Bellflower Unified School District (PERB 1214E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BELLFLOWER EDUCATION ASSOCIATION,
Charging 	Party,
v.
BELLFLOWER UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3746
PERB Decision No. 	1214
June 30, 	1997
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Appearance; 	California Teachers Association by Charles 	R.
Gustafson, 	Attorney, 	for Bellflower Education Association.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
JOHNSON, 	Member: 	This case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the Bellflower Education
Association 	(BEA) 	to a Board agent's dismissal 	(attached) 	of 	the
unfair practice 	charge. 	The BEA alleged that 	the Bellflower
Unified School District violated section 3543.5(a), 	(b) 	and 	(c)
of 	the Educational 	Employment Relations Act 	(EERA) 	by: 	(1)
E
1
1BERA	ERA 	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
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.

retaliating 	against 	psychologists 	represented by 	the 	BEA based 	on
their protected activity; 	(2) 	unilaterally changing day off
procedures, 	twice-monthly staff meetings, 	and increasing the
workload, 	without providing BEA notice 	and an opportunity 	to
negotiate; 	and 	(3) 	bypassing the BEA by asking the psychologists
to 	join management.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with an exclusive 	representative.
The Board has 	reviewed the 	entire 	record in this 	case,
including the Board agent's warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charge, 	and BEA's 	appeal.
The Board finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and, 	therefore, 	adopts 	them as 	the decision of
the Board 	itself.
ORDER
The unfair practice 	charge in Case No. 	LA-CE-3746 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer joined 	in 	this 	Decision.
-
22

STATE OF CALIFORNIA 	i 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
January 29, 	1997
Charles R. Gustafson
California Teachers Association
P.O. 	Box 2153
Santa Fe Springs, 	CA 	90670
Re: 	DISMISSAL LETTER/DEFERRAL TO ARBITRATION
Bellflower Education Association v. 	Bellflower Unified
School District
Unfair Practice Charge No. 	LA-CE-3746
Dear Mr. Gustafson:
The above-referenced unfair practice charge, 	filed December 10,
1996, 	alleges the Bellflower Unified School District 	(District)
discriminated against District psychologists 	for their protected
activity. 	The Bellflower Education Association 	(Association)
alleges this conduct violates Government Code sections 3543.5(a),
(b) 	and 	(c) 	of the Educational Employment Relations Act 	(EERA or
Act) .
I indicated to you, 	in my attached letter dated January 8, 	1997,
that 	certain allegations 	contained in the charge did not 	state a
prima facie case. 	I also indicated to you that certain
allegations 	contained in the charge were subject to deferral 	to
arbitration. 	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 these
allegations to state a prima facie case or withdrew them prior to
January 15, 	1997, 	the allegations would be dismissed. 	I further
extended that deadline until January 17, 	1997.
On January 17, 	1997, 	I received a first amended charge. 	The
amended charge restates the facts in the original 	charge and adds
the following information. 	The Association asserts that in June,
1996, District Director of Student Services, 	Linda Smedly, met
with the psychologists and asked if they were 	interested in
joining management. 	The psychologists refused.
The amended charge further alleges that since September, 	1996
through November 22, 	1996, 	the District retaliated against the
psychologists 	for refusing to leave the bargaining unit.
Specifically, 	the charges states Ms. 	Smedly changed the day off

