Campbell Union High School District (PERB 0701E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CAMPBELL 	EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
CAMPBELL UNION HIGH 	SCHOOL DISTRICT,
Respondent.
)
)
)
) 	Case No. 	SF-CE-12 30
PERB 	Decision No. 	701
October 	12, 	1988
)
)
)
)
)
)
Appearances: 	Ronald R. 	Filice, 	on his own behalf; 	Littler,
Mendelson, 	Fastiff & Tichy, 	by Patricia P. 	White, Attorney, 	for
Campbell 	Union High School 	District.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Shank, 	Members.
DECISION AND 	ORDER
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on appeal by Ronald R. 	Filice of a Board agent's
dismissal, 	attached hereto, 	of the charge that the Campbell 	Union
High School 	District violated 	section 	3543.5, 	subdivisions 	(a)
and 	(b) 	of 	the 	Educational 	Employment Relations Act 	(codified at
Gov. 	Code, 	sec. 	2560, 	et seq.). 	We have reviewed the dismissal
and, 	finding it free of prejudicial error, 	we adopt it as 	the
Decision of 	the 	Board itself.
The unfair practice 	charge 	in Case No. 	SF-CE-1230 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
By the 	Board, 	except 	for Member Craib, 	whose dissent begins 	at
page 2.
__)

Member Craib, 	dissenting: 	For 	the purposes 	of evaluating
the 	sufficiency of 	a 	charge, 	the 	factual 	allegations 	are 	deemed
to be 	true. 	San Juan Unified 	School 	District 	(1977) 	EERB
1	Decision No. 	12.1 Moreover, 	while 	it 	is appropriate to
consider 	undisputed 	facts 	in 	determining 	whether 	a 	prima 	facie
case 	is 	stated, 	disputed 	facts 	may not be 	resolved 	at 	this
stage 	in 	the 	proceedings. 	Riverside 	Unified 	School 	District
(1986) 	PERB Decision No. 	562a. 	Here, 	the Board agent engaged
in 	extensive 	and 	critical 	factual 	determinations 	involving
various 	elements 	of 	the 	charging party's 	retaliation 	claim. 	By
labeling 	the 	dismissal as 	"free 	of 	prejudicial 	error," 	the
majority 	compounds 	this 	error.
The charge, 	on 	its 	face, 	states 	a prima 	facie case. 	The
charging 	party 	engaged 	in 	protected 	activity by 	filing 	a
grievance 	over his 	first 	reassignment. 	The 	respondent's
knowledge 	of 	that 	activity 	is 	not disputed. 	The 	charging party
asserts 	that, 	in 	retaliation 	for protesting his 	first
reassignment, 	he was 	subject 	to a series 	of 	acts 	of harassment
which 	affected his 	terms 	and 	conditions 	of 	employment,
including a 	second 	reassignment 	in June 	1987. 	Factors 	which
establish 	a 	nexus 	between 	the 	protected 	activity 	and 	the
adverse 	actions 	include 	timing 	and 	disparate 	treatment 	of 	the
1Prior 	to January 1, 	1978, 	PERB was known as 	the
Educational 	Employment 	Relations 	Board 	(EERB).
22

charging party, 	both 	in comparison 	to other 	employees 	and 	in
comparison 	to how he 	was 	treated 	prior 	to 	filing his
grievance. 	See Novato Unified 	School 	District 	(1982) 	PERB
Decision No. 	210.
It 	was 	only 	after 	receiving 	the 	respondent's 	version 	of
events, 	and 	requiring what 	in essence was 	an offer 	of 	proof
from 	the 	charging party, 	that 	the 	Board 	agent 	concluded 	that
the 	charge was 	insufficient. 	There 	are 	two 	things 	wrong with
this 	approach. 	One, 	as noted above, 	the Board agent 	resolved a
myriad of 	factual 	disputes 	in 	favor of 	the 	respondent. 	Two,
the 	amount 	and 	type 	of 	information 	required 	from 	the 	charging
party was 	excessive. 	A party need only 	state 	a prima 	facie
case 	in 	its 	charge. 	A party 	should 	not be 	required 	to provide
evidence 	in 	support 	of 	its 	allegations 	during 	the 	charge
processing 	stage. 	Evidence 	is 	required 	to be 	submitted at 	a
hearing 	after 	issuance of 	a 	complaint 	and 	not before.
While 	the 	attached 	dismissal 	letters 	from 	the 	Board 	agent
reflect 	the 	resolution of 	facts 	that 	were 	obviously 	in dispute,
the 	Board 	agent 	did 	occasionally 	assert 	that 	certain 	facts 	he
relied on were 	undisputed. 	However, 	the 	appeal 	places 	even
this 	in doubt, 	for 	the charging party denies 	that 	critical
facts 	were 	undisputed 	and 	claims 	that he 	gave 	the 	Board 	agent
2In his 	appeal, 	the 	charging party claims 	that he
provided 	information 	to 	the 	Board 	agent 	which 	raises 	factual
disputes 	as 	to whether 	the 	other 	employees 	were 	"similarly
situated" 	(the 	Board 	agent 	concluded 	that 	they were 	not).
w	3

information 	which 	demonstrated 	the 	disputed 	nature 	of 	those
facts. 	This 	information 	is 	not 	included 	in the dismissal
letters. 	For 	example, 	the charging party disputes 	the Board
agent's 	description 	of 	the 	qualifications 	and 	status 	of himself
and 	other 	named 	teachers 	which 	the 	Board 	agent 	relied 	on 	in
rejecting 	the 	notion 	that 	there 	was 	anything 	irregular 	about
the 	charging party's 	reassignment 	and 	the 	terms 	and 	conditions
of his 	employment 	thereafter. 	The 	charging party also 	claims
the 	Board 	agent 	ignored his 	allegations 	that 	the 	Central
Counties 	Occupational 	Center 	acted 	as 	the 	agent 	of 	the
respondent district 	in 	its 	dealings with him. 	In addition, 	the
charging party asserts 	on 	appeal 	that 	the 	Board 	agent 	erred 	in
stating 	that 	no dates 	were 	provided 	as 	to critical 	events 	(the
appeal 	notes 	the 	dates 	the 	charging party claims 	he provided 	to
the 	Board 	agent).
In 	sum, 	the Board agent obviously, 	and 	improperly, 	resolved
numerous 	factual 	disputes. 	On appeal, 	the 	charging party has
brought 	into 	question 	the 	Board 	agent's 	assertions 	that 	certain
critical 	facts 	were 	undisputed and 	lists 	in 	the 	appeal 	the
information he 	claims 	to have provided 	that 	was 	not 	included 	in
the 	dismissal 	letters. 	This 	matter boils 	down 	to one 	rather
simple 	conclusion, 	which 	is 	that 	this 	case 	is 	extremely fact
sensitive, 	as well 	as 	factually quite complicated, 	and 	it
cannot be 	dismissed 	at 	this 	point 	in 	the 	process 	without
improperly resolving 	factual disputes. 	Consequently, 	I would
reverse 	the 	dismissal 	and 	issue 	a complaint.
A	4

