Chula Vista Elementary School District * * * OVERRULED IN PART by Visalia Unified School District (2022) PERB Decision No. 2806 (PERB 1232E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHULA VISTA ELEMENTARY 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
CHULA VISTA ELEMENTARY SCHOOL
DISTRICT,
Respondent.
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)
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) 	Case No. 	LA-CE-3777
PERB Decision No. 	1232
November 19, 	1997
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Appearances; 	California Teachers Association by Rosalind D.
Wolf, 	Attorney, 	for Chula Vista Elementary Education Association,
CTA/NEA; 	Parham & Rajcic by Mark R. 	Bresee, 	Attorney, 	for Chula
Vista 	Elementary 	School 	District.
Before Caffrey, 	Chairman; 	Dyer and Jackson, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	from a Board agent's
dismissal 	(attached) 	of an unfair practice 	charge 	filed by the
Chula Vista Elementary Education Association, 	CTA/NEA
(Association). 	As amended, 	the charge alleges that the Chula
Vista 	Elementary School 	District 	(District) 	violated 	section
3543.5(a), 	(b), 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA)1 when it discriminated against 	four unit members and
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 3543.5 provides, 	in relevant 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
* * * OVERRULED IN PART by Visalia Unified School District (2022) PERB
Decision No. 2806 * * *

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.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
unilaterally 	changed 	its 	policy 	regarding 	the Association's 	use
of District 	facsimile machines.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the Association's 	original 	and amended charge, 	the
warning and dismissal 	letters, 	the Association's 	appeal 	and 	the
District's 	response 	thereto. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself.2
DISCUSSION
On appeal, 	the Association notes 	that 	Scott Hopkins
(Hopkins) 	was an Association site 	representative at 	the 	time 	of
the District's 	allegedly adverse actions. 	The Association
contends 	that Hopkins' 	status makes 	the 	timing of 	the District's
action suspect. 	(Citing Novato Unified School 	District 	(1982)
PERB Decision No. 	210 at p. 	7 	(Novato) 	[noting that timing of
2By letter dated October 6, 	1997, 	the Association informed
the Board that 	it wished to withdraw those portions 	of 	its 	appeal
concerning 	the 	discrimination allegations 	of 	Carol 	Owen and Sue
Butler. 	Having considered the 	request, 	the Board concurs 	that 	it
is 	consistent with the purposes 	of 	the 	EERA and 	in the best
interests 	of 	the parties 	to grant 	the 	request.
22

adverse action may 	indicate unlawful motivation].) 	The
Association's 	argument misses 	the mark.
In order to 	state a prima 	facie 	case 	for violation of 	EERA
section 3543.5(a), 	a charge must allege facts 	illustrating 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, 	supra, 	PERB Decision
No. 	210 at p. 	6.)
Because direct proof 	of unlawful motivation is 	rare, 	the
Board allows 	charging parties 	to 	establish 	such motivation
through the use of 	circumstantial 	evidence. 	(Ibid.) 	The Board
has 	identified 	the 	following 	factors 	as 	indications 	that 	the
District's actions 	sprung from an unlawful motive: 	(1) 	the
timing 	of 	the 	employer's 	conduct 	in 	relation to 	the 	employee's
performance of protected activity; 	(2) 	the employer's disparate
treatment of the employee; 	(3) 	the employer's departure from
established procedures 	and 	standards 	when dealing with 	the
employee; 	(4) 	the employer's 	inconsistent or contradictory
justifications 	for its actions; 	(5) 	the employer's 	cursory
investigation of the employee's misconduct; 	(6) 	the employer's
failure 	to offer the 	employee 	justification at 	the 	time 	it 	took
the action or the offering of 	exaggerated, 	vague, 	or ambiguous
33

reasons; 	or 	(7) 	any other facts which might demonstrate the
employer's unlawful motive. 	(Id. 	at p. 	7.)