for those psychologists who worked a four-day work week and gave
only pretextual 	reasons for doing so. 	Those pretextual reasons
are not stated by Charging Party. 	Additionally, 	the Association
alleges Ms. 	Smedly broke from past practice in the assignment of
new work days, 	by not making assignments according to seniority,
and thus unilaterally changed the terms of the psychologists
employment.
Dismissal/Deferral 	Letter
LA-CE-3746
January 29, 	1997
Page 2
The Association further alleges that Ms. 	Smedly moved the twice-
monthly staff meeting, 	held during regular work hours, 	from
Wednesdays to Tuesdays. 	The Association asserts that Wednesdays
are shorter student days and that by changing the meetings 	to
Tuesdays, 	psychologists have less time to complete assigned work.
The Association alleges this action also constitutes a unilateral
change in working conditions. 	Additionally, 	the Association
contends 	the District has announced that psychologists 	tenured at
80% must work 100% time beginning in the 1997-97 school year.
The Charging Party does not 	further explain this assertion.
The Association also asserts 	the District has changed the
evaluation form from one 	tailored for psychologists 	to one
similar to the form used to evaluate teachers. 	The Association
contends use of the new form will hinder the psychologists
ability to receive fair evaluations. 	Finally, 	the Association
asserts the workload of psychologists has 	increased greatly, 	and
that the District 	is urging psychologists to cut corners to
complete their work.
The amended charge fails to state a prima facie case for the
reasons that follow.
The Association makes the following allegations: 	(1) 	the
District 	retaliated against 	the psychologists based on their
protected activity, 	as shown by the above assertions; 	(2) 	the
District unilaterally changed the day off procedures, 	the twice-
monthly staff meetings, 	and unilaterally increased the workload,
without providing the Association notice and an opportunity to
negotiate; 	and 	(3) 	the District bypassed the Association in
asking the psychologists 	if they were interested in leaving the
bargaining unit. 	Each allegation will be taken in turn.
Retaliation
The Association and the District were parties 	to a collective
bargaining agreement 	(Agreement) 	which expired on June 30, 	1996.
On August 21, 	1996, 	the Association and the District reached a
tentative agreement to extend the Agreement until June 30, 	1997.
Section 6 of the tentative agreement states in pertinent part:
I

Dismissal/Deferral 	Letter
LA-CE-3746
January 29, 	1997
Page 3
This Agreement shall become effective upon BEA
ratification and Board of Education approval,
and shall 	remain in full 	force and effect to
and including June 30, 	1997.
On September 10, 	1996, 	the Association ratified the extension of
the Agreement. 	On September 19, 	1996, 	the Board of Education
approved the extension, 	thus the Agreement 	took effect September
19, 1996.
Article V, 	Section E(5) 	of the Agreement provides for binding
arbitration of grievances. 	Additionally, 	Article XX states as
follows:
NON-DISCRIMINATION: 	The District shall not, 	in
administering the provisions of Articles 	IV
(Association Rights), 	VII 	(Hours), 	IX
(Evaluation Procedures), X (Leaves of Absence),
XI (Class Size), XII (Safety Conditions), XV
(Salaries and Benefits), XVII 	(Early Retirement/
Reduced Services Programs) 	and Article XVIII
(Summer School Selection Procedures), 	. . .
discriminate against any unit member because
of race, color, religion, age, sex, marital
status, 	ethnic origin, 	or lawful political
affiliation; or because of membership, non-
membership or participation in lawful
activities of an employee organization.
As stated in my January 8, 	1997, 	letter, 	and unaddressed by the
amended charge, 	Section 3541.5(a)(2) 	of the Educational
Employment Relations Act states, 	in pertinent part, 	that PERB
shall not:
Issue a complaint against conduct also
prohibited by the provisions of 	the
[collective bargaining] 	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 arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB held that 	this 	section established a jurisdictional 	rule
requiring that a charge be dismissed and deferred if: 	(1) 	the
grievance machinery of 	the agreement covers 	the matter at 	issue
and culminates in binding arbitration; 	and, 	(2) 	the conduct
complained of 	in the unfair practice charge 	is prohibited by the
provisions of the agreement between the parties. 	PERB Regulation
32620(b)(5) 	(Cal. Code of Regs., tit. 8, sec. 32620(b)(5)) also
(

