Culver City Unified School District (PERB 0822E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD 	BENNETT,
Charging 	Party,
v.
CULVER CITY 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-2743
PERB Decision No. 	822
June 27, 	1990
Appearances: 	California 	Teachers Association by Charles 	R.
Gustafson, Attorney, 	for Howard Bennett; 	Atkinson, Andelson,
Loya, 	Ruud & Romo by James Baca, 	Attorney, 	for Culver City
Unified 	School 	District.
Before Hesse, 	Chairperson; 	Camilli and Cunningham, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by Howard Bennett 	(Bennett 	or
charging party), 	to the proposed decision 	(attached) 	of an
administrative 	law 	judge 	(ALJ) 	that 	the Culver City Unified
School 	District 	(District) 	did not violate the Educational
Employment Relations Act 	(EERA) 	section 3543.5(a)1 by: 	(1)
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5(a) 	states:
It 	shall be unlawful 	for a public 	school
employer to:
(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.
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________________ )

threatening Bennett on November 17, 	1987; 	(2) 	questioning Bennett
for his 	failure to attend a 	faculty meeting 	in December 	1987; 	and
(3) 	issuing a 	letter to Bennett's personnel 	file 	in April 	1988
for his 	failure 	to 	follow the 	District's 	procedures 	for arranging
for a 	substitute teacher.
We have reviewed the 	entire record 	in this 	case, 	including
the proposed decision, 	transcripts, 	and the charging party's
exceptions, 	and finding the ALJ's 	findings 	of 	fact 	to be 	free of
prejudicial 	error, 	we adopt the ALJ's proposed decision as 	the
decision of 	the 	Board 	itself 	consistent with 	the 	discussion
below.2
On November 	17, 	1987,3 a meeting was held for the purpose of
having 	a 	Public 	Employee 	Retirement 	System 	(PERS) 	health benefits
specialist 	speak to the 	employees 	of 	the District. 	Bennett
attended the meeting, 	as did Dr. 	Ralph Villani 	(Villani),
assistant 	superintendent 	for personnel 	and 	risk management 	for
2We 	note 	the 	complaint 	alleges 	that 	the 	District's 	conduct
constitutes 	a violation of 	section 3543.5(a) 	and a derivative
violation of 	section 3543.5(b). 	The ALJ only addresses 	and
dismisses 	the 	(a) 	violation. 	We 	find that there was 	no evidence
presented 	demonstrating 	that 	the 	District's 	conduct 	also 	violated
section 3543.5(b), 	and accordingly, 	dismiss the alleged violation
of 	that 	section.
3With regard to the 	first 	incident on November 	17, 	1987, 	the
ALJ 	analyzed 	the 	alleged 	threat 	under both 	a 	discrimination 	and
interference 	theory. 	While 	the 	complaint 	alleges 	the 	District's
conduct violated section 3543.5(a) 	and 	(b), 	we note that
paragraph 	4 	thereof 	states 	only that 	the 	District's 	conduct
interfered with 	the 	employee's 	exercise 	of 	rights 	guaranteed 	by
EERA. 	However, 	in their post-hearing briefs, 	both parties 	fully
argued 	this 	case 	under both 	a 	discrimination 	and 	an 	interference
theory. 	Therefore, 	the ALJ's analysis 	of the conduct under both
a 	discrimination and 	an 	interference 	theory was 	proper.
22

the District. 	After the PERS 	specialist 	spoke, 	questions were
asked of Bennett, 	the specialist, 	and Villani. 	During this
question and 	answer period, 	Villani 	stated that he had 	never been
in contact with PERS. 	Bennett, 	acting under misinformation
acquired 	from a 	PERS 	representative 	not present 	at 	the meeting,
believed that Villani had, 	in fact, 	contacted PERS on behalf of
the 	District. 	Bennett 	stated publicly at 	this 	meeting that
Villani 	had in fact 	contacted PERS. 	After the meeting, 	as
Bennett was 	speaking with a newspaper reporter, 	Villani
approached him, 	noticeably upset, 	and made a 	statement to the
effect of, 	"Don't ever call me a 	liar again in public." 	Bennett
denied having done 	so, 	and Villani 	stated, 	"You had better be 	in
my office next week." 	Bennett replied, 	"I'm sorry, 	I 	cannot."
To make a prima 	facie 	showing of 	interference, 	a 	charging
party 	need 	only 	show that 	the 	employer's 	conduct 	tends 	to 	or does
result 	in interference with the 	employee's 	rights. 	(Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89.) 	In
addition, 	the 	Board has held that 	to determine whether certain
conduct 	constitutes 	a threat, 	the Board must 	look to the overall
context 	to 	determine whether 	the 	alleged 	threatening 	comments
have 	a 	coercive meaning. 	(John 	Swett Unified 	School 	District
(1981) 	PERB Decision No. 	188; 	Riverside Unified School District
(Petrich) 	(1987) 	PERB Decision No. 	622; 	Los Angeles Unified
School District 	(1987) 	PERB Decision No. 	611.) 	The Board has
further held that 	a 	finding 	that 	threatening 	comments 	reasonably
tended to 	coerce 	an 	employee does 	not require 	evidence 	that 	the
W
	3