It 	is well 	established that 	representing members 	of 	an
employee 	organization constitutes protected activity. 	(See,
e.g., 	Los Gatos-Saratoga School District 	(1989) 	PERB Decision
No. 	742 at p. 	2.) 	However, 	as the Board agent noted, 	the
Association did not 	allege 	that 	Hopkins 	actually participated 	in
representational 	or 	other protected activities 	around 	the 	time 	of
the alleged adverse actions. 	Without 	some actual protected
conduct, 	Hopkins' 	simple maintenance of his Association position,
like maintaining his Association membership, 	is 	insufficient 	to
satisfy the 	timing element 	of 	the Novato 	test. 	(See Novato at
p. 	7.) 	Although the Board agent 	found that 	the District 	did not
"strictly follow" 	its normal 	investigatory procedures, 	this
single 	indication 	is 	insufficient 	to 	state a prima 	facie 	case 	for
discrimination. 	(Moreland Elementary School District 	(1982) 	PERB
Decision No. 	227 at p. 	16.)
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-3777 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Jackson joined 	in 	this 	Decision.
44

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
June 18, 1997
Rosalind Wolf
California Teachers Association
11745 E. 	Telegraph Road
Santa Fe Springs, 	CA 	90670
Re: 	DISMISSAL OF CHARGE
Chula Vista Elementary Education Association. CTA/NEA v.
Chula Vista Elementary School District
Unfair Practice Charge No. 	LA-CE-3777
__ 	-_-_--
Dear Ms. Wolf:
The above-referenced unfair practice charge, 	filed March 24,
1997, 	alleges the Chula Vista Elementary School District
(District) 	discriminated against several bargaining unit members,
and unilaterally changed the 	"facsimile policy." 	The Chula Vista
Elementary Education Association 	(Association) 	alleges the
conduct violates Government Code section 3543.5(a), 	(b) 	and 	(c)
of the Educational Employment Relations Act 	(EERA or Act).
I indicated to you, 	in my attached letter dated May 21, 	1997,
that 	certain allegations 	contained in the charge did not state a
prima facie case. 	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
May 28, 	1997, 	the allegations would be dismissed. 	I later
extended this deadline to June 11, 	1997.
On June 11, 	1997, 	I received a first amended charge. 	The amended
charge reiterates the original charge, 	and adds the following.
Scott Hopkins:
The amended charge again notes Mr. 	Hopkins is the Association
Representative as Loma Verde Elementary School. 	Throughout the
1995-1996 school year, 	during Association picketing at the
District office, Mr. 	Hopkins delivered, prepared and distributed
picket signs, 	spoke in a bullhorn and led marches and rallies.
In the Spring of 1996, 	Hopkins gave Superintendent Gil a brightly
colored button which read 	"It's all the Superintendent's Fault."

Dismissal 	Letter
LA-CE-3777
June 18, 	1997
Page 2
On December 5, 	1996, 	Hopkins was directed to appear for an
interview as part of the District's investigation into a child
abuse complaint by the parent of a former student. 	The
Association contends this action, 	taken after the District
Attorney's Office has closed the case, 	is evidence of the
District's discriminatory conduct. 	The Association further
contends 	the District 	failed to 	follow proper procedures
regarding complaints by parents.
As stated in my May 21, 	1997, 	the District's failure to strictly
comply with investigatory procedures, 	alone, 	is insufficient to
demonstrate the requisite nexus. 	While the Association contends
the District's adverse action was taken in close temporal
proximity to Mr. 	Hopkins protected activity, 	facts presented by
the Association demonstrate 	the District's action was 	taken more
than six months after any protected activity on Mr. 	Hopkins part.
Moreover, 	the Association fails to demonstrate the District
strictly followed the complaint procedures 	in all 	child abuse
cases or routinely dismissed allegations once the District
Attorney's office closed the case. 	As such, 	the Association
fails to present any additional 	facts demonstrating nexus, 	and
the allegation is dismissed.
Sue Butler
In September, 	1996, 	during a staff meeting, Ms. Butler stated
that the school budget was under site control. 	Palomar
Principal, 	Bonnie Nelson, 	responded to this comment by stating
that whomever gave this information to Ms. 	Butler was a "liar."