Dismissal/Deferral 	Letter
LA-CE-3746
January 29, 	1997
Page 4
requires 	the 	investigating Board agent 	to dismiss a charge where
the allegations are properly deferred to binding arbitration.
These standards are met with respect to this case. 	First, 	the
grievance machinery of the agreement/MOU covers the dispute
raised by the unfair practice charge and culminates 	in binding
arbitration. 	Second, 	certain conduct complained of in this
charge, 	that the District discriminated against the psychologists
based on their protected activity, 	is arguably prohibited by
Article XX of the Agreement.
Accordingly, 	all allegations of retaliation must be deferred to
arbitration and will be dismissed. 	Such dismissal 	is without
prejudice to the Charging Party's right, 	after arbitration, 	to
seek a repugnancy review by PERB of the arbitrator's decision
under the Dry Creek criteria. 	(See PERB Reg. 	32661 	[Cal. 	Code of
- -	Regs., tit. 8, sec. 32661]; Los Angeles Unified School District
(1982) 	PERB Decision No. 	218; Dry Creek Joint Elementary School
District 	(1980) 	PERB Order No. Ad-81a.)
Unilateral 	Change
The Association alleges the District made the following
unilateral changes: 	(1) 	failed to follow past practice of
assigning new work days according to seniority; 	(2) 	moved the
twice-monthly staff meeting from Wednesdays to Tuesdays; 	and 	(3)
increased the psychologists workload.
In determining whether a party has violated EERA section
3543.5(c), 	PERB utilizes either the "per se" or "totality of
the conduct" 	test, 	depending on the specific conduct involved
and the effect of such conduct on the negotiating process.
(Stockton Unified School District 	(1980) 	PERB Decision No. 	143.)
Unilateral changes are considered "per se" violations if certain
criteria are met. 	Those criteria are: 	(1) 	the employer
implemented a change 	in policy concerning a matter within the
scope of representation, 	and 	(2) 	the change was implemented
before the employer notified the exclusive representative and
gave it an opportunity to request negotiations. 	(Walnut Valley
Unified School District 	(1981) 	PERB Decision No. 	160; Grant Joint
Unified High School District 	(1982) 	PERB Decision No. 	196.)
Article III, 	Section A of the Agreement addresses the District's
retained rights. 	It states in pertinent part:
Such retained rights include, 	but are not
limited to, the exclusive right to: 	. 	. 	.
(10) 	determine 	(subject to Article XI,
Class Size) 	staffing patterns, 	including
I

Dismissal/Deferral 	Letter
LA-CE-3746
January 29, 	1997
Page 5
but not limited to the number of employees;
The Association alleges the District has 	failed to follow past
practice in the assignment of new work days, 	by failing to take
into consideration seniority in making these assignments. 	The
Association does not, 	however, 	provide any other information
regarding this allegation, 	despite the admonition in my January
8, 	1997, 	letter. 	Thus, 	it is unclear whether the alleged change
in past practice is covered by the District's rights clause
stated above. 	The Association states the District has changed
the staffing levels, 	so as to have an equal amount of staff on
site on each day. 	As noted above, 	staffing patterns are within
the exclusive right of the District, 	and the Association fails to
demonstrate the District 	is obligated to bargain over such a
decision. 	As such, 	the allegation is dismissed.
The Association also alleges the District moved the twice-monthly
staff meeting from Wednesdays to Tuesdays, 	thus decreasing the
amount of time psychologists have on Tuesdays to complete their
assigned work. 	As stated in my letter dated January 8, 	1997, 	the
Association does not demonstrate the day of the week a staff
meeting is held is a mandatory subject of bargaining. 	While
holding the staff meetings on Wednesdays may be more convenient
for psychologists, 	a unilateral change in this instance must
concern a subject within the scope of bargaining. 	The amended
charge fails to address this deficiency and thus the allegation
must be dismissed.
The Association further contends 	that the District has
unilaterally increased the psychologists workload, 	although the
Association provides no further details on this matter. 	The
Association cites an increase in the number of students needing
service and an increase in paperwork due to new statutory
obligations. 	However, 	the mere legal conclusion that an increase
in work time or workload constitutes a unilateral 	change is
insufficient to state a prima facie case. 	(See, 	United Teachers
of Los Angeles 	(Ragsdale) 	(1992) 	PERB Decision No. 	944.) 	The
Association does not 	contend the change requires psychologists 	to
work more hours, 	nor is there any evidence that psychologists are
"cutting corners" 	to meet the District's requirements. 	As such,
the charge fails to state a prima facie case and must be
dismissed.
Moreover, 	such an assertion may be deferrable to binding
arbitration as noted above. 	Article VII of the Agreement details
the parties understanding with regard to work hours and duties.
Section A of this Article states:
The District 	recognizes 	the varying nature