STATE Of CALIFORNIA 	GEORGE 	DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Port Street, Suite 900
San Francisco, CA 94108-4737
(415)557-1350
May 31, 1988
Priscilla S. Winslow
436 14th Street, Suite 1302
Oakland, CA 	94612
Jay Russell, Superintendent
Campbell Union High School District
3235 Union Avenue
San Jose, CA 95124
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Campbell Education Association CTA/NEA v. Campbell Union High School
District, Unfair Practice Charge No. SF-CE-1230
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation section 32730,
a complaint will not be issued in the above-referenced case and the pending
charge is hereby dismissed because it fails to allege facts sufficient to
state a prima facie violation of the Educational Employment Relations Board
(EERA)1 for the reasons which follow.
On December 8, 1987, the Campbell Education Association, CTA/NEA (Association)
filed an Unfair Practice Charge against the Campbell Union High School
District (District) alleging violation of the EERA section 3543.5(a) and (b).
Specifically, Charging Party alleges that the District retaliated against
employee Ron Filice by involuntarily transferring him in September 1987 to a
full time assignment at the Vocational Center because he filed a grievance in
June 1986. 	That grievance challenged the District's action in June 1986 when
it involuntarily transferred him to a .60
(full time equivalent) assignment
at the Vocational Center.
On March 30, 1988, the regional attorney wrote to Priscilla Winslow, attorney
for Charging Party, and indicated that the charge failed to state a prima
facie violation of EERA sections 3543.5(a) and (b). 	The letter (attached and
incorporated by reference) discussed the facts alleged and information
provided, set forth the applicable legal principles, and explained the
deficiencies in the charge as written. 	The letter concluded by stating that
if the allegations were not amended or withdrawn by April 11, 1988, they would
be dismissed.
1References 	to the 	are to Government Code sections 	et seq. 	PERB
Regulations are codified at California Administrative Code, Title 8.

Priscilla S. Winslow
Jay Russell
May 31, 1988
Page 2
On April 13, 1988, PERB received a First Amended Unfair Practice Charge in the
above-referenced matter. 	The Amended Charge was accompanied by a two-page
letter providing information in support of the allegations. Subsequently,
there was an exchange of inquiries and responses which culminated in a two and
one half hour discussion held at the San Francisco PERB office on May 12, 1988
among Ms. Winslow, Mr. Filice and the undersigned.
The First Amended charge is essentially identical to the original charge.
Charging Party alleges that: 	employee Filice was assigned during 1986-87 to
teach a .40 FTE position in the ACE-East Program at Ross School and a .60 FTE
position at the Vocational Center; in September 1987, he was involuntarily
transferred from the ACE-East assignment at Ross School and assigned full-time
to his previously .60 FTE position at the Vocational Center; by the 1987
transfer, the District retaliated against Filice because he filed the
grievance in June 1986; and, the unlawful motivation is evident from the
circumstances of his transfer as well as several incidents which occurred
during the 1986-87 school year at the ACE-East site.
Charging Party also alleges, for the first time in the First Amended Unfair
Practice Charge, that the District imposed onerous conditions upon employee
Filice when it assigned him to teach full-time at the Vocational Center: he
was required for the first time to teach six classes (1987-88) whereas he-had
taught five classes during his previous, split assignment (1986-87); he was
denied a preparation period; and he was exposed to health and safety hazards.
To demonstrate a violation of EERA section 3543.5(a) the 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 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.
Although timing of the employer's adverse action in close temporal proximity
to the employee's protected conduct is an important factor, it is not, without
more, sufficient to demonstrate a violation of the EERA. 	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 when dealing with the enployee, 	(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 presently written this charge fails to demonstrate any
of these factors and therefore does not state a prima facie violation of
section 3543.5(a).

Priscilla S. Winslow
Jay Russell
May 31, 1988
Page 3
The allegations of the amended charge and the information contained in the
letter which accompanied it do not cure the deficiencies contained in the
original charge. 	They are analyzed below.
District's Unlawful Motivation Evident from the 1987 Involuntary Transfer:
Charging Party alleges that circumstances surrounding the September 1987
transfer indicate unlawful animus on the part of the District. 	First,
Charging Party intimates that the District failed to follow its own rules.
Charging Party alleges that Filice was transferred twice within the two
preceding years 	in contravention of the contract clause which discourages
involuntary transfers of such frequency.
The charge does not allege facts to support this assertion. 	Instead, the
transfer appears consistent, at least, with the terms of the contract. 	As
stated in the letter addressed to Charging Party, dated March 30, 1988, the
contract provision pertaining to involuntary transfers contains an exception:
the second transfer within two years is allowed when it is occasioned by the
closure of the school at which the teacher was previously assigned. 	Mr.
Filice does not dispute that the ACE-East facility at Boss School was closed
and that he, as well as the other ACE teachers at the ACE-West and ACE-East
sites had to be transferred.
Second, Charging Party suggests that the District's justification for the
transfer does not withstand scrutiny. 	Charging Party's challenges the
District's claim that it was necessary that Mr. Filice fill, on a full-time
basis, the position previously held by recently retired Dick Davis. 	The
Association points out that Filice filled Davis' position, as a .60 FTE
employee, when he was first transferred to the Vocational Center in September
1986. 	The Association argues that if the formerly 100 percent FTE position
could be filled by a 60 percent FTE employee during 1986-87, 	it could continue
to be filled in that manner during the 1987-88 school year. 	Any other
decision gives rise to an inference of unlawful motivation.
This argument is not persuasive, 	(a) That the vacancy was filled by a 60
percent FTE employee during one year does not render it unreasonable for the
District to make a different staffing decision the following year. 	For
example, the District could conclude after its experience in 1986-87 that
filling a formerly 1.0 FTE position with a .60 FTE employee was inadequate,
(b) The District claims that, beginning in 1987-88, it wanted to fill the
position with a full-time employee even though it had assigned Mr. Filice,
during the previous year, to the position as a 60% FTE employee. 	Pointing out
that the District managed during 1986-87 with a .60 FTE employee does not
suggest that its decision to assign Filice full-time to the Vocational Center
is based on illogic and is a pretext for an unlawful act.
Third, Charging Party advances an additional argument that the District's
reasons for the transfer are spurious. 	Charging Party, in its letter of
April 9, 1988, argues that it would have made "more education sense for the
District to assign Paul Morrill to the CCCC slot because he has a credential