In October, 	1996, Ms. 	Butler called a meeting with teachers to
inform them that Nelson had changed the procedure 	for handling
parent complaints. 	On October 14, 	1996, 	at a mediation session,
Ms. 	Butler disputed Ms. Nelson's statement that she would never
use statements or conduct outside of the classroom in an
evaluation.
On November 26, 	1996, 	the District issued Ms. Butler a written
warning 	concerning her alleged 	inappropriate action against a
student. 	The Association contends 	this letter was issued because
of Ms. 	Butler's protected activity.
As noted in my May 21, 	1997, 	letter, 	facts presented by the
Association demonstrate the District 	followed proper procedures
in handling the parent's complaint. 	Although Ms. 	Butler believed
she had handled the complaint, 	Ms. 	Nelson's actions in pursuing
the matter upon receiving a call 	from the child's parents, 	does
not demonstrate discriminatory motivation. 	The Association also
alleges Ms. 	Nelson made a statement to the effect that she would
get even with Ms. 	Butler. 	However, 	both the original and amended
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charges 	fail 	to provide any facts regarding this statement,
including when it was made, 	and to whom it was made. 	As the
Association fails to provide these facts, 	direct animus cannot be
inferred. 	Finally, 	while this adverse action took place in close
temporal proximity to Ms. 	Butler's protected activities, 	timing
alone is insufficient to demonstrate nexus. 	As such, 	this
allegation is dismissed.
Dismissal 	Letter
LA-CE-3777
June 18, 1997
Page 3
The amended charge also asserts that on May 1, 	1997, 	the District
took adverse action against Ms. 	Butler by reassigning her from a
3rd grade class to 4th grade position. 	The Association argues
nexus is demonstrated by Ms. 	Nelson's statement that 	"she knew
she had a problem of retribution if she only reassigned two
teachers, 	so she was reassigning eight."
Assuming the reassignment is an adverse action, 	the allegation
fails also fails to demonstrate the requisite nexus. 	While the
reassignment took place within months of the filing of this
unfair practice charge, 	mere timing alone is 	insufficient to
demonstrate the requisite nexus. 	The amended charge does not
allege Ms. 	Butler received disparate treatment or that the
District failed to follow proper procedures. 	Instead, 	the
Association relies on Ms. 	Nelson's statement that she did not
want to give the appearance of 	impropriety or retribution in her
reassignments, 	therefore she reassigned eight teachers. 	Ms.
Nelson's actions 	in refusing to single out teachers for
reassignment, 	does not demonstrate the District reassigned eight
teachers, 	simply to punish Association activists. 	As such, 	this
allegation fails to state a prima facie case.
Gina Boyd:
The amended charge fails to add any additional 	facts to this
allegation, 	and therefore, 	the allegation of retaliation against
Ms. 	Boyd is dismissed for the reasons stated in the May 21, 	1997,
letter.
Carol Owens:
The amended charge presents 	for the first 	time an allegation that
the District reassigned Ms. 	Owens because of her protected
activity. 	Ms. 	Owens is the Association's Bargaining Chair and a
teacher representative at Palomar Elementary School. 	On October
1, 	1996, Ms. Owens requested budget information, 	over Principal
Nelson's objection. 	On May 1, 	1997, Ms. Owens was reassigned
from 1st grade to a combination 2nd/3rd grade class.
Assuming again the reassignment is an adverse action, 	the charge
fails to demonstrate the requisite nexus. 	The Association
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contends Ms. 	Nelson's statement, 	quoted above, 	and the timing of
the District's action demonstrate the necessary connection.
However, 	as noted above, Ms. Nelson's statement does not
demonstrate Ms. 	Owens was reassigned because of her protected
activities. 	Indeed, Ms. Nelson's statement demonstrates she did
not want 	to give the appearance of 	impropriety in reassigning
staff members. 	Additionally, 	the District took this action seven
(7) 	months after Ms. 	Owens request for budget information. 	In
this instance, 	seven months is not within close temporal
proximity of the adverse action. 	As such, 	this allegation is
dismissed.
Dismissal Letter
LA-CE-3777
June 18, 	1997
Page 4
I am therefore dismissing those allegations above which fail 	to
state a prima facie case based on the facts and reasons 	contained
herein and in my May 21, 	1997, 	letter.
