Livingston Union School District (PERB 0965E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LIVINGSTON 	ELEMENTARY SCHOOL
TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
LIVINGSTON UNION SCHOOL DISTRICT,
Respondent.
)
)
)
) 	Case No. 	S-CE-1431
PERB 	Decision No. 	965
December 	10, 	1992
)
)
)
)
)
)
Appearances: 	California Teachers Association by A. 	Eugene
Huguenin, 	Jr., 	Attorney, 	for Livingston Elementary School
Teachers Association, CTA/NEA; Atkinson, Andelson, 	Loya, 	Ruud &
Romo by Chesley D. 	Quaide, 	for Livingston Union School District.
Before Hesse, 	Chairperson, 	Camilli and Caffrey, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(Board or PERB) 	on exceptions 	filed by
the Livingston Union School 	District 	(District) 	to a PERB
administrative 	law 	judge's 	(ALJ) 	proposed decision 	(attached)
finding that the District violated 	section 	3543.5(a) 	and 	(b) 	of
the Educational 	Employment Relations Act 	(EERA) 	by 	its 	refusal 	to
rehire 	two 	second-year probationary 	employees 	because 	of 	their
protected 	activity.1
BERA	1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless otherwise indicated, 	all 	statutory references herein are
to the Government Code. 	EERA section 3543.5(a) 	and 	(b) 	state, 	in
pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to

The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the transcript, 	exhibits, 	proposed decision, 	District's
exceptions, 	and the responses 	thereto 	filed by the 	Livingston
Elementary School Teachers Association, 	CTA/NEA 	(Association).
The 	Board 	finds 	the ALJ's 	findings 	of 	fact and 	conclusions 	of 	law
are 	free 	of prejudicial 	error and adopts 	them as 	the 	decision of
the 	Board 	itself 	consistent with 	the 	following discussion.
DISCUSSION
The 	District's 	exceptions 	focus 	on the 	central 	issue 	in this
case 	-- 	the ALJ's 	determination that 	the decision not 	to 	rehire
Laura McKibbin 	(McKibbin) 	and David Cordeiro 	(Cordeiro) 	was 	based
on their protected activity. 	In reaching this 	conclusion, 	the
ALJ 	appropriately 	relied 	on 	the 	Board's 	decision 	in Novato
Unified School District 	(1982) 	PERB Decision No. 	210 	(Novato),
where 	the 	Board 	set out the 	elements 	of 	a prima 	facie 	case 	of
discrimination 	or 	retaliation.
In order to 	state a prima 	facie case under Novato, 	the
charging party must 	show that 	the 	employee 	has 	engaged 	in
protected conduct 	about which the 	employer 	is 	aware 	and that 	the
employer 	took adverse 	action against 	the 	employee 	because 	of 	the
exercise 	of 	protected activity.
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by this 	chapter.
N2

In general, 	if direct proof of a connection or nexus between
the protected activity 	and 	the 	adverse 	action 	is 	unavailable 	then
the 	charging party must 	rely 	on 	circumstantial 	evidence 	and
inferences 	draw from the 	record as 	a whole.
Novato 	further 	instructs 	that 	once 	the 	charging party 	has
established a prima 	facie 	case, 	including a nexus between the
protected activity and 	the 	adverse 	action, 	the burden 	shifts 	to
the 	employer to 	show that 	it would have 	taken the 	adverse 	action
regardless 	of 	the 	employee's 	participation 	in protected 	activity.
In the present case, 	there 	is 	no dispute that both McKibbin
and 	Cordeiro 	engaged 	in protected 	activity 	about 	which 	the
District was 	aware. 	McKibbin expressed her concern about 	class
size to 	the principal 	and the 	District board of 	trustees;
Cordeiro 	addressed 	the 	principal 	and 	the 	District 	superintendent
regarding a 	class 	assignment.
In 	reaching his 	conclusion that 	the 	District's 	decision not
to 	rehire 	the 	two probationary 	employees 	was 	unlawfully
motivated, 	the ALJ 	relied on 	statements 	made by the principal 	at
a meeting on June 	8, 	1990. 	We agree with the ALJ's 	conclusion
that 	the 	principal's 	statement warning probationary 	teachers
about 	associating with 	employees 	who 	voiced 	complaints 	is 	strong
evidence 	that the 	District's 	decision not 	to rehire McKibbin and
Cordeiro 	was 	connected 	to 	their protected 	activity.2
2The 	District 	argues 	in 	its 	exceptions 	that 	the
superintendent's 	evaluation of 	the principal, 	in which he 	said
that 	the principal 	had 	"had 	the pleasure 	of 	housing 	many 	of 	the
District's 	malcontents," 	is 	irrelevant to the 	inquiry regarding
the 	District's motivation for 	its 	rehire decision. 	While 	the
w3

Circumstantial 	evidence 	lends 	further 	support 	for 	finding 	an
inference 	of 	unlawful 	motivation.3 We 	agree with 	the ALJ's
conclusion 	that 	McKibbin 	and 	Cordeiro 	suffered 	disparate
treatment as 	evidenced by the 	fact that, 	unlike other
probationary teachers who did not 	receive 	tenure, 	their
evaluations were not 	"less 	than 	satisfactory" 	or 	"needs
improvement." 	In addition, 	we agree that the record 	includes
substantial 	evidence 	of 	inconsistent 	and/or 	contradictory
justifications 	for 	the 	District's 	decision not 	to 	rehire 	McKibbin
and Cordeiro. 	In this 	regard, 	we note that the 	superintendent's
reasons 	for 	not 	rehiring the 	two 	teachers 	are 	not 	reflected 	in
any 	of 	the 	evaluations 	McKibbin and Cordeiro 	received.
We 	also 	agree with the ALJ's 	finding that 	the 	District
departed 	from established procedures. 	The 	District 	came 	to 	its
decision 	not 	to 	rehire 	McKibbin and Cordeiro 	a 	few weeks 	before
superintendent's 	evaluation did 	not 	identify McKibbin 	or Cordeiro
by 	name, 	both were 	sufficiently associated with 	the group 	of
teachers 	who 	voiced 	concerns 	that 	they 	can reasonably be 	assumed
to be 	among 	the 	employees 	to whom the 	superintendent was
referring. 	Moreover, 	the 	sarcastic tone of 	comment 	suggests 	that
the 	District 	superintendent 	did 	not 	enjoy 	dealing with 	employees
who 	voiced 	their 	concerns 	about working 	conditions 	and 	is
therefore relevant to the question of 	motivation.
3The 	District takes 	exception to 	the ALJ's 	finding of 	a
reasonable 	connection between McKibbin's 	and Cordeiro's
activities 	in the 	fall 	and 	the District's 	decision not to 	rehire
them 	in January and February. 	While 	the 	Board may not 	agree with
the ALJ's 	conclusion, 	evidence 	establishing disparate treatment,
inconsistent 	and/or contradictory 	justifications, 	and the
departure 	from 	established procedures 	supplies 	sufficient 	proof
from which to 	infer unlawful motive. 	Moreover, 	as 	the Board has
repeatedly 	said 	that 	timing 	between protected 	activity 	and
adverse action is 	insufficient, 	in itself, 	to demonstrate
unlawful 	motive, 	the ALJ's 	reliance on timing as 	support 	for
inferring unlawful 	motivation 	is 	not prejudicial.
4

