencing the Phase II layoffs was unnecessary
because he thought it was already clear that the Custodians were being reinstated because
of
the furlough agreement. He reiterated that position at the PERB hearing. Lee-Sung further
stated that the District was already in the process
of
returning displaced employees back to
work. Lee-Sung said he was wary
of
engaging in further negotiations with Local 3112 without
authorization from the Board
of
Trustees. Schnaufer disagreed and felt that reference to the
layoffs being undone was important.
Schnaufer also raised new issues not previously discussed during subsequent meetings
with Lee-Sung. First, he raised concerns over the enforceability
of
the Effects
of
Layoff
MOU. At the PERB hearing, Schnaufer said that, in prior negotiations, he had crafted
language about enforcing MOUs through the grievance process. He did not explain why
something similar was not proposed earlier in bargaining in this dispute. Second, Schnaufer
expressed concerns about the accuracy
of
the D1strict's Custodian employee seniority list,
which had been the basis for multiple proposals from the parties. Ultimately, the District never
signed the Letter
of
Understanding and Local 3112 never signed any documents from the
August 5, 2010 Draft.
K. 	The Recall
of
Employees From Layoff
Starting August 9, 2010, the District reinstated 16 Custodian employees, 2 Equipment
Operator employees and I Auditorium Operations Technician employee. This was consistent
with what the parties had agreed to on July 29, 2010. Ten
of
the original 26 Custodian
employees remained laid-off. On August 10, 2010, the District reinstated a 17th Custodian
employee because of a vacancy created by a retirement.
19

Local 1112 asserted that
if
the District intended to implement the Tentative Agreement,
it should have recalled additional employees from layoff. Schnaufer and Lee-Sung both
testified that Custodian Miguel Soto filled Clavel's vacated position after August 5, 2010.
Schnaufer said he thought the District left Soto's vacated Custodian position empty, but he
never confirmed this fact. Schnaufer also said he thought another unit member, Roger
Castaneda, vacated another Custodian position, not filled by the District. Based on this record,
there was insufficient evidence about whether there were additional Custodian position
vacancies created after August
5,
2010.
The District also implemented the furlough days for the blue collar unit starting in
September 2010. The implemented furloughs were consistent with the Tentative Agreement.
L. 	The District's Refusal to Meet With Clavel After August 5, 2010
The parties engaged in further discussions about resolving their dispute. At some point,
Schnaufer suggested that the parties reconvene their full bargaining teams. Lee-Sung refused
to meet with Local 3 112
's
team
if
Clavel was present. He said that he was concerned because
multiple employees filed complaints against Clavel and would likely testify against him. Lee-
Sung also questioned the need for the bargaining teams to meet because he felt the parties
already reached agreement. Schnaufer offered to meet at Local 3 l 12's offices, but that
suggestion was unacceptable.
M. 	The Parties' September 2010 Conduct
The District's imposed furloughs took effect starting September 2010. Local 3112
began circulating communications that the District was violating the terms of the Tentative
Agreement because it restored 12, not 16 Custodian positions.
20

On September 3, 2010, Lee-Sung sent Schnaufer an e-mail message stating his
concerns about Local 3 l 12's misrepresenting the Tentative Agreement to its members. He
also said that the District believed that there was a valid agreement and that further
negotiations over the issues from the Tentative Agreement were not appropriate.
II. 	Factual Findings Related to Local 3112's Retaliation Claim
The following is a statement
of
relevant facts relating to Local 3112
's
retaliation
claims.
A. 	The Parties' CBA
As explained in Section I(B)
of
these factual findings, Local 3112 and the District are
parties to a CBA that was in effect at all times relevant to this dispute. The CBA contains a
grievance procedure for the resolution
of
contract violations. The final step
of
the grievance
procedure is binding arbitration. The CBA
does_
not contain another procedure for reporting
unit members' complaints about their supervisors.
B. 	The District's Disciplinary Process
The District's disciplinary process is governed primarily by Board
of
Trustees Policy
(Board Policy) 6417 .02. That policy emphasizes the concept
of
progressive discipline for most
types
of
misconduct, meaning the District imposes discipline in increasing severity for
continuous violations. It also denotes that greater discipline may be imposed for more serious
misconduct. The policy also stresses the corrective nature
of
most discipline, stating that
employees should be given the opportunity to modify their behavior after discipline.
One important exception to the District's progressive discipline policy is for "major
offenses." According to Board Policy 6417.02 "[c]orrective or progressive discipline is
21

generally not utilized for so-called major offenses such as theft, gross insubordination, assault
or sabotage." Rather, "the penalty for major offenses is discharge."
Board Policy 6417.02 also categorizes different types of misconduct into three levels
based on severity. Offenses such as inattention to duty, insubordination, discourteous
treatment of others, and disregarding safety procedures are considered First Level offenses,
which generally require multiple counselings and/or written warnings prior to more severe
discipline such as demotion, suspension, or dismissal. Second Level offenses include, as
relevant to this case, threatening, intimidating, coercive, or interfering conduct towards
coworkers. As with First Level offenses, discipline is generally progressive, requiring
warnings before proceeding to more serious discipline. However, employees are subject to
demotion, a significant suspension, or discharge, upon a third Second Level offense.
Third Level offenses include, as relevant to this dispute, dishonesty, theft, falsifying
personnel records, and intentional destruction of District property. No warnings are necessary
before the employee is subject to suspension, demotion, or dismissal.
Board Policy 6417.02 also refers to a one-year "reckoning period" for First and Second
Level offenses, but does not define that term. Only limited evidence was presented about the
reckoning period. Local 3112 President Adams testified at Clavel's Dismissal Hearing that the
reckoning period means "after one year, that issue will be gone." He did not elaborate further.
Lee-Sung testified at the PERB hearing that the term means that an employee may request that
discipline be removed from his or her personnel file if there are no similar offenses of the same
type after one year. Removal of the disciplinary records remains at the District's discretion.
Lee-Sung's testimony is credited over Adams's in this instance because he provided greater
detail and his explanation appears to be more consistent with the progressive and corrective
22

nature of the District's discipline process as a whole. It is undisputed that there is no
reckoning period for Third Level offenses. For those offenses, according to Adams, "you can
go right to whatever [discipline] you want as far as administration is concerned."
C. 	Clavel's Initial Employment With the District
Clavel began working for the District as a substitute Custodian in or around 1989.
According to District personnel records, in 1995, Clavel received a probationary performance
evaluation rating him as "Not Satisfactory," the lowest possible rating.9 The evaluation rated
Clavel as "Needs Improvement" in 11 of 22 rating categories. His supervisor at the time, Head
Custodian Ceferino Gonzalez, did n_ot testify at either the PERB hearing or at Clavel's
Dismissal Hearing. According to personnel records, Clavel submitted a rebuttal to this
evaluation where he admitted to allowing a student to operate a District golf cart. He
acknowledged that doing so was improper and unsafe. Clavel received a subsequent
perfonnance evaluation that year with an overall rating of "Effective-Meets Standards."
Clavel was hired into a permanent Custodian position in or around 1996.
D. 	Clavel's Head Custodian Assignment
In or around 1997, Clavel was promoted to Head Custodian at Cypress High School.
At this point, he was considered supervisory and not part of the blue collar unit. He later
transferred to Walker Junior High School, in the same position. According to personnel
records, Clavel received a performance evaluation that year rating him as "Exceeds
Expectations" by his supervisor.
9 The District's performance evaluation rating system includes the following ratings
from the best to worst score: (1) Exceeds Standards; (2) Effective- Meets Standards; (3)
Requires Improvement; and (4) Not Satisfactory. Employees are rated on 22 individual
categories as well as a "Summary Evaluation" rating, with the same four possible scores.
23

Subsequent to this evaluation, however, Principal Ken Fox issued Clavel four
counseling memoranda for removing District property (lumber) without permission, failing to
report the incarceration of an employee Clavel supervised, disregarding a directive not to take
a particular day off from work, and bringing a female non-District employee onto campus for
sexual activity.
Fox's counseling documents became the basis for District charges against Clavel to
demote him from Head Custodian. After a hearing before the District's Personnel Commission
in June 2000, the District upheld its decision to demote Clavel back to Custodian.
E. 	Clavel's Assignment to Oxford Academy
After the demotion back to Custodian, the District assigned Clavel to the night crew at
Oxford Academy. His supervisor there was Head Custodian Jose Vazquez. Clavel admitted
during the PERB hearing that he had frequent conflicts with Vazquez, stating "[t]here was an
ongoing situation with the head custodian, Jose Vazquez." Vazquez claimed that in 2002
Clavel had threatened him, grabbed him by the neck, and called him derogatory names.
According to personnel records, Assistant Principal George Triplett observed Clavel grabbing
Vazquez. However, Triplett did not testify at either the PERB hearing or Clavel's Dismissal
Hearing. Vazquez testified at Clavel's Dismissal Hearing.
Vazquez also claimed that Clavel refused to perform certain job duties consistent with
his job description unless he received overtime. Vazquez also complained that Clavel called
him derogatory names like "pepito."10 Vazquez also claimed that Clavel challenged him to a
fight, stating "let's go across t1'e street," after an argument over a work assignment. Vazquez
10 Clavel admitted calling Vazquez "pepito" during his testimony at his Dismissal
Hearing, but denied using that name during his testimony at the PERB hearing.
24

testified consistently about these events at Clavel' s Dismissal Hearing. Vazquez rated Clavel
as "Requires Improvement" in his 2002 performance evaluation.
Another Oxford Academy employee, baseball coach Dana Bedard, also complained
about threatening statements from Clavel. Bedard did not testify at either the PERB hearing or
Clavel's Dismissal Hearing. The claims by Vazquez and Bedard became the basis for a written
reprimand, dated November 19, 2002.
After receiving other complaints from Vazquez about Clavel, the District issued Clavel
a one-day suspension on or around June 5, 2003. That suspension was upheld at a hearing
before the Personnel Commission on or around September 9, 2003. Clavel said that he never
served the one-day suspension, but his explanation was based entirely on uncorroborated
hearsay.
In his two subsequent evaluations between.2003 and 2004, Vazquez rated Clavel as
"Effective-Meets Standards." Vazquez commented about Clavel's need to
co11;1plete
job duties
and avoid conflicts with others, but he also noted that Clavel had made effort to improve his
relationship with Vazquez. Clavel's 2005 evaluation was administered by Vice Principal
Triplett. He was again rated as "Effective-Meets Standards." Among the comments made in
the evaluation were that "Danny is always searching for ways to improve. I have seen a
significant tum around." The employee's signature line was signed with the name "George
Washington." It is unclear at what point the District became aware
of
this discrepancy on the
evaluation.
II
11
There were some notations from District Human Resources personnel about the
signature line on the 2005 evaluation, but those notes are uncorroborated hearsay.
25

F. 	Clavel's Promotion and Transfer to Savanna High School
In 2005, the District promoted Clavel to Athletic Facility Worker II (AFW II), a
position he held until his termination. The AFW II position is responsible for cleaning and
maintaining athletic facilities including locker rooms, gyms, fields, and stadiums. The District
has a practice of assigning three AFW IIs to most of its high schools. One male AFW II works
primarily in the boys' locker room. One female AFW II works in the girls' locker room. A
third AFW II, the "fieldman," tends primarily to the school's athletic fields. AFW IIs must
sometimes work collaboratively on projects such as repairing sprinklers and preparing fields
for student sport events. In addition, the male and female AFW Ils sometimes cross paths
when working on areas that adjoin the two locker rooms such as the gym or the weight room.
Clavel's first assignment as AFW II was at Savanna High School. According to
personnel records, Clavel received multiple letters of reprimand from Savanna High School
Principal Marsha Wagner, who did not testify at either the PERB hearing or Clavel's Dismissal
Hearing. For instance, Clavel received a September 5, 2005 letter for making "loud and
demeaning comments" about student athletes at another District high school as well as
inappropriate statements about that school's staff. He also received a September 29, 2005
letter for an argument with fellow AFW II, Steve Oatman, two letters on December 14, 2005
for failing to report an absence and unauthorized use of leave time, and a February 7, 2007
letter for a "verbal confrontation" with Oatman that almost escalated into physical violence.
Oatman and Clavel briefly pursued legal action against each other but, apparently, nothing
became of either person's efforts. As a result of their frequent clashes, Clavel and Oatman
were each placed on administrative leave at alternating times for around two months total.
26

G. 	Clavel's Position With Local 3112
Starting in 2006, Clavel was elected as Vice President
of
Local 3112. He was also
appointed Chief Steward. Clavel 's responsibilities in those roles included serving
on
Local
3112' s negotiating team, standing in when Local 3112 President Adams was unavailable, filing
and pursuing grievances, and representing unit members in other capacities. Clavel maintained
these positions until his dismissal was upheld by the Personnel Commission.
H. 	Clavel's Transfer to Western High School
In or around June 2007, Clavel was transferred to Western High School. He was
assigned to work primarily in the boys' locker room. AFW II Debbie Camara worked in the
girls' locker room and AFW II Daniel Cassella was the fieldman.
During the first week
of
August 2007, Clavel was scheduled to take leave to attend an
international AFSCME conference. However, AFW Us typically used that week to conduct a
"deep cleaning"
of
athletic facilities including resurfacing gym floors because those facilities
were usually in use other times during the year. This was acknowledged to be a difficult
assignment and, according to Cassella, there was an ''unwritten rule" that AFW Ils should not
take time off that week. Clavel, who had no authority to reschedule the conference, attended.
A Custodian took his place on the deep cleaning assignment that year.
I. 	Unit Member's Complaint About Vazguez
At some point later in 2007, Oxford Academy Custodian Frank Ureno approached
Local 3112 about complaints against Vazquez, still the Head Custodian. Local 3112 filed a
complaint with the District on Ureno's behalf. Then-Assistant Superintendent
of
Human
Resources Denise Selbe began an investigation, including interviews
of
District staff. The
District and Local 3112 agreed that Clavel should not be directly involved in the investigation
27

because of Clavel's prior history of strife with Vazquez. Accordingly, Adams accompanied
Selbe on interviews of any blue collar unit members.
Clavel reported that during his time at Oxford Academy he observed Vazquez urinating
publicly and making sexual comments. Ureno said that Vazquez harassed him by frequently
questioning him about his sex life with his girlfriend. Another Oxford Academy Custodian,
Jose Cardenas, said in his interview that he observed Vazquez in a sexual act, alone in a
classroom one evening. Vazquez denied all these claims and said that Ureno volunteered
information about his private life without being asked. Clavel and Cardenas repeated their
claims during testimony at Clavel's Dismissal Hearing. Vazquez repeated his denials during
his own testimony. Ureno did not testify.
Selbe retired from her position before completing the investigation. She was replaced
in 2008 by Russell Lee-Sung. After reviewing Selbe's investigation materials, Lee-Sung
concluded that there was insufficient evidence to accuse Vazquez of wrongdoing. In or around
February 2009, Lee-Sung issued both Ureno and Vazquez directives about appropriate conduct
in the workplace. By that time, Ureno had transferred to a different school site.
J. 	Clavel's July 1, 2008 E-Mail Message
Prior to the resolution of the Ureno/Vazquez investigation, on or around July 1, 2008,
Clavel sent an e-mail message to a television news organization describing Vazquez's conduct
at Oxford Academy. Clavel repeated Ureno's complaints as well as Castaneda's account of
Vazquez's inappropriate conduct. Clavel questioned in his e-mail why the District was not
taking greater action in response to the complaints against Vazquez. Clavel also referred to
Vazquez as a "sexual predator" and suggested that he might be sexually harassing students.
28

