Fairfield-Suisun Unified School District * * * SUPERSEDED by amendment to EERA section 3543, subdivision (a), Stats. 2007, Ch. 21 (PERB 1734E)

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** * SUPERSEDED by amendment to EERA section 3543, subdivision (a), Stats. 2007, Ch. 21 * * *

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 302,

Charging Party, Case No. SF-CE-2369-E

Vv. PERB Decision No. 1734

. 7

FAIRFIELD-SUISUN UNIFIED SCHOOL
DISTRICT,

January 12, 2005

Respondent.

Appearances: California School Employees Association by David J. Dolloff, Attorney, for
California School Employees Association & its Chapter 302; School and College Legal
Services of California by Joseph C. Kinkade, Attorney, for Fairfield-Suisun Unified School
District.
Before Duncan, Chairman; Whitehead and Shek, Members.
| DECISION

SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the California School Employees Association & its Chapter 302
(CSEA) of a Board agent’s dismissal (attached) of its unfair practice charge. The unfair
practice charge alleged that the Fairfield-Suisun Unified School District (District) violated the
Educational Employment Relations Act (EERA)! by discriminating against Mildred J.
Salgadoe (Salgadoe) for her protected activities and by unilaterally changing its policy and
practice with regard to layoffs.

The Board has reviewed the entire record in this matter, including the original and

amended unfair practice charge, the warning and dismissal letters, CSEA’s appeal and the

‘EERA is codified at Government Code section 3540, et seq.

District's response. As discussed below, the Board partially adopts the dismissal but remands
the remainder of the charge to the Office of the General Counsel for further investigation
consistent with this decision.
DISCUSSION
Discrimination
The Board agent dismissed CSEA's discrimination allegation on the ground that
Salgadoe' s request for reclassification was not protected activity under EERA. It is important
to note that CSEA does not allege the District's reclassification procedures were part of the
memorandum of understanding (MOU) or could otherwise be considered part of the grievance
process. As presented, Salgadoe's request for reclassification was solely, for purposes of
EERA, an attempt at self-representation. Recently, in Woodland Joint Unified School District
(2004) PERB Decision No. 1722, the Board was required to find that self-representation is no
longer protected under EERA due to legislative amendments to EERA section 3543. Thus, the
Board agent's holding that Salgadoe's request for reclassification was unprotected must be
affirmed.
In its appeal, CSEA notes for the first time that Salgadoe did participate in other
protected activities after filing her reclassification request. Specifically, Salgadoe requested
union representation during a meeting and requested union assistance in dealing with her
supervisor's attempt to modify Salgadoe's job description. These activities are clearly
protected. However, there is no evidence that these protected activities motivated the District's
alleged adverse actions against Salgadoe. For example, Salgadoe's request for union
representation was granted and there is no evidence the District harbored any ill feelings over
the request. Similarly, CSEA was successful in negotiating a mutually agreeable job
2

description for Salgadoe which was adopted by the District's Board of Trustees. Thus, the
Board agent's dismissal of Salgadoe's discrimination charge must be sustained.
Unilateral Change
Next, the charge also alleges that the District refused to negotiate in good faith.
Specifically, CSEA alleges that the District committed an unlawful unilateral change by
deviating from the MOU provisions governing layoffs. Section 17.4 of the MOU provides that
layoffs are to occur in reverse order of seniority, so that employees with less seniority are laid
off before those with more. Where there are two employees with equal seniority, the MOU
requires that seniority be assigned by lot. According to CSEA, Salgadoe had been employed
with the District for 22 years. The only other employee in the special education transcriber
classification was Barbara Pauly (Pauly), whom CSEA alleges had been employed with the
District only 12 years. Thus, CSEA asserts that the District violated the MOU by selecting
Salgadoe instead of Pauly for layoff.
The District counters that the seniority to be used in deciding layoffs is seniority within
the classification targeted for layoff, not overall seniority. Thus, while Salgadoe had more
total seniority with the District than Pauly, the District argues that she had less seniority than
Pauly within the targeted classification. In making this argument, the District appears to
acknowledge that Pauly was placed within the targeted classification at approximately the
same time as Salgadoe. However, the District asserts that Pauly's prior classification of
braillist was the predecessor to her current classification, and thus, Pauly's service as a braillist
must be considered in determining seniority for layoff. CSEA disputes the District's assertions
and argues that there never was a classification entitled braillist, as evidenced by the MOU.
3