the 	notice of non-reelection was prepared. 	This practice was 	at
odds 	with the policy 	of 	evaluating probationary 	employees 	over
the year. 	From this 	evidence, 	we conclude that the ALJ
reasonably 	inferred 	that 	the 	District's 	rehire 	decision was
unlawfully motivated by the 	employees' 	protected activity.
Having 	concluded that 	the Association met 	its 	burden of
establishing a prima 	facie case, 	it 	is 	incumbent on the District
to 	show that 	it would have 	decided 	not 	to 	rehire 	McKibbin 	and
Cordeiro 	regardless 	of 	their participation 	in protected
activities. 	In this 	regard, 	the ALJ 	found that the District's
assertion that McKibbin and Cordeiro were 	not 	rehired 	because 	of
the 	District's 	quest 	for teaching 	excellence was 	pretextual. 	We
agree. 	There 	is 	no evidence 	that these two 	employees were only
marginally 	satisfactory 	or 	otherwise 	weak when 	measured 	against
the policy of 	excellence.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the 	entire 	record 	in this 	case, 	including the 	administrative
law 	judge's 	proposed decision which we have 	attached, 	we 	find
that 	the 	Livingston Union School 	District 	(District) 	violated
section 	3543(a) 	and 	(b) 	of the Educational Employment Relations
Act 	(Act) 	when it 	refused to 	rehire 	Laura McKibbin and 	David
Cordeiro 	because 	of 	their protected 	activity.
Pursuant to 	section 3541.5(c) 	of the Government Code, 	it is
hereby ORDERED that the 	District, 	and 	its 	representatives 	shall:
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A. 	CEASE AND DESIST PROM:
1. 	Retaliating against Laura McKibbin 	(McKibbin) 	and
David Cordeiro 	(Cordeiro) 	because 	of 	their 	exercise 	of protected
rights 	in 	speaking 	to 	supervisors 	about work-related problems 	and
by 	electing 	not 	to 	rehire 	these 	employees 	and 	thereby 	terminating
their 	employment with the 	District.
2. 	Interfering with the 	right 	of 	the Livingston
Elementary School Teachers Association, 	CTA/NEA, 	to represent 	its
members 	by discriminating 	against 	employees 	who participated 	in
protected 	activity.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE POLICIES OF 	THE ACT:
1. 	Within thirty-five 	(35) 	workdays 	following the
date 	this 	decision 	is 	no 	longer 	subject to 	reconsideration,
reinstate McKibbin and Cordeiro 	as 	teachers 	at the 	Livingston
Middle School.
2. 	Within thirty 	(30) 	workdays 	of the reinstatement
of 	McKibbin and Cordeiro as 	teachers 	in the District, 	reimburse
each 	of 	them for 	lost wages 	and benefits 	retroactive 	to 	the 	first
day of 	service 	for teachers during the 	1991-92 	school year. 	The
amount 	of 	compensation 	shall 	be 	reduced by 	any 	unemployment
compensation or wages 	that 	either may have 	earned during 	the
period 	since the 	commencement of the 	1991-92 	school year. 	The
amount due 	to them 	shall 	be 	augmented by 	interest 	at 	the 	rate 	of
10 percent per annum.
3. 	Within thirty-five 	(35) 	days 	following the date
this decision is 	no 	longer 	subject to reconsideration, 	post 	at
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all 	school 	sites 	and all 	other work 	locations where 	notices 	to
employees 	are customarily placed, 	copies 	of the Notice attached
hereto 	as 	an Appendix. 	The notice 	must be 	signed by 	an
authorized agent of 	the District, 	indicating that the District
will 	comply with the 	terms 	of 	this 	Order. 	Such posting 	shall 	be
maintained for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be taken to 	insure that 	the Notice 	is 	not
reduced in size, 	altered, 	defaced, 	or covered by any other
material.
4. 	Written notification of 	the actions 	taken to
comply with 	this 	Order 	shall 	be made to 	the 	Sacramento 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with 	the director's 	instructions.
Member Camilli 	joined 	in this 	Decision.
Member Caffrey's 	concurrence begins 	on page 	8.
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CAFFREY, 	Member, 	concurring: 	Section 3543.5(a) 	of the
Educational 	Employment Relations Act 	(EERA) 	prohibits
discrimination 	against 	an 	employee 	for 	engaging 	in 	conduct
protected by the EERA. 	In order to prove an allegation of
discrimination, 	the 	charging party bears 	the burden of 	showing
that: 	(1) 	the aggrieved employee 	engaged 	in protected activity;
(2) 	the 	employer knew of the employee's protected activity; 	and
(3) 	the 	employer took adverse 	action motivated by 	the protected
activity. 	(Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210 	(Novato).)
The party 	alleging discrimination must 	make 	a prima 	facie
showing 	of 	unlawful 	motivation by demonstrating 	a 	nexus 	or
connection between the protected 	activity 	and the 	adverse 	action.
Absent direct 	evidence, 	indications 	of unlawful motivation have
been 	found 	in many aspects 	of 	an employer's 	conduct. 	(Departure
from 	established procedures 	and 	standards, 	Santa Clara 	Unified
School District 	(1979) 	PERB Decision No. 	104; 	timing of the
action, 	North Sacramento School District 	(1982) 	PERB Decision
No. 	264; 	disparate treatment, 	State of California 	(Department of
Transportation) 	(1984) 	PERB Decision No. 	459-S; 	shifting
justifications 	and 	cursory 	investigation, 	State of 	California
(Department of Parks 	and Recreation) 	(1983) 	PERB Decision
No. 	328-S; 	a pattern of antagonism toward the union, 	Cupertino
Union Elementary School 	District 	(1986) 	PERB Decision No. 	572.)
Once an inference of unlawful motivation is 	established, 	the
burden of proof 	shifts 	to 	the 	employer to demonstrate 	that 	it
would have 	taken the 	adverse 	action regardless 	of 	the 	employee's
8

protected activities. 	(Novato: 	Martori Brothers 	Distributors v.
Agricultural 	Labor Relations 	Board 	(1981) 	29 Cal.3d 	721 	[175
Cal.Rptr. 	626].)
In this 	case, 	the Livingston Elementary School 	Teachers
Association, 	CTA/NEA has 	established a prima 	facie discrimination
violation by 	satisfying 	the 	elements 	of 	the Novato 	test. 	There
is 	sufficient 	evidence 	to 	establish unlawful 	motivation on the
part of 	the Livingston Union School 	District 	(District) 	by
demonstrating 	a 	connection between 	the protected 	activity 	and 	the
decision not 	to retain the 	two probationary teachers.
The burden then 	shifts 	to 	the 	District 	to prove 	it would
have 	decided 	not 	to 	retain the 	two probationary 	teachers
regardless 	of 	their participation 	in protected activity. 	Upon
review of the record, 	including the transcript, 	exhibits,
proposed decision and the District's 	statement of 	exceptions, 	I
find the 	District has 	failed 	to meet 	its 	burden of proof.
I 	therefore 	concur with Chairperson Hesse's 	decision that
the District violated 	section 	3543.5(a) 	and 	(b) 	of 	the EERA when
it 	decided 	not 	to 	retain probationary 	teachers 	Laura 	McKibbin 	and
David 	Cordeiro.
99

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	S-CE-1431,
Livingston Elementary School 	Teachers Association. 	CTA/NEA v.
Livingston Union School 	District, 	in which all parties 	had the
right to participate, 	it has 	been found that the Livingston Union
School 	District 	violated 	the 	Educational 	Employment 	Relation Act
(Act), 	Government Code section 3543.5(a) 	and 	(b). 	The District
violated the Act by refusing on March 	15, 	1991, 	to rehire Laura
McKibbin and David Cordeiro 	as 	teachers 	for the 	1991-92 	school
year. 	It has 	been 	found 	that 	these 	actions were motivated by an
intent 	to 	retaliate 	against 	Laura 	McKibbin and 	David Cordeiro 	for
their participation 	in protected 	activity.
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against Laura McKibbin 	(McKibbin) 	and
David Cordeiro 	(Cordeiro) 	because of 	their 	exercise 	of protected
rights 	in 	speaking 	to 	supervisors 	about work-related problems 	and
by 	electing 	not 	to 	rehire 	these 	employees 	and 	thereby 	terminating
their 	employment with the 	District.
2. 	Interfering with the right 	of 	the Livingston
Elementary School Teachers Association, 	CTA/NEA, 	to represent 	its
members 	by 	discriminating 	against 	employees 	who participated 	in
protected 	activity.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within thirty-five 	(35) 	workdays 	following the
date 	this 	decision is 	no 	longer 	subject 	to reconsideration,
reinstate McKibbin and Cordeiro 	as 	teachers 	at the 	Livingston
Middle School.
2. 	Within thirty 	(30) 	workdays 	of the reinstatement
of McKibbin and Cordeiro as 	teachers 	in the 	District, 	reimburse
each of 	them 	for 	lost wages 	and benefits 	retroactive 	to 	the 	first
day of 	service 	for teachers during the 	1991-92 	school 	year. 	The
amount 	of 	compensation 	shall 	be 	reduced by 	any unemployment
1

compensation 	or wages 	that 	either 	may have 	earned 	during 	the
period 	since 	the 	commencement of 	the 	1991-92 	school 	year. 	The
amount 	due 	to 	them 	shall 	be 	augmented by 	interest 	at 	the 	rate 	of
10 percent per annum.
Dated: 	LIVINGSTON 	UNION 	SCHOOL 	DISTRICT
By:
Authorized 	Agent
.
THIS 	IS 	AN OFFICIAL 	NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED BY ANY
MATERIAL.
22