Clavel sent the e-mail message using his District e-mail account. It is unclear when the
District discovered this e-mail message.
K. 	The Western High Overtime Schedule
AFW II Cassella took a medical leave
of
absence from October 2008 to May 2009.
During that time, Custodian Bob Aguilera replaced him in a temporary out-of-class
assignment. Although Aguilera was available to perform most
of
the fieldman duties, he could
not work overtime during basketball season because he worked as a coach at another school
site. 12
The CBA includes a provision for rotating overtime shifts among AFW IIs.
If
an AFW
II declines
an
overtime assignment, that person is skipped until the next time his or her name
comes up in the rotation.
After the 2009 basketball season ended, W estem High Athletic Director, Annette
Quintana,
13
assigned Aguilera an inordinate amount
of
overtime to "catch him up" on missed
opportunities. Clavel complained to Principal
Paul
Sevillano that Quintana's overtime
assignment calendar did not comply with the CBA. He also filed a grievance. Eventually, the
assignment calendar was corrected to comply with the CBA.
L. 	The District's AFW II Layoff Plans
In 2009, the District began the process
of
laying off some AFW Ils. Typically, layoffs
in the blue-collar unit were in reverse-seniority order, meaning the most senior employees in a
position were the most likely to be insulated from layoff. However, some AFWs were
concerned that a seniority-based layoff could jeopardize the District's practice
of
placing a
12Aguilera received a stipend for his coaching duties.
13
The Athletic Director is a certificated position at the District. The position teaches ,
Physical Education
(P
.E.) and coordinates athletic events at the school site. It is not
technically supervisory or management, but the position has the authority to assign work to the
AFW II position. Evaluations are performed by the site Principal or Assistant Principal.
29

female AFW II in the girls' locker rooms because some females had low seniority. Local
. 3112' s negotiating team supported using seniority as the only means to determine the layoff.
The female AFWs demanded a seat on Local 3112's negotiating team. Local 3112 complied,
but some female AFW Ils were not satisfied with the selected representative. That person did
not attend meetings or actually participate in negotiations.
A group of female AFW Ils, including one named Carolyn Castro, went to the District
Personnel Commission to explain their position. Castro made some unflattering comments
about the female bargaining team member at the meeting, which Local 3112 recorded. Clavel
played the recording of Castro's comments to Cassella and "anyone who asked." Eventually,
the layoff issue became moot because the District reduced the number of positions slated for
layoff to the point where no female AFW IIs would be laid off, even when based on seniority.
M. 	Examples of Conflict Between Clavel and Other Western High Staff14
There was tension between Clavel and other Western High athletics staff almost from
the very beginning. From Clavel's perspective, Aguilera, Camara, Cassella, and Quintana
resented him because of his efforts to enforce the CBA, the positions Local 3112 took in
negotiations, and because he was sometimes away from campus on union business.
Those four employees, in turn, felt that Clavel harassed them, had poor attendance; did
not follow rnles, misused equipment, and generally did not work as hard as others. Quintana in
particular had difficulties with Clavel, in part because of his complaints regarding her overtime
schedule. Quintana's resentment was apparent during a time when she saw him at a local
restaurant after work hours. Quintana made an obscene gesture towards Clavel and, according
14 Some of the issues in this section were discussed out of chronological order for ease
of understanding the record as a whole.
30

to Clavel, also swore at him. While at work, Quintana refused to speak directly to Clavel,
preferring instead to communicate through Western High administrators.
1.
	Clavel's Work Relationship With Other AFW Ils
Aguilera, Camara, and Quintana all testified at Clavel's Dismissal Hearing that it was
frustrating working with Clavel because he communicated poorly with them and was regularly
not at his primary assigned worksite, the boys' locker room. Principal Sevillano and Vice
Principal Bob Juaregui both testified that they felt the athletics department had poor
communication and did not work well together or coordinate ever since Clavel's transfer to
Western High. They met regularly with the athletics staff about improving communication and
completing assignments.
Local 3112 accuses Aguilera, Camara, Quintana, Sevillano, and Ju~regui
of
bias and
anti-union animus, but their testimony was supported by the substantial evidence in the record,
including witnesses that Local 3112 did not accuse
of
bias. For example, Night Custodian
Supervisor Roman Mejia testified at Clavel's Dismissal Hearing that Clavel was supposed to
clean the boys' locker room during the day, but that he frequently found that work was not
done. This created more work for his night crew. Mejia demonstrated no discernible bias
against either Clavel or Local 3112 during testimony, nor did he appear predisposed to favor
the witnesses testifying adverse to Clavel. He supervised Aguilera and described him as just
"an okay worker" saying that Aguilera could be more effective in his own work as well.
Likewise, Vice Principal Ken Nease, who also was not accused
of
bias against Local 3112,
testified that he directed Clavel to spend more time working in the boy's locker room. He also
said he regularly found that the boys' locker was not properly cleaned or secured.
31

2. 	Accusations About Clavel's Handling
of
Equipment
Clavel was also accused
of
damaging, misusing, or stealing District equipment.
a.
	The Floor Cleaning Machine
Camara testified Western High has an industrial strength floor cleaning machine for
cleaning the gym floor. She said Clavel used the machine in areas it was not designed for
resulting in damage. She also said that Clavel failed to clean the water from the machine after
using it, causing further damage. In another instance, the batteries on the floor machine were
damaged while Clave! used it, rendering it useless.
Clave! admitted being instructed not to use the floor machine for other surfaces besides
the gym floor but said he sought and received permission to do so from Principal Sevillano.
Clavel did not deny damaging or failing to clean the floor machine. He also did not deny the
incident with the batteries.
b. 	The Western High Golf Cart
Cassella accused Clavel
of
improperly using a golf cart as a mode
of
transportation to
pick up supplies and mail. Cassella said that the cart was old and was to be used only for
doing work on athletic fields. During his Dismissal Hearing, Clavel said that the cart couldbe
used for transportation and picking up equipment. However, during the PERB hearing, he
admits that he was instructed by Camara, Cassella, and Quintana to only use the cart on
athletic fields, not around campus. In a related allegation, Aguilera claimed that Clavel.
allowed a student to drive the cart, something that was unsafe and not allowed. When Aguilera
confronted Clavel about the incident, he laughed. Clavel denied ever leaving the cart
unattended but did not specifically deny allowing a student to use the cart. Clavel had
previously admitted to improperly allowing a student to operate a District golf cart.
32

d.
	The Loaner Clothes Issue
Quintana also complained that Clavel failed to follow existing procedures regarding
distributing loaner clothes to students. P.E. students must wear special clothes for class and
cannot participate in class without the proper attire. District school sites hand out loaner
clothes for students who forget or do not own P .E. clothes. Clavel was responsible for passing
out loaner clothes in the boys' locker room. To ensure that the loaned clothes are returned,
Quintana directed Clavel to take a student identification card, book, or other item from the
student until the clothes are returned.
Clavel testified during his Dismissal Hearing that
he
frequently ran out
of
loaner
clothes because either the clothes became tattered and useless over time or because P .E.
teachers handed out the clothes without following the proper procedure. As a result,
he
needed
additional loaner clothes multiple times during the school year.
Quintana complained that Clavel was not following the proper procedures for handing
out loaner clothes. However, she never testified as to actually knowing whether or not Clavel
followed her instructions. Instead, she said she assumed he did not follow the procedure
because he regularly needed additional clothes. The District did not present any evidence
disputing Clavel's account about why he needed additional loaner clothes.
e. 	Other Eguipment
Employees also accused Clavel
of
damaging the athletic department's chainsaw and air
compressor, borrowing a lawn mower for an extended period
of
time, using the Western High
trailer to tow a personal vehicle, and stealing a microwave oven. The record shows that those
items were damaged or missing, but the record is inconclusive as to Clavel's involvement.
33

3. 	Clavel' s Attendance Issues
There were also multiple instances where Clavel did not follow the protocol for
reporting his absences, causing difficulty locating him. Western High employees attend
mandatory training sessions about attendance policy at least twice per year. District records
show that Clavel attended a training on attendance policies in 2007 and that he was absent
without explanation from multiple other subsequent trainings.
a. 	The Sign-Out Sheet
Western High maintains a sign-in/out sheet for reporting absences of less than one full
day. The sign-out sheet is located in the Western High office, by the desk of Senior
Administrative Analyst Linda Maher. School policy dictates that employees sign out and in
for every partial day absence so employee time can be recorded properly. It is not clear
whether this was a District-wide policy. Some evidence was presented that union
representatives not assigned to a single school site, such as electricians, follow different
procedures.
During his Dismissal Hearing, Clavel admitted to not following the Western High sign-
out procedure "many times." He said it was sometimes difficult to sign out before leaving
because he was not close to the office. He also said that he could not sign out because Maher
was not at her desk. However, during his testimony at his Dismissal Hearing, he admitted to
signing out at least one time even though Maher was not present. He also said that signing out
or in was sometimes difficult because, once off campus, he had multiple stops to make before
returning. It is not clear how the need to make multiple stops off campus affected his ability to
sign out/in.
34

In or around May 2008, Principal Sevillano issued Clavel a performance evaluation
including comments about Clavel's failure to follow sign-out procedures and his failure to
adequately infonn others about his absence. Around the same time, Sevillano issued other
memoranda and communications counseling Clavel about sign-out procedures. Clavel filed a
grievance alleging that both the evaluation and the counseling documents were issued to him
because of his Local 3112 activities. In October 2008, Local 3112 and the District settled that
grievance by agreeing to excise both the 2008 evaluation and the counseling documents from
its files. Nothing in the tenns of the settlement agreement exempted Clavel from following the
sign-out procedure in the future and Clavel continued to leave campus without signing out
after the settlement.
b. 	The March 14, 2008 Absence Form
On March 3, 2008, Clavel was scheduled to testify in Arizona pursuant to a subpoena in
a legal matter involving his cousin. During that proceeding, Clavel made what he described as
"an outburst" in court and he was taken into custody by order of the presiding judge. He
subsequently pled guilty to interfering with a judicial proceeding, which is a misdemeanor
under Arizona law. He was sentenced to serve 11 days in jail, March 3 through March 14,
2008. During his incarceration, Clavel contacted Local 3112 President Adams and told him to
report what had happened to the District. Adams reported the matter to then-Assistant
Superintendent of Human Resources Selbe.
Clavel returned on March 14, 2008. He said he went to the District office and Selbe
suggested that he take the remainder of that day off. He said he did not go to Western High
that day. Clavel later submitted absence report forms regarding how his absence should be
recorded for payroll purposes. He requested that March 4, 5, 12-14, and 17, 2008 be counted
35

as vacation days. That request was dated March 18, 2008. He also submitted a second request,
dated March 14, 2008, asking that the three work days between March 6 and 10, 2008, be
counted as union leave. The result
of
this request would have been that Clavel be paid for
those days without it being charged against any
of
his own personal leave balances.
It
is
undisputed that Clavel was not performing union business while in jail.
Clavel testified during his Dismissal Hearing that Maher filled out those forms and he
signed them without reviewing them.
It
is undisputed that Maher sometimes filled out absence
forms for employees to sign so she can reconcile attendance records for payroll purposes.
Maher contradicted Clavel's testimony about the March 2008 forms stating that she had been
instructed
by
the District to report Clavel's absence during that time as vacation days, but .
Clavel wanted certain days reported as union business. Clavel did not repeat his claim that
Maher filled out the March 14, 2008 absence report form during his testimony at the PERB
hearing. Instead, Clavel was unable to explain why he would sign a form claiming union leave
on those days.
Clavel's testimony that he did not fill out the March 14, 2008 absence report form is not
credited. Multiple factors support this conclusion. First, the handwriting on the March 14,
2008 form differs from other examples Maher's handwriting in the record. In multiple places,
including other absence slips completed by Maher and training session sign-in sheets she said
she wrote on, Maher had a distinct way
of
printing the lowercase form of the letter "a" with an
arc overhead as it appears in between the quotation marks in this sentence.
15
In contrast, on
the March 14, 2008 absence report form, the writer depicted the letter
"a"
as it appears in the
15
Examples ofMaher's use of the printed lowercase "a" are, among other places, at
Joint Exhibit III (Exhibits
51
(Maher's written notes) and 56 (Maher's comments on a training
sign-in sheet)) and Joint Exhibit IV (Exhibits 37 and 38 (other absence report forms)).
36

quoted portion
of
this sentence, with no arc overhead.
16
The handwriting in that absence form
more closely resembles samples
of
Clavel' s writing in the record, such as grievance forms he
admitted to filling out and job application materials in his personnel file.
17
Second, Clavel said he went to the District office on March 14, 2008, not the Western
High campus. Thus, Maher could not have given him a form on March 14, 2008. Third, it is
suspicious that Clavel mentioned Maher's role
in
filling out the absence form during his
Dismissal Hearing and not the PERB hearing. This also casts doubt on his testimony. Fourth,
Clavel's account
of
what happened is inherently implausible. During the Dismissal Hearing,
Clave! said that no one at Western High knew
of
his incarceration until a later date.
If
Clavel
believed that Maher was unaware
of
his whereabouts, it is unlikely that he would assume that
the absence form she completed for him was accurate. It is furthermore unreasonable to
believe that he would sign the form she provided to him without reviewing it beforehand.
Based on the foregoing, Clavel's claims about the March 14, 2008 absence form are not
credited. The more likely scenario is that Clavel believed that he could misreport his time
undetected and retain three days
of
vacation time. Thus, it is concluded that by submitting the
March 14, 2008 absence form, Clavel intentionally and falsely reported three
of
the days that
he was incarcerated as union leave. Because absence report fonns are payroll documents and
neither Maher nor the payroll department are involved in employee discipline, it is unclear
when Assistant Superintendents
of
Human Resources Selbe or Lee-Sung were made aware
of
the false absence report form.
16
The March 14, 2008 absence report form is located, among other places,
at
District
Exhibit 140. All uses
of
the letter
"a"
on the fom1 are lowercase and printed.
17 Examples
of
Clavel's writing are, among other places, at Joint Exhibit II (his
personnel file), Joint Exhibit IV (Exhibit 79 (a grievance)), and AFSCME Exhibit GGG (a
grievance).
37

C.
	The Comp Time Policy
Vacation and "comp time" requests should be made at least five days in advance. 18
Clavel admitted to not following these procedures.
4.
	Clavel's Alleged Harassment
of
Others
Aguilera, Camara, Cassella, and Quintana also felt that Clavel harassed them at work.
Camara testified during Clavel' s Dismissal Hearing that Clavel sometimes snuck up
on
her and
frightened her in the gym or weight room. Clavel admitted that sometimes Camara did not see
him and appeared startled but he denied scaring her on purpose. Camara also said that Clavel
sometimes sat and watched her and Aguilera working on a field, smiling at them but not
offering assistance. Aguilera had a similar complaint, testifying during Clavel's Dismissal
Hearing that Clavel sometimes watched them working while laughing at them.
Both Camara and Aguilera also said Clavel took the Western High athletic department
truck while they were using it, causing delays to their work. Around the same time, they said
they saw the sprinkler system over-watering the baseball field to the point that it was unusable.
This delayed their work on the field and a scheduled baseball game had to be delayed as well.
They also observed Clavel near the sprinkler controls. Only Clavel and the fieldman, Aguilera
at the time, had access to the sprinkler controls.
Clavel disputes these claims, and Local 3112 asserts that they were misrepresenting the
truth. It is true that both Aguilera and Camara had a motive to lie about Clavel. It was
Clavel's grievances and complaints that caused Aguilera to lose overtime opportunities after he
returned from his coaching duties. And Camara is related to Savanna AFW II Oatman, with
whom Clavel had a poor working relationship. Those facts notwithstanding, their testimony is
18 "Comp time" refers to compensated time off earned in lieu of overtime.
38

credited over Clavel's here. Clavel also has a significant motive to testify falsely and he gave
contradictory, false, or unbelievable testimony multiple times in the record. Examples
of
his
testimony include admitting to and then denying calling Vazquez "pepito," contradicting
himself about whether he was permitted to use the Western High golf cart as a mode
of
transportation around campus, giving inherently unbelievable reasons for not following the
Western High sign-out procedure, and testifying falsely about the March 14, 2008 absence
report form. These and other inconsistencies in his testimony weigh against his credibility.
Furthermore, another witness at Clavel's Dismissal Hearing, baseball coach Lonnie
Smith testified similarly to Aguilera and Camara. He said Clavel mistreated the baseball field
multiple times, including cutting the grass right after they seeded the lawn, driving a truck over
the grass, and using weed killer on the infield grass. Clavel was previously instructed not to do
these things because it damaged the field. Smith said that Cassella also used to drive a truck
onto the field but discontinued that practice after being instructed to stop. For these reasons, it
is concluded that Clavel intentionally harassed Aguilera and Camara and damaged the baseball
field on purpose.
During Clavel' s dismissal hearing, Quintana said she saw Clavel sitting around and
watching her class exercising. Clavel admits doing so, but said that she requested that he come
to provide loaner clothes to two
of
her students and he was waiting to speak with her about that
matter. Once again, Clavel's testimony is not credited here. Quintana's account was
consistent with Clavel's behavior with Aguilera and Camara. In addition, it is undisputed that
around the time
of
this incident Quintana refused to communicate directly with Clavel,
preferring to give direction through Principal Sevillano or another administrator. It is unlikely
that she would contact Clavel directly about the loaner clothes matter. Therefore, it is
39

concluded that Clavel's actions were deliberate and that he intended to harass Quintana or
make her feel uncomfortable.
N. 	Clavel's May 2009 Performance Evaluation
In May 2009, Principal Sevillano issued Clavel a performance evaluation with an
overall rating of "Needs Improvement." He was rated as "Not Satisfactory" in contact with
other employees and coordinating his work. He was also rated as "Requires Improvement" in
accepting direction and responsibility.
At the same time, Sevillano rated Clavel as "Effective-Meets Standards" in areas
including attendance, compliance with rules, quality of work, and care for equipment. Vice
Principal Juaregui, who assisted Sevillano with the evaluation, said he made sure to be "extra
fair" with Clavel because of his role in Local 3112 and the grievance over his 2008 evaluation.
0. 	Clavel's Request for a Harassment Investigation
In or around June 2009, Clavel complained to Lee-Sung that he was being harassed by
Athletic Director Quintana and Assistant Principal Juaregui. Lee-Sung said that he decided to
hire a private investigator because Clavel's complaints were serious and involved a Western
High administrator. He hired Robert Price from ESI International, Inc. (ESI), to conduct the
investigation. 19 Lee-Sung did not give Price specific instructions about how to conduct the
investigation.
Price interviewed staff, including Clavel, and reviewed documents as part of his
investigation. He then inquired whether the interviewees had any suggestions for further
interviews or documents to review. He did not interview two teachers, identified by Clavel as
19 Neither party addressed whether the "ESI" name were initials for some other name.
40

having pertinent information, because they were, apparently, unreachable during the Summer
months. Price did not testify at either the PERB hearing or Clavel's Dismissal Hearing.
Price produced a written report
of
his findings to the District on July 17, 2009. He
concluded that the vast majority
of
Clavel's complaints were unsubstantiated and that, to the
contrary, Clavel was
a:
significant contributing factor to the discord at Western High because
of
his own harassing behavior, his failure to follow procedures, and his failure to coordinate his
schedule with others. Neither Clavel nor Local 3112 were issued a copy
of
the report at the
time it was produced.
P. 	Incidents in August 2009
Early August is when District high schools distribute football equipment and uniforms
for their student football players. This is known colloquially as ''hell week" among athletics
staff because it is typically a busy time
of
year. Cassella testified that in August 2009, Clavel
was assigned to assist students during "hell week," but was not there. Maher testified
consistently with this, stating that she attempted unsuccessfully to locate Clavel. She
contacted other athletics staff and Western High administrators but no one could verify
Clavel's whereabouts. Maher testified this was not the first time she had difficulty finding
Clavel, describing other's requests to locate him as an "almost daily" occurrence. Clavel never
denied failing to perform assigned duties during "hell week," but said no one told him that they
were unable to find him during that time period.
Sometime in Fall 2009, Western High baseball coach Smith reported a box
of
missing
baseballs bearing a distinctive logo from a major league baseball team. He testified during
Clavel's Dismissal Hearing that only he, Clavel, Aguilera, and Cassella had access to the balls.
He said that Cassella was on leave at the time and that he did not think Aguilera would take
41