employee 	actually 	or 	subjectively 	felt 	threatened 	or 	intimidated,
or was 	in 	fact discouraged 	from participating 	in union activities
as 	a result thereof. 	(Clovis 	Unified School District 	(1984) 	PERB
Decision No. 	389 at p. 	14, 	citing NLRB v. 	Triangle Publications
(3rd Cir., 	1974) 	500 F.2d 597, 	598.) 	Rather, 	the test requires
the application of 	an objective 	standard. 	It must be 	found that,
under 	the 	circumstances, 	the 	comments 	reasonably tended to 	coerce
or 	intimidate 	an employee 	in the 	exercise of protected rights 	or
activities. 	Id.4
We 	find that taken in the 	context as 	a whole, 	Villani's
statements 	to 	Bennett were 	in response to 	a perceived personal
attack on Villani's 	veracity and 	integrity. 	Thus, 	the Board
finds 	that 	the comments 	under the 	circumstances would not
reasonably 	tend 	to 	coerce 	or 	intimidate 	an 	employee 	in 	the
exercise 	of protected activities. 	(See Riverside 	Unified 	School
District. 	supra. 	PERB Decision No. 	622.) 	Bennett has therefore
failed 	to prove 	that Villani's 	conduct 	tended 	to 	or did 	result 	in
some harm to his protected rights 	under Carlsbad, 	supra, 	PERB
Decision No. 	89. 	Based upon all of the above, 	we conclude that
Bennett's 	allegation of 	interference must 	fail.
4Under \Palo Verde Unified School 	District 	(1988) 	PERB
Decision No. 	689, 	we note the test regarding harm in a
discrimination claim is 	also an objective test, 	and the proposed
decision misapplies 	the 	test to 	this 	conduct by 	stating 	"Bennett
felt 	no 	threat 	from this 	statement 	as 	he 	immediately 	told Villani
that he would not 	come to Villani's 	office the next week."
(Proposed decision, 	p. 	13.) 	This 	indicates a subjective test was
used.
4

The 	second 	incident occurred 	in December of 	1987, 	wherein
Bennett missed a 	faculty meeting due 	to 	a doctor's 	appointment.
A 	few days 	after the meeting, 	Principal 	Glen Cook requested 	a
doctor's 	excuse 	from Bennett. 	Analyzing this 	allegation under a
discrimination theory, 	the ALJ 	finds 	insufficient proof 	of 	nexus,
and 	also 	states 	"Bennett 	suffered 	no 	harm because 	of 	the 	request
as 	there 	is 	no 	indication that Bennett 	found 	it difficult to
provide the doctor's note." 	(Proposed decision, 	p. 	14.)
Although the 	Palo Verde 	test does 	apply to 	a discrimination
allegation, 	the 	fact that Bennett did not 	find 	it difficult 	to
produce the note is 	irrelevant. 	Rather, 	as discussed above, 	we
note 	for purposes 	of 	clarification that 	the proper test 	is 	an
objective one. 	In any event, 	we conclude that the 	issue of harm
or 	adverse 	action need 	not 	be 	reached 	in 	this 	instance 	inasmuch
as 	we 	agree with the ALJ's 	finding 	that 	charging party 	failed 	to
prove 	the 	nexus 	element 	required under Novato 	Unified 	School
District, 	supra, PERB Decision No. 	210.
ORDER
Based on the above reasons, 	the 	complaint 	in Case
No. 	LA-CE-2743 	is hereby DISMISSED.
Chairperson 	Hesse 	and Member Cunningham 	joined 	in this 	Decision.
un
	5