STATE 	OP 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LIVINGSTON ELEMENTARY SCHOOL
TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
LIVINGSTON UNION SCHOOL 	DISTRICT,
Respondent.
)
)
)
) 	Unfair Practice
Case No. 	S-CE-1431	)
)
) 	PROPOSED 	DECISION
) 	( 5 / 2 9 / 9 2 )
)
)
Appearances; 	California Teachers Association, 	by A. 	Eugene
Huguenin, 	Jr., 	for Livingston Elementary School Teachers
Association, 	CTA/NEA; 	Atkinson, Andelson, 	Loya, 	Ruud & Romo,
by Paul M. 	Loya, 	for Livingston Union School District.
Before Gary M. 	Gallery, 	Chief Administrative Law Judge.
PROCEDURAL 	HISTORY
In this 	case, 	the employer's decision to not rehire two
second-year probationary 	employees 	is 	alleged 	to have 	occurred
because 	of 	their protected 	activity.
On May 	10, 	1991, 	the Livingston Elementary School Teachers
Association, 	CTA/NEA 	(LETA), 	filed an unfair practice charge
against the Livingston Union School District 	(District). 	In
response, 	and after investigation, 	the General Counsel of the
Public 	Employment Relations 	Board 	(PERB or Board) 	issued a
complaint on June 25, 	1991, 	against the District, 	alleging
violations of 	section 3543.5(a) 	and 	(b) 	of the Educational
Employment Relations Act 	(EERA).1 The 	complaint 	charged the
1
EERA is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	stated, 	a l l 	statutory 	references 	are 	to 	the
Government Code. 	In relevant part, 	section 3543.5 provides:
It 	shall 	be unlawful 	for a public 	school
employer to do any of the following:
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
(
e

employer with not re-employing Laura McKibbin 	(McKibbin) 	and
David Cordeiro 	(Cordeiro) 	for the following year because, those
employees 	engaged in protected activity. 	McKibbin, 	it was
alleged, 	twice 	complained to 	school 	Principal 	Emily 	Shoemaker
(Shoemaker) 	about 	class 	size and addressed the 	school 	board 	on
October 11, 	1990, 	about this matter. 	Cordeiro, 	it was alleged,
expressed 	concern to 	other teachers 	about 	students 	having 	keys
and 	finding 	an unsupervised 	classroom. 	It was 	further alleged
that 	Shoemaker told Cordeiro he 	should 	not 	have 	spoken to 	faculty
about the matters, 	but rather to her. 	It is 	further alleged that
Cordeiro 	told Shoemaker he was 	not qualified to teach a 	class 	she
had assigned to him, 	and that he went 	to 	the 	superintendent 	on
the issue.
The 	District's 	timely-filed 	answer denied violations 	of 	the
EERA and 	raised 	certain affirmative defenses 	that will 	be
addressed 	in this 	decision.
A 	settlement 	conference did 	not 	result 	in 	settlement.
Formal hearing was held on November 21 	and 22, 	1991, 	and on
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for employment 	or reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
N
	2

December 	18, 	1991. 	Post-hearing briefing was 	completed on
April 	14, 	1992, 	and the matter submitted as of that date.
FINDINGS 	OF 	FACT
Charging party 	is 	an 	employee 	organization within the
meaning of 	section 3540.l(d). 	The District is a public 	school
employer within the meaning of 	section 3540.l(d). 	Laura McKibbin
and 	David Cordeiro were 	employees within the 	meaning of 	section
3540.l(j).
For all times relevant, 	Harold Thompson 	(Thompson) 	has
served as district 	superintendent. 	Henry Escobar 	(Escobar) 	has
been assistant 	superintendent 	since 	the 	beginning 	of 	the 	1989-90
school year. 	Prior to the 	1990-91 	school year, 	two 	schools
within the 	District, 	the 	Selma 	Herndon School 	(Grades 	4 - 6 ) 	and
the 	Livingston 	Intermediate 	School 	(Grades 	7 - 8 ) 	were 	located 	on
the 	same 	campus. 	Each school had a principal and a 	secretary.
Victoria 	Zuber 	(Zuber) 	was principal at Selma Herndon, 	and in the
1989-90 	school year, 	her first year with the District, 	Emily
Shoemaker was principal of 	the 	intermediate 	school. 	Shoemaker
was preceded by Escobar, 	who became assistant 	superintendent.
Mary Pickford 	(Pickford) 	was 	a half-time vice principal under
Shoemaker. 	Zuber's 	secretary was Diane Linen 	(Linen), 	and
Jeanette Aha 	(Aha) 	was 	secretary to Shoemaker.
Rebecca Cleckler 	(Cleckler), 	a 	7th and 8th grade teacher was
president of 	LETA for the 	1989-90 	and 	1990-91 	school year.
3

Among 	several 	new teachers 	hired 	for the 	1989-90 	school
year, 	were Laura McKibbin and David Cordeiro.2 McKibbin had one
term of 	student 	teaching at 	the 	District prior to her hire 	in
1989. 	Although new to the Livingston school, 	Cordeiro had 	some
13 	years 	teaching experience.
McKibbin was 	hired as 	a physical 	education and english/
language 	arts 	class 	teacher 	in Grades 	7 - 8 . 	Cordeiro was 	hired
as 	a music 	teacher for Grades 	4 - 8 . 	In his 	first year, 	at
Shoemaker's 	request, 	Cordeiro also taught one 	8th grade history
course.
Terry Wilcox 	(Wilcox) 	was 	a half-time resource teacher and
half-time 	special 	reading 	class 	teacher 	in 	1989-90.
During the 	1989-90 	school year, 	the parties went to impasse
on negotiations 	for a 	successor agreement.3 The teachers, 	under
the auspices 	of LETA, 	conducted meetings 	and demonstrations 	in
front of 	the District office, 	where mediation was taking place.
They 	carried 	signs 	and had 	a 	letter writing 	campaign 	to 	the 	board
of trustees. 	In the 	spring, 	they had a march through Livingston.
They spoke at board meetings. 	Cleckler, 	as noted, 	was president
of 	the LETA.
2The 	other 	teachers 	hired 	as 	first year probationary
teachers 	in the 	1989-90 	school 	year were Janet Bartholomew
(Bartholomew), Sandy Cardoza (Cardoza), Robin Salley (Salley),
and Mary Ann Reynolds 	(Reynolds).
3Thompson had 	always 	handled 	negotiations 	for 	the 	District
prior to 	the 	1989-90 	school year. 	The parties had never reached
impasse 	in prior negotiations. 	For 	1989-90 and 	1990-91, 	the
District hired outside 	counsel 	to do 	the 	negotiations 	for the
District.
4

Cordeiro participated in the marches, 	sit-ins 	and attended
one board meeting. 	A picture 	in the 	local 	newspaper 	showed
Cordeiro 	carrying a picket 	sign among a 	line of picketers.
A 	successor agreement was 	reached on March 29, 	1991. 	The
existing collective bargaining agreement, 	as 	amended, 	was
extended to June 30, 	1992, 	with reopeners on salary, 	fringe
benefits 	and three articles 	for each party 	for the two
intervening years.
During the 	course of 	the 	first year of 	Shoemaker's
stewardship, 	a difference of opinion emerged among the teachers
as 	to Shoemaker's 	abilities. 	Informal 	alliances developed as 	to
her managerial 	and organizational 	abilities. 	In one group,
dissatisfied with Shoemaker, 	were Cleckler, 	Wilcox, 	Cordeiro,
McKibbin, 	Bartholomew, 	Cardoza and Reynolds. 	While not mentor
teachers 	that year, 	Cleckler and Wilcox were helpful 	to the new
teachers who were part of the group. 	These teachers perceived
Shoemaker as 	incompetent.
At a 	general 	session of the 	faculty, 	sometime 	in the 	spring
of 	1990, 	during a discussion on the cohesiveness of the faculty,
Cordeiro 	spoke up 	and 	referred 	to 	the A and 	the 	B 	group
reflecting the division among 	the 	teachers.
Also, 	in the spring of 	1990, 	some 20 teachers appeared
before the board of trustees 	to relate discontent with 	Zuber, 	as
principal 	of 	Selma Herndon. 	Cleckler attended the 	executive
session with a number of 	the teachers.
5
5