them. Smith also said he saw similar distinctive looking baseballs in use during a game
involving a little league Clavel volunteered with. Clavel denied taking the balls and said that
his little league received similar baseballs as a donation. The record remains inconclusive as to
whether Clavel took the baseballs. Smith never explained why he thought Aguilera would not
take the baseballs and his testimony about Cassella being on leave is inaccurate. Cassella said
he returned from leave in May 2009, before Smith said the balls went missing.
Q. 	Employees' Requests for a Harassment Investigation About Clavel' s Conduct
In September 2009, Aguilera, Camara, and Quintana all filed harassment complaints
with the District against Clavel. Aguilera and Camara submitted complaints on the same day,
September 10, 2009. Quintana submitted her own complaint the next day, September 11,
2008. Camara said she knew about Quintana's intent to file a complaint but all three denied
any coordinated effort. Lee-Sung decided to use the same private investigation firm, ESI,
because Price had some familiarity with the situation. However, Lee-Sung also admitted
knowing that Price already believed that Clavel was the source of some of the conflict at
W estem High.
R. 	Clavel's Placement on Administrative Leave
Based on the nature of the complaints against Clavel and his prior history of discipline
and conflict with others, Lee-Sung decided to place Clavel on paid administrative leave during
the latest investigation. Lee-Sung met with Clavel on October 12, 2009 to inform him of the
administrative leave. A Local 3112 representative was also there. Lee-Sung gave Clavel what
he described as "standard" instructions when placing an employee on administrative leave.
This included the directive to not speak with District personnel or access District property.
Lee-Sung modified these directives in two ways: (1) he allowed Clavel to access the District
42

school sites where his children attended; and (2) his directive not to speak with other staff did
not apply to union-related matters.
S.
	Clavel's Connecting His Computer to the District Network
Shortly before beginning his administrative leave, Clavel admitted to connecting his
personal computer to the District's network at Western High without permission. Clavel said
that his District-issued computer malfunctioned and he used his own device while the official
computer was being repaired.
The District's Information Technology Acceptable Use Agreement requires employees
to notify the District prior to connecting any personal devices to the District's network. The
employee must allow inspection
of
the personal device for issues such as proper software
licensing, updates to the device's operating system, and the presence
of
adequate anti-virus
software. According to Network Technician James Cooper, who testified at Clavel's Dismissal
Hearing, this process protects the safety
of
the District's network.
T. 	Clavel's Entering Western High While on Administrative Leave
While on administrative leave, Clavel contacted Lee-Sung about the proper procedure
for approving flyers from Clavel's little league organization for posting at Western High. Lee-
Sung informed Clavel about the approval process. Clavel testified that Lee-Sung later granted
him permission to drop
off
the flyers at Western High. He delivered the flyers on November 6,
2009. Lee-Sung denies ever granting Clavel permission to enter the Western High campus.
Clavel's testimony on this issue is not credited. As explained above, Clavel was not a credible
witness. Moreover, it is highly unlikely that Lee-Sung granted Clavel's request to enter the
Western High campus during the investigation. Under the facts presented, it is concluded that
Clavel entered the Western High campus against Lee-Simg's directive.
43

U. 	The ESI Investigation and Report
Price followed the same basic principles in his second investigation at Western High.
This time, his investigation covered Clavel' s entire employment history with the District.
Price concluded that Clavel had committed multiple violations of various attendance policies
and practices, harassed other employees including Vazquez, Oatman, Aguilera, Camara,
Quintana, and Castro, was insubordinate and disobeyed orders, and misused, mistreated, or
stole District property.
Price reported about Clavel' s reference to "George Washington" in his 2005
performance evaluation, the false March 14, 2008 absence report form, and Clavel's July 1,
2008 e-mail message to the news organization about Vazquez.
Price also uncovered records of Clavel' s 1998 conviction for being under the influence
of an illegal substance. Price noted that Clavel was able to withdraw his guilty plea and have
the case dismissed after successfully completing a drug diversion and treatment program.
Price noted that Clavel did not report his criminal conviction to the District.
In or around February 10, 2010, Price produced a report which was not produced for
the record in its entirety. Lee-Sung said that the final report was "thousands of pages long."
Price also produced a summary of the report, including references to key documents such as
prior discipline, perfonnance evaluations, attendance infonnation, and e-mail messages from
or about Clavel. Neither the report nor the summary mentioned any of Clavel' s positive
evaluations or promotions during his employment.
V. 	The Dismissal Proceedings
Lee-Sung reviewed the ESI report and concluded that dismissing Clavel from
employment was warranted. On or around March 22, 2010, Lee-Sung issued Clavel a
44

statement
of
charges (Dismissal Charges) based largely
on
the investigative report. The
charges outlined the accusations against Clavel
by
his coworkers at Western High, his alleged
failures to follow existing policy, his alleged misuse and theft
of
District property, and his
history
of
discipline and negative evaluations. The Dismissal Charges also accused Clavel
of
failing to disclose material facts regarding his criminal records. In addition, according to the
charges, "Clavel has disregarded all District attempts to discipline him, reprimand him, or
otherwise correct his behavior."
The Dismissal Charges also referenced other conduct such as Clavel's use
of
pejorative
nicknames in e-mail messages to and about his coworkers. For example, Clavel was accused
of
intentionally referring to Steve Oatman as ''Goatman;' and Robert Aguilera as "Aguiliar."
Some other misspellings were arguably more profane. In some
of
the e-mail messages
identified in the charges, the target
of
the alleged ridicule was not among the list
of
recipients.
None
of
the people misnamed in Clavel's e-mail messages testified as to feeling harassed or
uncomfortable by the epithets. In fact, most appeared not to have noticed until questioned
about the e-mail messages at Clavel's Dismissal Hearing.
The Dismissal Charges also referenced documents not contained in Clavel's personnel
file such as records
of
when Vazquez or Oatman called the police. Some
of
these documents
were located in what was referred to in the record as a "site file," or files maintained by school
site administration. During the PERB hearing, Clavel admitted to knowing that about his site
files. He said he never asked to review those files.
45

Clavel participated in a Skelly hearing20 over the course of four days between May 5
and July 28, 2010. The assigned Skelly hearing officer affirmed the District's discipline.
Thereafter, Lee-Sung notified Clavel of the District's decision to address the matter at the
District's August 5, 2010 Board of Trustees meeting. At that meeting, the Board of Trustees
voted to approve the dismissal by a vote of three to two. At that point, Clavel's dismissal
became effective. Clavel later appealed that detennination and the matter was heard at
Clavel's Dismissal Hearing before the District's Personnel Commission. The Personnel
Commission upheld the dismissal by a decision dated March 10, 2013.
W. 	Clavel's Exclusion From Bargaining
As explained in more detail in section LL. of the factual findings in this proposed
decision, the District refused to meet with Clavel at the negotiating table after August 5, 2010.
(Ante, p. 29.)
ISSUES21
I. 	Did the District and/or Local 3112 negotiate in bad faith?
A. 	The District's claims against Local 3112
1. 	Did Local 3112 violate the duty to negotiate in good faith by refusing to
sign the Tentative Agreement?
20 The term Skelly hearing refers to a pre-disciplinary hearing that complies with the
due process requirements set forth in Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
This hearing allows public employees to challenge the sufficiency of the evidence in certain
proposed discipline. (City of Modesto (2008) PERB Decision No. 1994-M, p. 2, fn. 3.)
21 This proposed decision will address the parties' claims in a different order from what
was presented in the two PERB complaints for clarity and ease of discussion. Section I will
address both parties' bargaining charges. (Post, p. 47.) Section I.A. will address the District's
bargaining claims against Local 3112. (Post, p. 48.) Section LB. will address Local 3112 's
bargaining claims against the District. (Post, p. 65 .) Finally, section II will discuss Local
3112's retaliation claim against the District. (Post, p. 78.)
46

2. 	Did Local 3112 violate the duty to negotiate in good faith by presenting
proposals directly to the District's Board of Trustees?
3. 	Did Local 3112 violate the duty to negotiate in good faith based on the
totality of its bargaining conduct?
B. 	Local 3112's claims against the District
1. 	Did the District violate the duty to negotiate in good faith by unilaterally
imposing furlough days in September 201 0?
2. 	Did the District violate the duty to negotiate in good faith by refusing to
meet with Clavel after his termination on August 5, 2010?
3. 	Did the District violate the duty to negotiate in good faith on
September 3, 2010, by refusing to negotiate further over the terms of the Tentative Agreement?
4. 	Did the District violate the duty to negotiate in good faith by the totality
of its bargaining conduct?
IL 	Did the District terminate Clavel in retaliation for his Local 3112 activities?
CONCLUSIONS OF LAW
I. 	The Parties' Bargaining Charges
In this matter, each party accuses the other of multiple bargaining violations. PERB
evaluates bargaining claims under either the "per se" or "totality of the conduct" test,
depending on the conduct involved and the effect of that conduct on negotiations. (Stockton
Unified School District (1980) PERB Decision No. 143, p. 21.) Certain actions, such as
unilateral policy changes, completely frustrate the bargaining process and therefore violate the
duty to negotiate without the need for further evidence. (Regents of the University of
47

California (2010) PERB Decision No. 2105-H, p. 6; 22 Sierra Sands Unified School District of
Kern County (2001) PERB Decision No. 1425, dismissal letter, p. 2.) In most other cases,
"PERB considers the totality of the bargaining conduct," to ascertain whether the parties'
possessed the subjective intent to move toward agreement where possible. (!d., warning letter,
p. 3.) In those types of "surface bargaining" cases, PERB examines the parties' overall
·bargaining conduct to determine a violation.
In the present dispute, both parties allege numerous violations under both theories. The
conduct at issue spanned from around September 2009 through September 2010. Each
individual claim will be addressed separately below.
A. 	The District's Bargaining Claims Against Local 3112 (LA-CO-1451-E)
The District accuses Local 3112 of committing multiple per se violations of the duty to
negotiate in good faith. It also alleges that Local 3112 engaged in unlawful surface bargaining.
1. 	Local 3112 's Refusal to Execute the August 5, 2010 Draft
The District claims a per se violation of the duty to bargain by refusing to sign the
August 5, 2010 Draft. The thrust of this claim is that the parties reached a valid Tentative
Agreement on restoring layoffs in exchange for furlough days, but Local 3112 repudiated that
deal. The EERA definition of "meeting and negotiating" includes, in part, "the execution, if
requested by either party, of a written document incorporating any agreements reached."
(EERA, § 3540. l(h).) Interpreting substantially similar language from the NLRA,23 courts and
22 When interpreting statutes under its jurisdiction, it is appropriate for PERB to take
guidance from cases interpreting the National Labor Relations Act (NLRA) and California
labor relations statutes with parallel provisions. (Fire Fighters Union v. City of Vallejo (1974)
12 Cal.3d 608, pp. 615-616.)
23 The NLRA is codified at 9 USC 151, et seq. The NLRA definition of the "duty to
bargain collectively" includes "the execution of a written contract incorporating any agreement
reached ifrequested by either party[.]" (29 USC 158(d).)
48

the National Labor Relations Board (NLRB) have concluded that a party violates the duty to
meet and confer in good faith, "by refusing to sign a written contract incorporating agreed-
upon terms or by otherwise repudiating an oral agreement." (NLRB
v.
Auciello Iron Works,
Inc. (1st Cir. 1992) 980 F.2d 804 (Auciello Iron), p. 808; see also Torrington Extend-a-Care
Employees Association
v.
NLRB (2nd Cir. 1994)
17
F.3d 580, p. 595.) Thus, in Waste Systems
Corp. (1988) 290 NLRB 1214 (Waste Systems), the NLRB found an employer violated the
duty to bargain by refusing to sign and implement the parties' tentative agreement. The NLRB
rejected the argument that the parties lacked a final agreement where the union made only
minor suggestions over "typographical omissions" to the employer's draft. (Id. at p. 1219; see
also Hempstead Park Nursing Home (2004) 341 NLRB 321, 329.) On the other hand, there is
no violation where a party refuses to execute an agreement substantively inconsistent with
what was discussed in bargaining. (Transit Service Corporation (1993) 312 NLRB 477
(Transit Service), p. 483.)
Here, the record shows that the August 5, 2010 Draft did not include key points from
the parties' July 29, 2010 Tentative Agreement. The Tentative Agreement included, as
relevant to this discussion, that most blue collar unit members would take
12
furlough days in
exchange for recalling all the employees laid off in the Phase II layoffs as well as eight
Custodian employees from the Phase I layoffs. The August 5, 2010 Draft only referenced the
Phase I layoffs. It did not mention the Phase II layoffs at all.
Unlike in Waste Systems, supra, 290 NLRB 1214 and Hempstead Park, supra, 341
NLRB 321, the changes here were significant because Local 3112 was clearly seeking the
greatest achievable layoffs reduction in negotiations. Such a sentiment was expressly
referenced in negotiations and it is undisputed that the main logjam in bargaining was
49

determining how many employees Local 3112 could to return to work
by
accepting furloughs:
The District's failure to reference the Phase II layoffs in the August 5, 2010 Draft Agreement
omitted a fundamental aspect
of
the parties' Tentative Agreement.
The District argued that mentioning the recalled employees in the August 5, 2010 Draft
was unnecessary because the August 5, 2010 Resolution already referenced the positions being
recalled. It also maintains that it was common knowledge that the furloughs were taken to
reduce layoffs. These arguments are rejected under the facts presented. In Amalgamated
Clothing Workers
of
America
v.
NLRB (2nd Cir. 1963) 324 F.2d 228 (Amalgamated Clothing),
the court found persuasive the union's arguments that it had the right to receive written
acknowledgment
of
what it perceived as success in bargaining and that written evidence
of
the
agreement would clarify any future ambiguity over the agreement in the event
of
a dispute.
(Id. at p. 231.) That same reasoning applies here. The record shows that Local 3 l 12's
membership directed the negotiating team to reduce the July 1, 2010 layoffs as much as
possible, even at the cost
of
other negotiated concessions. The District's August 5, 2010 Draft
referenced the concessions Local 3112 accepted, but not all
of
the achievements. This
deprived Local 3112
of
its ability to convey some semblance
of
victory in negotiations to its
membership.
Furthermore, as in Amalgamated Clothing, supra, 324 F.2d 228, the failure to exclude
certain aspects
of
the parties' agreement in writing created unnecessary ambiguity. It is true
that the August 5, 2010 Resolution restored eliminated positions, but there was no document
referencing the agreed-upon number
of
people subject to recall. It is undisputed that the focus
of
both the negotiations and the Tentative Agreement was about people, not positions. Thus,
the August 5, 2010 Resolution did not adequately describe the Tentative Agreement. Indeed,
50

this became a point of contention between the parties when they later disagreed over the
number of positions needed to recall the 16 people identified during bargaining. Describing
these issues in the context of a written and signed agreement could have reduced the issues in
dispute or, at the very least, properly framed the dispute for resolution through the parties'
grievance procedure. 24 Instead, the District's omission of any reference to the Phase II layoffs
contributed to the confusion.
In addition, the District acted inconsistently with its position. Lee-Sung agreed to
reference the Phase I layoffs in the August 5, 2010 Draft. Therefore, even if the District would
have been justified in excluding all references to the restored layoffs in writing, the District's
willingness to describe some, but not all of the laid-off employees being recalled is simply
confusing. The District's conduct also inaccurately suggests that one aspect of the layoffs was
reduced through negotiations, but the other was not. This, arguably, undennines Local 3112's
role in the decision to reverse the layoffs.
Therefore, because the August 5, 2010 Draft was substantially inconsistent with the
July 29, 2010 Tentative Agreement, Local 3112 did not violate the duty to negotiate by
refusing to sign those documents. This claim is therefore dismissed.
2. 	Presenting Proposals Directly to the District's Board of Trustees
The District also accuses Local 3112 of sidestepping its bargaining team and presenting
proposals directly to its Board of Trustees or its interim Superintendent. The duty to bargain in
good faith includes the obligation to engage with an opposing party's chosen negotiators.
"Bypassing the authorized negotiators, for example, by going straight to the school board of
24 "EERA clearly indicates that the Legislahire intended the grievance procedure to be
the preferred method of settling job disputes and improving labor relations." (Chaffey Joint
Union High School District (1982) PERB Decision No. 202, p. 8, citing EERA, § 3541.S(a).)
51

trustees with proposals or concessions, would subvert the statutory scheme and arguably
violate the good-faith obligations of collective bargaining." (San Ramon Valley Unified School
District (1982) PERB Decision No. 230 (San Ramon Valley USD), p. 16.) The Board
elaborated upon that position in Westminster School District (1982) PERB Decision No. 277
(Westminster SD), concluding that union representatives may not side-step the employer's
negotiators and bargain directly with the school board. (Id. at p. 9.) On the other hand, a
union's "mere advocacy" of its bargaining position to the board is permissible. (Ibid.) The
Board found no bypass in Westminster SD because the .union representatives' comments during
a public board meeting merely summarized the union's position and expressed an interest in
continuing negotiations. (Id. at pp. 10-11.) Likewise, in Trustees of the California State
University (2006) PERB Decision No. 1871-H (CSU Trustees), the Board found no unlawful
bypass in an employer's comments about negoti_ations directly to employees. Even though the
employer had uncomplimentary things to say about the union's negotiating position, the Board
found that the comments were a lawful expression of the employer's "spin" on the state of
bargaining. (Id. at disrilissal letter, p. 3.)
In the present case, the District claims that three incidents support its bypass claim.
The first incident was during the July 15,2010 Board of Trustees meeting where Schnaufer
described the 11 employees implicated in the Phase II layoffs as "hostages" to the District's
furlough proposal. The District has not shown that these comments, viewed either separately
or in conjunction with other Local 3112 activity, was more than mere advocacy of AFSCME's
opposition to the proposed layoffs. By that point in negotiations, it was clear that Local 3112
opposed both phases of the layoffs and sought to keep as many unit members employed as
possible. Schnaufer's comments were merely a forceful expression of that position and did not
52