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
HOWARD 	BENNETT,
Charging 	Party,
v.
CULVER CITY 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-2743
PROPOSED 	DECISION
(1/10/90)
Appearances: 	Charles Gustafson, 	Attorney, 	California Teachers
Association, 	for Howard Bennett; Atkinson, Andelson, 	Loya, 	Ruud
and 	Romo by James 	Baca 	for Culver City Unified School 	District.
Before Martha Geiger, 	Administrative Law Judge.
PROCEDURAL 	BACKGROUND
Charging Party Howard Bennett 	(Charging Party or Bennett) 	is
an 	employee 	of 	Respondent 	Culver 	City 	Unified 	School 	District
(District). 	In a charge filed April 28, 	1988, 	and amended August
8, 	1988, 	Bennett alleged that the District violated EERA 	sections
3543.5(a) 	and 	(d) 	when agents 	of the District 	interfered with his
rights 	under EERA, 	and engaged 	in threats 	and reprisals 	against
him for the exercise of his protected rights. 	The allegation of
a violation of 	3543.5(d) 	was withdrawn by Bennett, 	and the
General 	Counsel 	to 	the Public 	Employment Relations 	Board 	(PERB 	or
Board) 	issued a complaint on October 	18, 	1988, 	listing four
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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specific 	acts 	engaged in by the District as 	being violative 	of
section 3543.5(a)1
After 	a 	timely 	answer 	filed by the 	District 	on November 	7,
1988, 	the parties 	engaged in settlement discussions. 	When these
discussions proved fruitless, 	the matter was 	set 	for hearing
before the undersigned. 	At the 	first day of hearing, 	on February
14, 	1989, 	the District moved to dismiss the complaint in its
entirety, 	alleging that the allegations made in the complaint
were 	covered by the parties' 	collective bargaining agreement,
which provided 	for binding arbitration of disputes. 	Pursuant 	to
the Board's decision in Lake Elsinore 	School District 	(1987) 	PERB
Decision No. 	646, 	the District argued that PERB had no
jurisdiction to hear the dispute 	in this 	matter.2
1 Section 3543.5(a) 	states:
3543.5 UNLAWFUL PRACTICES: 	EMPLOYER
It 	shall be unlawful 	for a public 	school
employer to:
(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.
2 EERA section 3541.5(a)(2) 	reads, 	in relevant part, 	as
follows:
. 	. 	. 	[T]he board shall not . 	. 	.
(2) 	issue a complaint against conduct also
prohibited by the provisions 	of 	the agreement
between the parties 	until 	the 	grievance
machinery of the agreement, 	if 	it exists and
covers the matter at issue, 	has been
exhausted, 	either by 	settlement or binding
22

arbitration. 	However, 	when the charging
party demonstrates 	that 	resort 	to 	contract
grievance procedure would be 	futile,
exhaustion shall not be necessary. 	. 	. 	.
By order dated March 	10, 	1989, 	the undersigned partially-
denied 	and partially granted the 	District's 	Motion to 	Dismiss.
In an Interlocutory Order, 	the allegation that 	the 	District
violated EERA 	section 3543.5(a) 	on three 	occasions was 	permitted
to 	go 	to 	a 	formal hearing on the ground that deferral 	to
arbitration would, 	at that point, 	be futile, 	as the exclusive
representative at the time of those 	incidents was, 	by the time of
the hearing, 	no 	longer the certified representative. 	The Order
to Dismiss was 	granted as 	to one 	incident, 	which arose under the
current 	collective bargaining agreement. 	Thus, 	that matter was
deferred to 	the 	arbitral process.
Pursuant to the 	issuance of the Interlocutory Order, 	the
formal 	hearing on the remaining allegations 	not dismissed was
held on March 20 	and 21, 	1989. 	Briefs were 	submitted by the
parties 	in June 	1989, 	and this decision follows.
FINDINGS OF 	FACT
Howard Bennett has 	been a teacher of 	English 	in the Culver
City Unified School District 	for approximately 	18 years. 	Active
in community affairs, 	he had 	in years past 	engaged 	in a campaign
to 	clean up 	Santa Monica 	Bay, 	and had received commendations 	from
the district board 	for that.
In 	1987, 	Bennett commenced a new campaign, 	this time seeking
health benefits 	for retired 	employees 	of 	the district. 	Related
w3