Unilateral Change:
On November 26, 	1996, Assistant Superintendent Curtis informed
Ms. 	Boyd that the District's fax machines were not available for
Association use. 	Specifically, Mr. 	Curtis informed Ms. Boyd that
the District would not distribute communications 	from the
Association received on school 	facsimile machines, 	nor will they
permit non-educational use by the teachers. 	The District's
letter states it is the second such directive by the District.
The Association contends this action violates the five year past
practice of allowing the Association to use the school's fax
machines 	for Association communications. 	In support of this
allegation, 	the Association provides a copy of a facsimile sent
by Ms. 	Boyd to Association members on October 18, 	1996.
Article 4 	of the parties collective bargaining agreement
(Agreement), which expires on June 30, 1997, provides numerous
means 	through which the Association can communicate with its
members. 	Article 4.1.2 provides the Association with access to
the District's 	internal mail 	system. 	Article 4.1.4 provides the
Association with the right to post notices at school sites, 	and
Article 4.1.5 grants Association representatives 	the right to
conduct Association business on school sites. 	Finally, 	Article
4.1.8 of the Agreement states:
The Association shall have reasonable
opportunity to prepare and present a position
in the event of any proposed policy change or
new policy.
The parties grievance machinery is contained in Article 7 of the
Agreement. 	Article 7.1.2 allows 	the Association to file
(

grievances on its own behalf. 	Additionally, 	Article 7.3.8,
provides 	for the binding arbitration of grievances.
Dismissal Letter
LA-CE-3777
June 18, 	1997
Page 5
Section 3541.5(a) 	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 	implemented a new facsimile policy, 	is arguably
prohibited by Article 4.1.8 	of 	the MOU.
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,
sec. 32661]; Los Angeles Unified School District 	(1982) 	PERB
Decision No. 	218; 	Dry Creek Joint Elementary School District
(1980) 	PERB Order No. Ad-81a.)
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,

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the original and five copies of 	such appeal must be actually
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:
Dismissal 	Letter
LA-CE-3777
June 18, 1997
Page 6
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 	Letter
LA-CE-3777
June 18, 	1997
Page 7
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: 	Mark R. 	Bresee

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
May 21, 	1997
Rosalind Wolf
California Teachers Association
11745 E. 	Telegraph Road
Santa Fe Springs, 	CA 	90670
Re: 	WARNING LETTER
Chula Vista Elementary Education Association. 	CTA/NEA v.
Chula Vista Elementary School District
Unfair Practice Charge No. 	LA-CE-3777
Dear Ms. Wolf:
The above-referenced unfair practice charge, 	filed March 24,
1997, 	alleges the Chula Vista Elementary School District
(District) 	discriminated against several bargaining unit members,
and unilaterally changed the 	"facsimile policy." 	The Chula Vista
Elementary Education Association 	(Association) 	alleges the
conduct violates Government Code section 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 	representative of 	the District's
certificated bargaining unit. 	Scott Hopkins 	is a teacher at Loma
Verde Elementary School, 	where he serves as the Association's
site representative. 	Sue Butler is teacher at Palomar Elementary
School, 	where she serves as the Association's site
representative. 	Gina Boyd is the Association's President.
Scott Hopkins:
On August 28, 	1996, 	the District informed Mr. Hopkins that an
oral 	complaint had been lodged against him by a student. 	The
District further informed Mr. 	Hopkins he would be placed on
administrative leave with pay until 	the 	investigation was
concluded. 	As the complaint against Mr. 	Hopkins alleged possible
child abuse, 	the District contacted Child Protective Services as
required by law.
On December 5, 	1996, 	District Assistant Superintendent, 	Ray
Curtis, 	ordered Mr. 	Hopkins to report to the District office for
an investigatory interview. 	The District advised Mr. 	Hopkins to
bring a representative with him. 	On February 27, 	1997, Mr.