indicate an intent to negotiate directly with the Board of Trustees. 25 (See CSU Trustees, supra,
PERB Decision No. 1871-H; United Technologies Corp. (1985) 274 NLRB 1069.)
The District further asserts that Local 3112 twice delivered proposals directly to
District representatives who were_not on their negotiating team. According to the District,
Local 3112 distributed its "PLAN C" document during the July 15, 2010 Board of Trustees
meeting. That document was AFSCME's most recent proposal, conveyed to the District's
negotiators the day before. The District also contends that, on August 6, 2010, Schnaufer
attempted to give a copy of the Letter of Understanding directly to the District Interim
Superintendent. The Letter of Understanding was Local 3112' s attempt to correct the
deficiencies in Lee-Sung's August 5, 2010 Draft Agreement. Neither of these claims are
sufficient to establish unlawful direct dealing. It is undisputed that Local 3112 presented both
of these documents to the District's chief negotiator, Lee-Sung. Furthennore, no evidence was
presented that anyone from Local 3112 sought to meet with or met with either the Board of
Trustees or the Interim-Superintendent. Rather, the record plainly shows that the "PLAN C"
document was discussed by both negotiating teams during bargaining and the Letter of
Understanding was discussed during a meeting with Lee-Sung on or around August 8, 2010.
Under_ these circumstances, the District has not met its burden of proving that Local 3112
unlawfully bypassed the District's negotiators. 26 The claim that Local 3112 unlawfully
bypassed the District's negotiating team is dismissed.
25 Schnaufer also invited others to speak with him after the meeting, but there was no
evidence of this happening. 	·
26 In addition, the substance of these allegations was supported entirely by hearsay.
Lee-Sung testified that District employee Dominguez said that the "PLAN C" document was
passed out during the Board of Trustees meeting. Dominguez did not testify at the PERB
hearing. Lee-Sung similarly testified that interim-Superintendent Barry told him about
receiving the Letter of Understanding. She did not testify either. Adams and Schnaufer denied
53

both allegations. "Although admissible, hearsay testimony and documents are insufficient to
support a [factual] finding." (Palo Verde Unified School District, supra, PERB Decision No.
2337, citing PERB Regulation 32176.)
3. 	The District's Surface Bargaining Claim
The District also contends that Local
31
12 's overall bargaining conduct demonstrated a
subjective lack
of
intent to reach an agreement under the "totality
of
the bargaining conduct"
test. The essence
of
surface bargaining is that a party goes through the motions
of
negotiations, but in fact is weaving otherwise unobjectionable conduct into an entangling
fabric to delay or prevent agreement. (Muroc Unified School District (1978) PERB Decision
No. 80, p.
13
(Muroc USD).) Thus, the Board weighs the record as a whole to determine
whether the conduct at issue "indicates an intent to subvert the negotiating process or is merely
a legitimate position adamantly maintained." ( Oakland Unified School District (1982) PERB
Decision No. 275, p. 15.) Here, the record shows that the parties bargained for several months.
During the course
of
negotiations, each party made concessions as the parties moved slowly to
Tentative Agreement. Although one might argue that the existence
of
a Tentative Agreement
forestalls any finding
of
bad faith, Local 3112's conduct before and during negotiations
warrants examination for bad faith.
a.
	Delays in "Sunshining" Local 3112' s Initial Proposal
The District alleges that Local 3112 unreasonably delayed presenting its initial proposal
to commence bargaining. Lee-Sung initially requested Local 3112
's
initial proposal from
Adams and Clave! in around September 2009. Local 3112 did not submit its initial proposal
until three months later, in December 2009.
54

1. 	Timeliness of the Claim
As a threshold matter, EERA section 3541.5(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." Allegations of misconduct occurring outside
of the six month statute of limitations are normally subject to dismissal. ( Charter Oak Unified
School District (2011) PERB Decision No. 2159, warning letter, pp. 3-4; see also State of
California (Department of Personnel Administration) (2009) PERB Decision No. 2017-S,
warning letter, p. 8.) [holding that surface bargaining claims based solely upon bargaining
conduct outside the statute of limitations period did not state a prima facie case].)
However, conduct older than six months "may nonetheless be considered as
background evidence of the [respondent's] motive." (Garden Grove Unified School District
(2009) PERB Decision No. 2086, p. 4, fn. 3, citing Trustees of the California State University
(2008) PERB Decision No. 1970-H, California State University, Hayward (1991) PERB
Decision No. 869-H, North Sacramento School Disfrict (1982) PERB Decision No. 264 (North
Sacramento SD).)27
The Board's position on "background evidence" finds support in U.S. Supreme Court
precedent. In Local Lodge No. 1424, International Association of Machinists v. NLRB (1960)
362 U.S. 411 (Bryan Manufacturing), the Court described the two basic contexts in which
evidence from outside the statute of limitations may arise.
The first is one where occurrences within the six-month
limitations period in and of themselves may constitute, as a
substantive matter, unfair labor practices. There, earlier events
27 Each of those cases concern PERB 's ability to consider conduct from outside the
statute of limitations period to ascertain whether a respondent possessed the unlawful intent to
retaliate against an employee. Intent is a key factor in both PERB's retaliation analysis and its
surface bargaining analysis.
55

may be utilized to shed light on the true character of matters
occurring within the limitations period[.]
(Id. at pp. 416-417.) On the other hand:
where conduct occurring within the limitations period can be
charged to be an unfair labor practice only through reliance on an
earlier unfair labor practice. There the use of the earlier unfair
labor practice is not merely "evidentiary," since it does not
simply lay bare a putative current unfair labor practice.
(Ibid.) In other words, untimely allegations may "shed light" on the nature of already timely
claims, but may not be considered where the claims at issue must rely on the untimely claims
to demonstrate a violation. Untimely evidence in the latter circumstances is inadmissible to
prevent "reviving a legally defunct unfair practice charge." (Ibid.)28 The NLRB has
subsequently applied these concepts to consider conduct outside the statute of limitations
period as background evidence in a variety of surface bargaining cases. (See e.g., Regency
Service Carts, Inc. (2005) 345 NLRB 671, p. 672, fn. 3; Teamsters Local Union No. 122
(August A. Busch & Co.) (2001) 334 NLRB 1190, p. 1251; Sparks Nugget, Inc. (1990) 298
NLRB 524, fn. 5, p. 550; Houston County Electric Cooperative (1987) 285 NLRB 1213, p.
1222.)
PERB has expressly acknowledged Bryan Manefacturing, supra, 362 U.S. 411, when
considering background evidence outside the statute of limitations. (See e.g., Service
Employees International Union, Local 1021 (Sahle) (2012) PERB Decision No. 2261-M, p. 7,
28 Bryan Mam!facturing, supra, 362 U.S. 411, concerned the enforceability of a union
security clause. The Court rejected that the employer's argument that the clause was
unenforceable because the union lacked majority status at the time the agreement was
reached. (Id. at p. 415.) The Court reasoned that the employer's argument fell into the second,
inadmissible category of anterior events, because majority status had been decided at a time
outside the statute of limit~tions and there was no claim that the agreement was invalid absent
relation to that untimely event. (Id. at p. 417.) 	·
56

fn. 5; Azusa Unified School District (1977) EERB Decision No. 38, pp. 5-6.)29 Without citing
directly to Bryan Manufacturing, the Board has also suggested, but did not directly hold, that
evidence
of
a respondent's conduct beyond the six-month statute
of
limitations period may be
considered as background evidence in a surface bargaining claim. (Santa Monica Community
College District (2012) PERB Decision No. 2243 (Santa Monica CCD), dismissal letter, p.
2.)30 Neither party addressed the timeliness
of
the District's allegation in closing briefs.
The District here alleges that conduct from between September and December 2009
supports its bad faith bargaining claim. However, it did not file its charge until September 27,
2010, around nine months after December 2009.31 Normally, claims
of
misconduct dating that
far back cannot fonn the basis
of
an unfair practice charge. However, multiple factors warrant
consideration
of
this a1legation under the circumstances. First, as will
be
discussed in greater
detail below, the District has demonstrated a prima facie case for surface bargaining based
solely on events within the statute
of
limitations period. Thus, under the principles from Bryan
Manufacturing, supra, 362 U.S. 414, the otherwise untimely evidence
of
Local 3 l 12's conduct
29
Once again, those cases involved retaliation allegations.
30 The charge in that case suffered from multiple defects, chiefly that the only alleged
indicator
of
surface bargaining took take place outside the statute
of
limitations. The Board
focused its discussion on whether the continuing violation doctrine applied to that single
indicator
of
bad faith. (Santa Monica CCD, supra, PERB Decision No. 2243, pp. 4-5.) The
Board concluded that the doctrine did not apply, and even
if
it did, that one indicator was
insufficient to demonstrate surface bargaining under those facts. (Id. at p. 5; but see City
of
San Jose (2013) PERB Decision No. 2341-M, pp. 18-19.) The Board in Santa Monica CCD,
also cited the board agent's analysis with general approval. (Santa Monica CCD at p. 2.) As
explained above, the board agent considered the untimely conduct for background purposes.
(Id. at dismissal letter, p. 2.)
31
Using September 2010 as the starting point, the statute oflimitations extend back
until around March 2010.
57

may be used to "shed light on the true character" of Local 3112 's good or bad faith during the
bargaining process. (See Id. at pp. 416-417.)
In addition, consideration of this conduct is warranted here because the parties'
negotiations spanned more than six months. (See Regency Service Carts, Inc., supra, 345
NLRB at p. 672 [reviewing the 32 months of negotiations in determining a surface bargaining
claim].) Artificially removing from consideration any bargaining conduct older than six
months for any purpose is antithetical to the "totality of the bargaining conduct" analysis and
would, in this dispute, exclude almost half of the parties' bargaining conduct.
For these reasons, evidence that Local 3112 delayed presenting its initial bargaining
proposal between September and December 2009, will be considered, not as a separate
violation of EERA, but to "shed light" on Local 3112 's motives during bargaining.32
11. 	Evidence of Bad Faith
In Professional Eye Care (1988) 289 NLRB 1376, the NLRB concluded that the
employer failed to take its bargaining obligations seriously after finding that it declined to
either return the union's telephone calls or submit written proposals, and did not consult with
its own leadership during negotiations. (Id. at p. 1392.) PERB has similarly held that a
union's refusal to commence negotiations for the entire summer indicated bad faith bargaining.
32 In Gavilan Joint Community College District (1996) PERB Decision No. 1177,
however, the Board held that a charging party failed to demonstrate the relationship between a
respondent's allegedly misleading statements while the parties were in factfinding and older
pre-impasse bargaining conduct that was the subject of a prior unfair practice charge. The
Board's holding focused on the relevancy of the evidence, not the admissibility, concluding
that "the fact that the District was found to have engaged in surface bargaining more than a
year prior to the conduct at issue here does not lend support to the instant unfair practice
charge." (Id. at pp. 5-6.) In San Mateo County Community College District (1993) PERB
Decision No. 1030, the Board found it appropriate to review refusal to bargain claims
occurring more than six months before the charge was filed under a continuing violation theory
because the respondent engaged in similar conduct at impasse. (Id. at p. 12, fn. 7, citing
San Dieguito Union High School District (1982) PERB Decision No. 194.)
58

(Gonzales Union High School District (1985) PERB Decision No. 480, proposed decision, p.
40.)
In the present dispute, Local 3 l 12's failure to respond to the District's request for an
initial proposal delayed the start of negotiations for three months and also suggests that Local
3112 did not take its bargaining obligations seriously. The District was upfront about its
deficit and the need to address financial problems for the 2010-2011 fiscal year. Yet, neither
Adams nor Clavel ever conveyed the District's interest in starting negotiations to its bargaining
team. 	Chief negotiator Schnaufer had no idea of the District's request until November 2009,
when Lee-Sung approached him two months later. This inaction suggests an attempt to delay
bargaining.
Local 3112 defends its conduct by stating that Schnaufer, not Adams or Clavel, was
Local 3112 's chief negotiator, but this argument is unpersuasive under the facts presented.
Both Adams and Clavel knew about the District's perceived urgency to begin negotiations but
they did not either discuss the matter with their own team or inform Lee-Sung that he should
be communicating with Schnaufer instead. Their decision to do nothing in the face of Lee-
Stmg' s request suggests an attempt to delay what they knew would be concessionary
bargaining. This is evidence that Local 3112 lacked the subjective good faith to participate in
bargaining.
b. 	Discussion of Grievances During Negotiations Sessions
The District also maintains that Local 3112 demonstrated bad faith by discussing
pending grievances during negotiation sessions. Schnaufer admitted to mentioning grievance
and other personnel matters during bargaining, but said he discontinued those talks upon
request. No District witness disputed those facts and the District did not present any additional
59

evidence about how Schnaufer's conduct affected negotiations. Moreover, the record also
shows that it was common for the parties to raise other issues during negotiations. In earlier
negotiations in June 2009, Lee-Sung raised issues unrelated to the parties' negotiations. There
was no showing that these brief deviations from either party adversely affected negotiations or
demonstrated the intent to subvert the negotiations process. (See Muroc USD, supra, PERB
Decision No. 80, pp. 18-19 [holding no evidence
of
bad faith where one parties' conditions on
bargaining had no discernible impact on the negotiations].)
c. 	Local 3112' s Layoff/Furlough Proposals
The District also contends that Local 3112
's
bargaining posture regarding furlough
days and layoffs was further evidence
of
bad faith for two reasons. First, the District argues
that Local 3112 's insistence on presenting package proposals evidenced a "take it or leave it"
attitude towards bargaining. Second, the District asserts that it was improper for Local 3112 to
condition agreement on negotiable subjects, such as furloughs, on non-mandatory subjects
of
bargaining, such as layoffs.
Regarding Local 3112's use
of
package proposals, PERB has examined the substance
of
a party's proposals, not the mere fact that a party makes package proposals, that may
indicate bad faith. In City
of
Fresno (2006) PERB Decision No. 1841-M, the Board affirmed
the dismissal
of
a charge claiming surface bargaining. There, among other findings, the Board
concluded that both parties "offered several unique proposals" that the other side simply could
not agree to. The fact that the employer made "only package proposals" did not change the
Board's conclusion. (Id., at warning letter, pp. 1, 7; see also Ventura County Community
College District (1998) PERB Decision No. 1264, dismissal letter, p. 3 [holding that PERB
must examine an employer's entire package of proposals to ascertain evidence
of
bad faith].)
60

Here, the District has not shown either that Local 3112 's use of package proposals, or
the content of those proposals, hindered the parties' negotiations. In fact, starting with Local
3 l 12's first package proposal in April 2010, each of Local 3 l 12's successive proposals
brought the parties closer to agreement. Local 3112 's "PLAN C," another package proposal,
became the basis for the July 29,2010 Tentative Agreement. Under these facts, Local 3112 's
use of package proposals does not evidence bad faith.
The District also accuses Local 3112 of conditional bargaining because it insisted on
tying Local 3112's agreement on furloughs to the District's agreement to reduce layoffs, and
because Local 3112 described its proposals on these issues as "discussions" or "not
negotiations." The Board recognized that "conditional bargaining" may evidence bad faith
where, for example, one party "refused to bargain or submit proposals concerning monetary
issues until complete agreement had been reached on non-economic issues." (State of
California (Department of Personnel Administration) (1998) PERB Decision No. 1249-S,
warning letter, p. 5, citations omitted.) The District's application of that principle to the
present case is misplaced for at least two reasons. First, it is undisputed that both parties
sought to use furloughs to stave off layoffs. This point was made clear in February 2010, when
then-Superintendent Farley told all four unions that they could reduce planned layoffs by
accepting furlough days. Thereafter, both parties linked the two issues together in bargaining.
For example, on May 29, 2010, the District proposed that Local 3112 accept seven furlough
days "in order to reduce district expenditures on AFSCME members' salaries and to reduce
layoffs of AFSCME employees." These facts show that Local 3112 was not refusing to
bargain over economic issues until other issues were resolved. Rather, both parties engaged in
61

the furlough and layoffs negotiations voluntarily and simultaneously. The duty to bargain in
good faith does not prohibit this conduct.
Under the facts presented here, Local 3112's insistence on calling its proposals
"discussions," as opposed to "negotiations'' also does not demonstrate bad faith. 	Schnaufer
explained that they took that position only to preserve Local 3112's legal ability to "insist that
furloughs as an alternative to layoffs is a non-mandatory subject of bargaining and is not
subject to [EERA] impasse procedures[.]" Regardless of whether Local 3 l 12's legal analysis
in this area was correct, 33 the District has not established that these disclaimers actually
affected the parties bargaining. Both sides continued to meet, exchange substantive proposals,
and reach agreement where possible. Without any showing that Local 3l 12's conduct impeded
negotiations, this does not support the District's surface bargaining claim. (Muroc USD,
supra, PERB Decision No. 80, pp. 18-19.)
d. 	Local 3112' s Failure to Assist With Finalizing the Agreement
Local 3112's conduct after the parties reached Tentative Agreement also suggests bad
faith. As explained above, the duty to meet and confer in good faith requires the parties to
prepare and execute a written agreement. (EERA, § 3540.l(h); Auciello Iron, supra, 980 F.2d,
at p. 808.) That duty also includes "the obligation to assist in reducing the agreement reached
to writing." (Albertson's, Inc. (1993) 312 NLRB 394 (Albertson's), p. 397; see also
33 It is worth noting that PERB has found that parties "may bargain over a permissive
and nonmandatory subject of bargaining without waiving the right thereafter to take a position
that it is a nonmandatory subject." (Chula Vista City School District (1990) PERB Decision
No. 834, p. 23, citing Poway Unified School District (1988) PERB Decision No. 680.) Even
where parties have previously reached agreements on such subjects, "a permissive subject does
not become mandatory by virtue of such an agreement." (Chula Vista at pp. 23-24.) If one
party subsequently expresses its opposition to include specific nonmandatory proposals into an
agreement, the other party may not lawfully insist to impasse upon retaining those proposals.
(Id. at p. 24.)
62