to 	this 	interest was 	his 	desire to 	see the District 	employees
covered under the Public 	Employment Retirement Systems 	(PERS),
presumably 	in addition to being 	covered by the 	State 	Teachers
Retirement System 	(STRS). 	On June 2, 	1987, 	Bennett spoke to the
District board regarding health benefits 	for retired 	employees.
He 	gave 	the board members 	both 	information and 	a petition with
230 	signatures 	of district employees. 	At the 	conclusion of 	the
meeting, 	one board member 	spoke to 	Bennett 	and told him not 	to
come 	to 	the board of 	education to discuss 	retirement benefits,
but 	instead to take 	the 	issue 	to the bargaining agent.3
On November 	17, 	1987, 	Bennett, 	along with the president of
the Culver City Teachers' 	Association Bess 	Doerr, 	arranged for
Donald Marshall 	of 	the 	PERS 	Health Benefits 	Division to 	speak to
interested 	employees 	of 	the Culver City 	Unified 	School 	District.
The meeting was 	open to all 	employees 	of 	the district,
although most 	of 	the participants 	appeared to be 	rank and 	file
members 	of the bargaining unit. 	Also 	in attendance was 	Dr. 	Ralph
Villani, 	Assistant Superintendent 	for Personnel and Risk
Management. 	Villani had sought, 	and received, 	permission from
Doerr 	to 	attend 	the meeting.
Marshall 	spoke about 	the 	role 	of 	PERS 	in health benefits 	for
retired employees. 	Questions were asked of Marshall, 	Bennett,
3 Over objection by the 	District and a ruling by the ALJ
that 	this 	testimony was 	not 	relevant to 	the 	incidents 	in the
complaint, 	Bennett nonetheless 	argues 	in his brief 	that the board
member's 	comment 	shows 	animus. 	However, 	the testimony was
specifically 	excluded as 	being too 	attenuated to 	show animus, 	and
thus 	is 	included 	in this 	discussion 	solely 	for the purpose 	of
establishing 	the 	timelines 	of 	Bennett's 	campaign.
A4

and Villani 	by the 	audience. 	At 	some point during the 	question
and answer 	session, 	Villani 	stated that he had never been 	in
contact with PERS.
Bennett, 	however, 	in his 	campaign to extend health benefits
to retired 	employees, 	had previously contacted a Mr. 	Saunders 	at
PERS, 	and had 	spoken to him about 	the Culver City Unified School
District. 	Saunders 	evidently told Bennett that he, 	Saunders, 	had
a 	large 	file 	of 	correspondence with the 	Culver City 	Unified
School 	District. 	Thus 	Bennett was 	under the impression at the
November 	17, 	1987, 	meeting that Villani had been in contact with
PERS 	on behalf of the District.
What Bennett did not know at that meeting, 	however, 	was 	that
Saunders 	had 	confused the 	Culver City 	Unified 	School 	District
with the 	city of Culver City. 	Therefore, 	when Saunders 	referred
to his 	large 	file of 	correspondence, 	he was 	referring to the
correspondence with 	the 	city 	of 	Culver City 	and not with 	the
District. 	Indeed, 	Villani was being truthful when he 	stated at
the November 	17 	meeting that he had not been in contact with
PERS.
Because Villani denied being 	in contact with PERS, 	and
because 	Bennett was 	acting 	on misinformation received 	from
Saunders, 	Bennett 	stated publicly that he disagreed with Villani,
and that Villani had been in contact with PERS. 	Bennett's 	own
testimony 	is 	that he 	"contradicted Villani."
At 	the 	conclusion of the meeting, 	Bennett was 	speaking with
a 	newspaper reporter who attended the meeting. 	Villani, 	visibly
5

upset, 	approached Bennett and 	said in a 	firm voice, 	"Don't you
ever call 	me 	a 	liar again 	in public." 	Bennett responded that he
didn't call Villani a liar. 	At that point, 	Villani 	said, 	"You'd
better be 	in my office next week." 	Bennett replied, 	"I'm 	sorry,
I 	cannot."4
In December 	1987, 	Bennett missed school due to a doctor's
appointment. 	Prior to having 	surgery in the 	spring of 	1988,
Bennett had to 	seek a health 	clearance 	from a 	cardiologist.
Bennett 	received word at 	school 	that 	the 	appointment 	for the
cardiologist had been arranged 	for 	later that 	same day. 	Bennett
went 	to 	the doctor, 	and thus missed a 	faculty meeting that was
scheduled. 	A few days 	after the faculty meeting, 	Culver City
4 Two days 	later, 	on November 	19, 	1987, 	Bennett received
a 	letter 	from Villani 	concerning materials 	that 	Bennett 	had
distributed 	to district 	teachers 	through 	the district 	intra-
school mail 	system. 	Attached to the 	letter were 	copies 	of
several 	cartoons 	or messages 	concerning 	Bennett's 	campaign to
have health benefits 	extended to cover retirees. 	The 	flyers,
etc., 	are dated variously in the fall of 	1987.
The 	campaign 	for retiree 	health benefits 	by 	Bennett was
closely 	intertwined with 	an effort by the 	Culver City 	Teachers'
Association, 	CTA/NEA, 	to decertify the Culver City Federation of
Teachers, 	AFT. 	Bennett had perceived AFT as not being responsive
to his 	campaign for retiree health benefits, 	and 	so he had gone
on record in 	several 	of 	the memos 	stating that 	the 	teachers
should 	consider 	changing 	the 	exclusive 	representative 	from AFT 	to
CTA.
In his 	letter of November 	19, 	Villani told Bennett that
Government Code 	section 3543.5(2), 	and the agreement with the
then-current AFT affiliate, 	provided the use of the mails 	only to
the 	recognized 	employee 	organization. 	Villani 	requested 	that
Bennett 	cease 	and desist 	from distributing materials 	through 	the
mail 	system and not 	to post materials 	on bulletin boards 	unless
he 	had 	authorization 	from management.
This 	letter 	is 	not 	alleged 	in the 	complaint to be 	adverse
action against 	Bennett.
66