Priscilla S. Winslow
Jay Russell
fey 31, 1988
Page 	4
in Industrial Arts and has taught work experience." 	Charging Party explains
that Mr. Filice, in contrast, does not have a credential in Industrial Arts,
and, further, "the nature of instruction in that assignment lends itself
better to an industrial arts background."
However, aside from bare assertions that Paul Morrill is more qualified simply
because he holds a degree in Industrial Arts, Charging Party's allegations and
information do not suggest the missing nexus between Filice's protected
conduct and the District's assignment of him, on a full-time basis, to the
Vocational 	Center. 	(a) Charging Party has not alleged facts nor provided
information suggesting that Mr. Merrill's background is necessary, or
better-suited than that of Mr. Filice, to carry put the assignment at the
Vocational Center. 	Mr. Filice states that his assignment is to tutor, on a
one-to-one basis, as many students as he can fit into his daily schedule. 	He
teaches reading, writing and arithmetic. 	Sometimes he uses the technical
manuals of the different trades classes: automatic transmissions, small
engines, auto parts, air conditioning, and diesel engines. 	The books are
effective teaching devices even though Filice has no specialized knowledge of
their contents. 	Even Mr. Filice, who has no Industrial Arts background,
admits that he is competent to carry out the assignment at the Vocational
Center. 	That assertion is not disputed by the District.
(b) Charging Party has not alleged facts nor provided information which
suggests that Mr. Morrill has specialized knowledge of the material taught in
the five technical classes. 	Such knowledge is not a necessary component of an
Industrial Arts background. 	And, as has been intimated above, even if there
were evidence that he had such specialized knowledge, it would not suggest
that he would be more competent than Mr. Filice to carry out the tutorial
duties.
Fourth, Charging Party suggests on an additional ground that the transfer is
suspicious. 	During the discussion held on May 12, 1988, Charging Party
suggested that an inference of unlawful motivation arises from the fact that
only the District among the five Districts participating in the CCCP assigns
one of its full-time employees to the Vocational Center. 	The other tutors at
the Center are hired directly by the CCCP and are paid considerably less than
the District pays Filice. 	Charging Party suggests that the District has "gone
out of its way" to send Mr. Filice to a remote and undesireable location.
This argument is not persuasive. 	No allegations nor information suggest that
the District developed a special assignment to get rid of Filice because he
filed a grievance in June 1986. 	(a) Mr. Filice was assigned to the Vocational
Center on a 60% FTE basis prior to filing the grievance which allegedly gave
rise to the retaliatory full-time assignment in September 1987. 	(b) Dick
Davis, his predecessor, employed at least during the 1985-86 year, was
assigned to the Vocational Center on the same basis. 	He too received a salary
from the Campbell District and it was higher that the salaries paid to the
other tutors employed by the CCCP. 	These facts are not in dispute.
Fifth, Charging Party asserts that employee Filice was treated disparately.

Priscilla S. Winslow
Jay Russell
May 31, 1988
Page 5
The charge alleges that other work experience teachers at ACE East were not
re-assigned to other programs, but, instead, were moved "intact to another
site." 	During the discussion of May 12, 1988, Mr. Filice clarified his
objection. 	He objects to being singled-out from the other ACE-East and
ACE-West personnel and, unlike the others, not being transferred to either of
the two remaining ACE facilities: Westmont ACE or Del Mar ACE.
Charging Party, however, 	fails to allege sufficient facts to suggest that he
was treated disparately. 	He concedes that Dave Peterson was transferred from
ACE-East to Blackford High School to teach art. 	Peterson, according to
Filice, was an art teacher whose assignment to the ACE program was temporary.
He also acknowledges that George Flemming and Bill Mathiason, who taught work
experience on a one-to-one basis to the special-need-type student in the ACE
program and therefore were his counterparts at the ACE-West facility before it
closed down, were not transferred either to Del Mar ACE or Westmont ACE.
Flemming was assigned to teach at the Prospect and Westmont High Schools.
Mathiason was assigned to the Del Mar and Blackford High Schools.
Sixth, Charging Party alleges that employee Filice's current assignment has
been made more onerous than the previous year's assignment. 	He is now
required to teach 6 instead of 5 periods per day. 	He has effectively been
denied his prep period. 	Additionally, he has been assigned to work in the
middle of the District Auto Shop Facility, which causes him to be exposed to
noxious fumes and unhealthy levels of noise. 	He complained to Cal-OSHA about
the conditions, which resulted in the District being cited for several health
and safety violations. 	The charge alleges further that the District could
have placed Filice in a work location other than the Auto Shop.
However, 	for several reasons, Charging Party's allegations and information do
not support his claim that the conditions he describes were imposed to make
his assignment more 	onerous. 	(a) Charging Party has presented no information
to suggest that the Campbell District, not the CCOP, either assigned Mr.
Filice to a particular classroom at the Vocational Center or controlled the
allegedly unhealthy working conditions which prevailed there. 	There is no
dispute concerning the distinction between the District's program and that of
the Vocational Center. . The Vocational Center is administered by the Central
County Regional Occupational Program (CCCP), a joint-powers entity of which
the District is a part. 	Charging Party has conceded the error of its
allegation that the District, rather than the CCCP, was the recipient of an
OSHA, citation.
(b) Charging Party has not alleged facts nor provided information to suggest
that the District requires him to work a longer day than other employees at
the Vocational Center or than was required of Davis, his predecessor at the
Vocational Center. 	There is no dispute concerning the schedule at the
Vocational Center. 	There is a three hour session in the morning and one in
the afternoon.
(c) Charging Party has not suggested that only Mr. Filice has been deprived of
a preparation period. 	Certain facts are not disputed. 	Other teachers

Priscilla S. Winslow
Jay Russell
May 31, 1988
Page 6
employed by the CCCP do not have a preparation period structured into their
schedule. 	These conditions prevailed during Mr. Filice's assignment at the
Vocational Center during 1986-87. 	They existed as well during the tenure of
Dick Davis, the Campbell District teacher previously assigned to the
Vocational Center.
(d) Mr Filice concedes that this is not the first year he has been without a
preparation period. 	During 1986-87, as well, there was no preparation period
structured into his daily schedule. 	Then, he was assigned to work at the
Vocational Center during the morning three hour period as well as to work .40
FTE in the ACE program. 	He was at the ACE-East facility for three hours two
days a week and he did field work, primarily visiting employers, on behalf of
the ACE students during the other three days. 	Nevertheless, he managed
informally to take a "preparation period" during the two days per week he
conducted student contact hours at the ACE-East facility.
(e) Mr. Filice concedes that he has not attempted to structure a "preparation
period" into his work day at the Vocational Center during either 1987-88 or
1986-87. 	He explains that he senses an expectation by Center personnel that
teachers maintain student contact continually throughout the two three-hour
sessions.
The allegations discussed above do not suggest that the District assigned Bon
Filice on a full-time basis to the Vocational Center beginning in September
1987 because he filed a grievance in June 1986. 	In the following portion of
this dismissal letter, we discuss Charging Party's contention that events
between June 1986 and September 1987 reveal the unlawful motivation.
Alleged Acts of Harassment Directed Towards Employee Filice Throughout the
1986-87 School Year;
Charging Party has alleged that the District harassed Mr. Filice in specific
ways during 1986-87 because he filed the grievance in June 1986 and that such
manifestations of animus culminated in his being transferred, commencing in
September 1987, to a full-time position at the Vocational Center. 	However,
the incidents do not, alone or in combination, suggest a connection between
the filing of the grievance and the District's decision to transfer Filice
involuntarily to the full-time position at the Vocational Center beginning in
September 1987.
Book Orders: Charging Party alleges that Mr. Filice's request for book orders
for his ACE class were denied without explanation by his immediate supervisor,
Mr. Zelina. 	Zelina works directly under Estrada. 	Zelina was offended by
Filice's grievance against Estrada in June, 1986.
During the discussion of May 12, 1988, Mr. Filice stated that neither he, nor,
to his knowledge, any other teacher ever had submitted and obtained a book
order for work experience classes. 	Mr. Filice's objects to his request being
denied without comment and states that the justification now communicated by
the District's attorney—that the particular book is old-fashioned—is a