Amalgamated Clothing, supra, 324 F.2d at pp. 230-231; Kennebec Beverage Co., Inc. (1980)
248 NLRB 1298 (Kennebec).) The failure to cooperate in incorporating oral agreements into a
written contract violates the duty to negotiate in good faith. (Amalgamated Clothing at p. 230,
citing H.J. Heinz
Co.
v.
NLRB (1941) 311 U.S. 514.)
In
the present dispute, Local 3112 failed to adequately assist with finalizing the parties'
agreement.
In
fact, neither party ever discussed the final language and format
of
the agreement
to any significant degree. Lee-Sung and Schnaufer briefly discussed creating an Effects
of
Layoff MOU, but neither_ mentioned what he thought that document should include.
34
Lee-
Sung's August 2, 2010 Draft included sections for "Effects
of
Layoffs" and "Layoff
Reinstatements," and Schnaufer never inquired how Lee-Sung intended on incorporating those
sections into the final agreement. Instead, Schnaufer apparently assumed without asking that
both sections would be included in the final agreement. Although Schnaufer proposed some
changes to Lee-Sung's August 2, 2010 Draft, he never requested a draft
of
the final documents
or produced such a draft himself. This inaction contributed to substantial confusion on
August 5, 2010, when both parties expected to execute the agreement. It was only then that
Local 3112 realized that the parties had different understandings
of
the format and language of
the final agreement. As with its apparent reluctance to present an initial proposal, Local
3112' s failure to work with the District in finalizing the agreement suggests that it was not
taking an important aspect
of
its duty to meet and confer in good faith seriously.
34 The District's own obligations to work with Local 3112 in producing the final draft
agreement documents will be disc~1ssed below.
63

e. 	Local 3 l 12's Communications With the District After August 5,
2010
Local 3112's conduct after August 5, 2010, further suggests bad faith. When Lee-Sung
sought to determine why Local 3112 was refusing to sign the August 5, 2010 Draft, Schnaufer
raised new issues not previously raised in bargaining. One issue raised for the first time on or
around August 8, 2010, was how the final agreement could be enforced. Another issue raised
around the same time was the accuracy of the District's Custodian employee seniority list.
Regarding enforceability, Schnaufer admitted to drafting language on this issue in the
past, but he did not explain why Local 3112 never raised this issue during the negotiations at
the center of this dispute. Regarding the seniority list, both parties used that list extensively in
negotiations. Some of Local 3112's proposals, including its "PLAN C," were expressly linked
to that list. In other words, Local 3112 had ample time to raise these issues during negotiations
but chose not to do so until after the parties reached Tentative Agreement and were in the
midst of tense discussions about whether the agreement could be finalized. Raising these
known issues for the first time at this point suggests an attempt to achieve what it could not get
in earlier negotiations. Under the circumstances presented here, this conduct also suggests bad
faith.
f. 	Local 3112's Communications With its Members
Local 3112 's inaccurate communications with its membership after August 5, 2010 also
suggests bad faith. Once the parties reach a tentative agreement on all issues, the duty to
bargain in good faith implies that "the negotiators will not 'torpedo' the proposed collective
bargaining agreement or undermine the process that has occurred." (Alhambra City and High
School Districts (1986) PERB Decision No. 560 (Alhambra CHSD), p. 14; see also State of
California (Department of Personnel Administration) (2003) PERB Decision No. 1516-S, p.
64

6.) Here, after August 5, 2010, Local 3112 began falsely reporting that the District reneged on
the deal because the August 5, 2010 Resolution only reinstated
12
as
opposed to
16
custodian
positions. The record shows that the parties only agreed to recall
16
Custodian employees.
Both Schnaufer and Adams acknowledge that the Tentative Agreement did not obligate the
District to reinstate
16
Custodian positions. In fact, it was Local 3112 that proposed to give
the District "credit" for regular attrition such as retirements and bumping precisely so the
District would not have to reinstate
16
Custodian positions. Although Local 3112 may have
the protected right to communicate, even inaccurately, about the parties' negotiations (see CSU
Tn,stees, supra, PERB Decision No. 1871-H, warning letter, p. 2), Local 3112's false
statements here suggests that Local 3112 sought to undermine, not salvage, the parties'
Tentative Agreement. This
is
evidence
of
bad faith.
After examining the totality
of
the parties' bargaining conduct, in particular Local
3112's conduct after the parties reached Tentative Agreement, it is concluded that Local 3112
violated the duty to negotiate in good faith. Its disinterested approach to finalizing the parties'
agreement, together with its attempt to introduce new issues into bargaining after the Tentative
Agreement, and its false communications to its members collectively indicate an attempt to
entangle and even subvert progress made in negotiations. Evidence
of
Local 3 l 12's delays in
making its initial proposal is consistent with this conclusion and is further evidence
of
bad
faith under the circumstances. Therefore, Local 3112's bargaining conduct violated EERA
section 3543.6(c).
B. 	Local 3112 's Bargaining Claims Against the District
Local 3112 also accuses the District of violating the duty to bargain in good faith tmder
multiple theories.
65

1. 	The Imposition of Furlough Days in September 2010
Local 3112 also accuses the District of unilaterally imposing furlough days on its
bargaining unit. A unilateral policy change is a "per se" violation of the duty to bargain in
good faith if certain criteria are met. To establish a prime facie case for an unlawful unilateral
change, the charging party must show that: ( 1) the employer took action to change existing
policy; (2) the policy change concerned a matter within the scope of representation; (3) the
action was taken without giving the exclusive representative notice or opportunity to bargain
over the change; and (4) the change has a generalized effect or continuing impact on terms and
conditions of employment. (Fairfield-Suisun Unified School District (2012) PERB Decision
No. 2262, p. 9, (Fairfield-Suisun USD) citing Grant Joint Union High School District (1982)
PERB Decision No. 196, p. 10; Walnut Valley Unified School District (1981) PERB Decision
No. 160, p. 5.)
In the present dispute, the only significant dispute is over the third element of this test.
The District unquestionably changed unit members' working conditions by implementing new
unpaid furlough days in September 2010. The 12 furlough days changed employees' wages
and hours, both of which are expressly included as being within the "scope ofrepresentation."
(EERA, § 3543.2(a); see also County of Fresno (2010) PERB Decision No. 2125-M, warning
letter, p. 3 ["Furloughs are, in essence, a reduction in hours and thus are generally
negotiable."].)
Regarding the third element of the unilateral change test, th~ duty to negotiate in good
faith continues until the parties reach either agreement or impasse. (Redwoods Community
College District (1996) PERB Decision No. 1141 (Redwoods CCD), proposed decision, p. 11,
66

citing Moreno Valley Unified School District v. PERB (1983) 142 Cal.App.3d 191.)35 The
District argues that Local 3112 has not satisfied the third element of the unilateral change
analysis because the parties, in fact, reached agreement on furloughs. Although not fully clear,
it appears as though the District argues that the parties reached a final and enforceable
agreement based on either the July 29, 2010 Tentative Agreement in principle or Schnaufer's
August 4, 2010 e-mail message. Neither argument is persuasive under the circumstances here.
a. 	The July 29, 2010 Tentative Agreement
Regarding the July 29, 2010 Tentative Agreement, PERB has consistently found that
tentative agreements are not binding on the parties.· (Temple City Unified School District
(2008) PERB Decision No. 1972, p. 12, citing Alhambra CHSD, supra, PERB Decision
No. 560.) However, as explained above, both parties have the obligation not to undermine the
negotiations process or "torpedo" the proposed agreement. (Id. at p. 14, citing Wichita Eagle
and Beacon Publishing Co., Inc. (1976) 222 NLRB 742; see also State of California
(Department of Personnel Administration), supra, PERB Decision No. 1516-S, p. 6.) If, on the
other hand, a party rejects the tentative agreement in good faith, the duty to bargain is revived.
(Alhambra CHSD at p. 14, fn. 10.) In the present dispute, as in Alhambra CHSD, the July 29,
2010 Tentative Agreement was not binding on the parties and was not a final agreement.
b. 	Schnaufer's August 4, 2010 E-Mail Message
The District also argues that final valid agreement was estabhshed by Schnaufer's
August 4, 2010 e-mail message infonning Lee-Sung that the Local 3112 membership ratified
the Tentative Agreement and that "you may consider this our official word." This
communication was not sufficient to establish a final agreement based on the record presented
35 It is undisputed that the parties never reached impasse in negotiations.
67

for at least two reasons. First, the record shows that the parties had not completed meet and
confer obligations at the time Schnaufer sent the e-mail message. When assessing the status of
a collectively bargained agreement, "[t]he essential question to be determined is whether the
parties reached a meeting of the minds on all material and substantive terms of a collective
bargaining agreement." (Transit Service, supra, 312 NLRB at p. 481, citing Ebon Services,
Inc. (1990) 298 NLRB 219,224; see also Sharon Hats, Inc. (1960) 127 NLRB 947, 954, enfd.
289 F.2d 628; see also Mercedes-Benz of North America, Inc. (1981) 258 NLRB 803.) PERB
has likewise held that there was no "meeting of the minds," and thus no agreement, over issues
not discussed in bargaining. (Trustees of the California State University (2006) PERB
Decision No. 1842-H, proposed decision, p. 12 [no agreement reached over bargaining
location]; see also Fremont Unified School District (1997) PERB Decision No. 1240, proposed
decision, pp. 24-26.)
As explained above, the record here shows that the parties never reached agreement on
the language and format of the final written agreement. That is an integral part of the parties'
duty to meet and confer in good faith. (See BERA, § 3540.1 (h); Amalgamated Clothing,
supra, 324 F .2d at pp. 230-231; Albertson's, supra, 312 NLRB, at p. 397; Kennebec, supra,
248 NLRB at p. 1298.) As it turned out, the parties had diametrically opposing positions over
whether the agreement should reference the Phase II layoffs. Without commenting on whose
approach was more prudent, clearly, this issue was not resolved through negotiations and the
parties' mutual duty to meet and confer had not yet ended. The parties' failure to reconcile
their differences over the content of the final written agreement precludes PERB from finding
that the parties ever reached a "meeting of the minds on all material and substantive terms of a
collective bargaining agreement." (See Transit Service, supra, 312 NLRB at p. 481.)
68

Moreover, the record in this matter provided further indication that the District knew or
should have known that Schnaufer's August 4, 2010 e-mail message did not signify Local
3112' s final assent to be bound to an agreement. One such indicator was that Schnaufer
continued to propose changes to the agreement. In fact, in that same e-mail message,
Schnaufer told Lee-Sung that there were remaining "language problems" requiring resolution
and that he would suggest some solutions to those issues. Another indicator was the parties'
bargaining history, which shows that the parties had historically signified assent to a final
agreement by signing a document stating their agreement. Adams and Schnaufer both testified
credibly, and without dispute, that the parties always signed such a document before any prior
agreement became effective.36 This never occurred here. For all
of
these reasons, Schnaufer's
August 4, 2010 e-mail message did not establish a final and binding agreement between the
parties. 
c.
	Local 3112's Bad Faith Bargaining as an Affirmative Defense
Local 3112 's own bad faith conduct in the negotiations also does not justify unilateral
imposition
of
the furlough days. In County
of
Santa Clara (2010) PERB Decision No. 2120-
M, PERB has rejected the "self-help" approach to negotiations. (Id. at p. 15.) There, PERB
found that an employer's suspicion that a union was negotiating in bad faith did not justify
unilateral action. Rather, PERB held that "when a party believes its counterpart is not
36 According to the District, Adams testified that prior agreements took effect even
before being signed by the parties. This assertion misstates his testimony. Adams said that he
reviewed every agreement and that "every time we signed an agreement." He said sometimes
smaller agreements were not immediately incorporated into a fully-integrated CBA. One
possible source
of
confusion from Adams' testimony was that he also said that the parties
periodically incorporated negotiated changes to the CBA, such as reopener agreements or
agreed-upon date changes, into a fully-integrated CBA, but that he did not always place a
priority on signing those master agreements. However, neither Adams nor any other witness
ever said that agreements between the parties ever took effect without a signature from both
sides.
69

conducting its negotiations in good faith, the party may file an unfair practice charge." (Id.,
citing Palo Verde Unified School District (1987) PERB Decision No. 642.) Similarly in the
present dispute, Local 3 l 12's bad faith conduct during negotiations does not entitle the District
to forgo bargaining and implement new policy on negotiable subjects unilaterally. Rather, its
recourse was through the unfair practice charge process.
After reviewing the record as a whole, it is concluded that the parties did not reach
either impasse or a final agreement over furlough days for the 2010-2011 school year. The
District's decision to impose furlough days on Local 3112' s bargaining was therefore unlawful
under BERA, section 3543.5(c). (Redwoods CCD, supra, PERB Decision No. 1141, proposed
decision, p. 11.) This conduct also amounts to derivative violations ofEERA sections
3543.5(a) and (b). (Fairfield-Suisun USD, supra, PERB Decision No. 2262, p. 18.)
2. 	The District's Refusal to Meet With Clavel After August 5, 2010
Local 3112 alleges that the District violated the duty to negotiate in good faith by
refusing to meet with Clavel after his termination date on August 5, 2010. In general, "BERA
gives the parties the right to appoint their own negotiators and forbids either side from
dictating who their opposing representatives may be." (Yolo County Superintendent of Schools
(1990) PERB Decision No. 838 (Yolo CSS), proposed decision, p. 33, citing San Ramon Valley
USD, supra, PERB Decision No. 230) In Yolo CSS, the Board held that an employer
committed a "per se" violation of the duty to bargain by demanding that a union remove a
particular member from its bargaining team in the middle of negotiations. (Ibid.)
In the present dispute, Clavel was part of Local 3112' s negotiating team since the
beginning of the 2009-2010 negotiations. Although the parties reached a Tentative Agreement
before August 5, 2010, the record shows that there was no final agreement in place by that
70

time. The District's refusal to meet with Clavel was tantamount to dictating who Local 3112
selected
as
its negotiator as the parties worked through their remaining issues.
The District acknowledges a union's right to select its negotiators in its closing brief
but asserts that an exception to this general rule applies, citing to Savanna School District
(1982) PERB Decision No. 276 (Savanna SD). There, the Board set forth a test for
determining the legality
of
"coordinated bargaining," i.e., allowing employees not part
of
a
union's bargaining unit to serve on that union's negotiating team. (Id. at proposed decision, p.
3.) The Board held that such "mixed-union negotiating committees" are unlawful when the
employer can show
"a
'clear and present danger to the bargaining process."' (Id., quoting
General Electric
Co: v.
NLRB (2nd Cir. 1969) 412 F.2d 512, 517.) The Board in that case
concluded that the employer failed to establish any danger to the bargaining process because it
did not assert "any concrete examples
of
disruptions to the process" or demonstrate that the
union had an ulterior motive to undermine bargaining when establishing its negotiating team.
(Savanna SD, proposed decision, p, 5.) In State
of
California (Department
of
Personnel
Administration) (1998) PERB Decision No. 1305-S, the Board applied that same standard in a
dispute over whether it was unlawful for the employer to insist on bargaining an issue by
individual State department, as opposed to a single statewide bargaining table. As in Savanna
SD, the Board in that case found no concrete examples
of
actual disruption to the bargaining
process and no evidence
of
an ulterior motive by the employer. · The Board accordingly found
no violation
of
the duty to bargain in good faith. (Id. at p. 11.)
In the present dispute, the District has not established that the test for coordinated
bargaining should even apply to this situation. Even
if
it did, the District has not established
that Clavel's continued participation in negotiations presents a "clear and present danger to the
71

bargaining process." (See Savanna SD, supra, PERB Decision No. 276, p. 3.) The District
contends that Clavel was excluded because certain employees filed complaints and felt
threatened by him. As in Savanna SD, the District has failed to provide any concrete examples
of
how Clavel's presence in negotiations after August 5, 2010 adversely affected negotiations
or
demonstrated bad faith by Local 3112. There was no evidence, for example, that Clavel was
disruptive, threatening, intimidating, or otherwise unproductive during negotiations. Nor was
evidence presented that any employees that had filed complaints against Clavel would be
present or even nearby during the parties' negotiations. Lee-Sung was the only member
of
the
District's negotiating team that testified against Clavel in his dismissal hearing. He never
expressed any fear
of
ClaveL Local 3112 even offered to ameliorate the District's stated
concerns
by
meeting at the AFSCME offices. The District offered no explanation for rejecting
that proposal.
The District also asserts that Clavel's presence was unnecessary because the parties
were no longer negotiating after July 29, 2010. This argument is rejected bec.ause the parties'
mutual duty to meet and confer in good faith continued to include the obligation to cooperate
in preparing a final written agreement. (EERA, § 3540.l(h); Auciello Iron, supra, 980 F.2d at
p. 808; Albertson's, supra, 312 NLRB at p. 397.) That process was not complete by August 5,
2010. Thus, the Districfs refusal to meet with Clavel deprived Local 3112
of
having one
of
its
chosen negotiators for an important part of the bargaining process. This conduct violates
EERA, section 3543.S(c). (Yolo CSS, supra, :PERB Decision No. 838, proposed decision, p.
33.) This conduct also amounts to derivative violations of EERA sections 3543.S(a) and (b).
(Yolo CSS.)
72

3. 	The Districf s September 3, 2010 Refusal to Bargain Over the Terms
of
the
July 29, 2010 Tentative Agreement
The PERB complaint also alleges that the District committed an additional per se
violation
of
the duty to bargain in good faith by refusing, on September 3, 2010, "to negotiate
further over the terms
of
the tentative agreement reached between the parties on or about
July 29, 2010." In general, a party's outright refusal to commence or continue bargaining over
negotiable issues violates the EERA. (Sierra Joint Community College District (1981) PERB
Decision No. 179, p. 7.) On the other hand, the Board in Alhambra CHSD, supra, PERB
Decision No. 560 recognized that once the parties reach tentative agreement, "[a]bsent some
extenuating circumstance, such
as
discovered illegality
of
a contract term, either side can
lawfully refuse to reopen negotiations pending ratification." (Id. at p. 14, citing Wichita Eagle
and Beacon Publishing Co., Inc. (1976) 222 NLRB 742.) In Alhambra CHSD, the parties
reached tentative agreement on all outstanding issues in negotiations but the employer
proposed, then subsequently withdrew, a new proposal for a retirement incentive. The Board
held that because the parties had reached a lawful tentative agreement on all subjects in
negotiations, neither party was obligated to entertain new proposals. (Id. at p 15.) It
accordingly concluded that the employer did not restart the duty to bargain over the covered
issues by making a subsequent proposal. (Ibid.)
The Board reached a contrary conclusion under different facts. In Chino Valley Unified
School District (1999) PERB Decision No. 1326, pp. 5-6, the parties reached tentative
agreements on 16
of
the 19 issues in ongoing negotiations. (Id. at p. 3.) In meetings to address
the remaining three issues, the employer changed the terms of the prior tentative agreements.
(Ibid.) The Board found that the employer's conduct evidenced regressive bargaining, which
suggested bad faith under a totality of the circumstances analysis. (Id. at p. 5.)
73

The facts regarding this allegation are somewhat unique. It is undisputed that the
parties reached a Tentative Agreement on all substantive terms discussed at the table including,
as relevant here, the number of employees to be recalled from work from layoff in exchange
for furlough days. The governing authority from both parties (i.e., Local 3112 's membership
and the District's Board of Trustees) even approved those terms. And yet, because the parties
never committed that Tentative Agreement fully to writing, their mutual duty to meet and
confer was not complete. ·
The Board's holding in Alhambra CHSD, supra, PERB Decision No. 560 best applies
to the facts at issue here. It would be improvident to conclude that Local 3112 could
recommence bargaining over issues that the parties agree were addressed comprehensively in
the Tentative Agreement simply because that agreement had not yet been fully reduced to
writing. Thus, although the duty to bargain in good faith was still present, it did not obligate
the District to revisit, on September 3, 2010, the parties' comprehensive Tentative Agreement
from July 29, 2010. Rather, the only remaining aspect of the duty to negotiate that remained
was the parties' mutual obligation to draft and execute the final agreement. Therefore, this
allegation in the PERB complaint, even if true, does not demonstrate a violation of the duty to
bargain in good faith. It is accordingly dismissed.
4. 	Local 3112 's Surface Bargaining Claim Against the District
Local 3112 also alleges that the sum-total of the District's bargaining conduct, already
described above, also constitutes a violation of the duty to bargain in good faith under a
"totality of the bargaining conduct" analysis. That conduct includes the unilateral
implementation of furlough days, the refusal to meet with bargaining team member Clavel
74

after August 5, 2010, and excluding any reference to the Phase II layoffs in its final draft
agreement documents. 	·
a.
	The District's Per Se Violations
ofEERA
Section 3543.5(c)
Regarding the unilateral implementation
of
furloughs, in Newark Unifi.ed School
District (2007) PERB Decision No. 1895, the Board recognized that unilateral policy changes
concerning negotiable subjects may be evaluated as violations
of
the duty to bargain in good
faith under both a "per se" theory, as well as under the "totality
of
bargaining conduct" test.
(Id. at proposed decision, pp. 20-21, citing Stationary Engineers
v.
San Juan Suburban Water
District (1979) 90 Cal.App.3d 796, 802.) A similar approach
1s
appropriate here because the
District's decision to act unilaterally suggests that the District's negotiators lacked the
subjective intent to resolve issues through bargaining.
The same is true
of
the District's refusal to meet with Clavel. After August 5, 2010, the
parties still had the obligation to work together in preparing the final written agreement.
Declining to meet with Local 3112' s chosen negotiators supports the
claim
that the District did
not intend to fulfill its bargaining obligations.
b.	
The District's Failure to Assist With Finalizing the Agreement
This proposed decision has already addressed how Local 3112 's inaction regarding the
drafting
of
the final agreement suggested a lack of intent to complete its bargaining
obligations. The District's own role with these draft documents cannot be overlooked. The
District did not deliver the August 5, 2010 Draft, what would be the final draft, until the
moment the agreement was to be signed. Although Lee-Sung sent Schnaufer some notes about
the agreement, his communication was ambiguous. Lee-Sung never explained how the two
sections, "Effects
of
Layoff," and "Layoff Reinstatements," would be incorporated into the
75

final
draft
The District exacerbated this ambiguity
by
subsequently refusing to meet with
Local 3112 over this issue when the parties' mutual duty to bargain over language and format
still existed. Viewed overall, this conduct suggests that the District lacked the good faith intent
to reach agreement on the content and format
of
the final draft agreement documents.
C.
	The Implementation
of
the July
1,
2010 Layoffs
Additional evidence
of
bad faith is found
in
the District's July
I,
2010 decision to
implement classified layoffs, despite the fact that layoff effects bargaining had not yet
concluded.
In
Compton Community College District (1989) PERB Decision No. 720
( Compton CCD), the Board described ihe limited circumstances under which an employer may
implement a non-negotiable decision, such as a layoff, prior to completing effects bargaining.
Those circumstances were outlined in the following three-part test:
1.
	The implementation date is not an arbitrary one, but is
based upon either an immutable deadline (such as one set by the
Education Code or other laws not superseded
by
EERA) or an
important managerial interest, such that a delay in
implementation beyond the date chosen would effectively
undermine the employer's right to make the nonnegotiable
decision;
2. 	notice
of
the decision and implementation date is given
sufficiently in advance
of
the implementation date to allow for
meaningful negotiations prior to implementation; and
3. 	the employer negotiates in good faith prior to
implementation and continues to negotiate in good faith after
implementation as to those subjects not necessarily resolved by
virtue
of
the implementation.
(Id. at pp. 14-15, citing Lake Elsinore School District (1988) PERB Decision No. 696, pp. 23-
24 (dis. opn.
of
Craib, Member).) In Compton CCD, the employer notified the union
of
contemplated layoffs in May and June to be effective the end of July and September. (Id. at p.
15.) The Board fo1md that those dates were warranted because
of
the employer's constitutional
76

requirement to pass a balanced budget by September 6. It further found that the employer was
willing to bargain over negotiable effects, but that the union failed to ever pursue negotiations.
(Id. at p. 15-16.) The Board in that case concluded that the implementation of the layoffs did
not violate the duty to bargain. (Ibid.) That holding was reaffirmed in subsequent cases. (See
e.g., Palos Verdes Faculty Association (Stever) (2012) PERB Decision No. 2289, pp. 16-17.)
In the present dispute, the undisputed record shows that the District implemented
layoffs prior to completing effects bargaining. The record further shows that the District did
not meet the first element of the Compton CCD, supra, PERB Decision No. 720 analysis.
Lee-Sung explained that in order to conduct the planned layoffs on July 1, 2010, the District
was required to notify affected employees of the layoff in May 2010 because of Education
Code notice requirements. However, unlike in Compton CCD, there was no showing here that
July 1, 2010 was an immutable deadline or that a later implementation date would have
frustrated the District's ability to conduct the layoffs or achieve the vanguard of its sought-
after savings. For these reasons, the District was not privileged to implement the July 1, 2010
classified layoff prior to completing effects bargaining. Its decision to nevertheless do so
demonstrated an intent to subvert the bargaining process and, under the circumstances here, is
further evidence of bad faith. 37
After reviewing the parties' bargaining conduct as a whole, including the District's
multiple per se bargaining violations, its failure to adequately work with Local 3112 in
finalizing the parties' Tentative Agreement, and its premature imposition of the July 2010
37 The PERB complaint against the District did not allege the implementation of the
layoff as an independent violation of EERA. Local 3112 made no effort to amend the
complaint to include such an allegation and it was not addressed in its closing brief.
Furthermore, raising that issue now would be untimely. Therefore, this proposed decision will
not address whether this same conduct was an independent violation of the duty to bargain.
77

layoff, the record shows that the District lacked the intent to bargain with Local 3112 in good
faith. Under the specific circumstances in this dispute, this conduct violates EERA section
3543.5(c) under a "totality of the bargaining conduct" theory. 38 This conduct also amounts to
derivative violations ofEERA sections 3543.5(a) and (b). (Oakland Unified School District
(1985) PERB Decision No. 540, p. 25.)
II. 	Local 3112 's Retaliation Claim
Local 3112 alleges that the District terminated Clavel's employment in retaliation for
his Local 3112 activity. To demonstrate that an employer discriminated or retaliated against an
employee in violation of EERA section 3 543 .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, pp. 6-8 (Novato USD).)
A. 	Protected Activity With the District's Knowledge
The record is clear that Clavel engaged in extensive protected activity including serving
as an active Local 3112 officer, pursuing grievances and other complaints on behalf of unit
members, insisting that the District adhere to the CBA, and participating in bargaining. These
activities are protected under EERA. (Klamath-Trinity Joint Unified School District (2005)
PERB Decision No. 1778, p. 2.) The record is equally clear that virtually everyone involved
with Clavel's employment, from his coworkers to the highest levels of the District's
38 The mere existence of per se violations does not necessarily also equate to a surface
bargaining violation. (Chula Vista City School District, supra, PERB Decision No. 834, pp.
72-73.)
78

administration, were aware
of
these activities. These facts were not disputed by the District in
its closing brief.
Although not expressly discussed in either party's brief, there is some dispute as to
whether Clavel's July
1,
2008 e-mail message to a local television news organization was
protected under EERA. 39
PERB has long recognized that public advocacy about employee working conditions is
protected under the EERA. (San Ramon Valley USD, supra, PERB Decision No. 230, pp. 15-
18.) Even speech criticizing the employer or speech containing inaccuracies or exaggerations
may still be protected. (Oakland Unified School District (2007) PERB Decision No. 1880, p.
21, citing Trustees
of
the California State University (Sonoma) (2005) PERB Decision
No. 1755.) Under this principle, an employee's reporting
of
unsafe working conditions is
protected. (Los Angeles Unified School District (1995) PERB Decision No. 1129, proposed
decision, p. 8.) In contrast, an employee's speech intended to "humiliate" his supervisor in
furtherance
of
a "personal grudge" unrelated to protected activity is not protected. (State
of
California, Department
of
Transportation (1982) PERB Decision No. 257-S, pp. 6-7
39 Both parties addressed whether the e-mail message qualified for protection under the
First Amendment to the U.S. Constitution, something PERB generally lacks jurisdiction to
enforce. (Kern High Faculty Association, CTAINEA (Maaskant) (2007) PERB Decision
No. 1885, dismissal letter, p. 2.) However, PERB does have the authority to address whether
the same speech is protected under EERA, even when not specifically alleged in the PERB
complaint. Consideration
of
unalleged protected activity is appropriate where the respondent
has adequate notice that the conduct would be at issue, the activity is intimately related to
issues in the existing PERB complaint, and the activity is fully litigated at the hearing such that
both parties had the opportunity to examine the pertinent evidence. (Lake Elsinore Unified
School District (2012) PERB Decision No. 2241, pp. 8-9, citations omitted.) All
of
those
conditions are met here. The July
1,
2008 e-mail message was listed among in the Dismissal
Charges as part of the justification for terminating Clavel 's employment. Each party presented
evidence about the e-mail and the claims underlying the e-mail at both the PERB hearing and
Clavel's Dismissal Hearing. The District had ample notice
of
Local 3 l 12's belief that the
e-mail message was not a proper basis for discipline. Based on these facts, consideration of
the July 7, 2008 e-mail message as protected activity is warranted.
79

(Department of Transportation).) Likewise, employee statements that are "made maliciously
and are untrue, or with reckless disregard for truth or falsity" are not protected. (State of
California (Department of Transportation) (1983) PERB Decision No. 304-S, proposed
decision, p. 33.)
In Oakdale Union Elementary School District (1998) PERB Decision No. 1246
( Oakdale UnESD), an employee attempted to report unsafe working conditions to her
supervisor pursuant to a provision in the negotiated agreement between her union and her
employer. When the employer took no action on that complaint, the employee reported the
same concerns to a third party investigator who looked into the matter. (Id. at pp. 16-17.)
PERB concluded that the employee's complaints were protected under the circumstances even
though made to an outside entity. (Id. at p. 18.) The Board reasoned that her complaints were
consistent with the contract-based safety complaint process and were essentially an extension
of her attempt to resolve the matter together with her union and her employer. (Ibid.)
The Board reached a different conclusion in Marin County Law Library (2004) PERB
Decision No. 1655-M (Marin Law Library) than in Oakdale UnESD, supra, PERB Decision
No. 1246. 	In Marin Law Library, the Board found that a library employee's complaints to
patrons about working conditions were not protected where there was no showing that her
actions were part of an effort to engage her employer on' those issues. (Marin Law Library at
dismissal letter, p. 4.) In Regents of the University of California (1998) PERB Decision
No. 1263-H (UC Regents), an employee publicly commented that the employer's new sick
leave policy could force employees to work while sick, which would infect the employer's
laboratory animals with disease. Although the employee had a protected right to criticize the
sick leave policy, his comments "crossed the line ofreasonableness" and were "reckless and
80

inflammatory," because there was no evidence either that employees worked whiie sick or that
human illness could transfer to the laboratory animals. (Id. at proposed decision, pp. 46-47.)
The Board found that those comments lost protected status. (Ibid.)
Here, Clavel' s July 1, 2008 e-mail message included some commentary on workplace
issues such as Head Custodian Vazquez's treatment
of
his subordinates and the District's
employee complaint investigation practices. Those facts notwithstanding, Clavel's e-mail
message lost any protected status it had because
of
his intentionally inflammatory word choice.
As in in UC Regents, supra, PERB Decision No. 1263-H, Clavel's characterization
of
Vazquez
as a "sexual predator" was essentially describing Vazquez, without basis, as a sexually violent
criminal. (See Penal Code,§ 6600(a); People
v.
Roberge (2003) 29 Cal.4th 979, p. 984.)
Nothing in the record even remotely suggests that Vazquez fits that description. Even
if
Clavel
was not aware, per se,
of
the criminal and violent implications
of
the words he used, it is
certainly true that comment was made with reckless disregard for the tmth. Moreover,
Clavel's history
of
physical confrontations with Vazquez suggests that Clavel chose those
words for personal reasons and not to advance working conditions.
Unlike in Oakdale UnESD, supra, PERB Decision No. 1246, Clavel's e-mail message
could not be viewed as an extension
of
any contractual or union-initiated complaint process.
Although some
of
the content in the e-mail related to an ongoing complaint by Local 3112, as
in Marin Law Library, supra, PERB Decision No. 1655-M, Clavel's e-mail message does not
appear to be an attempt to engage the District on this issue. In fact, the District and Local 3112
had already agreed that Clavel should not be part
of
the investigation because
of
Clavel' s past
history with Vazquez. Clavel's e-mail appears to be an attempt to undermine this agreement
81

and reinsert himself back into the process. Under these circumstances, Clavel's e-mail
message to the news organization was not protected under EERA.
B. 	Adverse Action
It is undisputed that the District dismissed Clavel from employment on August 5, 2010.
This is an adverse employment action. (County of Orange (2013) PERB Decision No. 2350- ·
M, p. 5, proposed decision, pp. 14-1-5.)
C. 	Nexus
The main element of Local 3 l 12's prima facie case in dispute is whether there is any
causal connection, or nexus, between Clavel's protected union activity and the District's
decision to dismiss him. Direct evidence of an employer's motives is rare, so the required
nexus is typically established circumstantially. (Alisa! Union Elementary School District
(1998) PERB Decision No. 1248, p. 6.) Relevant factors concerning nexus are discussed
below.
1. 	Timing as Circumstantial Evidence of Nexus
PERB considers the timing between protected activities and the adverse action an
important circumstantial factor when detennining the presence or absence of nexus. (North
Sacramento SD, supra, PERB Decision No. 264, proposed decision, p. 23) Adverse act~ons
occurring shortly after an employee's protected activities imply an unlawful motive. On the
other hand, the passage of a significant amount of time weakens any inference of nexus.
(Los Angeles Unified School District (1998) PERB Decision No. 1300, dismissal letter, p. 1.)
In either case, timing alone is usually not determinative and other evidence is required to
establish a prima facie case. (North Sacramento SD, at proposed decision, p. 23.)
82