Hopkins met again with District officials. 	During this meeting,
__ 	-_-_--

the District 	stated its 	findings and decisions 	regarding the
complaint. 	Specifically, 	the District found no sexual 	intent on
Mr. 	Hopkins part. 	However, 	the District also determined that it
was in the best interest of the student to transfer Mr. 	Hopkins
to another school 	site. 	These findings were confirmed by letter
dated March 6, 	1997.
Warning Letter
LA-CE-3777
May 21, 1997
Page 2
The District's policy regarding the handling of student/parent
complaints 	is stated in a series of Administrative Regulations,
Board Policies and Article 36 of 	the parties collective
bargaining agreement 	(Agreement). 	Board Policy 1321.1 states in
pertinent part, 	the following with regard to 	"Complaints
Concerning School 	Personnel:"
It 	is the desire of the Governing Board to
rectify any misunderstanding between the
public and the District by direct discussions
of an informal 	type among the interested
parties. 	Only when such informal meetings
fail to resolve the differences, 	shall more
formal procedures be employed.
When public complaints 	involve accusations of
child abuse, 	the provisions of this policy
and regulation shall be 	implemented only
after the child abuse 	reporting requirements
have been completed.
Administrative Regulation 1321.1 states in relevant part:
First Level 	- 	If it is a matter specifically
directed toward a staff member, 	the matter
must be addressed, 	initially, 	to the
concerned staff member who shall discuss 	it
promptly with the 	complainant and make every
effort 	to provide a reasoned explanation or
take appropriate action within his/her
authority, 	and District rules and
regulations.
Finally, 	Article 36 of the parties Agreement states as follows:
Citizens and parents or guardians of pupils
enrolled in the District may present 	informal
(oral) 	and/or formal 	(written) 	complaints
regarding employees to the District. 	Parents
or guardians shall be encouraged by the
immediate 	supervisor or District
administrator to present 	informal 	(oral)
(

complaints first to the employee who is the
subject of the complaint prior to presenting
any 	formal 	(written) 	complaint to the
District.
Warning Letter
LA-CE-3777
May 21, 	1997
Page 3
Article 36.1 states in relevant part:
Informal 	(Oral) 	Complaints. 	No record of any
informal 	(oral) 	complaint shall be placed in
the personnel 	filed of the employee unless:
36.1.1 	The employee's 	immediate supervisor,
a District administrator or a designee
conducts an investigation about 	the
complaint. 	Such investigation shall 	include
a conference with the employee and may
include a District 	representative and the
employee's representative. 	. 	. The immediate
supervisor, District administrator, or
designee, 	shall have the prerogative of
meeting with the parties 	in the event the
employee does not request a meeting.
Sue Butler:
On September 30, 	1996, 	Sue Butler received a letter from Palomar
Principal, 	Bonnie Nelson, 	indicating an oral complaint had been
lodged against Ms. 	Butler by the parent of one of her students.
The letter indicated the child's name and recited the specific
facts surrounding the complaint. 	Specifically, 	the complaint
alleged Ms. 	Butler forcibly removed a student 	from the classroom
and shook her violently. 	Ms. 	Nelson requested the parents meet
with Ms. 	Butler regarding the situation and asked Ms. 	Butler to
clear up the situation.
On October 1, 	1996, Ms. Butler informed Ms. Nelson that she had
handled the situation on an informal level. 	Ms. 	Butler stated
she had met with the child's mother and that 	the situation was
resolved. 	On October 2, 	1996, Ms. Nelson inquired about Ms.
Butler's meeting with the child's mother, 	as the mother had
stated the day before that -she wanted a conference with Ms.
Butler where both parents 	could be in attendance. 	On November 4,
1996, Ms. 	Butler spoke with the child's father over the
telephone. 	Ms. 	Butler again stated she believed the issue to be
resolved.