Priscilla S. Winslow
Jay Russell
May 31, 1968
Page 7
typically vague and unfounded response. 	He answers the additional District
response—that he ordered 45 books for 22 students—by stating that he knew
the District would divide whatever it was willing to give him by one half.
Let us examine whether the District's conduct reveals unlawful motivation.
First, Charging Party states that his book order was denied in February 1987,
between seven and eight months after he filed the June 1986 grievance. 	The
two events did not occur in close temporal proximity to one another.
Second, no disparate treatment is suggested here. 	No allegation suggests that
other ACE or work experience teachers submitted or were granted book orders.
Third, Charging Party complains that Supervisor Zelina denied the order
without explanation, yet Mr. Filice concedes that he at no time asked for
one.
Fourth, there are no facts alleged nor information provided to support the
conclusion that Zelina was offended by employee Filice's grievance.
Fifth, the charge does not allege any of the other indices of unlawful
motivation. 	Novato Unified School District (1982) PERB Decision No. 210.
These allegations do not suggest that district officials who decided to
transfer Filice to a 1.0 FTE position at the Vocational Center were motivated
by an antagonism toward him because he filed a grievance in June 1986. 	Even
assuming, for the sake of argument, that denial of book orders imposes a
burden on his terms and conditions of employment, there is no "nexus"
suggested here.
Keys; Charging Party alleges that Mr. Zelina, Filice's supervisor, denied him
keys. 	Zelina is a good friend of the District Superintendent, who ultimately
rejected Filice's grievance in June, 1986. 	Other teachers at the site had
keys and Filice had been given keys in connection with previous assignments.
On May 12, 1988, Mr. Filice provided additional information concerning this
aspect of the charge. 	He describes his assignment at ACE-East as consisting
of three hours, two days a week, 	in a classroom conducted and shared by ACE
instructors Bob Wilson and Rudy Whitmer. 	He had a desk in the corner which he
surrounded by a shield to create an office in which he could work one-to-one
with his work experience students. 	Wilson and Whitmer worked full-time at the
facility and both had keys. 	Supervisor Zelena originally issued keys to
Filice, but then took them away, promising to return them. 	Filice explains
that, without keys, he was unable to gain access to the classroom prior to
8:00 a.m., during lunch or after school hours. 	He states that he was unable
to go to the restroom through the classroom area without wedging the access
door in an "open" position.
Let us examine whether any of the other Novato indicators of unlawful
motivation are present. 	First, no dates are alleged. 	It is not clear when
Zelena took the keys which were originally given to Mr. Filice. 	Consequently,
the allegations do not suggest that the alleged adverse act occurred in close

Priscilla S. Winslow
Jay Russell
May 31, 1968
Page 8
temporal proximity to the exercise of EERA rights.
Second, the allegations do not suggest that Filice was subjected to disparate
treatment. 	Neither the allegations nor the information presented by Charging
Party describe employees who are similarly situated. 	Mr. Filice states that
he is unaware whether Messrs Flemming and Mathieson, his counterparts at the
ACE-West facility, were issued keys. 	Although it is alleged that Whitmer and
Wilson were issued keys, they were not situated similarly to Mr. Filice. 	They
were assigned to ACE-East as full-time employees; he was to be there for three
hours, two days a week. 	A room was assigned to them; a desk, shared with
another woman teacher, was assigned to Mr. Filice.
Third, Charging Party does not allege that the District refused/failed to
follow its own rules or departed from past practice. That Filice had been
provided keys at previous work sites does not suggest a past practice without
facts which at least suggest a similarity between the ACE Bast and previous
assignments. 	Mr. Filice was differently situated during the prior year. 	He
had a split assignment at Leigh and Branham High Schools teaching work
experience.
Fourth, Charging Party has failed to allege any of the other indices of
unlawful motivation. 	Novato, supra.
These allegations do not suggest a nexus between Filice's exercise of rights
in June 1986 and either the District's denial of keys or his transfer to a 1.0
FTE position at the Vocational Center.
Term Paper;- 	Charging Party alleges that Filice assigned a term paper to his
work experience students and District Administrator Mel Estrada, who was named
in the first grievance, severely criticized him. 	Estrada told Filice that the
assignment was too demanding for ACE students. 	Charging Party also alleges
that Filice had assigned term papers of the same type and level of difficulty
to similar work experience students in the past and had not been criticized by
management. 	Filice, during the discussion on May 12, 1988, described the
criticism as an insult and embarassment which took place in the presence of
his collegues. 	Additionally, he argues that the criticism was unfounded. 	His
students had all completed their assignments and done very well. 	It clearly,
in his opinion, was not beyond their level of competence.
Let us examine whether the facts alleged and the information provided support
Charging Party's claim of nexus. 	First, no dates are provided. 	As discussed
previously. Charging Party is therefore unable to suggest suspicious timing
between the allegedly adverse criticism and the filing of the grievance in
June 1986.
Second, there are no allegations of disparate treatment. 	Charging Party has
not alleged facts nor provided information describing the standard imposed on
other ACE teachers.
Third, the charge does not allege that the District failed to follow its
procedures. 	His claim that he was justified from an academic point of view in