Dismissal/Deferral 	Letter
LA-CE-3746
January 29, 	1997
Page 6
of a unit member's day-to-day professional
responsibilities does not 	lend itself to an
instructional 	day of 	rigidly established
length. 	Unit members shall spend as much time
as necessary to fulfill 	their instructional
and professional 	responsibilities. 	Although
the minimum school-based assignment of hours
may be less than forty 	(40) 	hours per week,
it is understood that fulfillment of a unit
member's 	total professional 	responsibilities
will generally require a work week well 	in
excess of forty 	(40) 	hours.
Should the Association allege the District has 	increased the
amount of hours psychologists must work in order to fulfill their
duties, 	such a contention is arguably covered by the above-quoted
provision, 	and thus subject to deferral. 	As such, 	the allegation
must be dismissed.
Bypassing
The amended charge adds an allegation of bypassing to the
original allegations. 	The Association alleges that in June 1996,
the Ms. 	Smedly asked if the psychologists were interested in
becoming part of management. 	This 	inquiry took place at a staff
meeting Ms. Smedly attended, 	as Ms. Smedly is the psychologists'
supervisor. 	The charge does not provide any additional
information regarding what Ms. 	Smedly actually said or how the
psychologists 	responded.
Government Code section 3541(a)(1) 	prohibits the Board from
issuing a complaint 	in respect 	to conduct 	taking place more than
six months prior to the filing of the charge. 	The alleged
bypassing took place 	"in June 1996", 	while the unfair practice
charge was filed on December 10, 	1996. 	It is unclear whether
PERB has jurisdiction over this allegation. 	Indeed, 	my January
8, 	1997, 	letter, 	stated that the charge must include the date the
District took the alleged action. 	Failure to remedy this
deficiency must result 	in the dismissal of this allegation
Right 	to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of 	this dismissal of 	certain allegations
contained in the charge by filing an appeal 	to the Board itself
within twenty 	(20) 	calendar days after service of this dismissal.
(Cal. Code of Regs., 	tit. 	8, 	sec. 32635(a).) 	To be timely filed,
the original and five copies of such appeal must be actually
(

Dismissal/Deferral 	Letter
LA-CE-3746
January 29, 	1997
Page 7
received by the Board itself before the close of business
(5 p.m.) 	or sent by telegraph, 	certified or Express United States
mail postmarked no later than the last date set for filing.
(Cal. 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
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. 	(Cal. 	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 Cal. 	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 	(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. 	(Cal. Code of Regs., tit. 8, sec. 32132.)

Dismissal/Deferral 	Letter
LA-CE-3746
January 29, 	1997
Page 8
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
Deputy General 	Counsel
By Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Eric Bathen

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
January 8, 	1997
Charles R. Gustafson
California Teachers Association
P.O. 	Box 2153
Santa Fe Springs, 	CA 	90670
Re: 	WARNING LETTER/DEFER TO ARBITRATION
Bellflower Education Association v. 	Bellflower Unified
School District
Unfair Practice Charge No. 	LA-CE-3746
Dear Mr. Gustafson:
The above-referenced unfair practice charge, 	filed December 10,
1996, 	alleges the Bellflower Unified School District 	(District)
discriminated against District psychologists 	for their protected
activity. 	The Bellflower Education Association 	(Association)
alleges this conduct violates Government Code sections 3543.5(a),
(b) 	and 	(c) 	of the Educational Employment Relations Act 	(EERA or
Act) .
Investigation of the charge revealed the following. 	The
Association is 	the exclusive bargaining representative 	for the
District's psychologists. 	The Association and the District are
parties to a collective bargaining agreement 	(Agreement) 	which
expires on June 30, 	1996. 	Article V, 	Section E(5) 	of the
Agreement provides 	for binding arbitration of grievances.
Additionally, Article XX states as follows:
NON-DISCRIMINATION: 	The District shall not, 	in
administering the provisions of Articles 	IV
(Association Rights), 	VII 	(Hours), 	IX
(Evaluation Procedures), X (Leaves of Absence),
XI 	(Class Size), XII 	(Safety Conditions), XV
(Salaries and Benefits), XVII 	(Early Retirement/
Reduced Services Programs) 	and Article XVIII
(Summer School Selection Procedures), 	. 	. 	.
discriminate against any unit member because
of race, color, religion, age, sex, marital
status, 	ethnic origin, 	or lawful political
affiliation; or because of membership, non-
membership or participation in lawful
activities of an employee organization.