Based on the record as it stands, it cannot be determined whether CSEA has stated a
prima facie case. It is unclear whether there even was a classification of braillist and, if so,
whether the parties had a policy or practice governing whether Pauly's service as a braillist
could be considered in determining layoff seniority. Further, even assuming a contract
violation, it is unclear as to whether the contractual violation was a one-time event or whether
it constituted a change in policy and/or practice. As neither the warning nor dismissal letters
addressed the unilateral change allegation, the Board finds it appropriate to remand the
remainder of the charge to the Office of the General Counsel for further investigation of these
issues and others necessary to establish a prima facie case.
ORDER
The Board partially adopts the Board agent's dismissal in Case No. SF-CE-2369-E and
REMANDS the remainder of the charge to the Office of the General Counsel for further
investigation consistent with this Decision.
Chairman Duncan and Member Whitehead joined in this Decision.
4

•\
/r~ ,
~T ATE OF CALIFORNIA	1 	( 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMEN1' RELATIONS BOARD
( .. '.
=======,,=======~
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
September 23, 2004
Tim Taggart, Sr. Labor Relations Reprs~ntative
California School Employees Association
2345 Stanwell Circle
Concord, CA 94520
Re: 	California School Employees Association & its Chapter 302 v. Fairfield-Suisun Unified
School District
Unfair Practice Charge No. SF-CE-2369-E
DISMISSAL LETTER
Dear Mr. Taggart:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 17, 2003. The California School Employees
Association & its Chapter 302 alleges that the Fairfield-Suisun Unified School District violated
the Educational Employment Relations Act (EERA) by engaging in a pattern of discriminatory
behavior against Mildred J. Salgadoe in response to her protected activities.
I indicated to you in my attached letter dated June 8, 2004, that the above-referenced charge
did not state a prima facie case. You were advised that, if there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to June 21, 2004, the charge would be dismissed. I
subsequently granted you an extension to July 31, 2004, to file an amended charge.
On July 23, 2004, you filed an amended charge~ In my June 8, 2004, letter, I stated that,
contrary to the assertion in the charge, requesting and receiving a reclassification does not
qualify as a protected activity under the definition set forth in Government Code section 354
The amended charge again asserts that participation in the District's reclassification policy
constitutes protected activity. This assertion is without merit. For this reason and the other
reasons stated in the attached warning letter, this charge is hereby dismissed.
3.
Right to Appeal
Pursuant to PERB Regulations, 1 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
1 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-2369-E
September 23, 2004
Page 2
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174 •
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).).
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly 11 served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. 	(Regulation 32132.)

SF-CE-2369-E
September 23, 2004
Page3
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
B
L
A
cc: Joseph C. Kinkade