Priscilla S. Winslow
Jay Russell
May 31, 1988
Page 9
making the same assignment as he did in previous years is not persuasive. 	He
admits to teaching in a different program and at a different level during the
prior year. 	When he was at Leigh and Branham High Schools he was a teacher in
the general work experience program. 	The ACE program, in contrast, is
directed to students with special needs. 	Consequently, his past practice of
assigning term papers of the same type and level of difficulty is of no
apparent relevance. 	Estrada's criticism may have turned out to be wrong,
given Filice's claim that the students managed to complete the assignment and
did "very well". 	But, it cannot be said that Estrada's claim was inconsistent
or illogical in the context of the general academic program.
Fourth, none of the other indices of unlawful motivation are alleged. 	Novato,
supra.
For the reasons stated above, the allegations and information doe not suggest
unlawful motivation.
Use of Copy Machine; 	Charging Party has alleged that throughout the 1986-87
school year employee Filice was constantly scrutinized and reprimanded for
alleged misuse of the District's copy machine. 	At the same time, one of
Filice's colleagues used the machine for his private real estate business
"with the apparent condonation by District management". 	Supervisor Zelena sat
twenty feet away from the machine.
Let us examine whether these allegations fail to suggest a nexus between the
exercise of rights by Filice and the District's alleged adverse acts. 	First,
no dates are alleged. 	The charge merely alleges vaguely that the scrutiny and
reprimands occurred "throughout" the year. 	Even if such allegations could be
construed to suggest "suspicious timing", timing, alone, is insufficient to
establish unlawful motivation. 	Moreland, supra.
Second, Charging Party does not allege that the District failed to follow its
own rules. 	On the contrary, the allegations intimate that Filice was
reprimanded for unauthorized use of the copying equipment. 	Apparently, the
District's rules were enforced against him.
Third, 	the allegations are insufficient to suggest disparate treatment. 	The
allegation that Zelina sat about 20 feet from the machine, however, even if
proven at an eventual hearing, could not establish that the District knew of
the co-worker's improper use of the machine. 	Mr. Filice concedes that he has
no knowledge that Zelina knew of his co-worker's abuse of the District rule
against using the copy machine for any other task besides ACE-East business.
Mr. Felice believes that, given the proximity of Zelina's desk, the supervisor
"must have known" of the co-worker's conduct. 	This speculation is
insufficient to establish the elements of a prima facie violation.
Staff Meetings; 	Charging Party alleges that throughout the 1986-87 school
year Filice was not notified of, nor invited to, staff meetings for work
experience teachers. 	It is alleged that Filice participated in these meetings
in the past. 	Charging Party also alleges that neither Estrada nor Zelina

Priscilla S. Winslow
Jay Russell
May 31, 1988
Page 10
arranged for alternate times for Filice to obtain information concerning
District and state policies, changes therein, and management expectations.
During the discussion with Mr. Filice and Ms. Winslow, on May 12, 1988, Mr.
Filice stated that the District meetings involved three full-time work
experience teachers, the District's contact person at the Vocational Center
(George Cluff who "drops in from time to time") and the supervisor. 	In his
view, the meetings could have been changed so that they did not conflict with
his obligation to be at the Vocational Center. 	He complains that he was
deprived of the collegial interaction with collegues as well as unspecified
information. 	He is unable to recall an instance in which he learned too late
of information of which he would have been apprised had he been invited to the
bi-monthly meetings. 	He states that he assumes, however, that there must have
been information communicated and discussions which would have been useful to
him in the course of his work as an ACE-East work-experience teacher.
Let us examine whether these allegations raise an inference of unlawful
motivation on the part of the District. 	First, Charging Party has not alleged
on what date Mr. Filice was first excluded from the bi-monthly staff
meetings. 	However, even assuming that it occurred at the outset of the
1987-88 year, and it followed closely the filing of the June 1986 grievance,
suspicious timing, alone, is insufficient to establish unlawful motivation.
Moreland, supra.
Second, Charging Party does not allege that he was treated disparately.
Neither the allegations nor the information provided by Charging Party compare
the circumstances of Filice with those of similarly situated employees. 	It is
undisputed that, commencing in September 1986, employee Filice: ceased to
participate in the regular work experience program; had a split assignment;
teaching 60 percent of the time at the Vocational Center and 40 percent at the
ACE East Program at Boss School; and, was required by his schedule to be at
the Vocational Center on Friday mornings, when work experience staff meetings
were held. 	Charging Party has not suggested that there were other employees
similarly situated and that they, in contrast to Filice, were notified of and
included in the staff meetings for work experience teachers.
Third, neither the allegations nor the information provided suggests that the
District failed/refused to follow its rules or adhere to its past practice.
There is no description of a past practice applicable to Filice's present
circumstances. 	His situation had changed since he participated while assigned
to Leighand Branham High Schools in meetings scheduled for work experience
instructors. 	Additionally, there is no claim that Mr. Davis, Filice's
predecessor, participated in work experience staff meetings during his tenure
as a Campbell District employee assigned to the Vocational Center. 	Davis
retired in June 1986.
Fourth, Charging Party has not alleged facts nor presented information
describing other indices of unlawful. motivation. 	Novato, supra.
These allegations do not suggest a nexus between employee Filice's exercise of
rights in June 1986 and the District's alleged adverse acts.

Priscilla S. Winslow
Jay Russell
May 31, 1968
Page 11
Annual Luncheon; 	Charging Party alleges that Mr. Filice and the ACE students
were not invited to an annual luncheon held for work experience teachers and
students. 	Charging Party claims that in past years he and ACE students had
been invited and honored at such luncheons.
During the conversation with Mr. Filice and Ms. Winslow on May 12, 1988, he
suggested that the ACE students were not invited to attend the annual luncheon
as a means of excluding him. 	He is unable to estimate the number of ACE work
experience students at the four ACE facilities, but states that there were
approximately 22 students at the ACE-East location.
Let us examine the facts alleged and information provided to ascertain whether
Charging Party has suggested a nexus between the District's adverse conduct
and Mr. Filice's grievance of June 1986. 	First, no dates are alleged and
therefore it is not possible to determine whether the failure to invite
employee Filice occurred in close temporal proximity to the date on which he
filed a grievance in 1986.
Second, 	the allegations and information presented do not suggest that the
District refused/failed to follow its own rules or departed from past
practice. 	That Filice, 	in the past, had been invited as a work experience
teacher to such a luncheon is insufficient to suggest that he was entitled to
such an invitation as an ACE-East work experience teacher. 	While at Leigh and
Branham, he was a teacher in the District's regular work experience program.
Additionally, Charging Party claims that in past years ACE teachers were
invited to the luncheon. 	Perhaps ACE teachers were -invited in the past-
because they were simultaneously teaching in the regular work-experience
program. 	No allegations or information presented by Charging Party discount
such an explanation. 	Finally, even if the District did invite teachers in
past years who taught exclusively in the ACE program, a decision not to invite
them or their students during the 1986-67 school year does not ipso facto
raise an inference of unlawful motivation.
Third, Charging Party has not suggested that Filice suffered disparate
treatment. 	Charging Party does not allege that other teachers who taught
exclusively in the ACE program were invited to the annual luncheon during the
1986-87 year.
For the reasons set forth above, these allegations do not suggest that the
District was discriminatorily motivated against employee Filice because he had
filed a grievance in 1986.
Pay for Extra Eight Days": Charging Party alleges that he was denied 8 days
pay which is accorded to work experience instructors. 	It is alleged that the
contract entitles Mr. Filice to such compensation.
During the discussion on May 12, 1988, Mr. Filice stated that he had a
conversation with management representative Estrada on June 12, 1987, the last
day of the ACE-East session. 	Estrada announced to Filice that the District
would not assign him to work extra days beyond the end of the ACE-East work

Priscilla S. Winslow
Jay Russell
May 31, 1988
Page 12
year. 	Subsequent to that announcement, Mr. Filice worked for five days and on
June 25, 1987 grieved the District's refusal to pay him for eight days work
under the contract.
Supervisor Estrada replied in writing to Mr. Filice's grievance explaining the
District's position: the relevant contract language was permissive; the
provision is intended to apply primarily to full-time work-experience
teachers; and, Mr. Filice's circumstances distinguish him from other work
experience teachers who have been given additional work assignments. 	Estrada
listed several differences: 	Filice's assignment was only .40 FTE; Filice had
the previous week in which to complete work experience duties because his
other assignment, at the Vocational Center, had ended a week earlier; Filice
was not scheduled to participate in, and therefore did not need to prepare
for, next year's work experience program; his work experience assignment was
totally devoted to ACE students who typically do not continue in the following
year's program; and, due to the nature of the ACE work experience program, he
had none of the classroom instruction responsibilities required of the
full-time work experience teachers during the entire school year. 	Estrada
concluded that for the reasons listed above he saw no reason to assign extra
days work to Mr. Filice and resolved that any work left undone "can and will
be picked up by the person assigned for next year."
Let us examine whether the facts alleged and information presented suggest
unlawful motivation on the part of the District. 	First, the allegations are
insufficient to suggest "suspicious timing". 	The denial was made by Mel
Estrada on June 12, 1987, approximately one year after he filed the grievance
contesting the September 1986 transfer. 	A date one year later does not
qualify as close temporal proximity.
Second, the allegations do not suggest that the District failed to follow its
own rules. 	Charging Party's allegation that work experience teachers are
contractually entitled to this compensation is flawed in two regards. (a) The
applicable section of the collective bargaining agreement Art. XVI, Section G,
item 1) states that the District "may" be required to work a maximum of 8 week
days after the last work day in the calendar. 	The contract does not state
that all work experience teachers, including those teaching the ACE East
Program, "shall" receive a days pay for a days 	work. 	(b) Charging Party
admits that he was denied an assignment by Estrada prior to working an extra
five days on work Estrada apparently felt could be done by someone else during
the 1987-88 year.
Third, the allegations and information presented by Charging Party do not
suggest that Mr. Filice was treated disparately. 	Charging Party does not
compare Filice's situation with that of other persons similarly situated.
Fourth, no allegations nor information suggests other indices of unlawful
motivation. Novato, supra.
These allegations are insufficient to suggest a nexus between Filice's
grievance of June 1986 and either the denial of eight days' pay or the

Priscilla S. Winslow
Jay Russell
May 31, 1988
Page 13
involuntary transfer to the 1.0 FTE assignment at the Vocational Center in
September 1987.
Conditions at New Assignment (6 periods, prep period, noxious fumes); 	The
adverse conditions at the new assignment were allegedly imposed within the six
month period immediately preceding the filing of the unfair practice charge.
Therefore, they are not time-barred. 	EERA Section 3541.5 (a)(2). 	The
allegations, 	if sufficient, could state a separate violation as well as
support Charging Party's claim that the transfer of Filice to the 1.0 FTE
position was unlawfuly motivated.
During the discussion with Mr. Filice and Ms. Winslow, the regional attorney
stated that, by the District's account, the Vocational Center is administered
by the CCCP, not the Campbell District. 	For that reason, the OSHA Complaint
initiated by Mr. Filice was issued against the CCOP, not the District. 	The
latter did not control the facility to which Mr. Filice was assigned.
Charging Party, however, does not allege facts nor provide information
suggesting a nexus between the alleged imposition of more onerous working
conditions and the exercise, by Filice, of protected 	activity. 	(a) Charging
Party has not alleged that the allegedly adverse acts can be attributed to the
Charged Party. 	There is no indication that the District had anything to do
with his assignment to the particular location he found offensive or his
reassignment. (b) Charging Party has not alleged that whoever made decisions
affecting employee Filice at the Vocational Center had any knowledge of the
grievance filed by him against the District in June 1986. 	(c) There are no
allegations suggesting close temporal proximity between the protected activity
and the adverse acts. 	The conditions imposed in September 198? followed the
filing of the June 1986 grievance by more than fifteen months. (d) There are
no allegations suggesting that the District failed to follow its own rules,
diverged from past practice, refused to explain the reason for the imposition
of the conditions, and/or imposed the conditions on Filice and not on teachers
similarly situated. 	There are no allegations suggesting any of the other
indices of unlawful motivation. 	Novato Unified School District (1982) PERB
Decision No. 210.
Charging Party, by its representative Ms. Winslow, has at times stated to the
regional attorney that the incidents described above are unprecedented: he was
not subjected to this type of treatment during his preceding years of
employment. 	Ms. Winslow suggests that the difference owes to Mr. Filice
having filed the June 1986 grievance.
Charging Party has provided a copy of the June 1986 grievance. 	In it, Mr.
Filice objects to his transfer from Leigh and Branham Schools to the .60 FTE
assignment at the Vocational Center and .40 FTE assignment at ACE-East. Mr.
Filice claims that the transfer was made for punitive reasons and in order to
get him out of the District. 	He contends that the 1986-87 transfer
constitutes retaliation far his having: made reports against other work
experience teachers; been involved in a controversy over a student's grade;
been engaged in a conflict with a particular counselor concerning a particular
student; been part of an incident several years earlier with the principal at

Priscilla S. Winslow
Jay Russell
May 31, 19G8
Page 14
Del Mar High School; been blamed possibly for a number of program changes or
corrections; and been party to disputes concerning student awards. 	He also
complains that he was mistreated when others in the Department were informed
before he was of his possible transfer to another site within the District.
The text of the grievance indicates that, even prior to its being filed, Mr.
Filice, rightly or wrongly, perceived himself to be mistreated and retaliated
against by the District, and, further, that the suspected reasons for the
District's retaliation consisted of conflicts in which he was involved with
collegues and management personnel. 	Evidence presented by the Charging Party
cast doubt on the assertion that events following the filing of the June 1986
grievance represent a change in the relationship among Mr. Filice, his
co-workers and management personnel or the way Mr. Filice perceived himself to
be treated by the District.
Conclusion:
The new allegations contained in the Charging Party's First Amended Unfair
Practice Charge and the information provided by letter, dated April 9, 1988,
and discussion on May 12, 1988, do not cure the deficiencies of the original
charge, which were described in the regional attorney's letter of March 30,
1988. 	The First Amended Unfair Practice Charge contains allegations of
additional protected activity and additional adverse acts directed against
Filice. 	But these allegations do not provide the missing element: a nexus 	-
between the filing of the grievance by Filice in June 1986 and the decision of
the District to assign Filice as a full-time employee to the Vocational Center
commencing September, 1987. 	Nor do the allegations suggest a nexus between
the filing of the grievance or any other protected activity and the imposition
of allegedly onerous conditions at the Vocational Center in September 1987.
Accordingly, for the reasons stated in the letter of March 30, 1988, attached
and incorporated here by reference, and those stated above, the allegations
are dismissed. 	No Complaint will be issued.
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, title 8, part III), you may appeal the
refusal to issue a complaint (dismissal) to the Board itself.
Right to Appeal
You may obtain a review of this dismissal of the charge by filing an appeal to
the Board itself within twenty (20) calendar days after service of this Notice
(section 32635(a)). 	To be timely filed, the original and five (5) copies of
such appeal must be actually received by the Board itself before the close of
business (5:00 p.m.) or sent by telegraph or certified or Express United
States mail postmarked not later than the last date set for filing. 	Code of
Civil Procedure section 1013 shall apply. 	The Board's address is:

Priscilla S. Winslow
Jay Russell
May 31, 1988
Page 15
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 (5) copies of a statement
in opposition within twenty (20) calendar days following the date of service
of the appeal (section 32635(b)j.
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
section 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 (section 32132).
Final Date
If no appeal is filed within the specific time limits, the dismissal will
become final when the time limits have expired.
Very truly yours,
JOHN SPITTLER
Acting General Counsel
By PETER HABERFELD
Regional Attorney
cc: General Counsel

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
San Francisco Regional Office
177 Post St., Suite 900
San Francisco, CA 9410-4737
(415) 557-1350
March 30, 1988
Priscilla S. Winslow
436 14th Street, Suite 1302
Oakland, CA 94612
Re: Campbell Education Association, CTA/NEA v. Campbell Union
High School District, Unfair Practice Charge No. SF-CE-1230
Dear Ms. Winslow
On December 8, 1987 the Campbell Education Association, CTA/NEA
(Association.) filed an Unfair Practice Charge against the
Campbell Union High School District (District) alleging
violation of the EERA section 3543.5(a) and (b). 	Specifically,
Charging Party alleges that the District retaliated against
employee Ron Filice by involuntarily transferring him in
September 1987 to a full time assignment at the Vocational
Center because he filed a grievance in June 1986. 	That
grievance challenged the District's action in June 1986
involuntarily transferring him to a 60% assignment at the
Vocational Center.1
Charging Party has also alleged that the District subjected Mr.
Filice to harassment and disparate treatment. 	During Summer
1986, employee Filice was not given sufficient time to make a
presentation of his grievance to the Board of Education.
Throughout the 1986-87 school year, the District: 	(a)denied
Filice's request for book orders for his work experienc	- 	e class;
(b) denied him keys to one of the two sites to which he was to
repor	- 	t during the week; 	(c) criticized him for assigning a
particular term paper to his work experience students; 	(d)
constantly scrutinized and reprimanded him for allegedly
misusing the District's copying machine; (e) failed to notify
and invite him to the staff meetings held for work experience
instructors; 	(f) failed to invite him and his work experience
students to an annual luncheon; and, (g) denied
1I am sending this letter because we have had difficulty
reaching each other by telephone.
~

Priscilla 	S. 	Winslow
March 30, 	1988
Page 	2
him the 	eight 	days 	of 	pay which work 	experience 	instructors 	are
contractually 	entitled 	to 	receive.
The 	investigation 	in 	this 	case has 	revealed 	the 	following
undisputed 	facts. 	Prior 	to September 	1986, 	Mr. Filice was
teaching 	work 	experience 	courses 	at 	the 	Leigh and 	Branham High
Schools. 	In September 	1986, 	he was 	transferred to teach 60
percent 	of his 	time at 	the Vocational 	Center and 40 	percent 	at
the ACE-East 	Program located on the 	Ross 	School 	campus. 	He was
assigned 	to 	teach 	students 	with 	special 	needs at 	the Vocational
Center 	(also known at 	the 	Central 	Counties 	Occupational 	Center,
or CCOP) 	and work 	experience classes at ACE-East. 	The ACE work
experience 	teaching assignment 	was 	not part 	of the 	District's
regular 	work 	experience program. 	Filice 	grieved 	the
involuntary 	transfer 	on 	the 	ground 	that 	he had no experience
working 	with 	students 	with 	special 	needs 	and 	therefore 	did 	not
wish 	to work at 	the Vocational 	Center.
ACE-East 	work 	experience 	staff 	meetings 	were held 	on 	Friday
mornings at 	the Ross School 	site. 	However, 	Mr. 	Filice's
schedule 	required him 	to be at 	the 	Vocational Center 	on 	Friday
mornings. 	Therefore, 	Mr. 	Filice was 	scheduled to attend 	staff
meetings at 	the ACE-East 	site _at 	another 	time and with non-ACE
staff. 	_ 	-
An annual 	luncheon 	is held 	for 	participants 	in the 	regular 	work
experience program. 	ACE-East and ACE-West 	students, 	although
involved 	in work 	experience programs, 	were not considered 	to be
part 	of 	the 	regular 	program. 	Neither 	Vocational 	Center
teachers 	nor 	ACE 	students and 	teachers 	have 	ever been 	invited
to the 	luncheon held 	in connection with 	the 	regular 	work
experience program. 	Mr. 	Filice was 	never 	invited to attend.
Some 	work 	experience 	teachers have been paid an 	extra 	eight 	(8)
days 	of work at 	the 	end of the 	school 	year. 	Article XVI,
section 	Gl 	of 	the 	contract provides 	in pertinent part:
Individual 	work 	experience 	teachers 	may be
required 	to work a maximum of 	eight 	(8	- 	) 	week
days 	immediately after 	the 	last 	work day in
said 	calendar.(Emphasis 	Added.)
The 	District 	explained 	to Mr. 	Filice reasons 	it did not 	offer
him 	eight 	extra 	days work 	at 	the 	end 	of 	the 	1986-87 	school
year. 	First, 	Mr. 	Filice only had a 40 percent assignment at
the 	ACE-East 	Facility. 	Second, 	he had been 	re-assigned 	to
teach 	full-time at 	the 	Vocational 	Center beginning 	in 	September