Evaluations
Shoemaker provided 	first 	year 	evaluations 	of 	both McKibbin
and Cordeiro during the 	1989-90 	school 	year.
The 	evaluation 	forms 	are 	standard 	for the 	District 	and used
consistently during relevant time periods. 	Six 	categories:
Student Achievement, 	Instructional Skills, 	Classroom Management,
Personal and Professional, 	and Adjunct Duties, 	are rated from 	1
(Outstanding) 	to 5 	(Unsatisfactory). 	Possible overall ratings
are 	"Satisfactory," 	"Improvement Needed" 	or 	"Unsatisfactory."
McKibbin was 	evaluated by Shoemaker on January 	12, 	1990.
The overall 	rating was 	"Satisfactory" 	and 	she was 	rated 	3 	(Meets
Districts 	Standards) 	in all categories. 	Shoemaker's overall
evaluation was 	that 	"McKibbin's 	overall 	teaching performance 	is
satisfactory. 	In her first semester of teaching, 	she is proving
herself 	to be 	serious 	about 	her 	teaching 	and has 	demonstrated 	a
commitment 	to professional 	growth." 	McKibbin was 	"encouraged 	to
continue 	to 	learn new instructional 	skills 	and to 	continue 	to
contribute 	to the 	school's 	progress 	through her active
participation in 	school programs."
Janet 	Bartholomew's 	first 	year 	evaluation by 	Shoemaker was
the 	same 	as 	McKibbin's 	in rating and overall 	evaluation and
additional 	comments.
Bartholomew was 	not 	active 	in association meetings 	or
activities 	in her 	first year. 	She was 	unsure of the 	effect union
activities would have on her employment, 	and 	she had 	small
children.
6

In January and April 	1990, 	Shoemaker rated Cordeiro a 	2
(Exceeds 	District Standards) 	in all categories. 	Her written
comments 	were 	that his 	"overall 	teaching performances 	exceeds
district 	standards." 	The overall 	rating was 	"Satisfactory".
In the 	spring of 	1990, 	Thompson told Cordeiro he was pleased
Cordeiro was 	returning the next year. 	He 	thought Cordeiro was
doing 	a 	satisfactory 	job.
Escobar was 	also pleased with Cordeiro's work. 	On April 	6,
1990, 	Escobar wrote to Cordeiro in support of his 	efforts 	on the
spring band 	concert. 	Escobar was 	impressed with the 	students'
performance, 	and their good conduct. 	Escobar wrote, 	"You have
not 	only provided them with good music 	instruction, 	but you have
taught 	them to be well 	disciplined responsible 	students."
On June 8, 	1990, 	the last day the teachers were to work in
the 	1989-90 	school year, 	a breakfast meeting was held at a 	local
restaurant 	for all 	first year teachers. 	The meeting was 	called
by Howla Mitchell 	(Mitchell), 	the mentor teacher program
director. 	Mentor teachers 	also attended. 	The purpose was 	to
recognize 	both the 	new teachers who 	had 	survived 	the 	first year
and 	the mentor teachers who 	helped during 	the year.
As 	noted, 	Cleckler and Wilcox 	rendered much 	assistance 	to
some of the 	new teachers. 	They had not volunteered to 	serve 	as
mentor teachers, 	however, 	and thus were not invited to the
breakfast.
Some 	of 	the 	first year teachers 	thought 	attendance was
voluntary. 	Thus, 	because teachers 	such as Cleckler and Wilcox
7
7

had not been 	invited, 	those 	new teachers 	determined not 	to 	attend
the meeting. 	However, 	they were advised that attendance was
mandatory 	and 	so 	they 	attended.
At the meeting, 	which commenced in cordial 	fashion, 	Mrs.
Reynolds 	inquired about the 	length of 	that workday, 	the 	last day
teachers were 	to work. 	Shoemaker became upset and 	said 	that 	it
was 	going to be 	a 	certain way, 	and that they could discuss 	it
back at 	the 	school. 	Also, 	a 	teacher expressed concern about 	the
absence 	of 	Cleckler 	and Wilcox.
These 	issues 	caused the meeting to 	turn tense. 	Shoemaker
announced 	that 	all 	the new teachers were to 	assemble 	in
Mitchell's 	room 	at 	the 	school 	immediately 	following 	the breakfast
meeting.
At the 	second meeting, 	Mitchell was 	excused. 	Mary Pickford,
the assistant principal, 	was 	also 	in attendance. 	All the first
year 	teachers 	who were 	returning 	the 	following year were 	there,
Bartholomew, 	McKibbin, 	Robin Sally, 	and Cordeiro.
Various 	accounts 	of what 	transpired at 	that meeting were
reduced to writing by three 	of 	those 	in attendance within a 	few
days 	of the event.4
These 	accounts 	reflect 	that 	Shoemaker was 	very 	firm about
the 	new teachers 	associating with those 	that 	supported the
24 Cleckler was told of the comments by Shoemaker that noon.
She contacted Bill Walley 	(Walley), 	CTA field representative, 	who
encouraged 	the 	teachers 	to write 	their 	observations 	down 	on
paper. 	Within a week, 	Cleckler had all 	the 	statements. 	Three
statements were 	introduced 	into 	evidence. 	(Charging Party's
Exhibit Nos. 	5, 	11 and 15.)
8

school, 	as opposed to those that did not. 	She called the latter
group 	"bitchers." 	Shoemaker quoted 	from 	some 	legislation,
regarding 	tenure 	and 	indicated 	she was 	the person to decide 	on
their tenure. 	A 	senate bill 	empowered the principal 	to 	release
probationary teachers without 	stating a reason. 	She 	emphasized
the need 	for teamwork. 	She again referred to the 	"bitchers" 	and
asked 	that 	the 	teachers 	be 	aware 	of who 	they 	associated with 	in
the 	next 	school 	year. 	Shoemaker 	stated that that was 	more
important 	than classroom dealings. 	Shoemaker noted that 	she had
no problems with the 	instruction methods 	of all 	the new teachers
at that time.
At hearing, 	Shoemaker denied using the word 	"bitchers." 	She
may have used the word 	"gripers," 	she 	said. 	Her 	interest 	in the
discussion, 	she 	said, 	was to get the teachers to problem solve
face-to-face, 	not to 	"take people off guard, 	not to do it in a
forum where 	there 	can't be 	a 	solution." 	Save 	for her denial 	of
the use of 	the 	term 	"bitchers," 	Shoemaker did not deny the
assertions 	made by the teachers 	in the written comments.
Within a week or ten days, 	Walley and Cleckler met with
Thompson about the 	comments 	by Shoemaker. 	Thompson gave the
teachers' 	letters 	little credit. 	Thompson's position was 	that if
the District wanted to release teachers, 	the 	letters wouldn't
have 	any bearing. 	The District 	could release teachers without a
reason.
9

The 	Livingston Middle 	School
A 	five-year plan 	envisioned 	the 	Selma 	Herndon 	and 	Livingston
Intermediate 	Schools 	being merged to 	form 	the Livingston Middle
School. 	Because 	Zuber had 	encountered opposition 	from 	teachers
in her school, 	she was to be reassigned. 	Thus, 	it was decided to
implement the merger for the 	1990-91 	school year. 	Zuber's
position as principal was 	eliminated. 	The 	4th grade was 	assigned
to another campus.
Shoemaker was 	made principal 	of the new school. 	During the
summer of 	1990, 	Shoemaker, 	who was 	in charge of the merger,
worked 	on 	all 	the 	logistics 	of 	creating 	a 	new Grades 	5 - 8 	middle
school.
The 	1990-91 	School 	Year
Cardoza 	and Reynolds 	did not 	return 	for the 	1990-91 	school
year. 	Because 	she was 	allocated only one 	secretary 	for the
middle 	school, 	Shoemaker designated Diane Linen to be the 	school
secretary. 	Linen was bilingual, 	and there is a high percentage
of 	Spanish 	speaking parents 	in the 	community. 	Aha was 	assigned
to the 	library, 	at her regular salary, 	to 	fill the position of a
staff member who had passed away. 	Wilcox was 	no 	longer a
resource 	teacher.
During the 	second year, 	there 	came to be a 	"coffee klatch"
of 	teachers who 	joined Aha 	in the 	library 	lounge 	for 	coffee,
either before school, 	or at other times. 	This group, 	which
included Cleckler, 	Bartholomew, 	McKibbin, 	Cordeiro and Wilcox,
. .1.
10

