Santa Maria-Bonita School District (PERB 0924E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SANTA MARIA 	ELEMENTARY 	EDUCATION
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
SANTA MARIA-BONITA ELEMENTARY
SCHOOL 	DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3119
PERB 	Decision No. 	924
February 	24, 	1992
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Appearances: 	Charles R. 	Gustafson, 	Attorney, 	for Santa Maria
Elementary Education Association, 	CTA/NEA; 	Biddle & Hamilton by
W. 	Craig Biddle, 	Attorney, 	for Santa Maria-Bonita Elementary
School District.
Before Camilli, 	Carlyle and Caffrey, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal 	by the 	Santa Maria 	Elementary
Education Association, 	CTA/NEA 	(Association) 	to a Board agent's
dismissal 	(attached hereto) 	of 	its unfair practice charge. 	In
its 	charge, 	the Association alleged that the Santa Maria-Bonita
Elementary School District violated section 3543.5(a), 	(b) 	and
(c) 	of the Educational Employment Relations Act 	(EERA)1 by
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
EERA section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(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
fl
_____ )

unilaterally 	changing policy 	and 	retaliating 	against 	an 	employee.
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
The Board has 	reviewed the dismissal, 	and 	finding 	it 	to be
free of prejudicial error, 	adopts 	it as 	the decision of the Board
itself.
The unfair practice charge in Case No. 	LA-CE-3119 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
December 4, 	1991
Charles R. 	Gustafson
California 	Teachers 	Association
P.O. 	Box 	92888
Los Angeles, 	CA 	90009-2888
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-CE-3119, 	Santa Maria Elementary
Education Association. 	CTA/NEA v. 	Santa Maria-Bonita
School 	District
Dear Mr. 	Gustafson:
I 	indicated to you 	in my attached 	letter dated November 21, 	1991,
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 	that would 	correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend the
charge accordingly. 	You were 	further advised that unless 	you
amended the charge to 	state a prima 	facie case, 	or withdrew it
prior to December 2, 	1991, 	the charge would be dismissed.
I 	have 	not 	received 	either a 	request 	for withdrawal 	or 	an amended
charge. 	I 	am therefore dismissing the charge based on the 	facts
and reasons 	contained 	in my November 21 	letter.
Right to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	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 dismissal 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such appeal 	must 	be 	actually received by 	the Board 	itself
before the close of business 	(5:00 p.m.) 	or 	sent by telegraph,
certified or Express 	United 	States 	mail 	postmarked 	no 	later 	than
the last date 	set for filing 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure section 	1013 	shall apply.
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
======- 	-

Dismissal
LA-CE=3119
December 4, 	1991
Page 2
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 	calendar days
following the date 	of 	service of 	the 	appeal 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	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 California Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents 	and a 	sample 	form.) 	The
document 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 	Board
at 	the previously noted address. 	A request 	for an extension must
be 	filed 	at 	least three 	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 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32132).
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By
Thomas J. 	Allen
Regional 	Attorney
Attachment
cc: 	W. 	Craig Biddle

