McPherson v. Public Employment Relations Bd.

• Decision Date: 11 February 1987
• Citation: 234 Cal.Rptr. 428,189 Cal.App.3d 293
• Court: California Court of Appeals Court of Appeals
• Parties: , 37 Ed. Law Rep. 867 Cynthia McPHERSON, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; CARLSBAD UNIFIED SCHOOL DISTRICT, Real Party in Interest. D003857.

Page 428

234 Cal.Rptr. 428

189 Cal.App.3d 293, 37 Ed. Law Rep. 867

Cynthia McPHERSON, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent CARLSBAD UNIFIED SCHOOL DISTRICT, Real Party in Interest.

D003857.

Court of Appeal, Fourth District, Division 1, California.

Feb. 11, 1987.

As Modified March 11, 1987.

Review Denied May 13, 1987. ^*

Mocine & Eggleston and Mary H. Mocine, Oakland, for petitioner.

Christine Bleuler, Sacramento, Kirsten L. Zerger, Ramon Romero, Burlingame, and Diane Ross, San Francisco, as amicus curiae on behalf of petitioner.

Peter A. Janiak, Madalyn J. Frazzini, E. Luis Saenz, Maureen C. Whelan, San Jose, Marcia L. Meyers, Oakland, Marci B. Seville, William C. Heath and Harry J. Gibbons, Jr., San Jose, as amicus curiae on behalf of petitioner.

Gary P. Reynolds, Sacramento, and Howard Schwartz as amicus curiae on behalf of petitioner.

Jeffrey Sloan, Gen. Counsel, Sacramento, and Andrea L. Biren, Legal Counsel, San Francisco, for respondent.

Biddle & Hamilton and Christian M. Keiner, Sacramento, for real party in interest.

Talmadge R. Jones, Chief Counsel and Edmund K. Brehl, Labor Relations Counsel, Sacramento, as amicus curiae on behalf of respondent and real party in interest.

BUTLER, Associate Justice.

The Carlsbad Unified School District (District) employed Cynthia McPherson as a secretary. The District refused to upgrade her to a confidential secretary position and transferred her from the employee relations office, which is responsible for union negotiations, to a high school. McPherson claimed the upgrade refusal and the transfer constituted discrimination on the basis of her union activities. The Public Employment Relations Board (PERB) upheld the District decision and denied McPherson any relief. We remand for further proceedings.

THE PERB DECISION

Facts

The District employed McPherson as a secretary intermittently since 1953 and full-time since 1977. She held the position of secretary III in the personnel department from July 1980 until June 1, 1982. During the period February 1981 through February 1982, the position of personnel director was vacant and McPherson handled all of the work of the personnel office.

In February 1982, District hired David Bates as director of employee relations. Bates had previously represented teachers and had worked for teachers' unions as a labor relations specialist. He had never previously held an administrative position. Before Bates' arrival, labor relations functions, including collective bargaining, had been performed by the assistant superintendent's office. Bates assumed those labor relations functions in addition to the personnel functions previously performed by the personnel department. When Bates was hired, McPherson became his secretary.

On February 8, 1982, his first day at work, Bates prepared a memo addressed to Superintendent Grignon recommending McPherson's position be reclassified from Secretary III to secretary III (confidential). ¹ The reason given for this reclassification was:

"Because the Director of Employee Relations is now the negotiator for the District, and the personnel secretary's assigned responsibilities include 'access to and knowledge of the District's employer/employee relations,' the position qualifies as a confidential position...." ²

Superintendent Grignon received Bates' memo and submitted his recommendation to a closed session of the Board of Trustees (Board) on February 17, 1982. The Board rejected the reclassification. Grignon testified the Board had a vehement negative reaction to Bates' recommendation.

Grignon testified that he personally had the following concerns regarding McPherson as a confidential secretary which he communicated to the Board:

"Well, I think I should differentiate between the skills that the person has and the advisability of her in that position. I think that Mrs. McPherson has good secretarial skills, that she takes shorthand well, she types well. But, however, as far as confidentiality there was my concern. She's been a long-term member of this community. Her ex-husband is a teacher, she has carried out work in the past for the teacher union, in fact, at that time she was typing documents for the teacher union. And so therefore I felt that the position was too sensitive to appoint her given all that knowledge ... [p ] Again, we deal with very confidential materials that we want to stay there that we do not want broadcasted in the community or even slipped to the community and in my opinion I did not feel that Cynthia McPherson could carry out that function." (Fn. omitted.)

Grignon testified that he told McPherson after the Board meeting the Board would not accept her as a confidential secretary because of the possibility she would leak information and her possible conflict of interest.

In an effort to obtain the reclassification, McPherson and the union jointly agreed that the union would appoint McPherson to its negotiating committee. On March 22, 1982, the union sent a letter to Bates announcing McPherson's appointment to the negotiating committee.

When Bates received the letter, he went to the superintendent's office and upon returning, he informed McPherson she could serve on the negotiating committee but his secretary could not. McPherson immediately agreed to withdraw from the committee to give the Board time to clarify whether or not her position would be reclassified to a confidential position. McPherson testified that she withdrew from the negotiating committee because she did not want to jeopardize her position as secretary and did not want to do what was wrong.

On April 22, 1982, McPherson sent a memorandum to the District's personnel commission requesting reclassification as well as out-of-class pay for the period during which she had performed the work of confidential secretary. On April 23, McPherson sent a memo to Grignon making the same request and advised him of her request to the personnel commission. Grignon responded that confidential secretaries were overpaid and that his position was that she should get only a stipend of $50 per month retroactive to February 8, 1982.

Three days later, on April 26, 1982, the classified personnel commission considered McPherson's request and supported it in its entirety. On the same day, Grignon sent a memo to the director for classified personnel requesting that interviews be scheduled for the position of secretary III (confidential) to replace the secretary III position held by McPherson. Bates did not contemplate that McPherson's position would be opened for interviews if it was reclassified. McPherson testified that historically, secretaries assuming new functions involving employee relations were reclassified as confidential; interviews were not held.

The commission questioned the superintendent's reasons for scheduling interviews for the position of secretary to the director of employee relations when that position was currently filled by McPherson. Grignon responded that only the Board and not the personnel commission had the authority to determine whether or not an employee had confidential status; furthermore, since McPherson had never been appointed as a confidential employee, she was owed no out-of-class back pay.

On April 27, McPherson and eight other District employees were notified of the interviews for the new position. On April 28, McPherson responded by letter that she would interview under protest. On the same date she sent a memo to Bates asking the reasons that interviews were being conducted for the position she then held. Bates responded that he did not know what was happening. He suggested she speak to Grignon.

McPherson was interviewed for the position of secretary III (confidential) on May 4, 1982. The District offered the position to an applicant who subsequently declined the appointment. No other offers were made. Grignon testified that the candidate who was offered the job was chosen because she was a court reporter and could operate a shorthand machine. Ability to operate a court reporter machine was not included within the job specifications for the position.

On May 5, 1982, Grignon sent a memorandum to the Board recommending that the pay premium for confidential employees be reduced from $296 per month to $50 per month over the salary for a non-confidential position at the same level.

The change in salary for confidential secretaries was approved and became effective June 1, 1982. On June 1, 1982, there was no one in the school district employed as a secretary III (confidential).

On May 17, 1982, McPherson was notified that she would be involuntarily transferred from her position as secretary III for the director of employee relations to the position of secretary III for the principal at Carlsbad High School, a lateral transfer, effective June 1, 1982. The reason given for the transfer was "for the good of the District."

Grignon testified that McPherson was transferred at the beginning of June because the principal of the high school had requested a permanent secretary during the first week in May. Grignon testified that he consulted with Bates before transferring McPherson and that Bates had "requested the transfer" because of the need for a secretary at the high school. Bates testified that he did not request McPherson's transfer and that Grignon did not tell him the reasons for the transfer.

The principal of Carlsbad High School testified that she had been requesting a permanent secretary since her secretary became ill in September or October 1981. Her last request had been just prior to April 12, 1982, which was the earliest date that her previous secretary could legally be replaced.

On June 7, 1982, McPherson filed an unfair practice charge with PERB complaining of the District's refusal to permit her to be on the union negotiating committee.

On June 16, 1982, McPherson filed an unfair practice charge with PERB complaining of the transfer. ³

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