also 	shared 	lunch 	together 	at 	the 	5 - 6 	grade 	campus 	and 	not 	at
the regular teachers 	lounge.
The division of teachers, 	according to Cleckler, 	reflected
alliances 	of 	those 	teachers 	that 	supported 	Shoemaker 	and 	those
that did not. 	There was, 	said Cleckler, 	a 	strain between the two
groups.
Cleckler filed a grievance on September 4, 	1990, 	asserting a
contract 	violation by 	an 	alleged 	increase 	in 	student 	contact 	time
and decrease 	in teacher preparation time by 	15 	minutes. 	Among 	33
teachers 	listed as 	affected were Cordeiro, 	McKibbin, 	Bartholomew
and 	Salley.
Cleckler met with Shoemaker at 	the 	informal 	first 	level 	of
the 	grievance procedure. 	The dispute was 	ultimately resolved.
On September 	18, 	1990, 	Shoemaker caused to be distributed to
the 	teachers 	a rather 	extensive 	collection of materials 	relating
to teacher evaluation. 	On the cover memo, 	Shoemaker made
assignments 	for the 	evaluation of teachers. 	She also noted that
four teachers, 	McKibbin, 	Cordeiro, 	Bartholomew and Salley were
second year teachers 	to be 	evaluated.
Cleckler was 	concerned 	about whether 	the 	evaluation document
had been adopted by the District. 	Cleckler called Janet Martin,
a member of the 	school board, 	to 	find out 	if the District had
adopted 	the 	evaluation document.
On September 28, 	1990, 	Cleckler was preparing to file a
grievance 	on the document when 	she was 	summoned to 	a meeting 	at
Shoemaker's 	office 	to discuss 	her 	call 	to the board member.
11

Prior to that meeting, 	Cleckler and John Kirby, 	grievance
chair 	for LETA, 	met with Shoemaker 	in mid-afternoon of
September 	28 	to discuss 	the 	evaluation document. 	Cleckler 	filed
a 	grievance with 	Shoemaker at the meeting. 	Cleckler expressed
concern about 	language 	in 	the 	document 	that 	required 	"measuring
support 	for 	school 	causes." 	On the whole, 	Shoemaker contended
the 	document 	did not 	reflect 	anything 	not 	grounded 	in 	the
contract 	or 	school policy.
Later that day, 	Cleckler met with Thompson and Shoemaker per
their request. 	At Cleckler's 	request, 	Walley and Kirby also
attended.
At 	that 	meeting Thompson was 	upset 	that 	Cleckler had 	called
the board member about the 	evaluation document. 	He and Shoemaker
were unhappy that Cleckler had not 	come to 	them first. 	They
professed 	that the proper procedure was 	to have 	come 	to Shoemaker
first, 	and then to Thompson. 	Cleckler 	said 	she was 	gathering
information. 	Thompson 	stated he didn't 	like the way 	she
proceeded to get things done. 	There were only two or three
problems 	in the District, 	said Thompson, 	and 	she was one of them.
He 	thought 	she was 	a negative 	influence 	and 	she 	created problems.
Thompson alluded 	to 	the way 	in which 	she 	handled 	the 	class 	size
issue.
Laura 	McKibbin
Sometime 	during the 	early part 	of 	the 	1990-91 	school 	year,
McKibbin, 	representing the 	7th grade, 	commenced service on a
leadership 	team 	composed 	of 	representatives 	of 	each 	of 	the 	grades
12

at 	the 	school. 	An initial purpose was 	to establish 	lines 	of
communication between the 	teachers 	and the 	administration. 	The
team was 	designed 	to 	evolve 	into 	a 	site-based management program
the 	administration was 	implementing.
During the opening months 	of 	school 	in the 	1990-91 	school
year, 	there was 	a problem of over-sized classes. 	McKibbin was
upset 	and visited 	Shoemaker about 	it. 	Under Cleckler's
coordination, 	McKibbin and three other teachers 	spoke to the
board of 	trustees 	about the 	situation around October 8, 	1990.
On October 	11, 	at a meeting with Shoemaker, 	McKibbin again
spoke on class 	size. 	Shoemaker told McKibbin she was
unprofessional 	for 	taking what 	they 	had 	discussed 	and 	"mixing 	it
all 	up and bringing 	it to the board." 	Shoemaker 	stated that
class 	size was 	only 	a problem because 	McKibbin 	"didn't 	know how
to teach a large class. 	. 	." 	Shoemaker asserted that there were
strategies 	she 	could 	show Mckibbin 	so 	a meeting was 	set up 	for
October 	16. 	That meeting was 	later canceled by Shoemaker.
Shoemaker 	observed McKibbin's 	physical 	education 	class 	on
November 20, 	1990. 	While 	supportive of the program organization,
and 	the 	execution of warm-up 	exercise 	and 	large 	group 	instruction
components, 	the observation commented on McKibbin's 	tone of
voice. 	Her voice, 	said Shoemaker, 	tends to get 	"thinner" 	as 	she
speaks 	louder, 	and she 	seems to be 	"unsure of her control."
Shoemaker also wrote, 	". 	. 	. 	as an aside, 	I notice you use your
P.E. 	voice 	in your English/Language Arts 	classroom. 	While very
13
'

appropriate for PE, 	it is 	not the most effective 	for classroom.
I'll 	help 	you."
McKibbin's last evaluation, 	dated January 	14, 	1991, 	was done
by 	Shoemaker. 	The overall 	rating was 	"Satisfactory," 	with 	3's
in all 	categories 	except 	for Personal 	and Professional.
Shoemaker gave McKibbin a 	rating of 	3-. 	Shoemaker wrote under
this 	category, 	that McKibbin 	"is 	continuing to develop
professionally. 	She has become a member of the 	school's
Leadership Team, 	representing Grade 	7 	teachers 	in making 	school-
wide decisions. 	Even though progress 	has 	been made 	in 	joining
school wide efforts, 	i.e. 	participating on the Leadership Team,
general 	attitudinal 	support 	for 	school programs 	still 	needs
improvement." 	(Underscoring added.)
In the 	significant categories, 	Instructional 	Skills and
Classroom Management, 	no discernable problems were noted. 	Under
the 	former category, 	Shoemaker wrote that McKibbin used 	"direct
teaching 	strategies 	with 	emphasis 	on demonstration 	and 	guided
practice." 	After 	noting 	that 	McKibbin demonstrated 	"satisfactory
understanding and use 	of 	this 	methodology," 	Shoemaker wrote 	that
that 	method was 	"especially well-suited 	for 	the physical
education classes." 	Under Classroom Management, 	Shoemaker wrote:
5McKibbin 	testified 	she 	asked 	Shoemaker 	for 	an
clarification of 	the 	comment on the 	support of 	school programs.
Shoemaker 	related 	overhearing 	McKibbin 	talking with 	other
teachers 	about 	the messy 	conditions 	in 	staff 	restrooms 	caused by
students. 	Shoemaker told McKibbin that 	if 	she had a problem with
the restrooms, 	she 	should talk to Shoemaker instead of other
staff members.
14
'