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
PERD
November 21, 	1991
Charles R. 	Gustafson
California 	Teachers 	Association
P. 	O. 	Box 92888
Los Angeles, 	CA 	90009-2888
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3119,
Santa 	Maria 	Elementary Education Association. 	CTA/NEA
v. 	Santa Maria-Bonita 	School 	District
Dear Mr. 	Gustafson:
In the above-referenced charge, 	the 	Santa Maria 	Elementary
Education Association, 	CTA/NEA 	(Association) 	alleges that the
Santa Maria-Bonita 	School 	District 	(District) 	unilaterally
changed policy and retaliated against an employee, 	in alleged
violation of Government Code sections 3543.5(a), 	(b), 	and 	(c) 	of
the Educational Employment Relations Act 	(EERA).
My 	investigation of 	the 	charge reveals 	the 	following 	facts.
The Association and the District were parties 	to 	a 	collective
bargaining agreement for the term July 	1, 	1988, 	to June 30, 	1991.
Section 	19.2 	of 	the 	agreement 	deals 	with 	"Dismissal/Long-Term
Suspension of 	Probationary 	Employees." 	Section 	19.2.3 	provides
in relevant part as 	follows:
If 	the notice of dismissal 	or 	suspension is
given, 	the employee shall have fifteen 	(15)
days 	from receipt 	of 	the 	notice of 	dismissal
or 	suspension to 	submit 	to 	the 	Board of
Trustees 	a written request 	for a hearing.
On or about March 	11, 	1991, 	The District gave probationary
employee 	Karen Burow a 	"Notice 	of 	Nonreemployment" 	that 	stated as
follows:
In accordance with 	Education Code 	44929.21,
you 	are 	hereby 	notified 	that 	the 	Governing
Board has 	determined not 	to 	reemploy you 	as 	a
certificated 	employee 	in 	the 	Santa-Maria-
Bonita 	School 	District 	for the 	next
succeeding year, 	1991-92.
By a 	letter dated March 	13, 	1991, 	Burow requested 	from the
District 	a 	hearing under 	section 	19.2.3 	of 	the agreement. 	On or

about April 	11, 	1991, 	the District denied Burow's request,
stating 	that 	Burow had 	"neither 	a 	statutory 	nor a 	contractual
right to a hearing 	in this 	matter."
Warning 	Letter
LA-CE-3119
November 21, 	1991
Page 2
Paragraph 	14 	of the 	charge 	(added by amendment) 	reads 	in full 	as
follows:
The 	District 	aforementioned 	actions 	were
taken because 	of 	Karen Burow's 	insisting 	that
the 	District provide her the 	same 	contractual
program of 	support 	it 	had provided many 	other
employees 	in the past 	even though 	the
District's 	personnel 	director had 	indicated
to 	the Association that he did 	not 	like 	the
past practice, 	would not follow it, 	and if
the Association did not 	like 	it, 	they could
take him to court. 	Two days 	after Karen
Burow 	completed 	the period 	of program
support, 	with evaluations which had been
sufficient 	for retention 	in the past 	for
other employees, 	the personnel director
contacted 	her 	for a 	meeting 	that 	day 	at 	4:00
p.m. 	without giving her time to contact a
representative to be present with her. 	At
the meeting the personnel 	director informed
her that 	she would not be 	rehired 	and 	told
her that he 	could dismiss 	her even if 	she
were 	teacher of 	the year.
In a telephone conversation on November 	19, 	1991, 	you informed me
that 	the 	"contractual program of 	support" 	mentioned 	in this
paragraph was 	established 	by 	section 	9.2 	of 	the 	collective
bargaining agreement, 	which provides 	in part as 	follows:
Any Member who 	receives 	a 	negative 	evaluation
shall 	participate 	in a program designed 	to
improve 	the 	appropriate 	areas 	of 	the Member's
performance. 	The program may be 	initiated at
any time during the 	school 	year but 	shall
last at 	least 	80 	school days.
You 	further 	informed me 	that 	Burow received 	a 	negative 	evaluation
on May 25, 	1990, 	and participated in a 	"program of 	support"
beginning October 8, 	1990. 	You were unable, 	however, 	to identify
any way 	in which 	Burow 	"insisted" 	on her 	contractual 	rights 	other
than by 	simply participating 	in the program. 	You were 	also
unable 	to 	identify 	any way 	in which 	Burow's 	participation 	in 	the
program caused 	the 	District 	to 	nonreemploy her. 	On the 	contrary,
your 	theory 	seemed 	to be 	that 	Burow's 	participation 	in 	the