Priscilla 	S. 	Winslow
March 30, 	1988
Page 3
1987. 	Consequently, 	he had no need 	to prepare 	for 	the next
year's work 	experience program. 	Third, 	the ACE-East work
experience 	curriculum 	is 	different 	from 	the 	regular 	work
experience program. 	Mr. 	Filice had none of the classroom
instruction 	responsibilities 	required 	of 	the 	full-time 	work
experience 	teachers 	at 	the 	regular 	comprehensive high 	schools
during 	the 	school year.
In June 	1987, 	the District, 	claiming budgetary constraints,
closed both the ACE-East and the ACE-West 	sites. 	All 	of 	the
teachers 	assigned 	to the 	two 	sites 	were 	involuntarily
transferred 	effective 	the beginning 	of 	the 	1987-88 	school
year. 	Dave Peterson, 	Mike Ruiz, 	Bill Perkins, 	Rudy Whitmer,
and 	Bob Wilson had, 	like 	Filice, 	been transferred 	effective
September. 1986 when the ACE-East and West 	sites opened.
Beginning September 	1987, 	Mr. 	Filice was 	transferred to the
Vocational 	Center 	to 	fill 	a 	full-time assignment 	teaching
students with 	special 	needs. 	The 	change 	in assignment did not
result 	in appreciable differences 	in work hours, 	duties and
commuting distance.
The 	District-presented 	three 	reasons 	to Mr. 	Filice 	for
transferring him 	to a 	full-time 	assignment 	at 	the 	Vocational
Center: 	it 	needed 	to replace a 	full-time 	teacher 	who 	recently
retired at 	the Vocational Center; 	he 	(Filice) 	was 	the only
District 	teacher 	who had 	experience 	teaching at 	the 	Vocational
Center; 	and, 	it 	caused the 	least disruption within the teaching
staff.
The 	Association 	and 	District 	are parties 	to a 	collective
bargaining agreement 	effective between September 	1, 	1985 	and
August 31, 	1988. 	Article XV 	(Transfer), 	section d,
(district-initiated transfers), 	paragraph 1 	states 	in pertinent
part: No 	teacher 	will 	be 	involuntarily 	transferred
more 	than once during the 	school year, 	and
the 	District will 	make 	every effort 	not 	to
involuntarily 	transfer 	a 	teacher 	more 	than
once every two 	(2) 	years, 	exclusive of
transfers 	made necessaryy 	b	b;y the 	closure 	of
schools. (Emphasis added)
To demonstrate a 	violation 	of EERA section 3543.5(a) 	the
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

Priscilla 	S. 	Winslow
March 30, 	1988
Page 	4
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 Tl982) 	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.
Facts 	establishing one 	or 	more 	of 	the 	following 	factors 	must
also be 	alleged 	to 	suggest a 	"nexus" 	between the 	employee's
protected activity and 	the 	District's adverse act.: 	(1) 	the
employer's disparate treatment of the employee, 	(2) 	the
employer's 	departure 	from established 	procedures 	and 	standards
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, 	(6) 	close temporal proximity of
the adverse act 	to the protected conduct, 	or 	(7) 	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.
The allegations of the charge, 	as- presently set 	forth, 	are
insufficient 	to 	state a prima 	facie 	violation of 	EERA section
3543.5(a). 	First, 	the allegations do not suggest that the
transfer of Mr. 	Filice 	to a 	full 	time position at 	the
Vocational 	Center 	was 	adverse 	to his 	interests. 	He 	continues
to have the 	same duties, 	hours and 	commute time. 	The
involuntary transfer was 	consistent 	with 	the 	terms 	of 	the
contract. 	The 	transfer 	was 	generated by 	the 	District's 	closure
of the ACE-East 	site.
Second, 	the allegations do not 	suggest 	a nexus between 	the
District's 	involuntary transfer and Mr. 	Filice's June 	1986
grievance. 	(a) 	The 	temporal proximity between the alleged
exercise 	of 	rights 	and the District's allegedly adverse 	action
is remote. 	The transfer, 	effective September, 	1987, 	was made
at 	least one year 	after 	the June 	1986 	grievance was 	filed. 	(b)
There are no allegations of disparate 	treatment. 	On 	the
contrary, 	it appears that 	similarly-situated teachers were also
transferred 	from 	the work 	experience programs at 	ACE East 	and
ACE West 	commencing September 	1987. 	At 	least 	five other
teachers 	in 	the 	ACE Program were 	transferred 	involuntarily on
two occasions within the preceding 	two year period. 	(c) 	The

Priscilla 	S. 	Winslow
March 30, 	1988
Page 5
allegations do not 	suggest 	that 	the 	District 	failed 	to 	follow
its own rules. 	On the contrary, 	the transfers appear
consistent 	with 	the 	terms 	of 	the 	collective bargaining
agreement. 	By its 	terms, 	it is permissible 	for 	the District 	to
transfer 	an 	employee 	involuntarily twice within a 	two 	year
period when 	the 	facility at 	which 	she/he 	was 	teaching has 	been
closed down. 	(d) 	The allegations of harassment of Mr. 	Felice
during his 	1986-87 	assignment at 	the 	Vocational 	Center 	and
ACE-East 	do not 	suggest 	a 	discriminatory motive. 	No 	facts 	are
alleged 	to connect 	the 	alleged acts 	of harassment 	and 	the
filing of the June 1986 grievance. 	Novato, 	supra. 	See
discussion, 	infra.
Third, 	the 	incidents of alleged harassment during 	the 	1986-87
school 	year 	are 	not 	intended 	to 	state 	independent
discrimination 	violations.2. 	Further, 	the 	incidents 	could
not be 	alleged as 	separate violations 	because 	they are 	not
alleged 	to have 	occurred within 	the 	6 	month period preceding
December 	8, 	1987, 	the date on which the Unfair Practice was
filed. 	EERA section 3541.5(a)(2).
For 	the 	reasons 	stated above, 	the 	charge as presently written
does not 	state a prima 	facie case. 	If you 	feel 	that 	there are
any 	factual 	inaccuracies 	in 	this 	letter 	or any additional 	facts
which 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 be 	signe	- 	d under penalty
2On 	March 3, 	1988, 	you and 	I had a 	lengthy discussion
concerning 	the allegations 	of the above-referenced 	charge. 	You
stated 	that 	the alleged 	incidents 	of harassment 	are 	intended
merely to provide 	background 	information which 	is 	probative 	of
the 	employer's 	unlawful motivation 	in 	transferring 	Filice 	to a
full 	time position at 	the Vocational Center. 	They are not
intended to 	serve as 	the basis 	for 	independent violations 	of
EERA section 3543.5. 	You 	explained that 	the charge does 	not
contain allegations 	describing 	the date 	on which 	each 	incident
occurred because 	it 	is 	not necessary to demonstrate 	that
background 	incidents 	occurred within 	the 	6 	months 	period
preceding 	the 	filing of 	the 	Unfair 	Practice Charge.)

Priscilla S. Winslow
March 30, 1988
Page 6
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 April 11, 	1988, 	I shall dismiss your
charge. 	If you have any questions on how to proceed, 	please
call me at 	(415) 557 1350.
Sincerely,
PETER HABERFELD
Regional Attorney