High 	School principal 	Glenn Cook, 	questioned Bennett 	about his
absence. 	Cook testified that 	his policy was 	that all 	teachers
attend 	faculty meetings 	unless 	prior arrangements 	have been made
with him 	for absence. 	Bennett had neither 	sought 	nor received
clearance 	from Cook prior to 	missing the 	faculty meeting. 	Cook
asked Bennett whether he had a doctor's 	note. 	Bennett 	then
provided the note to Cook. 	No other action was 	taken by Cook
because 	of 	Bennett's 	absence 	from the 	faculty meeting.5
In April 	1988, 	Bennett had eye 	surgery, 	necessitating his
absence 	from the 	classroom 	for two weeks. 	Bennett 	testified that
he 	left 	a message on the 	answering machine 	at 	the personnel
office 	indicating 	that 	he would be 	away 	from the 	classroom 	for
two weeks, 	from April 	4 through April 	8 and from April 	11 	through
April 	15. 	He also provided the name of a 	substitute who was
available to cover his 	classes.
Personnel Clerk Sheryl Beard testified, 	however, 	that 	she
spoke personally with Bennett prior to his 	absence. 	Beard's
testimony 	is 	that Bennett 	indicated he would be out 	for one week.
The district's 	policy 	is 	that 	a 	substitute will 	be hired 	for only
the period 	that 	the 	teacher 	initially 	indicates 	he 	or 	she will 	be
gone, 	and it 	is 	the teacher's 	affirmative duty to notify the
personnel 	office 	if 	the absence 	is 	to be 	extended beyond the
original 	estimate. 	Beard 	stated 	she told Bennett that he would
5 Several 	other teachers 	testified that they had, 	at times,
missed 	faculty meetings. 	Some were 	questioned by Cook as 	to
their absences, 	others were not. 	The testimony established no
consistent past practice 	as 	to Cook's 	actions when a 	teacher
missed 	a 	faculty meeting.
7

have 	to 	call 	the personnel 	office at 	the 	end of 	the 	first week
(April 	8) 	and notify her if he was 	going to be out 	for another
week.
In resolving the conflict in these two versions, 	I 	credit
Beard's 	testimony. 	She was 	direct 	in her recollection whereas
Bennett 	gave two versions: 	first that he 	spoke only to the
answering machine, 	then in rebuttal after Beard's 	testimony, 	that
he had, 	indeed, 	spoken to Beard directly. 	As Beard is 	a
disinterested witness, 	and as her recollection was 	good, 	I 	credit
her version of 	the 	telephone 	call 	and 	its 	contents.
Bennett did not 	call 	the 	office again to 	extend his 	absence
to 	the 	second week.
On April 	11, 	1988, 	because he had not called the personnel
office 	to 	extend his 	absence, 	the district 	assumed that Bennett
would be returning to the 	classroom. 	Instead, 	the 	substitute who
had 	taken his 	classes 	for the 	first week 	showed up 	for duty 	in
his 	stead. 	Evidently 	she had been told by Bennett himself 	that
he would be out 	for two weeks 	instead of 	just one. 	Thus 	Bennett
made his 	own arrangement 	for his 	substitute 	for the week of April
11.
Later that same day, 	April 	11, 	Villani wrote a letter to
Bennett 	indicating 	that 	Bennett 	had not 	called 	Sheryl 	Beard 	to
extend his 	absence beyond April 	8. 	Furthermore, 	Villani noted
that 	the district policy was 	that 	only the personnel 	office 	could
arrange 	for a 	substitute, 	and Bennett's 	contacting of 	the
substitute 	directly was 	a violation of 	this policy. 	A copy of
8