In P.E. 	classes, 	Laurie McKibbin uses
classroom management 	strategies 	specifically
[sic] 	developed 	for the physical 	education
classes. 	She seeks office 	support in cases
where 	she 	feels 	she needs 	additional 	support.
Her 	classroom management 	skills 	in her
English/language 	arts 	classes 	are
satisfactory 	to 	support 	the 	instructional
program.
David 	Cordeiro
Sometime in the fall of 	1990, 	Cordeiro 	spoke with Diane
Linen and 	a District maintenance 	supervisor about the break-in at
a teacher's 	office. 	Cordeiro made reference to the absence of
any action if 	the teacher was 	someone that 	Shoemaker 	liked, 	but
if among the other group, 	the teacher would be 	in trouble.
Shoemaker then came 	to his 	room where he was 	visiting with
Kirby. 	Shoemaker asked Kirby to 	leave 	and 	spoke 	to Cordeiro
about 	his 	comments 	on her 	showing 	favoritism and the 	existence 	of
the A and B groups 	he had alluded to 	the past year. 	Shoemaker
suggested 	that he 	should not 	encourage the division. 	If 	he had a
problem with the administration, 	he 	should come to her. 	She 	told
him to watch what he 	said.
On October 8, 	1990, 	Shoemaker advised Cordeiro that he was
to teach a 	language arts 	class, 	scheduled to alleviate an over
class 	size problem in the 	7th grade. 	Cordeiro was 	shocked,
because he had been told he was 	hired 	to 	teach nothing but 	music.
He 	asked 	for another 	solution. 	He told her he was 	not qualified
to teach the class. 	She told him that a music 	class 	in first
15

period would be dropped 	so he 	could 	teach the 	class. 	There was
nothing he could do, 	she 	said.
' . .
6
Cordeiro met with Thompson that 	same day regarding 	the
assignment. 	He 	related his 	same 	concern about being unqualified
and being taken out of a music 	class. 	He then began expressing
his 	concerns 	about Shoemaker's 	abilities. 	Thompson took notes,
he 	said, 	while he related matters 	going back to January of 	1990.
He 	also reminded Thompson that he had 	supported 	Zuber 	in the
prior year. 	Thompson related that he did not want a 	repeat 	of
the 	Zuber experience.7
After leaving Thompson's 	office, 	Cordeiro 	encountered
Escobar, 	told him of the problem and offered 	several
alternatives.
The 	next morning 	Shoemaker asked him to her office 	and
expressed disappointment that he had gone to Thompson. 	She 	told
him the decision on the revised class 	assignment was 	still 	under
consideration.
The 	change was 	scheduled to occur at the beginning of
November. 	Anxious 	about the time to prepare 	for the new
assignment and wrapping up the 	class 	that was 	to 	end, 	Cordeiro
6Shoemaker 	testified that 	Cordeiro 	at 	first 	agreed 	to 	take
the class, 	and later changed his mind. 	This 	assertion is 	not
credited 	in 	light 	of 	Cordeiro's 	immediate 	reaction 	in 	asking 	for
other 	solutions, 	his 	claim of 	not being qualified to 	teach the
course, 	and his 	immediate appeal to Thompson.
1Thompson could not 	remember 	if 	he took notes 	of 	Cordeiro's
comments. 	In any event, 	consistent with his practice, 	he would
have 	gone 	to 	the 	administrator and related the 	complaints 	as 	soon
as possible. 	Cordeiro's comments, 	said Thompson, 	regarding
Shoemaker's abilities, 	were 	"very unfavorable."
16

pressed her for a 	final decision. 	The week before the 	scheduled
change, 	Shoemaker advised him that he would not be 	teaching the
class.
Cordeiro's 	evaluator 	for the 	1990-91 	school 	year was Al
Silveira 	(Silveira), 	assistant principal. 	Silveira replaced
Pickford, 	who 	left Livingston Middle School 	one month 	into the
1990-91 	school 	year. 	Silveira made a 	scheduled classroom
observation on October 	17, 	1990, 	and reduced his reaction to
writing. 	Cordeiro, 	he wrote, 	"provides a highly participatory
learning environment." 	There was 	nothing negative 	in the
observation.
On November 20, 	1990, 	Shoemaker made an unannounced
observation of Cordeiro's class. 	She wrote, 	"David, 	the students
worked 	at 	your direction. 	You 	combined direct 	instruction
strategies with 	coaching, 	and you combined whole 	group 	strategies
with 	individual 	strategies." 	She 	commented that 	"drummers 	in
back 	seemed 	less 	focused than other 	students." 	She 	requested he
met with her to discuss 	the observation. 	She 	further asked him
to 	compare 	student progress 	and 	level 	of performance 	from 	last
year to this 	year. 	A post observation conference note 	on the
November 	20 	visit 	noted that 	there were more 	8th graders 	and
fewer 	7th graders 	in Cordeiro's 	first year, 	and that 	in the
current year there were more 	7th graders 	and 	fewer 	8th graders.
This 	change 	in ratio was 	confirmed by Cordeiro. 	In his
judgement, 	the change 	in ratio of younger musicians 	caused the
change 	in 	strength of the band between the two years. 	With 	fewer
- . .'
17

8th graders, 	who were more experienced musicians, 	and more 7th
graders, 	who were less experienced, 	the band did not have the
same abilities 	as 	the prior year.
Shoemaker and Cordeiro met on December 	7. 	According to
Cordeiro 	she did not 	express 	any problems, 	except 	for concern
about 	the percussionist walking 	around 	in the back of 	the
classroom. 	Cordeiro 	said he 	explained 	the 	situation 	involving
two 	unfriendly 	students 	and 	that he 	advised the 	one 	student 	to
walk away 	from the antagonist. 	She 	seemed 	satisfied, 	said
Cordeiro.
Cordeiro was 	presented with 	an evaluation by 	Silveira 	on
January 	15, 	1991. 	The evaluation, 	dated the day before, 	gave an
overall 	"Satisfactory," 	with ratings 	of 	a 	2 	on Classroom
Management, 	and 3's 	on the other categories, 	except 	for Personal
and Professional. 	There, 	Cordeiro was rated a 3-. 	Under this
category, 	Silveira wrote 	"Mr. 	Cordeiro shares ideas and
participates 	in school activities. 	He 	is 	actively involved with
the school program. 	However, 	conversations between Mr. 	Cordeiro
and Mr. 	Silveira, 	and between Mr. 	Cordeiro and Mrs. 	Shoemaker
indicate a need for improvement 	in supporting 	school 	goals."
(Underscoring 	added.)
In Instructional Skills, 	with a rating of 3, 	Silveira wrote
that Cordeiro 	"exposes 	his 	students 	to a variety of 	teaching
techniques 	and new ideas. 	These techniques 	and ideas 	are
beneficial 	to 	the 	students." 	Under Classroom Management
18

" .
with a rating of 	2, 	Silveira wrote, 	"Dave manages his 	classroom
in a positive manner. 	He recognizes 	their accomplishments 	and
their positive aspects."
Cordeiro 	said 	that 	Silveira 	had no problems 	with 	the
evaluation. 	The one area discussed 	in depth was 	Personal 	and
Professional. 	Silveira 	expressed concern of Cordeiro's 	lack of
school 	goals, 	and cited an event having to do with a 	school
mascot 	selection. 	Sometime 	in the 	fall the 	students 	had 	selected
a 	school 	mascot. 	The 	selection was 	overturned by the
administration, 	and Cordeiro had objected at 	a 	faculty meeting.
(Cordeiro 	also 	told Thompson about his 	thoughts 	on the matter 	on
October 	8.) 	Silveira 	expressed 	concern that 	Cordeiro 	had 	not
supported 	school 	goals, 	that he talked about the 	issue outside of
the 	school 	campus, 	and 	should have talked to 	Silveira 	if he had a
concern. 	Silveira 	also 	commented on the 	strained relationship
Cordeiro had with Shoemaker. 	Cordeiro 	said he used Silveira 	as 	a
confidant, 	and 	"really stated a 	lot of things 	to him."
According to Cordeiro, 	there was no discussion of his
continued employment with the District. 	Silveira, 	he 	said,
suggested 	there was 	no problem. 	Silveira 	testified that he
played no 	role 	in Shoemaker's 	decision to 	release Cordeiro.
In February of 	1990, 	Escobar wrote to the board and Thompson
regarding hiring practices. 	In March of 	1991, 	before the
March 15 date of non-rehire notice, the same memo, this time from
Thompson and Escobar, 	went to the board. 	This memo 	states:
As 	I 	have discussed with the 	Superintendent
and members 	of the board, 	I believe we 	should	. . . . . .. .
19

continually 	seek to 	increase the 	level 	of
excellence 	in our instructional 	staff. 	In
the past we 	have 	retained 	some 	teachers who
were 	"barely 	satisfactory" 	or believed 	to
"not to have reached their 	full potential."
The 	fact 	is 	that 	these 	individuals 	usually do
not 	improve, 	to the 	contrary they become even
less 	satisfactory having 	achieved 	the
security of permanent 	status.
Under SB 813, 	and related legislation, 	the
California 	Legislature 	has 	directed 	schools
to 	stamp 	out mediocrity and pursue 	excellence
in education by granting us 	the 	right to
issue a 	notice of 	non-employment to any
probationary teacher who does 	not meet 	the
standards 	established by the district, 	even a
teacher who may be 	satisfactory. 	This 	is 	an
important tool 	(in my view the most powerful
one) 	we have to 	improve the quality of
instruction in Livingston. 	I hope we don't
hesitate to use it!
On March 	13, 	1991, 	Shoemaker was 	evaluated by Thompson.
Thompson wrote:
Seems 	Emily has 	had 	the pleasure of housing
many of 	the District's malcontents 	this year.
Her recommendations 	for 	staff 	changes 	are
well 	documented 	and 	thought 	out.
For at 	least 	four years prior to the 	spring of 	1990, 	there
had never been a probationary 	employee given a notice 	of 	non-
rehire.
In the spring of 	1990, 	two probationary employees, 	were
given notice of non-rehire. 	Both were evaluated by 	Zuber. 	One
had 	an overall 	evaluation of 	"Unsatisfactory," 	and 	the 	other's
overall 	evaluation was 	"Improvement Needed." 	Later 	that 	same
school year, 	a third probationary employee was released. 	His
overall 	evaluation was 	"Improvement Needed."
20