"program of 	support" 	should have had an 	effect on the 	District's
decision but did not.
Warning 	Letter
LA-CE-3119
November 21, 	1991
Page 3
Based on the facts 	stated above, 	the charge does 	not 	state a prim
facie violation of 	the EERA, 	for the reasons 	that 	follow.
As 	noted in Grimsley v. 	Board of Trustees 	(1987) 	189 	Cal.App.3d
1440, 	1446 	[235 Cal.Rptr. 	85], 	for more than 50 years there has
been 	a 	sharp distinction between the procedures 	for dismissing
probationary 	employees 	during 	the 	school 	year 	and 	the 	procedures
for not 	reemploying probationary 	employees 	for 	the 	ensuing 	school
year. 	The procedures 	for dismissal 	are 	governed by Education
Code 	section 44948.3, 	which was mirrored by Section 	19.2 	of 	the
collective bargaining agreement here. 	The procedures 	for
nonreemployment 	are governed by Education Code 	section 	44929.21,
which was 	cited by the District 	in 	its 	"Notice of
Nonreemployment" 	to 	Burow. 	The 	collective bargaining 	agreement
did not 	address 	procedures 	for 	nonreemployment.
If 	the 	collective 	bargaining agreement did 	address 	procedures 	for
nonreemployment, 	it would be preempted by the 	Education and
Government Codes. 	In Fontana Teachers Assn. 	v. 	Fontana Unified
School Dist. 	(1988) 	201 Cal.App.3d. 	1517, 	1524-26 	[247 Cal.Rptr.
761] 	and Bellflower Education Assn. 	v. 	Bellflower Unified School
Dist. 	(1991) 	228 Cal.App.3d 805, 	811-12 	[279 Cal.Rptr. 	179], 	it
was 	held that 	collective bargaining agreements 	are preempted 	as
to 	causes 	and procedures 	relating to nonreemployment. 	In Fontana
Teachers Assn., 	supra, 	it was 	specifically held that 	a 	school
district had 	"the 	absolute 	right" 	to nonreemploy a probationary
employee 	"without 	any redress 	by way of 	administrative hearing 	or
appeal" 	(201 Cal.App.3d at 	1526). 	In Bellflower Education Assn.,
supra, 	it was 	held 	that 	nonreemployment 	of probationary 	employees
"without 	the 	need 	for hearing and appeal" 	was 	a 	school 	district's
"exclusive 	right 	and 	statutory duty" 	and 	could 	not be 	"relegated
to the collective bargaining process" 	(228 Cal.App.3d at 	812).
It 	therefore 	cannot be 	said that 	the 	District's 	denial 	of 	a
hearing 	on 	Burow's 	nonreemployment 	constituted a 	unilateral
change of policy within the 	scope of 	the duty to 	negotiate.
A 	school district may not 	use 	nonreemployment 	as 	a means 	of
retaliation 	for 	protected 	activity. 	McFarland 	Unified 	School
District 	(1990) 	PERB Decision No. 	786. 	The charge, 	however, 	does
not 	state 	facts 	sufficient 	for 	a prima 	facie 	showing 	of
retaliation. 	To demonstrate retaliation, 	a 	charging party must
show that: 	(1) 	the employee exercised rights under the 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 	employee because 	of

the 	exercise 	of 	those rights. 	Novato 	Unified 	School 	District
(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School District
(1979) 	PERB Decision No. 	89; 	Department of Developmental Services
(1982) 	PERB Decision No. 	228-S; 	California State University
(Sacramento) 	(1982) 	PERB Decision No. 	211-H.
Warning 	Letter
LA-CE-3119
November 21, 	1991
Page 4
The 	charge does 	not 	clearly 	identify, 	and you have been unable to
identify, 	how employee Burow exercised 	rights 	under the 	EERA.
The 	charge also does 	not 	identify, 	and you have been unable 	to
identify, 	facts which demonstrate 	that the 	District's 	decision to
nonreemploy Burow was 	because of her 	exercise of 	her rights.
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 any additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend 	the 	charge
accordingly. 	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 	must 	be 	signed under penalty 	of perjury 	by 	the 	charging
party. 	The amended charge must be 	served on the 	respondent 	and
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended charge 	or withdrawal 	from 	you before
December 2, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney