Charter Oak Unified School District (PERB 0404E)

STATE OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CHARTER OAK EDUCATORS ASSOCIATION,
CTA/NEA, 	and 	ELIZABETH NIXON-DILLON,
Charging 	Parties,
v.
CHARTER OAK UNIFIED SCHOOL DISTRICT,
Respondent.
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Case No. 	LA-CE-1617
PERB 	Decision No. 	404
September 	6, 	1984
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Appearances; 	Sandra H. 	Paisley, 	Attorney for 	Charter Oak
Educators 	Association, 	CTA/NEA and 	Elizabeth Nixon-Dillon.
Before Hesse, 	Chairperson; 	Tovar and Burt, 	Members.
DECISION
TOVAR, 	Member: 	Charter Oak Educators Association, 	CTA/NEA
and 	Elizabeth Nixon-Dillon, 	Charging Parties, 	appeal the
decision of 	a 	regional 	attorney of 	the 	Public 	Employment
Relations 	Board 	(PERB or 	Board) 	to dismiss 	their 	charge 	that
the 	Charter 	Oak Unified 	School 	District 	(District) 	violated
subsections 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations 	Act.1 The charge 	alleges, 	inter alia,
1 The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Government 	Code 	section 	3540 et 	seq. 	Section 	3543.5 provides
in relevant part as 	follows:
It 	shall be unlawful 	for 	a public 	school
employer 	to:

that 	the 	District 	terminated 	Nixon-Dillon's 	employment because
she 	filed 	and 	pursued 	a grievance 	against 	the 	District.2 As
set 	forth 	in the attached 	letter of dismissal, 	however, 	the
regional 	attorney 	found 	that 	the charge 	failed 	to 	state 	a prima
facie 	case because 	no 	facts had been alleged 	showing 	a 	causal
connection between 	Nixon-Dillon's pursuit 	of her grievance 	and
the 	District's 	decision 	to 	terminate her 	employment. 	We affirm
the 	regional 	attorney's determination 	to dismiss 	the 	charge.
DISCUSSION
In the charge, 	as amended, 	Nixon-Dillon alleges 	the facts
which 	follow. 	On January 20, 	1982, 	she 	informed the District
of her 	intention 	to 	file 	a grievance based 	on 	asserted
violations of 	the 	collective bargaining 	agreement. 	The
District 	acknowledged 	receipt 	of her notice 	on January 	26. 	On
February 3, 	and 	again on February 10, 	Nixon-Dillon 	requested a
(a) 	Impose 	or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail to meet and negotiate 	in
good 	faith with 	an exclusive 	representative.
2On 	appeal to 	the Board, 	Charging 	Parties 	contest 	only
the dismissal of 	this allegation, 	acceding 	to the dismissal of
the 	remaining 	allegations 	set 	forth 	in 	their 	charge.
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level 	I grievance 	conference with her 	supervisor. 	This
conference was held on February 16. 	At 	the 	close of 	the
conference, 	the 	supervisor 	instructed Nixon-Dillon to 	report 	to
the District's director of personnel. 	Upon 	so reporting, 	she
was 	served 	with 	notice of 	the 	superintendent's 	intent 	to
recommend 	to 	the board of 	trustees 	that 	she 	not be 	reemployed
for 	the next 	school year.
Attached 	to 	the 	charge 	are 	some 	23 documents 	which bear on
Nixon-Dillon's 	relationship 	with her 	employer. 	Among 	them are
numerous memoranda which 	indicate 	that, 	prior 	to January 20,
1982, 	the 	District had expressed 	repeated 	and 	substantial
dissatisfaction with Nixon-Dillon's 	job performance, 	first 	in
the 	form of warning 	letters and, 	ultimately, 	by 	the docking of
salary.
In 	reviewing Nixon-Dillon's charge 	that her 	dismissal was 	a
reprisal 	for her 	action 	in 	filing a grievance, 	the 	regional
attorney 	correctly 	cited 	Novato 	Unified 	School 	District
(4/30/82) 	PERB Decision No. 	210. 	That case holds that, 	in
order to 	establish a prima 	facie 	case of reprisal, 	the charging
party must 	allege 	facts 	showing 	that 	the 	employee's 	protected
activity was 	"a motivating 	factor" 	in the employer's decision
to take 	the 	adverse 	action complained of. 	In the 	instant 	case,
the 	regional 	attorney 	found 	that 	the allegations 	of 	fact 	set
forth 	in 	the 	charge are 	insufficient 	to show that
Nixon-Dillon's grievance was 	a 	motivating 	factor 	in the
District's decision to dismiss her. 	The mere 	fact 	that 	the
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superintendent's 	notice 	of 	intent 	to 	recommend 	dismissal 	issued
after, 	rather 	than before, 	Nixon-Dillon 	filed her grievance, 	he
found, 	was 	insufficient. 	Moreover, 	he noted, 	Charging Parties
have 	candidly 	included 	in 	their 	charge 	documentation 	which
makes 	clear 	that 	the 	District's 	serious 	dissatisfaction with
Nixon-Dillon's 	job performance 	substantially pre-dates her
grievance.
On appeal, 	Charging Parties 	simply reassert 	the claim that
unlawful 	reprisal has been demonstrated by 	the 	timing of 	the
events, 	i.e., 	that Nixon-Dillon's grievance preceded 	the notice
of dismissal. 	We 	agree with 	the 	regional attorney 	that 	such a
showing, 	with nothing more, 	is 	insufficient to establish a
prima 	facie 	case of discrimination under Novato, 	supra.
In Moreland Elementary School 	District 	(7/27/82) 	PERB
Decision No. 	227, 	we 	considered a claim that an employee had
been 	discharged based 	on his 	employer's 	knowledge 	of his 	union
activity. 	The 	charging party could offer 	no proof of 	the
employer's 	knowledge 	of 	union 	activity except 	to point 	out 	that
the discharge 	followed 	immediately after 	a period of 	time 	in
which 	the 	employee had engaged 	in union organizing. 	Without
more, 	we 	found, 	the single 	fact of the timing was 	insufficient,
citing Amyx 	Industries, 	Inc. 	v. 	NLRB 	(8th Cir. 	1972) 	457 F.2d
904 	[79 LRRM 2930], 	in which the court 	stated that:
. 	. 	. 	mere coincidence 	in time between the
employee's union 	activities 	and his
discharge does 	not 	raise 	an 	inference of
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knowledge on the part 	of 	the 	employer
without 	some direct 	or persuasive
circumstantial 	evidence 	in 	the 	record of
knowledge.
For 	the same reasons, 	"coincidence 	in time," by itself, 	is
insufficient 	to prove unlawful motivation. 	We 	note 	that 	were
this 	not 	so, 	any employee who perceived 	that he or 	she 	might be
in danger of dismissal 	could, 	by the mere 	act of 	filing a
grievance, 	be assured 	of a hearing before 	an administrative 	law
judge of this agency and, 	further, 	place the 	legal burden of
producing evidence on the 	employer 	to prove, 	pursuant 	to 	the
test 	set 	forth 	in Novato, 	supra, 	that the discharge 	resulted
from a 	legitimate 	operational 	justification. 	Such 	a 	state 	of
affairs 	would be 	unwise 	and unnecessary.
ORDER
Upon 	the 	foregoing Decision and 	the 	entire 	record 	in 	this
matter, 	Case No. 	LA-CE-1617 is DISMISSED without 	leave to amend.
Chairperson Hesse 	and Member 	Burt 	joined 	in 	this 	Decision.
5

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 	18th Street
Sacramento, California 95814
(916) 322-3088
July 25, 	1983
Sandie Paisley, Esq.
California 	Teachers Association
315 North Azusa Avenue, 	Suite 4
West Covina, 	CA 	91791
John Wagner, Esq.
Wagner, Sisneros & Wagner
927-929 West Olive Ave.
Burbank, 	CA 	91506
RE; 	DISMISSAL OF UNFAIR PRACTICE CHARGE
Charter 	Oak 	Educators 	Association/CTA/NEA 	and 	Elizabeth
Nixon-Dillon v. 	Charter Oak 	Unified School District;
Charge No. 	LA-CE-1617
Dear Parties:
Pursuant 	to Public Employment Relations Board 	(PERB) 	Regulation
section 32630, 	the above-captioned charge 	is hereby dismissed
because 	it fails to allege facts 	sufficient 	to state a prima
facie 	violation of 	the Educational Employment Relations Act
(hereafter EERA).1 The 	reasoning which underlies 	this
decision follows.
On August 5, 	1982, Charging Party, Charter Oak Educators
Association 	(Association) 	and Elizabeth Nixon-Dillon, 	former
probationary certificated 	employee 	of 	Respondent Charter Oak
Unified School District 	(District) 	filed 	the 	above-referenced
charge with 	the Public Employment Relations Board 	(PERB)
alleging that the District violated sections 3543.5(a), 	(b) 	and
(c) 	of the Educational Employment Relations Act 	(EERA). 	The
charge was subsequently amended on October 	19, 	1982,
January 20, 	1983, 	and on April 29, 	1983. 	In its most recent
form, 	the charge alleges that the District violated 	the
above-stated EERA 	sections 	by 	taking 	the 	following 	actions:
1References 	to 	the EERA 	are 	to Government Code 	sections
3540 et seq. 	PERB Regulations are codified 	in California
Administrative Code, Title 8.