Bartholomew's January 14, 	1991, 	evaluation, by Silveira, had
four 3's 	and one 2 	(Classroom Management). 	The overall rating
was 	"Satisfactory." 	Her numerical 	ratings were 	exactly the 	same
as Cordeiro's, 	save for the 	3- he got in Personal and
Professional.
Sometime after the 	first of January 	1991, 	the teachers were
expected to 	sign and return letters 	to the District, 	indicating
whether they 	intended to return the 	following 	school year. 	The
District's 	administration was 	aware 	of 	LETA's 	encouragement 	to
teachers 	to not turn in the 	intent 	letters.
The 	Non-Reelection
By memo to Escobar, 	dated February 25, 	1991, 	Shoemaker made
recommendations 	on 	staffing 	for 	1991-92. 	Shoemaker recommended,
among other things, 	that Cordeiro and McKibbin be 	released 	from
service. 	On the memo, 	she noted that Cordeiro had checked
"doubtful" 	to 	return on his 	intent 	letter and that McKibbin
"turned intent 	letter in but took it back at the urging of
another teacher."
The decision to 	terminate McKibbin and Cordeiro was
initiated by Shoemaker. 	According to Shoemaker, 	she had three
meetings with Thompson and Escobar, 	totaling about 	an hour an+d a
half, 	over a two-week period prior to the 	end of February. 	At
these 	meetings 	they 	discussed 	her 	recommendations 	regarding
McKibbin 	and Cordeiro.
Escobar 	testified 	that decisions 	not 	to 	rehire 	typically 	are
the 	result 	of many meeting throughout 	the year, 	during which the
21

administrators 	ask 	for reports 	on how teachers 	are doing,
-particularly 	for 	teachers 	coming up 	for 	reelections
recommendations. 	There is a lot of input, 	and 	"no surprises."
In this 	instance, 	Shoemaker consulted with him at 	least three
times 	to 	go 	over criteria 	and role 	expectations.
These 	role 	expectations 	included 	the 	references 	to which
Cleckler 	had 	taken umbrage when 	initially 	confronted with 	the
document presented by Shoemaker 	in September. 	Specifically,
Cleckler was 	concerned on how to measure whether 	the 	teacher
"develops 	good 	staff morale 	and 	loyalty to the 	school," 	or
"Represents 	accurately and 	supports 	the district 	or 	school 	in
conversations with the public."
Shoemaker also testified that 	another part of 	the decision-
making process 	is 	the role 	of 	the assistant 	superintendent who 	is
in charge 	of personnel and responsible 	for 	staff 	development.
The assistant superintendent, 	she said, 	works and observes 	in new
teachers 	classrooms.
Shoemaker 	recommended 	that 	McKibbin 	not 	be 	rehired 	because
in the 	two years 	of 	employment McKibbin had not 	attained the
level 	of 	excellence 	required by the District's 	goal 	of 	creating a
teaching 	staff 	of 	excellence. 	Ratings 	of 	"Satisfactory"
performance do 	not 	imply 	that 	the 	employee will 	be 	recommended
8
8Shoemaker's 	exposure 	to 	the 	District's 	philosophy 	on hiring
for excellence came from discussions with Thompson and Escobar.
She 	had not 	read 	any policy nor did 	she 	get 	any documents 	on the
policy. 	She did not 	attend any board meetings where 	the policy
was 	discussed. 	While 	Shoemaker has 	attended 	executive 	sessions
of 	the board, 	she did not attend the board 	session where 	the
decision not 	to 	rehire McKibbin or Cordeiro was 	made.
22

for employment. 	Shoemaker's 	assessment 	of McKibbin's 	problem was
.that .McKibbin felt 	she was 	controlled by the 	students. 	Shoemaker
did not 	see 	McKibbin developing 	the 	leadership 	and 	authority
needed for middle-grade 	students. 	Shoemaker 	said 	she believed
McKibbin 	lacked maturity and 	self-confidence. 	According 	to
Shoemaker, 	during her discussions with Thompson and Escobar 	she
asked 	if McKibbin could be brought back a third year. 	The answer
was no.
Shoemaker recommended 	that 	Cordeiro 	not be 	rehired based
upon Silveira's 	recommendation, 	and her own assessment of
Cordeiro's performance. 	She 	said the 	"musicality" 	of the
students 	had 	seriously reduced 	in the 	second year. 	She believed
she had given him credit 	in his 	first year 	for the previous
program. 	She had not 	seen his 	music 	education theory put 	into
practice. 	Classroom management problems 	continued 	and 	she 	felt
the band program was 	deteriorating. 	Shoemaker was 	under the
impression that 	the band population has 	dropped and 	that 	she
further understood 	that 	it 	climbed 	to 	three 	times 	that under the
new teacher, 	Maureen Whittaker 	(Whittaker).9
Escobar, 	said Shoemaker, 	concurred with both
recommendations.
9The parties 	submitted a 	stipulation 	(Charging 	Party's
Exhibit No. 	40) 	making a comparison of the class 	sizes of the
bands under Cordeiro 	and Whittaker. 	The 	stipulation does 	not
contribute to any 	findings 	necessary 	for this 	decision.
23

Although 	Bartholomew made 	many 	complaints 	directly 	to
Shoemaker, 	she was 	rehired and gained tenure with the 	District 	at
the beginning of the 	1991-92 	school year.
. '4 ..
10
Cleckler and Kirby, 	permanent teachers under Shoemaker, 	were
given very high ratings 	in the various 	categories. 	Cleckler was
the LETA president, 	and Kirby the grievance chairman. 	Wilcox
also got high ratings.
Robin Salley was 	rehired and thus 	granted tenure 	for the
1991-92 	school year.
By March 	15, 	1991, 	McKibbin, 	Cordeiro and Kathy Hill 	(Hill)
received 	notice 	from the 	District 	that 	they were 	not 	to 	return
the 	following year.11
The 	Notice 	of 	Non-reelection 	for McKibbin and Cordeiro
stated:
You are hereby given notice 	that 	the
governing Board at 	its 	meeting of March 	12,
1991, 	took action not to reemploy you for the
1991-92 	school year. 	This notice of non-
reelection 	is provided pursuant 	to the
requirements 	of 	Education Code 	Section
44929.21(b).
After getting this 	notice, 	Cordeiro 	attempted to meet with
Thompson, 	who at 	first was unavailable. 	Escobar told Cordeiro
that he had nothing to do with 	it. 	Meeting with Thompson 	later
10The 	District 	contends 	that 	Bartholomew's 	activities with
the union 	increased 	in her 	second year. 	The record 	suggests 	that
she may have attended 	a 	few more 	LETA meetings 	after 	school. 	She
did, 	as many other teachers did, 	directly address the principal
about 	classroom needs.
11Hill's non-reelection 	came 	from 	Katy 	Berkeley 	at 	the
Yomato Colony Elementary 	School. 	Her overall 	rating on
evaluation was 	"Improvement Needed."
. . . '13
24