Warning 	Letter/Deferral
LA-CE-3746
January 8, 	1997
Page 2
On May 16, 	1996, 	the District gave the Association its initial
bargaining proposal, 	which included a proposed change to the
recognition article. 	The District proposed adding the
psychologists to management, 	and thus eliminating the
psychologists 	from the bargaining unit.
In June 1996, 	the District met with psychologists to ask them to
join management. 	The Association alleges the psychologists
refused this 	request.
The charge also alleges, 	without further specificity, 	that the
District has 	changed the day off 	for those psychologists with
four-day work weeks and has given only pretextual 	reasons 	for
doing so. 	The Association alleges this violates past practice of
assigning new work days according to seniority.
The Association asserts the District has moved the twice monthly
psychologist 	staff meeting from Wednesdays to Tuesdays. 	This
change allegedly results 	in less time to work with students.
Additionally, 	the Association contends the District has announced
that psychologists tenured at 80% must work 100% time beginning
in the 1997-98 school year.
The Association also alleges 	the District has changed the
evaluation form from one 	tailored for psychologists 	to one
similar to the form used to evaluate teachers. 	The Association
contends use of 	the new form will hinder the psychologists
ability to receive fair evaluations. 	Finally, 	the Association
asserts the workload of psychologists has increased greatly, 	and
that 	the District is urging psychologists to cut corners to
complete their work.
On December 20, 	1996 and December 24, 	1996, 	I telephoned you to
in order to obtain further information regarding this charge. 	To
date, 	I have not received a response.
Based on the above stated facts, 	the charge as presently written,
fails 	to state a prima facie case of discrimination for the
reasons 	stated below.
PERB Regulation 32615 	(California Code of Regulations, 	title 8,
section 32615) 	requires that a charge contain "a clear and
concise statement of 	the facts and conduct alleged to constitute
an unfair practice." 	(emphasis added.) 	The Charging Party must
alleges with specificity who, 	what, 	when, 	where and how the
Respondent violated the Act. 	Mere speculation, 	conjecture or
legal conclusions are insufficient.

Warning 	Letter/Deferral
LA-CE-3746
January 8, 	1997
Page 3
The instant 	charge is not in conformance with PERB Regulation
32615, 	as the charge fails to allege when District officials took
action against the psychologists, 	or how this action was taken.
Government Code section 3541.5(a)(1) 	prohibits the Board from
issuing a complaint 	in respect 	to conduct 	taking place more than
six months prior to the filing of the charge. 	As the charge
fails to include any dates when alleged actions occurred, 	it is
unclear whether PERB has jurisdiction in this matter. 	Moreover,
the charge does not specify how, 	or by whom, 	any of the above-
referenced actions were taken, 	and as such fails to state a prima
facie case.
Assuming the charge is not time barred, 	PERB also lacks
jurisdiction over the charge pursuant to Government Code section
3541.5(a)(2). 	Section 3541.5(a)(2) 	of the Educational Employment
Relations Act states, 	in pertinent part, 	that PERB shall not:
Issue a complaint against 	conduct also
prohibited by the provisions of the
[collective bargaining] 	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 arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB held that 	this 	section established a jurisdictional 	rule
requiring that a charge be dismissed and deferred if: 	(1) 	the
grievance machinery of the agreement covers the matter at issue
and culminates in binding arbitration; and, 	(2) 	the conduct
complained of 	in the unfair practice charge is prohibited by the
provisions of the agreement between the parties. 	PERB Regulation
32620(b)(5) 	(Cal. Code of Regs., tit. 8, sec. 32620(b)(5)) also
requires the investigating Board agent to dismiss a charge where
the allegations are properly deferred to binding arbitration.
These standards are met with respect to this case. 	First, 	the
grievance machinery of 	the agreement/MOU covers 	the dispute
raised by the unfair practice charge and culminates 	in binding
arbitration. 	Second, 	the conduct complained of in this charge,
that the District discriminated against 	the psychologists based
on their protected activity, 	is arguably prohibited by Article XX
of the Agreement.
Accordingly, 	this charge must be deferred to arbitration and
will be dismissed. 	Such dismissal 	is without prejudice to the
Charging Party's right, 	after arbitration, 	to seek a repugnancy
review by PERB of 	the arbitrator's decision under the Dry Creek
criteria. 	(See PERB Reg. 	32661 	[Cal. Code of Regs., 	tit. 	8,