the 	letter was placed in Bennett's personnel 	file. 	Bennett, 	by
response 	letter dated April 	18, 	1988, 	and also included in his
personnel 	file, 	denied that he had violated 	any district policy.
Bennett 	did not deny that 	he had 	contacted his 	substitute
directly, 	but 	instead merely noted that 	he believed he was
following 	"accepted procedures 	utilized by myself 	as well 	as
others 	in the past."
In the complaint issued in this 	case, 	the District 	is
charged with violating section 3543.5(a): 	when 	(1) 	Villani
allegedly threatened Bennett at the meeting on November 	17, 	1987;
(2) 	Cook requested an explanation 	from Bennett 	as 	to his 	absence
from the faculty meeting on December 9, 	1987; 	and 	(3) 	Villani
placed 	the 	letter of 	reprimand 	in Bennett's 	file 	concerning
Bennett's 	contacting of 	his 	substitute 	teacher directly 	instead
of 	going through the personnel 	office. 	The 	letter to 	Bennett
from Villani, 	written November 	19, 	1986, 	concerning Bennett's use
of district mail, 	is not 	included in the complaint.
ISSUE
Did the District violate 	section 	3543.5(a) 	by the 	above
actions?
CONCLUSIONS 	OF 	LAW
The 	controlling 	case 	law for 	an allegation of 	interference
is Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89.
Actions by an employer that 	interfere, 	or tend to interfere, 	with
the 	exercise of protected rights 	are prohibited. 	Allegations 	of
reprisals 	or discrimination are 	governed by 	the 	case 	law 	found 	in
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Novato Unified School District 	(1982) 	PERB Decision No. 	210. 	A
charging party will 	have 	stated a prima 	facie 	case of
discrimination if he can show: 	(1) 	he engaged in protected
activity; 	(2) 	the employer was aware of this activity; 	(3) 	the
employer took adverse action against the employee; 	and 	(4) 	the
motivation 	for the 	employer 	taking 	the 	adverse 	action was 	the
employee's 	engaging 	in protected activity. 	Animus 	on the part 	of
the 	District 	can be proven by a number 	of 	factors 	including 	the
timing of the adverse action; 	disparate treatment of the 	charging
party; 	inadequate 	explanation by the 	employer to 	the 	employee 	for
the action taken; 	unusually harsh treatment; 	usual procedures not
being 	followed; 	or 	shifting 	justifications 	for the 	employer's
action. 	Timing alone 	is 	insufficient to 	establish an unlawful
motivation on the 	employer's part.
Even when the 	charging party has 	met 	its 	burden of proof 	and
has proved a prima 	facie 	case, 	the employer can defend 	its 	action
by 	showing 	that 	it had a 	legitimate business 	reason 	for the
taking the action it did, 	apart 	from any unlawful motivation. 	If
the 	employer can convince the trier of 	fact that 	it would have
taken the 	same 	action against the 	employee 	even 	in the 	absence 	of
any protected 	activity, 	the 	employer will 	have 	successfully
defended the 	charge 	against 	it. 	Only 	if 	the 	charging party 	can
show that 	the 	legitimate 	business 	reason given by 	the 	employer
was pretextual will 	a 	charge 	of discrimination or retaliation
still 	stand.
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With 	case 	law for background, 	the 	incidents 	alleged 	in 	the
unfair practice 	complaint 	can 	now be 	examined. 	Concerning 	the
statement made by Villani to Bennett at the November 	17 	meeting,
there 	is 	no 	evidence of 	either 	interference or retaliation.
Bennett's 	action in attending 	and 	speaking at 	the 	meeting on a
subject 	of 	great 	interest 	to 	the 	bargaining unit 	arguably was
protected. 	He was 	seeking a benefit 	for bargaining unit
employees who would retire. 	Further, 	the meeting 	(and his
campaign) 	were 	closely tied to 	the decertification effort by
California 	Teachers Association 	(CTA) 	against the Culver City
Federation of Teachers 	(CCFT). 	Bennett was vocal 	in his
opposition to CCFT. 	Thus, 	he did participate in protected
activity, 	and the District was 	aware of his 	campaign.
Bennett, 	however, 	suffered no adverse action because of his
comments 	at that meeting. 	Adverse action must be proven in a
discrimination case. 	Palo Verde Unified School 	District 	(1988)
PERB Decision No. 	689. 	Not until 	some months 	later did Villani
write a 	letter of reprimand to Bennett, 	and that 	letter clearly
referenced an event occurring in April 	1988, 	not November 	1987.6
Thus 	there 	is 	no proof 	of discrimination or retaliation against
Bennett 	because 	of 	his 	participation in this meeting.
Bennett 	argues 	that Villani 	threatened him at 	the 	conclusion
of 	the meeting when he told Bennett 	not 	to 	call 	him 	(Villani) 	a
6 The 	complaint did not allege, 	nor did the 	evidence 	show,
that 	the 	letter to 	Bennett 	from Villani 	concerning the use 	of
district mail was 	adverse action. 	It was 	merely a request to
Bennett 	that he 	comply with the Government Code 	and 	the 	contract.
Bennett 	thereafter used the US 	mail 	service.
11

liar again in public, 	and when he 	stated, 	"You'd better be at my
office next week." 	Furthermore, 	Bennett argues 	that 	such a
statement 	constituted 	interference with his 	exercise 	of protected
activity because 	the 	threat would 	tend to 	interfere with his
exercise 	of protected rights.
Bennett reads 	far too much 	into Villani's 	statement. 	While
it 	is 	true that Bennett never used the word 	"liar" 	in his public
exchange with Villani, 	his public 	contradiction of Villani's
statement 	that 	the 	latter had not 	contacted 	PERS was 	rightfully
seen by Villani 	to be 	challenging Villani's 	credibility. 	Thus,
while 	Bennett 	certainly had 	the 	right 	to 	disagree with Villani,
Villani 	had 	every 	right 	to 	take 	exception to 	Bennett's
contradiction, 	especially 	since Villani was 	correct 	in this
particular instance. 	He had not contacted PERS. 	That Bennett's
information was 	based on an honest 	mistake does 	not 	shield him
from Villani's 	outrage 	at being publicly 	contradicted. 	While
Bennett did not 	specifically call Villani 	a 	"liar," 	his 	public
comments 	about Villani 	certainly raised 	a 	fair 	inference 	in the
mind of Villani 	(or any 	listener) 	that Villani was 	lying.
Villani 	rightly took exception to this. 	In this 	context,
Villani's 	statement, 	"Don't you ever call me a 	liar again in
public," 	is 	neither a threat nor a 	statement of 	interference with
Bennett's rights. 	It is, 	instead, 	a statement made by an angry
man who 	has 	been publicly 	insulted 	and has 	a 	natural 	tendency 	to
fight back.
12
---

Furthermore, 	Villani's 	statement that Bennett had better
come 	to Villani's 	office 	the next week 	is 	not 	interference
either. 	Villani was 	clearly 	speaking 	in the heat of 	the moment,
and did 	not wish to 	continue 	the 	conversation with Bennett 	in
public, 	in front of a newspaper reporter. 	Bennett 	felt no threat
from this 	statement 	as 	he 	immediately 	told Villani 	that 	he would
not 	come 	to Villani's office the next week. 	Villani 	took no
action 	against 	Bennett 	because 	of 	either 	Bennett's 	public
statements 	or because of 	Bennett's 	refusal 	to 	come 	to Villani's
office. 	Villani, 	in anger, 	expressed a wish to continue the
argument, 	Bennett refused to continue the argument, 	and the
matter died. 	Therefore, 	the allegation that the 	incident on
November 	17, 	1987, 	was either a threat or interference with
Bennett's protected rights 	is 	dismissed.
Concerning the 	encounter with Cook over his 	absence 	from a
faculty meeting, 	Bennett 	argues 	that he was 	treated differently
than other 	faculty members who had missed 	faculty meetings. 	In
fact, 	however, 	the testimony of the witnesses 	indicated that Cook
did 	indeed have 	a policy whereby he wanted 	to 	know when 	faculty
members would be absent 	from a 	faculty meeting. 	Other teachers
besides 	Bennett had been 	contacted by Cook, 	either personally 	or
by memo, 	and asked about 	their absences 	or reminded to attend
faculty meetings. 	The policy to be enforced was Cook's. 	Bennett
himself 	admitted that he does 	not read all memos, 	nor know of 	all
of 	the policies 	received 	from Cook. 	Therefore, 	although Bennett
may 	genuinely 	have 	not 	known that 	Cook 	expected him 	to 	attend 	all
13