Here, timing supports Local 3112 's retaliation claim. Clavel engaged in Local 3112
activity close in time to significant actions regarding the District's effort to dismiss him from
employment. For example, Clavel was an active member of Local 3112 's bargaining team in
the then-ongoing negotiations over a furlough and layoff agreement. When Lee-Sung issued
the March 22, 2010 Dismissal Charges, the parties had just begun discussing financial details
more carefully in negotiations. Similarly, the District Board of Trustees approved Clavel's
dismissal on August 5, 2010, just days after the parties' respective negotiating teams met in
bargaining and reached Tentative Agreement. Clavel's dismissal date was the day scheduled
for ratifying the parties' agreement.
The District argues that the timing of events in this matter do not support Local 3112 's
prima facie case because Clavel began his union activity in 2006 and the District did not
terminate his employment until four years later in 2010. This argument is unpersuasive
because it ignores Clavel's extensive protected activity after 2006 and continuing up until the
very day of his tennination. The District provides no legal authority supporting this lim~ted
view and it is accordingly rejected. That said, temporal proximity alone is not sufficient to
establish nexus and other circumstantial factors w:ill be discussed below.
2. 	Shifting Justifications for Charges
The record includes contradictory statements about some of the allegations in the
Dismissal Charges. Inconsistent or shifting justification for an adverse action may be evidence
of nexus. (Oakland Unified School District (2003) PERB Decision No. 1529, p. 19, citing
State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S.)
In Sacramento City Unified School District (2010) PERB Decision No. 2129 (Sacramento City
USD), the Board found evidence of nexus where an employer showed no apparent concern for
83

an employee's tardiness, but later used that as a basis for removing him from an active
substitute teacher's list. The Board viewed this as "'attempting to legitimize its decision after
the fact."' (Id. at p. 12, quoting San Diego Community College District (1983) PERB Decision
No. 368; Novato USD, supra, PERB Decision No. 210.)
Here, the District identified Clavel's poor attendance, his misuse
of
District equipment,
and his poor work record as partial basis for the Dismissal Charges. However, in Clavel's
most recent performance evaluation, dated May 2009, the District rated Clavel as "Effective-
Meets Expectations" in all
of
these categories.40 As in Sacramento City USD, supra, PERB
Decision No. 2129, the District's apparent lack
of
concern for these issues at the time
of
Clavel's performance evaluation is cause for suspicion. Vice Principal Juaregui's explanation
for this apparent discrepancy was also suspicious. He said he wanted to be "extra fair" to
Clavel because
of
his role in Local 3112 and because
of
Clavel's grievance over a prior
evaluation. This testimony indicates an intent to misrepresent the truth and, under the
circumstances, is evidence
of
nexus.
In addition, the Dismissal Charges include the claim that Clavel had a "[r]ecord
of
one
or more misdemeanor convictions which indicates that he is a poor employment risk." He was
also accused
of
failing to disclose material facts regarding his criminal record. There was
some evidence presented about two
of
Clavel' s prior criminal convictions. The first was a
1998 conviction for being under the influence
of
an illegal substance. The second was a 2008
conviction in Arizona for interfering with a judicial proceeding.
The District admitted in its closing brief that it "did not charge Clavel with any
misconduct in being arrested in Arizona." The remaining conviction was not a proper basis for
40
It should be noted that Clavel's overall score in that evaluation was ''Needs
Improvement" due to other deficiencies.
84

disciplinary action. Labor Code section 432.7(a) states, in relevant part, that "[n]o employer,
whether a public agency or private individual or corporation, shall ... utilize, as a factor in
determining any condition of employment including hiring, promotion, termination ... any
record of regarding a referral to, and participation in, any pretrial or posttrial diversion
program, or concerning a conviction that has been judicially dismissed[.]" Courts have
determined that Labor Code section 432.7(a) applies to school districts in their capacity as
employers. (See Martin v. Santa Clara Unified School Dist. (2002) 102 Cal.App.4th 241, p.
257; see generally Faria v. San Jacinto Unified School Dist. (1996) 50 Cal.App.4th 1939, p.
1943.) In the present case, the undisputed evidence shows that Clavel's 1998 conviction was
judicially dismissed in 2006 and, under Labor Code section 432.7(a), could not be a valid basis
for determining his termination. Thus, the portion of the Dismissal Charges referencing
Clavel's criminal convictions were based either on something that it later said was not the basis
of its dismissal action or something the District was precluded from considering under State
law. In either case, the District's actions are evidence of nexus. (See Los Angeles Unified
School District (2012) PERB Decision No. 2244, p. 11 [holding an employer's admission that
its stated reasons for an adverse action were not the true reason for that action was evidence of
nexus].)
3. 	Exaggerations in the Dismissal Charges
Local 3112 asserts that the District exaggerated the scope of Clavel's misconduct in its
Dismissal Charges. PERB has found that an employer's exaggerated explanation for an
adverse action may cast suspicion on its true motives. (Coachella Valley Mosquito & Vector
Control District (2009) PERB Decision No. 2031-M, p. 17-19.) On the other hand, merely
lacking good cause for all the disciplinary charges against an employee does not, without
85

more, establish that the discipline was retaliatory. (Regents of the University of California
(2004) PERB Decision No. 1585-H, p. 8.)
Here, the District included trivial allegations in the Dismissal Charges. The District
claimed that Clavel purposefully misspelled his coworkers' names in e-mail messages to harass
them. For example, Clavel referred to former colleague Steve Oatman as "Goatman." There
was no evidence that Clavel' s misspellings were intentional or that any employees felt
harassed by this conduct. To the contrary, most seemed not to have noticed. No one
complained about this issue. In fact, in some cases, the alleged target of the harassment did not
even receive the offending e-mail message. This suggests an attempt to manufacture
controversy where there was none.
The District also understated some improvements in Clavel' s behavior in response to
criticism from supervisors. The Dismissal Charges assert that Clavel completely disregarded
any effort to correct his behavior, but this misstates the portion of the record indicating some
improvements in Clavel's behavior. For example, the record shows that Clavel had a history
of improving his behavior after receiving a poor evaluation. Clavel was rated as "Needs
Improvement" in his first performance evaluation in 1995. In a subsequent evaluation that
same year, he was rated as "Effective-Meets Expectations." Two years later, he was rated as
"Exceeds Expectations." Likewise, after Clavel was disciplined and evaluated poorly in 2002,
Clavel had three consecutive years of positive evaluations. In his 2005 evaluation, Oxford
Academy Vice Principal Triplett, reported seeing a "significant tum around" in Clavel' s
behavior. Although there were later concerns about Clavel's behavior, the characterization
that Clavel totally disregarded all attempts at remediation is exaggerated.
86

The District's exaggerated statements, when viewed in totality, portray a skewed
account of Clavel's employment. This hyperbole suggests an intent to conceal facts favorable
to Clavel and is evidence of nexus.
4. 	The District's Suspicious Investigation Practices
Local 3112 also alleges that the District did not fully and properly investigate the
claims against Clavel before including them in the Dismissal Charges. PERB has held that an
employer's "suspect" investigation may be evidence of nexus. (Ventura County Community
College District (2003) PERB Decision No. 1547, p. 16.) However, where the employer has
delegated the responsibilities of the investigation to another, the "decisionmaker's reliance on
reports by [the other entity or individual] does not constitute a cursory investigation unless the
decisionmaker had reason to believe the reports to be biased or inaccurate." ( County of
Riverside (2011) PERB Decision No. 2184-M, p. 16, citing Escondido Union Elementary
School District (2009) PERB Decision No. 2019.)
a. 	Suspicions Regarding the ESI Investigation
The principal investigation of Clavel' s misconduct was conducted by an independent
company, ESL This was the same company that the District used to investigate Clavel's
earlier complaints against the Western High administration. Lee-Sung said he used this
company because its primary investigator, Price, was familiar with the personnel at Western
High. However, Ley-Sung also admitted knowing that Price already concluded that Clavel had
violated work rules and failed to treat his coworkers respectfully during his earlier
investigation. These conclusions indicate that Price was predisposed to a particular conclusion
even before he began the second investigation. Lee-Sung's decision to continue using ESI in
87

spite
of
Price's apparent bias suggests that the District was not seeking a wholly objective
investigation.
Price's propensity to conclude that Clavel had violated District policy appears to have
influenced the outcome
of
the investigation report. In one instance, Price concluded that
Clavel violated the policy for issuing loaner clothes to students, but the only evidence
of
that
finding was Athletic Director Quintana's assumption based on Clavel's frequent requests for
more clothes.
In
another example, Price concluded that Clave! stole some baseballs reported missing
by baseball coach Smith. The only evidence supporting that finding was that Clave} was one
of
four people (the others being Aguilera, Cassella, and Smith) with access to the baseballs and
that Smith saw Clavel's community baseball team with similar balls. Neither the baseball
coach nor Price included credible reasons for excluding Aguilera or Cassella (or the coach
himself for that matter)
as
suspects. The District included both the loaner clothes and the
baseball issue in its Dismissal Charges. Merely including unproven claims in discipline does
not necessary demonstrate nexus, but the record here collectively shows that the ES!
investigation was biased.
b. 	The District's Use
of
Site Files
Local 3112 also questions the District's investigation practices for using documents not
contained in Clavel's official personnel file as partial basis for the Dismissal Charges. In
Novato USD, supra, PERB Decision No. 210, the Board concluded that a "secret file"
maintained at an employee's school site suggested a retaliatory motive where the employee
was never informed
of
the file and it appeared to violate the employer's own personnel
practices. (Id. at pp. 20-21.) The Board addressed this issue again in Woodland Joint Unified
88

School District (1987) PERB Decision No. 628 (Woodland JtUSD). There, the Board stated
'
that the existence of a "working file" separate from an employee's personnel file was not
evidence of nexus if consistent with personnel practices. (Id. at p. 44, fn. 21.) However, the
employer's failure to provide the content of that file to an employee upon request so she could
timely and intelligently respond to discipline was evidence of nexus, absent a reasonable
explanation. (Id. at p. 43.)
Here, the evidence showed that some of the documents used to support the Dismissal
Charges were housed in "site files" separate from Clavel's official personnel file. Unlike in
Novato USD, supra, PERB Decision No. 210 and Woodland JtUSD, supra, PERB Decision
No. 628, the District's site files were not secret and were not hidden from Clavel. Clavel
admitted during his testimony at the PERB hearing that he knew about the District's site files
and never asked to review them. The record here also shows that the District provided Local
3112 with everything ESI reviewed during its investigation upon request and even delayed its
disciplinary proceedings so Local 3112 could review that material. Under these facts, Local
3112 has not established that the District's maintenance or utilization of site files on Clavel
was evidence of nexus.
5. 	Failure to Follow Procedures
Local 3112 also argues that the District failed to follow its disciplinary procedures
when deciding to dismiss Clavel. The basis for this position is that District Board of Trustees
Policy 6417 .02 requires, among other things, that the District conduct "a careful investigation"
when deciding the type of discipline to impose. Certain aspects of this argument are redundant
based on the discussion about other nexus factors, above. But the thrust of Local 3112 's
position is that the District failed to conduct "a careful investigation" because Price did not
89

review certain e-mail messages, did not interview certain people, and generally did not uncover
enough exculpatory evidence regarding Clavel's conduct. This argument is unpersuasive
under the record presented here. The term "careful investigation" is far too subjective to
conclude that existing policy required particular actions during the investigation. In City of
Santa Monica (2011) ~ERB Decision No. 2211-M, the charging party alleged that there was
evidence of nexus because his employer did not interview him prior to releasing him from
probation. The Board found no evidence of nexus in that case because the employer reviewed
video footage of the incident giving rise to his release and tμere was no evidence that the
District had a practice of interviewing or conducting its investigation in a particular way. (Id.
at p. 15, citing County of Riverside, supra, PERB Decision 2184-M, State of California
(Department of Health Services) (1999) PERB Decision No. 1357-S.) Here, Local 3112
provided no evidence about how the District has interpreted the "careful investigation" clause
in Board of Trustees Policy 6417 .02. Thus, the District's investigative practices are only
evidence of nexus to the extent already discussed above.
6. 	Evidence of Anti-Union Animus
Local 3112 also accuses the District of animus toward Clavel' s union activity or against
Local 3112 in general. Such animosity, if proven to be true, may be evidence of nexus.
(Golden Plains Unified School District (2002) PERB Decision No. 1489, p. 8 (Golden Plains
USD.) In Golden Plains USD, a teacher sought the assistance of her exclusive representative
regarding what she perceived to be a violation of the negotiated parent complaint procedure.
(Id. at p. 3.) The teachers' union requested information about a meeting where the alleged
violations occurred, but received no response. The Board recognized that the individual lacked
standing to allege bargaining violations, such as the failure to respond to information requests,
90

but concluded that the employer's actions could nevertheless be relevant to her retaliation
claim because it suggested anti-union animus. (Id. at p. 9, fn. 12.)
a. 	Clavel's Exclusion From Bargaining Sessions
Here, as explained in section LB. of the conclusions of law in this proposed decision,
the District committed multiple violations of the duty to bargain with Local 3112, including
unlawfully excluding Clavel from negotiations after August 5, 2010. (Ante, p. 65.) And as
stated above, the District's asserted reasons for Clavel' s exclusion were unpersuasive. This
violation suggests that the District harbored animus toward Local 3112 and its bargaining
representatives, which is further evidence of nexus.
b. 	Animus by W estem High Staff
Local 3112 also maintains that there is further evidence of animus from Western High
staff, such as Custodian Aguilera, AFW Us Camara and Cassella, and Athletic Director
Quintana. Assuming for the purposes of discussion that each of those individuals had some
anti-union animus, it still would not support Local 3112's retaliation claim under the
circumstances. The evidence shows that it was Lee-Sung who decided to terminate Clavel's
employment He also drafted the Dismissal Charges. No one from Western High was
involved. Moreover, according to PERB's subordinate bias liability doctrine, a subordinate
employee's anti-union animus is not imputed to a decision-maker unless: (1) the subordinate
makes a recommendation, report, or evaluation to the decision-maker because of an
employee's protected conduct; (2) the subordinate intended his or her conduct to result in an
adverse action for the employee; and (3) the subordinate's conduct was a motivating factor or
proximate cause for an adverse action against the employee. (Santa Clara Valley Water
District (2013) PERB Decision No. 2349-M, p. 33, citing State of California (Department of
91

Corrections) (2001) PERB Decision No. 1435-S, other citation omitted.) Subordinate liability
will not be found where the lower-level employee provides the decision-maker with accurate
information. (Id. at p. 34.) Rather, there must be a showing that the subordinate tainted the
decision-making process with biased, inaccurate, or incomplete infonnation. (Ibid.)
In this matter, Aguilera, Camara, and Quintana all complained to Lee-Sung about
Clavel. However, even
if
those complaints were motivated
by
animus, the record shows that
their substance was essentially true. The record showed, as those employees contended, that
Clavel did not complete his work, was regularly absent without following reporting
procedures, and harassed others by doing things like sneaking up on his coworkers, or
watching them work for extended periods during the workday.
To the extent that Clavel claims that either Principal Sevillano or Vice Principal
Juaregui harbored anti-union animus when they drafted his 2009 evaluation, the record again
shows that many
of
the concerns they identified were basically true. They rated Clavel as
needing to improve on interacting with bis coworkers and taking direction from others.
Clavel's shortcomings in these areas were demonstrated in the record. For these reasons,
Local 3112 has not proven that any animus by Clavel' s coworkers impacted his dismissal.
Therefore, Local 3 l 12's argument is unpersuasive.
Nevertheless, after reviewing the record as a whole, there is sufficient circumstantial
evidence of nexus. Therefore, Local 3112 has established all
of
the elements
of
a prima facie
case for retaliation.
D. 	The District's Burden of Proof
Because Local 3112 met all the elements of a prima facie case, the District now bears
the burden of proving that it would have dismissed Clavel even if he did not engage in any
92

protected activity. (See Chula Vista Elementary School District (2011) PERB Decision
No. 2221, p. 21, citing Novato USD, supra, PERB Decision No. 210; Martori Bros. Dist. v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721.) In cases where an adverse action
appears to have been motivated by both protected and unprotected conduct, the issue is
whether the adverse action would have occurred "but for" the protected acts. (Los Angeles
County Superior Court (2008) PERB Decision No. 1979-C, p. 22.) This requires the employer
to establish both:
( 1) that it had an alternative non-discriminatory reason for the
challenged action; and (2) that it acted because of this alternative
non-discriminatory reason and not because of the employee's
protected activity.
(Palo Verde Unified School District (2013) PERB Decision No. 2337, pp. 18-19, citations
omitted; see also County of Orange, supra, PERB Decision No. 2350-M, p. 16.)
In Riverside Unified School District (1987) PERB Decision No. 639 (Riverside U:SD),
PERB found that had an employee stated a prima facie case for retaliation, the employer would
have met its burden of proving that his protected activity (grievances and unfair practice
charges) was not the true motivation for its decision to dismiss him. The Board noted that the
employer had followed a "moderate course of progressive discipline" without sustained
improvement from the employee in the areas of following attendance policies and adhering to
his supervisor's instructions. (Id. at proposed decision, p. 22.) The employee had previously
received counseling, written warnings, and a suspension for the same types of misconduct.
PERB concluded that the record supported that employee's termination. (Ibid.) In a similar
case, City of Santa Monica, stpra, PERB Decision No. 2211-M, the Board found no retaliation
after noting that numerous people complained about the employee and he was advised
repeatedly about his performance deficiencies even before any of his protected activity. (Id. at
93

p. 17.)
In
County
of
Orange, supra, PERB Decision No. 2350-M, the Board found that an
employer's decision not to promote an employee was not retaliatory, but due to his poor
attitude and failure to do his job properly. (Id. at p. 17, proposed decision, pp. 23-24.)
In County
of
San Joaquin (Health Care Services) (2004) PERB Decision No. 1649-M
( County
of
San Joaquin), the Board found that an employer successfully carried its burden
of
justifying the termination
of
an employee despite evidence
of
employer animus toward a union
organizing campaign. There, the record showed that members
of
the public and coworkers
complained about the employee's poor job performance, such as sitting in his chair and resting
during duty time and failing to respond to calls for assistance. (Id. at proposed decision, p. 41.)
The employee also engaged in offensive and harassing behavior such as whistling the tune
of
"Popeye the Sailor Man" in the presence
of
a coworker who was a retired naval officer, and
comparing another coworker to the perpetrators
of
the September 11, 2001 terrorist attack. (Id.
at proposed decision, pp. 28-29, 43.) The Board noted that employee's behavior as
"unprofessional, divisive, and corrosive on morale," and was different from the tenor
of
any
other aspect
of
the union's organizing campaign. It also noted that the employee's conduct
predated his involvement with his union. (Id. at proposed decision, p. 43.)
In Baker Valley Unified School District (2008) PERB Decision No. 1993 (Baker Valley
USD), an employer stated that it decided against renewing the employment
of
a probationary
teacher "because
of
problems with student engagement in the classroom." The Board found
that explanation to be pretext for retaliation because there was no commentary about problems
in that teacher's performance evaluations and there was no record
of
any counseling or
discipline in his personnel file. (Id. at p. 13, citing Simi Valley Unified School District (2004)
PERB Decision No. 1714.) The Board concluded that the employer in that case failed to carry
94