i 	'
,. STATE OF CALIFORNIA 	WOLD SCHWARZENEGGER, Governor	=r
~· PU11LIC EMPLOYME1'--. RE=L=A=T=I=O=N=S=B=O=ARD=====\ 	.. I
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
June 8, 2004
Keith Pace, Field Director
California School Employees Association
2345 Stanwell Circle
Concord, CA 94520
Re: 	California School Employees Association & its Chapter 302 v. Fairfield-Suisun Unified
School District
Unfair Practice Charge No. SF-CE-2369-E
WARNING LETTER
Dear Mr. Pace:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 17, 2003. The California School Employees
Association & its Chapter 302 alleges that the Fairfield-Suisun Unified School District violated
the Educational Employment Relations Act (EERA)1 by engaging in a pattern of
discriminatory behavior against Mildred J. Salgadoe in response to her protected activities.
Ms. Salgadoe is currently employed in the classification of Instructional Assistant, Special
Education, II. Sometime prior to June, 2002, Ms. Salgadoe submitted a request for
reclassification which was processed by the CSEA/District Reclassification Committee. On or
about June 7, 2002, the Committee recommended that her position be reclassified to Special
Education Transcriber for the Blind and Visually ImpairedLevel II. The panel also approved
that she be placed at level III upon completion of the necessary requirements.
On or about September 27, 2002, the District formally notified Ms. Salgadoe that her
reclassification had been approved and was effective retroactive to July 1, 2002. Sometime
thereafter her supervisor, Linda Donnelly, who was allegedly unhappy with Salgadoe's
reclassification, attempted to ~odify her new job description and entitle it "Braille
Transcriber". CSEA objected, and subsequently reached agreement with the District on a new
job description entitled Special Education Transcriber for the Blind and Visually Impaired
Levels I- III, which was adopted on or about February 10, 2003.
On March 3, 2003, Ms. Salgadoe was contacted by the Human Resources Department and
requested to make an appointment to discuss her position. She was informed that
Ms. Donnelly and Director of Human Resources Richard Christensen would be in attendance.
Ms. Salgadoe contacted CSEA and asked for representation at the meeting.
1 BERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

'-i SF-CE-2369-E
June 8, 2004
Page2
The meeting was held on March 11, 2003, and Ms. Salgadoe was represented by a CSEA
Labor Relations Representative and the chapter president. According to the charge,
· Mr. Christensen stated that there was an "air of turmoil" surrounding Ms. Salgadoe and
admonished her for contacting the Fiscal Services Department regarding the status of her job
description. He also stated that he was reviewing disciplinary guidelines vis-a-vis an
inappropriate remark Ms. Salgadoe had made to a student. Ms. Donnelly and Mr. Christensen
also questioned Ms. Salgadoe regarding her job duties and proposed that she be returned to her
previous position. The District claims that the meeting was for the sole purpose of discussing
the impending graduation of the sole student to whom Ms. Salgadoe was assigned and her
future options.
On or about April 1, 2003, according to the charge, the District placed another less senior and
unqualified employee, Barbara Pauly, at Level III of the same class as Ms. Salgadoe. This had
the effect of exposing S to layoff as the only employee in Level IL The District disputes this
assertion, stating that Ms. Pauly had acquired the necessary requirements for the position,
while S had not.
On or about April 30, 2003, Ms. Salgadoe received an evaluation from the Vice Principal of
Special Education (a friend of Ms. Donnelly's) which was complimentary about her work with
the student assigned to her, but criticized her for not always being easy to locate. Ms.
Salgadoe disputed this, and complained about the evaluation to her principal, who stated he
would evaluate her in the future.
On or about June 19, 2003, the District notified Ms. Salgadoe that she would be laid off from
her reclassified position due to lack of work and funds. The layoff notice identified her
position incorrectly as a Braille Transcriber II. On or about July 20, 2003, Ms. Salgadoee was
laid off from her reclassified position. The District asserts that the layoff was due to the
graduation of Ms. Salgadoe's student, and notes that she was rehired into her previous
classification.
To demonstrate a violation ofEERA section 3543.S(a), the charging party must show that:
(1) the employee exercised rights under EERA; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee

1
' SF-CE-2369-E
June 8, 2004
Page 3
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
The charge specifically alleges that the protected activity in which Ms. Salgadoe engaged was
her request for and subsequent reclassification to the new position of Special Education
Transcriber for the Blind and Visually Impaired Level II and automatic promotion to Level III
upon completion of the necessary requirements. However, protected activities as defined in
Government Code Section 3543 include the "right to form, join and participate in the activities
of employee organizations ... " and to "present grievances to his or her employer, and have
such grievances adjusted ... " Requesting and receiving a reclassification does not qualify as a
protected activity under this definition.
Further, even if it were a protected activity, there is no evidence to show a nexus between
Ms. Salgadoe's requesf and her eventual layoff from her new position. Rather, it appears that
she was laid off because the student to whom she was assigned had graduated, and no new
visually impaired student was available.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before June 21, 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,