On November 20, 	1996, Ms. Butler, and her Association
representative, 	Carol Owen, 	met with Assistant Superintendent
Curtis and Palomar Principal, 	Bonnie Nelson, 	to discuss the above
(

mentioned incident. 	During this meeting, 	Mr. 	Curtis recited the
child's allegations against Ms. 	Butler and asked for Ms. 	Butler's
response. 	Ms. 	Butler denied all of the allegations against her,
although she apparently admitted putting her hands 	on the child's
shoulders. 	Ms. 	Butler questioned the delay in resolving the
matter and asked about Child Protective Services 	report 	on the
incident. 	Mr. 	Curtis informed Ms. 	Butler that he was sorry about
the delay, 	and that he had no information regarding the CPS
report. 	At the conclusion of the meeting, 	Mr. 	Curtis informed
all present that he would make a decision as to what action, 	if
any, 	would be taken against Ms. 	Butler, 	within five days.
Warning Letter
LA-CE-3777
May 21, 1997
Page 4
On November 25, 	1996, Mr. Curtis issued Ms. Butler a warning
letter, 	concluding Ms. 	Butler had placed her hands on a child in
such as manner at to cause physical pain. 	Mr. 	Curtis further
concluded that 	the 	incident 	constituted corporal punishment 	in
violation of Education Code section 49001(a). 	On December 10,
1996, Ms. Butler responded to the warning letter. 	Ms. Butler's
response alleges 	the District 	took such action against her
because of her protected activities.
Gina Boyd:
Article 27 of 	the Agreement provides 	"Leave for the President of
the Association." 	Article 27.1 states:
The President of the Association shall, 	upon
written request, 	be granted a leave of
absence without pay for one school year. 	A
one year renewal may be granted at 	the
discretion of the Superintendent and approval
of the Board of Education. 	All entitlements
which apply to long-term leave shall apply to
this leave.
Article 27.2 	states 	the following with regard to the 	President's
placement the following year:
Upon expiration of the leave, 	the President
of the Association shall, 	subject to a
written request 	from said employee, 	be
returned to his or her previous location and
assignment providing 	the 	specific previous
assignment 	is still 	in existence and if the
written request 	is 	filed with the Assistant
Superintendent, 	Human Resources by March 31,
in the year the leave expires.
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Warning Letter
LA-CE-3777
May 21, 	1997
Page 5
On August 28, 	1996, 	the District removed the personal belongings
of Association President, 	Gina Boyd, 	from her classroom, 	as Ms.
Boyd had begun a leave of absence for that year. 	The Association
contends 	this action differs 	from the District's past practice of
leaving the absent teacher's belongings in the classroom, 	and
thus constitutes discrimination against Ms. 	Boyd.
Unilateral Change:
On November 26, 	1996, 	Assistant Superintendent Curtis informed
Ms. 	Boyd that the District's fax machines were not available for
Association use. 	Specifically, Mr. 	Curtis informed Ms. 	Boyd that
the District would not distribute 	communications 	from the
Association received on school 	facsimile machines, 	nor will they
permit non-educational use by the teachers. 	The District's
letter states it is the second such directive by the District.
The Association contends this action violates the past practice
of allowing the Association to use the school's fax machines for
Association communications. 	The Association does not provide any
documentation supporting this assertion.
Article 4 	of the Agreement provides numerous means through which
the Association can communicate with its members. 	Article 4.1.2
provides the Association with access to the District's 	internal
mail 	system. 	Article 4.1.4 provides 	the Association with the
right to post notices at school sites, 	and Article 4.1.5 grants
Association representatives the right to conduct Association
business on school sites. 	The Agreement is, 	however, 	silent with
regard to the use of fax machines.
On numerous occasions over the last two months, 	I have contacted
you seeking additional 	information regarding member's protected
activities. 	To date, 	I have not received any additional
information.
Based on the above stated facts, 	the charge as presently written,
fails to state a prima facie violation of the EERA, 	for the
reasons stated below.
DISCUSSION
The Association alleges the District discriminated against Mr.
Hopkins, Ms. Butler and Ms. Boyd, based on their protected
activities. 	The charge further alleges the District unilaterally
changed the policy regarding the use of the District's 	facsimile
machine.