Warning 	Letter/Deferral
LA-CE-3746
January 8, 	1997
Page 4
sec. 32661]; 	Los Angeles Unified School District 	(1982) 	PERB
Decision No. 	218; 	Dry Creek Joint Elementary School District
(1980) 	PERB Order No. Ad-81a.)
Assuming the charge is not deferrable, 	the charge also fails to
state a prima facie case of discrimination. 	To demonstrate a
violation of EERA section 3543.5(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; 	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.)
The 	instant 	charge assumes 	employees 	exercised protected rights
by refusing to voluntarily withdraw from the bargaining unit.
The District had knowledge of this action as the District
presented this request to the psychologists. 	However, 	the charge
does not demonstrate that some of the actions taken by the
District 	can be 	considered adverse actions against 	the
psychologists 	in retaliation for this protected activity.
The Board applies an objective 	test 	in determining whether the
action taken by the employer actually resulted in harm to the
charging party. 	(Palo Verde Unified School District 	(1988) 	PERB
Decision No. 	689.) 	The test which must be satisfied is not
whether the employee found the employer's action to be adverse,
but whether a reasonable person under the same circumstances
would consider the action to have an adverse impact 	on the
employee's employment. 	The charge alleges the District changed
meeting days and changed evaluation forms. 	The charge does not
present, 	however, 	any further information as to why these
particular actions are adverse to the psychologists' 	employment
with the District.
The charge also fails to demonstrate the requisite nexus.
Although the timing of the employer's adverse action in close
temporal proximity to the employee's protected conduct 	is an
important factor, 	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; 	(2) 	the
employer's departure 	from established procedures and standards

Warning 	Letter/Deferral
LA-CE-3746
January 8, 	1997
Page 5
when dealing with the employee; 	(3) 	the employer's inconsistent
or contradictory justifications for its actions; 	(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; 	or 	(6) 	any other facts which might demonstrate
the employer's unlawful motive. 	(Novato Unified School District.
supra; 	North Sacramento School District 	(1982) 	PERB Decision
No. 	264.) 	As noted above, 	the charge fails to note when any of
the alleged adverse actions occurred, 	thus PERB cannot determine
if the employee's protected activity was 	in close temporal
proximity to the adverse action. 	Moreover, 	the charge does not
demonstrate any other factors 	connecting the protected activity
with the District's action. 	Therefore, 	the charge fails to state
a prima facie violation of EERA section 3543.5(a).
Although the charge asserts only a discrimination violation,
several 	facts may support a finding of a unilateral 	change
violation. 	However, 	a prima facie case of unilateral change
based on this 	theory is not demonstrated. 	There are insufficient
facts to determine whether any policies were changed, 	whether the
policies changed were mandatory subjects of bargaining, 	or
whether these alleged changes are subject 	to deferral 	as 	stated
above. 	As such, 	the charge fails to demonstrate a violation of
Government Code section 3543.5(c).
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 which 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 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 January 15. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. Rosi
Regional Attorney