LA-CE-1617
July 25, 	1983
Page 2
1. 	Basing 	an accusation of 	cause 	for 	non-reemployment
against Ms. 	Nixon-Dillon on duties not performed while she
was on 	illness and/or pregnancy 	leaves 	of 	absence 	taken
pursuant to Article X sections 1, 	2, 	3, 	13 and 14 of the
existing 	collective 	bargaining 	agreement.2
2. 	Serving Ms. Nixon-Dillon on February 16, 	1982, 	with a
notice of 	intent 	to 	recommend 	her 	for 	non re-employment for
1982-83, 	immediately following, 	and in reprisal for
pursuing, 	a Level I grievance conference between
Ms. 	Nixon-Dillon and her 	immediate 	supervisor.
3. 	Requiring Ms. 	Nixon-Dillon to conform to a rigidly
defined work day, 	in violation of past practice which had
permitted Special Services 	Personnel 	to 	adjust 	their
individual 	starting 	and 	stopping 	times 	according 	to 	job
demands 	within 	the 	contractually prescribed 	seven 	hour 	work
day, 	and 	reprimanding 	her 	for 	her 	failure 	to conform to 	this
schedule. 	Charging Party alleges 	that Ms. 	Nixon-Dillon was
treated differently 	than other 	psychologists 	in 	this 	respect.
4. 	Unilaterally declaring 	that Ms. 	Nixon-Dillon would 	be
allowed only 	ten days 	in which 	to 	respond 	to derogatory
items placed 	in her personnel file.
5. 	Refusing 	to 	stay 	its proceedings 	regarding
Ms. Nixon-Dillon's non-reemployment, 	pursuant to Education
Code Section 44949, 	pending 	the outcome of 	arbitration
proceedings under 	the parties' 	collective bargaining
agreement. 	Moreoever, 	refusing to accede to the
Association's June 15, 	1982, 	request that the District take
no action adverse 	to Ms. 	Nixon-Dillon's continued employment
pending 	resolution of 	the 	arbitration proceedings.
6. 	Denying Ms. 	Nixon-Dillon during 	the 1981-82 	school year
a 	timely preliminary conference 	with 	her 	evaluator 	to 	assess
needs and mutually develop employment objectives. 	Further,
denying 	her 	a conference with her 	evaluator 	to 	identify 	and
receive 	recommendations 	regarding 	areas 	of 	needed
2A 	collective 	bargaining 	agreement 	was 	in 	effect 	between
the Association and 	the District from September 	1, 	1979, 	through
June 30, 1982.

LA-CE-1617
July 25, 	1983
Page 3
improvement, 	and 	to 	receive 	assistance 	in 	improving 	her
performance. 	Moreover, 	denying her 	a formal written
evaluation on 	the 	approved 	form 	showing 	a 	recommendation
regarding 	re-employment, 	as 	required by Article IX of 	the
collective 	bargaining 	agreement.
Contractual Violations 	- 	EERA Section 	3543.5(c)
The gravamen of allegations one, 	three, 	four and six 	is that the
District failed to accord Ms. 	Nixon-Dillon rights 	to which 	she
was entitled 	under 	the collective 	bargaining 	agreement* 	Section
3541.5(b) 	of EERA states:
[t]he board 	shall not have authority 	to
enforce agreements between the parties, 	and
shall not 	issue a complaint on any charge
based on alleged violation of 	such 	an
agreement 	that would not 	also constitute an
unfair practice under 	this chapter.
In order for a breach of contract to constitute a violation of
EERA section 3543.5(c), 	such a breach must amount to a change of
policy, 	having 	a generalized effect or 	continuing 	impact upon
the terms and conditions of 	employment of 	bargaining 	unit
members. 	Colusa Unified School District 	(3/21/83) 	PERB Decision
No. 	296; 	Grant Joint Union School District 	(2/26/82) 	PERB
Decision No. 	196. 	The charge alleges no facts which would
indicate 	that 	the District 	implemented changes 	in policy 	having
a generalized effect or continuing 	impact on unit members' 	terms
and conditions of employment, 	since 	it alleges no facts which
would 	indicate 	that 	the 	collective 	bargaining 	agreement 	rights
at 	issue were denied 	to employees other 	than Ms. 	Nixon-Dillon.
Reprisal 	- 	EERA Section 	3543.5(a)
Allegation one also asserts 	that 	in proceeding with the
accusation, 	the District has 	taken reprisal against
Ms. 	Nixon-Dillon because of her 	exercise of 	the contractually
provided 	sick 	leave. 	Allegation 	two asserts 	that
Ms. 	Nixon-Dillon was 	subject to 	reprisal because 	she pursued 	a
grievance against 	the District.
The PERB has 	ruled 	that 	in order 	for 	an unfair practice charge
alleging a violation of EERA section 3543.5(a) 	to be correctly
stated, 	it must contain facts that establish a "nexus," or

LA-CE-1617
July 25, 	1983
Page 4
connection 	between 	an 	exercise 	of protected 	rights 	and 	the
employer's 	action. 	(Carlsbad 	Unified 	School 	District 	(1/30/79)
PERB Decision No. 	89; 	Novato Unified School District 	(4/30/82)
PERB Decision No. 	210.)
a) 	Reprisal 	for 	Filing 	a Grievance
The grievance 	that Ms. 	Nixon-Dillon 	filed 	pertained 	to 	several
memoranda 	of 	criticism 	issued 	by 	the 	District 	which 	reflected
strong 	dissatisfaction with 	her 	job performance. 	These
memoranda 	predated 	any 	exercise 	of 	EERA-guaranteed 	rights 	on 	her
part. 	They establish 	that 	long 	before Ms. 	Nixon-Dillon 	resorted
to the grievance procedure, 	the District, 	had determined 	to take
adverse 	action against her. 	While Ms. 	Nixon-Dillon was 	notified
of 	the 	District's 	decision 	to not 	reemployee her 	almost
immediately after 	attending 	a grievance 	conference,3 this 	in
and of 	itself 	is 	not 	sufficient 	to 	establish 	a 	nexus 	between
Ms. 	Nixon-Dillon's 	exercise of her 	grievance 	rights and 	the
District's 	decision. 	The District's 	timing may 	indicate 	a lack
of circumspection, 	but absent additional 	facts 	establishing a
connection 	between Ms. 	Nixon-Dillon's grievance 	and 	the
District's decision 	to not 	reemploy her, 	the charge does not
state a prima 	facie violation of EERA section 	3543.5 (a).
b) 	Reprisal 	for 	Exercising 	Sick 	Leave Rights
Ms. 	Nixon-Dillon's 	utilization of 	contractually guaranteed 	sick
leave 	rights does 	not 	appear 	to be cognizable 	as protected
activity 	under 	the EERA. 	Under 	EERA section 	3543 	school
employees have 	the 	"protected" 	right 	to form, 	join and
3The 	District's 	accusation 	of 	cause 	of 	non-reemployment
against Ms. 	Nixon-Dillon contains allegations of a number of
different 	problems 	regarding 	her 	work 	performance 	during 	the
1980-81 	and 	1981-82 school years. 	The 	items 	in 	the 	accusation
pertaining 	to duties 	not 	performed 	while on 	sick 	leave 	refer 	to
Ms. 	Nixon-Dillon's alleged 	failure 	to complete 	an 	IEP 	testing
program 	for 	handicapped 	children 	within 	the 	statutory 	time
requirement. 	Other 	items 	in the District's 	accusation refer 	to
various 	incidents of alleged 	tardiness, 	insubordination, 	and
failure 	to 	complete 	assigned 	work.

LA-CE-1617
July 25, 	1983
Page 5
participate 	in union activities, 	as well as present grievances
to a school district. 	Sick 	leave 	rights are provided for 	by
contract, 	and 	termination for 	so 	asserting 	those 	rights may well
violate 	"just cause" dismissal 	requirements 	in the Education
Code section 44949. 	Nevertheless, 	such a breach does not amount
to a violation of Ms. 	Nixon-Dillon's EERA-protected rights, 	for
exercising 	a contractually guaranteed 	sick 	leave 	right does 	not
amount to 	"participation" 	in the activities of an employee
organization. 	As discussed above, 	PERB does not have the
authority 	to 	enforce contractual provisions 	and 	shall 	not 	issue
a complaint on any charge 	based 	on alleged 	violations of 	a
collective bargaining 	agreement 	unless 	the alleged 	violations
also constitute unfair labor practices. 	EERA section 3541.5(b).
Staying 	of Education Code Proceedings 	- EERA Section 	3543
Finally, 	the District was under 	no obligation to stay 	its
proceedings regarding Ms. 	Nixon-Dillon's 	non-reemployment,
pursuant to Education Code section 44949, 	pending outcome of 	the
arbitration proceedings under 	the parties' 	collective bargaining
agreement.4 EERA section 	3540 	provides 	as 	follows:
Nothing contained herein 	shall 	be deemed 	to
supersede other provisions of 	the Education
Code and 	the 	rules and 	regulations of public
school 	employers which establish and
regulate tenure or 	a merit or civil service
system or which provide for 	other methods of
administering 	employer-employee 	relations,
so long 	as 	the rules and regulations or
other methods of 	the public 	school employer
do not conflict with 	lawful collective
agreements.
Education Code Section 	44949 provides 	a procedure whereby 	a
probationary employee 	is given notice 	that 	his/her 	services will
not be 	required for 	the following year, 	with a statement of 	the
reasons for 	non-reemployment. 	The section provides 	for a
hearing 	in accordance with Government Code 	section 11500 	et 	seq.
4See 	summary of allegations in charge, 	No. 	5, 	infra.

LA-CE-1617
July 25, 	1983
Page 6
to determine 	if 	there 	is cause for 	not reemploying 	her. 	These
proceedings 	are 	entirely 	separate 	from 	the 	arbitration
proceedings provided 	for 	under 	Article VI 	of 	the parties
collective bargaining agreement, 	and there 	is nothing 	in EERA
which 	requires 	that they be 	stayed 	every 	time 	the 	non-retention
of an employee 	raises 	an 	issue of contract 	interpretation.
Further, 	there 	is nothing 	in EERA which 	requires an employer 	to
refrain 	from 	recognizing 	an Administrative 	Law Judge's 	decision,
pursuant to Education Code section 44949, 	pending 	final
determination of 	arbitration proceedings.
Pursuant 	to Public Employment Relations Board 	regulation 	32635
(California Administrative Code, 	title 8, part III), you may
appeal the refusal to 	issue a complaint 	(dismissal) 	to the Board
itself.
Right 	to Appeal
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 Notice 	(section 32635(a)). 	To be
timely filed, 	the original and five 	(5) 	copies of such appeal
must 	be actually 	received 	by 	the Board 	itself 	before 	the close
of 	business 	(5:00 p.m.) 	on 	August 	15, 	1983, 	or 	sent 	by
telegraph or 	certified United 	States mail postmarked 	not 	later
than 	August 	15, 	1983 	(section 	32135). 	The Board's
address is:
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 	95814
If you file a timely appeal of 	the refusal, 	any other party may
file with 	the executive assistant to 	the Board an original and
five 	(5) 	copies of a 	statement 	in opposition within twenty 	(20)
calendar days following 	the date of 	service of 	the appeal
(section 32635(b)).
Service
All documents authorized 	to be 	filed herein except 	for
amendments to 	the charge must also be 	"served" 	upon all parties
to the proceeding, 	and a 	"proof of 	service" must accompany the
document 	filed with 	the Regional Office 	or 	the Board 	itself 	(see
section 32140 	for 	the 	required contents and a sample form). 	The

LA-CE-1617
July 25, 	1983
Page 7
documents will 	be considered properly 	"served" 	when personally
delivered or 	deposited 	in 	the 	first-class mail postage paid 	and
properly 	addressed.
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
executive assistant 	to 	the Board 	at 	the previously noted
address. 	A request for an extension 	in which to file a document
with 	the Regional Office 	should 	be 	addressed 	to 	the Regional
Attorney. 	A request for 	an extension must 	be filed at least
three 	(3) 	calendar days before the expiration of 	the time
required 	for 	filing 	the 	subject document. 	The request must
indicate good cause 	for 	the position of 	each other party
regarding 	the 	extension and 	shall 	be 	accompanied 	by proof 	of
service of 	the request upon each party 	(section 32132),
Final Date
If no appeal is filed within the specified 	time limits, 	the
dismissal will become final when the 	time 	limits have expired.
Very 	truly yours,
Dennis 	Sullivan
GENERAL COUNSEL
Howard 	Schwartz
Attorney