I
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Warning Letter
LA-CE-3777
May 21, 1997
Page 6
Scott Hopkins:
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 allegation fails 	to demonstrate the District's
actions in investigating the complaint, 	placing a written summary
of the investigation, 	and transferring Mr. 	Hopkins, 	were based on
Mr. 	Hopkins' 	protected activities.1 The Association asserts the
requisite nexus 	is demonstrated by the District's 	failure to
strictly comply with section 1321.1 of 	the Administrative
Regulations. 	While it appears the District did not strictly
follow the policies set forth in the Agreement or the
regulations, 	such indicia, 	alone, 	is insufficient to state a
prima facie case. 	The Association does not demonstrate the
District took this action in close proximity to any protected
activity by Mr. 	Hopkins, 	nor does the Association allege the
District strictly followed this procedure in all 	cases 	of alleged
child abuse. 	The Association also fails to provide any other
evidence of the requisite nexus, 	and thus fails to state a prima
facie case.
Sue Butler:
The Association contends 	the District 	failed to follow proper
procedures regarding the complaint against Ms. 	Butler. 	The
Association contends 	such failure 	to 	follow procedures
demonstrates the requisite nexus for a prima facie case of
discrimination. 	The Association contention is, 	however,
unsupported by the 	facts presented.
Facts presented by the Association demonstrate 	the District
followed proper procedures 	in handling the complaint against Ms.
1 On August 28, 	1996, 	the District placed Mr. 	Hopkins on
administrative leave. 	The Association contends this action
constitutes an adverse action against Mr. 	Hopkins. 	However, 	this
allegation falls outside PERB six month statute of limitations,
and must therefore be dismissed.
I (

Butler. 	Principal Nelson informed Ms. 	Butler of the charge
against her, 	and provided specific details regarding the event,
including the child's name and the date of the alleged incident.
Principal Nelson encouraged Ms. 	Butler to hold a meeting with the
child's parents and did not begin an investigation into the
matter prior to informing Ms. 	Butler of the allegations. 	Thus,
it seems the District's actions 	conformed to both the regulations
and Article 36.1. 	Moreover, 	the Association does not demonstrate
the District took adverse action against Ms. 	Butler in close
temporal proximity to her protected activities or that 	the
District 	conducted a 	cursory investigation into the matter.
Additionally, 	the Association fails to provide any other evidence
of the requisite nexus, 	and thus fails to state a prima facie
case.
Warning Letter
LA-CE-3777
May 21, 1997
Page 7
Gina Boyd:
Government Code section 3541.5(a)(1) 	prohibits the Board from
issuing a complaint 	in respect 	of any charge based upon an
alleged unfair practice occurring more than six months prior to
the filing of the charge. 	On August 28, 	1996, 	the District
removed Ms. 	Boyd's personal belongings from the classroom she
used the previous year. 	The Association filed this charge on
March 24, 	1997, more than six months after the alleged unfair
practice occurred. 	As such, 	PERB lacks jurisdiction over this
allegation.
Assuming, 	however, 	the charge was timely filed, 	the allegation
still fails to demonstrate a prima facie case. 	In Palo Verde
Unified School District 	(1988) 	PERB Decision No. 	689, 	the board
applied an objective test 	to determine whether employer conduct
actually resulted in injury. 	The Association does not
demonstrate why removing Ms. 	Boyd's personal 	items 	from a
classroom she 	is no longer using is an action adverse to her
employment. 	Moreover, 	the Association does not demonstrate the
requisite connection between the District's action, 	and Ms.
Boyd's protected activity. 	As such, 	the allegation fails to
demonstrate a prima facie case.
Unilateral Change:
The Association contends 	the District unilaterally changed the
facsimile policy, 	when on November 26, 	1996, 	the District
instructed the Association to refrain from using the machine. 	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.)
Warning Letter
LA-CE-3777
May 21, 1997
Page 8
In the instant allegation, 	the Association asserts the District
altered the facsimile use policy. 	Assuming the policy is within
the scope of representation, 	the Association fails, 	however, 	to
demonstrate a change in the policy. 	Although the Association
asserts that the District changed the fax machine policy, 	the
Association does not demonstrate it had use of the facsimile
machine prior to this memorandum, 	nor does the Association
demonstrate it used the fax machine prior to this memorandum
without warning. 	As such, 	the allegation fails to state a prima
facie case.
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 May 28. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. Rosi
Regional Attorney