its burden
of
proving that it would have made the same decision even
if
the teacher did not
engage in any union activity. (Id. at p. 14.)
In
Jurupa Community Services District (2007)
PERB Decision No. 1920-M (Jurupa CSD), the Board similarly found pretext where the
employer's notice
of
termination included trivial incidents such as slamming doors, technical
violations
of
the employer's sick leave policy, and exaggerated statements
of
verbal abuse.
(Id. at proposed decision, pp. 17-19.) The employee in that case was also accused
of
altering
his time card, but no witnesses testified about that incident during the PERB hearing. (Id. at
pr_oposed decision, p. 19.) Under those circumstances, the Board found that the employer did
not meet its burden
of
proof and concluded that the employee's termination was retaliatory.
(Id. at p. 4.)
Applying the above precedent to the present dispute is a challenging task. The
District's handling
of
Clavel' s discipline was highly suspicious for the reasons outlined in the
nexus analysis, above. As in Baker Valley USD, supra, PERB Decision No. 1993, some
of
the
misconduct alleged in the Dismissal Notice was contradicted by Clavel' s most recent
performance evaluation. And like Jurupa CSD, supra, PERB Decision No. 1920-M, the
Dismissal Charges included trivial transgressions, such as Clavel's misspellings in e-mail
messages, as well as claims
of
misconduct unsupported by any witnesses at either the PERB
hearing or Clavel's dismissal hearing. Multiple claims in the Dismissal Charges were not
substantiated by evidence in the record.
Ultimately, however, this issue is resolved in favor
of
the District due to the sheer
number
of
serious violations Clavel committed while at Western High. During his time there,
Clavel committed at least three offenses defined as Third Level infractions under Board Policy
6417.02. First, he submitted the March 14, 2008 absence slip, falsely claiming that he was on
95

union business during the time he was incarcerated. This conduct amounts to falsifying
personnel records and dishonesty, bothThird Level offenses. Clavel had previously falsified
personnel records, signing his 2005 Oxford Academy performance evaluation with the name
"George Washington."
Second, Clavel's July 1, 2008 e-mail message to a local television news organization
claimed, falsely, and without basis, that Oxford Academy Head Custodian Vazquez was a
"sexual predator." This too qualifies as dishonesty, a Third Level offense.
Third, Clavel deliberately overwatered the Western High baseball field rendering it
unusable and potentially dangerous. A Western High baseball game was delayed because
of
his conduct. This was not the first time Clavel deliberately damaged the baseball field. He
drove a truck over the field and used weed killer on the grass after being told not to do so.
Clavel 's intentional damaging
of
District property is another Third Level violation.
Clavel had already been suspended and demoted for prior misconduct. Under Board
Policy 6417.02, dismissal was warranted for these new offenses. In addition, by falsely
claiming union business on the March 14, 2008 absence form, Clavel sought to charge a
portion
of
his jail time to the District, as opposed to charging his own personal leave balance.
This is essentially theft, which is a "major offense" under Board Policy 6417.02. That policy
states unequivocally that "the penalty for major offenses is discharge."
In addition to those Third Level offenses, Clavel also committed multiple Second Level
offenses, which includes threatening, intimidating, coercive, or interfering conduct. The
record showed that Clavel would watch and laugh at his coworkers during the workday instead
of
doing his own work in the boys' locker room. There was also evidence that Clavel snuck up
on Camara to intentionally frighten her. Clavel also moved the school site truck even though
96

he knew Aguilera and Camara were using it and retrieving it would delay their work. Clavel's
over-watering of the baseball field was also an intentional attempt to interfere with Aguilera
and Camara's work. These actions were factually similar to County of San Joaquin, supra,
PERB Decision No. 1649-M, where an employee's harassing behaviors were part of the
employer's legitimate non-retaliatory reason for his discharge. (Id. at proposed decision, pp.
28-29, 43.) As in that case, the employees at Western High also complained about Clavel's job
performance.
Clavel's harassment of his coworkers was, perhaps, even more troubling than his Third
Level offenses because he had been disciplined on multiple prior occasions about similar
behavior. As in City of Santa Monica, supra, PERB Decision No. 2211-M, much of that
discipline predated any of Clavel's union or other protected activity. And as in Riverside USD,
supra, PERB Decision No. 639, that discipline was moderate and designed to be corrective.
While at Oxford Academy, Clavel was issued a letter for reprimand on November 19,
2002, for harassing behavior towards his coworkers, including grabbing Head Custodian
Vazquez and challenging him to a fight. On June 5, 2003, Clavel was issued a one-day
suspension for further harassing Vazquez.
When Clavel transferred to Savanna High, he was issued a letter ofreprimand on
September 5, 2005, for loudly criticizing student athletes and coaches from the another school
site. On September 29, 2005, Clavel was issued a letter ofreprimand for arguing with AFW II
Oatman. On Febmary 7, 2006, he was issued another letter ofreprimand for a "verbal
confrontation" with Oatman that almost escalated into physical violence. 41 Clavel's role with
41 Clavel received other discipline during this time as well. However, only the
discipline relating to his harassing behaviors is referenced here.
97

Local 3112 did not begin until sometime in 2006. There was no evidence that Clavel requested
removal
of
any
of
this discipline pursuant to the reckoning period in Board Policy 6417.02.
Clavel' s latest examples
of
harassing behavior constitute his sixth Second Level offense which,
under Board Policy 6417.02, warrants the most serious discipline.
In addition to the Second Level offenses, the record also shows that Clavel was
insubordinate and failed to follow District directives. This includes Clavel's decision to
connect his computer to the District's network in violation
of
District policy and his decision
to visit the W estem High campus after being directed not to enter District property.
Each
of
these actions was described in the Dismissal Charges. And although there were
shortcomings in both the District's investigation practices and its Dismissal Charges, the
District proved each
of
these offenses at PERB by a preponderance
of
the evidence. Moreover,
the deficiencies identified in the nexus analysis, above, do not detract from the seriousness
of
the above-referenced offenses. For example, none
of
the charges identified here were
inconsistent with Clavel's 2009 evaluation. Principal Sevillano did not appear to know about
Clavel's falsification
of
documents, the e-mail message about Vazquez, or the damage to the
baseball field. Sevillano specifically rated Clavel as "Not Satisfactory," the lowest possible
rating in contact with employees and coordinating his work with others. For obvious reasons,
Sevillano did not comment about Clavel's insubordination occurring after the evaluation.
Regarding the District's apparent effort to downplay the positive aspects of Clavel's
employment, his personnel records speak for themselves. Those records show that he was
disciplined multiple times, starting in 1998. He showed some improvement between 2003 and
2005, but received additional discipline starting in 2005 and continuing into 2006. The above-
referenced offenses began in 2008, during his time at Western High. Thus, although there was
98

substantial evidence
of
nexus, the mere presence
of
that evidence is not determinative in
retaliation cases. (Bellevue Union Elementary School District (2003) PERB Decision
No. 1561, proposed decision, p. 37.) PERB has found adverse actions, including dismissal,
may be warranted even in the face
of
direct evidence
of
nexus. (Regents
of
the University
of
California (2012) PERB Decision No. 2302-H, p. 4.)
In Healdsburg Union High School District (1997) PERB Decision No. 1185, the Board
found that, notwithstanding evidence
of
improper investigatory practices, the final termination
charges against the employee were "for the most part true." (Id. at proposed decision, p. 67.)
The same reasoning applies here. Notwithstanding the problems with the District's
investigative process and its Dismissal Charges, Clavel, in fact, committed the most serious
offenses he was accused of. He had been warned about committing similar misconduct before
any
of
his protected activity. And dismissal was appropriate under Board Policy 6417.02,
given the nature
of
Clavel' s wrongdoing and his history
of
discipline. Under these
circumstances, it is concluded that the District would have dismissed Clavel even had he not
engaged in any protected activity. Local 3 l 12's retaliation claim is dismissed.
REMEDIES
There were bargaining violations in both Case Numbers LA-CO-1451-E and LA-CE-
5535-E. PERB has broad remedial powers to effectuate the purposes
of
the EERA. EERA
section 3541.5(c) states:
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 affirmative action, including but not
limited to the reinstatement
of
employees with or without back
pay, as will effectuate the policies
of
this chapter.
99

I. 	Remedies for Violation in Case No. LA-CO-1451-E
Local 3112 violated the duty to negotiate in good faith under a surface bargaining
theory. In similar cases, PERB has previously ordered that the respondent cease and desist
from violating the law and bargain with the charging party upon demand. (Stockton Unified
School District, supra, PERB Decision No. 143, pp. 33-34.) PERB also ordered that the
respondent publicly post a notice of the violation. (Ibid.) Those remedies are warranted here.
Therefore, Local 3112 is ORDERED to cease and desist from negotiating in bad faith with the
District. Local 3112 is further ORDERED to post a notice of this violation.
II. 	Remedies for Violations in Case No. LA-CE-5535-E
The District also violated its duty to bargain in good faith with Local 3112. Because
most of the violations by the District were generally similar to the violations by Local 3112,
similar remedies are warranted here as well. Accordingly, the District is ORDERED to cease
and desist from: (1) negotiating in bad faith with the Local 3112; (2) refusing to meet with
Local 3112 's chosen negotiators; (3) unilaterally changing policies within the scope of
representation. The District is further ORDERED to cease and desist from interfering with
protected rights and to post a notice of this violation.
The District also violated EERA by enacting a unilateral policy change. One of the
typical remedies in unilateral change cases is a rescission of the unilaterally adopted policy and
a return of the affected employees to the status quo before the change. (County of Sacramento
(2009) PERB Decision No. 2045-M, p. 3.) In other cases, PERB has found that a return to
status quo did not effectuate the purposes of the collective bargaining laws at issue. In Nevada
Joint Union High School District (1986) PERB Decision No. 557 (Nevada JtUnHSD), the
Board found that the employer unilaterally changed a monthly payment schedule. (Id. at p.
100

12.) The Board declined to rescind that policy because it would result in overall worse
conditions for unit members. (Id at p. 13.) In Laguna Salada Union School District (1995)
PERB Decision No. 1103 (Laguna Salada USD), the parties stipulated that "Charging Party
shall not request, or shall PERB order, 'make whole' relief in this case[.]" (Id. at pp. 4, 17.)
The Board found that it was not constrained by the parties' stipulation as to remedy but
concluded it best effectuated the purposes of EERA to defer to the charging party's request and
not order a return to status quo. (Id. at p. 18.)
An approach similar to Laguna Salada USD, supra, PERB Decision No. 1103 is
warranted here. As in that case, Local 3112 did not request to r~scind the 2010-2011 furloughs
or otherwise make the employees who took furlough days during that time whole. 42 Instead, it
essentially has acknowledged that the terms of the parties' July 29, 2010 Tentative Agreement
represents an acceptable state of affairs. In addition, as in Nevada JtUnHSD, supra, PERB
Decision No. 557, there may be practical reasons for avoiding the typical remedy here. The
evidence shows that the furloughs implemented, the positions restored, and the people recalled
were all consistent with the Tentative Agreement. It is undisputed that agreed-upon furlough
days were preferable to layoffs. Because the issue of furloughs and layoffs were so deeply
intertwined in the parties' negotiations, the undoing of the furloughs would also undo the
progress the parties made toward avoiding layoffs or other types ofreductions.
For these reasons, it is concluded that rescission of the unilaterally implemented
furloughs does not best effech1ate the purposes of EERA and that remedy will not be ordered
in this case. However, because the District implemented the terms of the Tentative Agreement
42 Local 3112 did make such requests in its original unfair practice charge, but those
requests are deemed to be superseded by Local 3112' s subsequent stated position in the matter,
as expressed in its closing brief.
101

prior to satisfying its duty to bargain with Local 3112 over the language and format of the final
written agreement, it is ORDERED to bargain over those issues with Local 3112, immediately
upon request. Local 3112 must make its demand to bargain over these remaining issues within
10 days of when this proposed decision becomes final.43
Local 3112 also seeks enforcement of the Tentative Agreement. It asserts that the
terms of that agreement require the District to recall additional Custodian employees to fill
vacant Custodian positions. According to Local 3112, the person that filled Clavel's AFWII
position and another employee vacated two Custodian positions that, per the Tentative
Agreement, should be filled with laid-off employees. However, these claims were not proven
at hearing. Schnaufer testified that he believed, but never confirmed, whether there were any
additional vacant Custodian positions. Thus, its request to recall two laid-off Custodians is too
speculative. However, if and when the parties finalize their agreement, nothing in this
proposed decision should be interpreted as preventing either party from seeking enforcement of
any rights emanating from the deal.
PROPOSED ORDERS
I. 	Order in Case No. LA-CO-1451-E
Upon the foregoing findings of fact and conclusions of law, and the entire record in
case Anaheim Union High School District (District) v. American Federation of State, County,
and Municipal Employees, Local 3112 (Local 3112), it is found that Local 3112 violated the
Educational Employment Relations Act (EERA), Government Code section 3543.6(c). Local
43 The 10-day timeframe for this bargaining order finds support in PERB's case law
concerning remedies in effects bargaining cases. In those cases, as here, the employer is not
required to rescind the unilaterally adopted changes. (Placentia Unified School District (1986)
PERB Decision No. 595, pp. 11-12.) As in effects bargaining cases, the time limit here serves
to prevent the District's bargaining obligation over this issue from remaining open indefinitely.
102

3112 violated EERA by negotiating with the District in bad faith. All other claims are
dismissed.
Pursuant to section 3541.5(c) of EERA, it hereby is ORDERED that Local 3112, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Negotiating with the District in bad faith.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within 10 workdays of the service of a final decision in this matter, post
at all work locations where notices to employees in Local 3112's bargaining unit customarily
are posted, copies of the Notice attached hereto as Appendix A. The Notice must be signed by
an authorized agent of Local 3112 , 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.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on the District.
IL 	Order in Case No. LA-CE-5535-E
Upon the foregoing findings of fact and conclusions of law, and the entire record in
case American Federation of State, County, and Municipal Employees, Local 3112 (Local
103

3112)
v.
Anaheim Union High School District (District), it is found that the District violated
the Educational Employment Relations Act (BERA), Government Code section 3543.S(a), (b),
and (c). The District violated BERA by negotiating with Local 3112 in bad faith, including
unilaterally imposing unpaid furloughs on Local 3112's bargaining unit. All other claims are
dismissed.
Pursuant to section 3541.5(c)
of
BERA, it hereby is ORDERED that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Negotiating with Local 3112 in bad faith;
2. 	Refusing to meet with 3112 's chosen negotiators in bargaining;
3. 	Unilaterally implementing policies within the scope
of
representation;
4. 	Interfering with Local 3112's right to represent its members;
5. 	Interfering with employees' right to be represented by Local 3112.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Bargain with Local 3112, upon demand, over the language and format
of
the furlough and layoffs agreement at issue in the parties' 2009-2010 negotiations. Local 3112
must demand to bargain over this issue within 10 days from a final decision in this matter.
2. 	Within 10 workdays
of
the service
of
a final decision in this matter, post
at all work locations where notices to employees in Local 3 l 12's bargaining unit customarily
are posted, copies
of
the Notice attached hereto as Appendix
B.
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
104

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. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Local 3112.
Right to Appeal
.Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement of exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this Decision.
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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 or received by electronic
105

mail before the close of business, which meets the requirements of PERB Regulation 32135(d),
provided the filing party also places the original, together with the required number of copies and
proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see
also Cal. Code Regs., tit. 8, §§ 32090, 32091 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).)
106

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CO-1451-E, Anaheim Union High
School District (District) v. American Federation of State, County, and Municipal Employees,
Local 3112 (Local 3112) in which all parties had the right to participate, it has been found that
Local 3112 violated the Educational Employment Relations Act (EERA), Government Code
section 3540 et seq., by negotiating with the District in bad faith.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Negotiating with the District in bad faith.
Dated: 	American Federation of State, County, and
Municipal Employees, Local 3112
By:------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

APPENDIXB
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5535-E, American Federation of
State, County, and Municipal Employees, Local 3112 (Local 3112) v. Anaheim Union High
School District (District) in which all parties had the right to participate, it has been found that
the District violated the Educational Employment Relations Act (BERA), Government Code
section 3540 et seq., by negotiating with Local 3112 in bad faith, including unilaterally
imposing unpaid furloughs on Local 3112's bargaining unit.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Negotiating with Local 3112 in bad faith;
2. 	Refusing to meet with 3112 's chosen negotiators in bargaining;
3. 	Unilaterally implementing policies within the scope ofrepresentation;
4. 	Interfering with Local 3112 's right to represent its members;
5. 	Interfering with employees' right to be represented by Local 3112.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE BERA:
Bargain with Local 3112, upon demand, over the language and format of the
furlough and layoffs agreement at issue in the parties' 2009-2010 negotiations. Local 3112
must demand to bargain over this issue within 10 days from a final decision in this matter.
Dated: --------- 	Anaheim Union High School District
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.