faculty meetings unless 	other arrangements were made, 	the policy
did 	exist 	and Cook acted 	in 	conformity with 	it.
Further, 	the 	single 	incident of requesting a doctor's 	note
from Bennett because of his 	December absence is 	not adverse.
Bennett 	suffered no harm because of 	the request 	as 	there 	is 	no
indication that 	Bennett 	found 	it difficult 	to provide the
doctor's 	note. 	Nor is 	there any 	indication that Bennett was
treated 	substantially differently 	from 	other 	faculty 	members 	who
were 	similarly 	situated. 	Thus, 	Bennett's 	encounter with Cook in
December 	1987, 	was 	not an action of reprisal, 	but merely was
Cook's 	legitimate 	exercise 	of 	his 	supervisory 	authority 	over
Bennett. 	The allegation of reprisal 	in this 	instance 	shall be
dismissed.
The 	final 	incident 	to be 	examined 	is 	the 	letter of 	reprimand
sent by Villani on April 	11, 	1988. 	Certainly Bennett had
continued his 	campaign for retiree benefits, 	and the 	District was
well 	aware of 	that campaign. 	Thus 	the 	first two elements 	of 	a
Novato analysis 	are met. 	Furthermore, 	the letter of reprimand 	is
adverse action on the part of the District. 	The 	issue here 	is
whether there was 	a nexus, 	or connection, 	between the District's
adverse 	action and Bennett's 	exercise 	of protected rights.
Bennett's 	campaign 	for retiree health benefits 	had begun
almost a year before. 	Yet the 	letter of 	reprimand to 	Bennett did
not come until 	some 	11 months 	later. 	Therefore, 	the timing is
not 	suspicious 	enough to 	raise an inference of 	animus. 	Bennett
argues 	that 	he was 	the only person 	ever 	reprimanded 	for
14

contacting his own 	substitute. 	To a certain extent, 	this
statement may be true. 	However, 	to the District's 	knowledge,
this 	was 	the 	only 	time 	a 	substitute had been contacted directly
by the teacher, 	without the knowledge or action of 	the personnel
office. 	Thus, 	while Bennett may perceive his 	letter of reprimand
as being unique, 	the District's position is that the 	situation
itself was unique. 	While 	in the past the District assumed that a
teacher was 	going 	to 	stay out on 	sick leave until 	the personnel
office was 	notified that the 	teacher would be returning, 	that
policy had been changed. 	At the time of this 	incident, 	the
District 	assumed that the 	teacher was 	returning 	after 	a 	set
period of 	time unless 	the 	teacher affirmatively 	contacted 	the
District personnel 	office 	and 	notified 	them that 	he 	or 	she was
going to 	extend his 	original 	absence.
As 	noted above, 	Beard's 	testimony that 	she 	reminded Bennett
that he was 	to contact the office at the 	end of the 	first week
should he 	stay out 	a 	second week was 	entirely 	credible. 	Bennett
did not do 	so, 	but 	instead contacted the 	substitute himself, 	a
fact 	impliedly admitted by 	Bennett 	in his 	response 	to Villani's
letter of reprimand. 	Bennett does 	not deny the accusations 	made
by Villani 	in his 	letter of April 	11, 	but Bennett attempts 	to
excuse his 	actions 	by 	stating 	that 	he believed he was 	following
district policy. 	No 	evidence was 	presented to 	show that 	Bennett
was 	treated differently 	than other 	similarly 	situated 	teachers.
Since 	there 	is 	no 	nexus 	between Bennett's protected activity and
the adverse action, 	Bennett's 	allegation that Villani's 	letter
15

was 	sent 	in retaliation 	for Bennett's 	protected 	activity 	is 	not
proven.
Furthermore, 	even if animus 	could be 	found 	(and there
certainly was 	personal 	animosity between Villani 	and 	Bennett 	back
in November 	1987), 	the District had a 	legitimate business 	reason
for the 	letter of 	reprimand. 	Bennett had violated a district
policy, 	and the District had a 	legitimate business 	reason 	for
reprimanding him when that policy was 	violated. 	Substitutes,
being employees 	of 	the District and not of 	the 	teachers 	they are
replacing, 	need to be accountable to the personnel 	office 	for any
number of reasons, 	not the 	least of which is control over the
hiring and management of 	staff. 	Seeking to protect 	its 	right 	to
manage 	staff, 	the District reprimanded Bennett when he
overstepped the bounds 	of authority. 	Since there 	is 	no 	evidence
that 	the 	District violated EERA 	section 	3543.5(a) 	when 	it
reprimanded Howard Bennett on April 	11, 	1988, 	that allegation too
shall 	be dismissed.
HOLDING 	AND 	ORDER
Based upon the above 	findings 	of 	facts 	and conclusions 	of
law, 	there 	is 	no evidence that the Culver City Unified School
District violated EERA 	section 	3543.5(a) 	in 	its 	dealing with
Howard Bennett. 	The 	charge and 	complaint 	in this 	matter are
hereby 	DISMISSED.
Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement of 	exceptions with the
16

Board 	itself 	at the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	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. 	See California Administrative
Code, 	title 8, 	section 32300. 	A document is considered 	"filed"
when actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
on the 	last day set for filing 	". 	. 	. o r when sent by telegraph
or 	certified or Express 	United 	States 	mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	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 California Administrative Code, 	title 8, 	sections
32300, 	32305 and 32140.
Dated: 	January 10, 	1990 MARTHA 	GEIGER
Administrative 	Law Judge
17