that day, 	Cordeiro asked 	for an explanation of his 	non-rehire.
Thompson 	said 	the 	District 	could 	take 	the 	action 	for 	any 	reason
and that he did not have to give a reason. 	"It was 	in the best
interest of the District" 	to take the action, 	and the District
followed the Education Code, 	said Thompson.
Cordeiro 	later met with 	Shoemaker, 	who 	suggested that 	"he
look deep 	inside of 	himself." 	The 	District did not have 	to give
a reason, 	she 	said, 	and that 	"it was 	in the best interest of the
District." 	Escobar would not discuss 	the matter with him.
McKibbin 	complained 	to 	Escobar 	about 	the manner 	in which 	the
termination had occurred. 	Shoemaker 	suggested that 	she 	look deep
inside 	for an explanation.
Shoemaker 	served on an 	interview committee, 	chaired by
Escobar, 	to 	select a replacement 	for Cordeiro. 	The person
selected was president of 	the 	teachers 	union at the 	school
district 	she worked at 	in the preceding 	school 	year.
ISSUE
Was 	the 	District's 	non-reemployment 	of 	Laura 	McKibbin and
David Cordeiro 	in retaliation 	for 	their 	exercise 	of protected
activity?
CONCLUSIONS 	OF 	LAW
In order to prevail, 	the charging party must 	establish that
the 	two 	employees were 	engaged 	in protected activity, 	the
activities were known to the employer, 	and that the employer took
adverse action because of 	such activity. 	(Novato 	Unified 	School
District 	(1982) 	PERB Decision No. 	210.) 	Unlawful motivation is
25

crucial to charging party's 	case. 	In the absence of direct
- evidence, 	an inference of unlawful motivation may be drawn from
the record as 	a whole, 	as 	supported by circumstantial 	evidence.
(Carlsbad Unified School 	District 	(1979) 	PERB Decision No. 	89.)
From Novato. 	supra. 	and a number of cases 	following it, 	any of a
host 	of 	circumstances 	may 	justify 	an 	inference 	of 	unlawful
motivation on the part of 	the 	employer. 	Among 	such
circumstances, 	arguably present here are: 	the timing of the
adverse action 	in relation to the 	exercise of the protected
activity 	(North 	Sacramento 	School 	District 	(1982) 	PERB 	Decision
No. 	264); 	the employer's disparate treatment of the employees
(State of California 	(Department of Transportation) 	(1984) 	PERB
Decision No. 	459-S); 	departure from established procedures or
standards 	(Santa Clara Unified School District 	(1979) 	PERB
Decision No. 	104); 	inconsistent or contradictory justification
for 	its 	actions 	(State of California 	(Department of 	Parks 	and
Recreation) 	(1983) PERB Decision No. 	328-S), 	or employer
animosity 	towards 	union activists 	(Cupertino 	Union 	Elementary
District 	(1986) 	PERB Decision No. 	572).
Once an inference is made, 	the burden of proof 	shifts 	to the
employer to 	establish that 	it would have 	taken the action
complained of, 	regardless of the employees' 	protected activities.
(Novato, 	supra, 	PERB Decision No. 	210; 	Martori Brothers
Distributors, 	v. 	Agricultural Labor Relations Board 	(1981)
29 Cal.3d 721 	[175 Cal.Rptr. 	626].) 	Once employer misconduct is
demonstrated, 	the employer's action,
" .. .. 4! : "
11
26

. 	. 	. 	should not be deemed an unfair labor
practice unless 	the board determines 	that 	the
employee would have been retained 	"but 	for"
his 	union membership 	or his performance of
other protected activities. 	(Ibid.)
Here, 	both McKibbin and Cordeiro undertook protected
activities 	in the 	fall of 	1990, 	preceding Shoemaker's decision to
release 	them 	from 	service. 	McKibbin presented 	concerns 	directly
to Shoemaker concerning class 	size, 	and then, 	in conjunction with
Cleckler's 	(thus 	LETA's) 	presentation, 	she 	spoke directly to the
board of trustees. 	Subsequently, 	she again spoke to Shoemaker
about the class 	size 	issue. 	Acting on her own, 	concerning the
problem of 	class 	size, 	was protected activity. 	(See Pleasant
Valley School District 	(1988) 	PERB Decision No. 	708.) 	The
District concedes 	this point. 	Certainly, 	acting in concert with
LETA was 	protected 	activity.
Likewise, 	Cordeiro engaged 	in legitimate protest of what he
perceived to be an inappropriate assignment. 	Shoemaker wanted
him to 	accept a 	teaching assignment 	for which he was 	not
qualified to teach. 	He explained the problem, 	and 	she 	indicated
he had 	no 	recourse. 	He then followed the appropriate procedures
and discussed the matter with Thompson, 	Shoemaker's 	superior.
The 	next day Shoemaker 	chastised Cordeiro 	for going 	to 	see
Thompson. 	Seeking redress 	about a 	classroom assignment 	is
engaging 	in protected activity. 	(Pleasant Valley 	School
District, 	supra).
In both cases, 	Shoemaker immediately reacted to the
employee's activities. 	She called McKibbin unprofessional, 	and
27

chastised Cordeiro. 	The 	District attempts 	to 	limit 	Shoemaker's
responses 	to McKibbin's written document. 	She 	stated 	that
Shoemaker 	charged her with 	"mixing 	it 	all 	up 	and bringing 	it 	to
the board." 	The District 	argues 	that 	Shoemaker was 	upset 	about
misrepresentations 	to 	the board made by McKibbin. 	The 	record
does 	not 	support this 	narrow 	interpretation. 	Shoemaker was
unhappy that McKibbin went to 	the board about 	class 	size.
The 	admonishment given by Shoemaker at 	the 	end of 	the prior
school 	year 	cannot be 	ignored. 	The 	new teachers were 	advised
that they 	should not associate with the 	"bitchers" 	or 	"gripers"
if 	they wanted to get good evaluations 	the next year, 	necessary
to obtain tenure with the District. 	The 	"bitchers" 	or 	"gripers"
could 	only have been those people 	like Cleckler who 	spoke 	up 	on
issues 	of 	concern to 	the organization 	she 	represented. 	Shoemaker
wanted 	unquestioned 	support 	and did 	not 	like 	teachers 	to 	go 	over
her head on issues. 	Loyalty and 	support of 	school 	goals was 	a
factor 	in the 	evaluation of 	teachers, 	enunciated 	in the document
distributed by 	Shoemaker 	in September of 	1990. 	These 	factors
were acknowledged by Escobar as 	used 	in evaluations.
McKibbin 	continued her 	association with 	Cleckler 	by
participating 	in the October 	8 	presentation to the board of
trustees, 	despite the warning by Shoemaker. 	McKibbin, 	by the
same presentation, 	demonstrated disloyalty to Shoemaker.
Cordeiro 	likewise 	chose 	to 	question Shoemaker's 	decision on
the 	class 	assignment. 	His 	conduct was within the realm of being
28

a 	"bitcher," 	or 	"griper." 	As 	Silveira wrote, 	and acknowledged in
testimony, 	Cordeiro needed to 	improve 	support for school 	goals.12
The 	District takes umbrage at 	any conclusion that 	the
February 25, 	1991, 	memo to Escobar from Shoemaker on staffing 	for
the 	subsequent 	school year, 	and which noted the release of
McKibbin and Cordeiro, 	stated the reasons 	for their non-rehire.
The memo 	also made 	reference 	to 	their respective 	actions with
respect to the 	letters of 	intent. 	This document, 	argues 	the
District, 	cannot be construed as 	expressing reasons 	for non-
rehire. 	Because 	I 	do not rely on the document 	for 	findings 	here,
the argument 	is 	not addressed.
The 	record 	evidence 	supports 	the 	inference 	that both
probationary 	employees 	were 	released 	for protected 	activities.
While the timing is not dispositive, 	there 	is a reasonable
connection between the 	fall 	activities 	of 	McKibbin and Cordeiro,
and 	the 	District's 	January 	and 	February 	reaction. 	Shoemaker's
advice to the teachers 	the prior year, 	about associating with the
"bitchers" 	as 	influencing 	the 	tenure decision made 	any actions
during 	the 	entire 	second year 	logically 	connected 	to 	the decision
not to rehire.
Importantly, 	however, 	other grounds 	for inferences are
present here. 	The District 	elected to not re-hire two
12Silveira's basis for the observation was Cordeiro's
reaction to 	the mascot decision of 	the 	administration.
Cordeiro's position on the 	"mascot" 	issue does 	not constitute
protected activity. 	However, 	it was 	not the only basis 	for the
criticism. 	It 	cannot be 	ignored that 	Shoemaker was 	upset because
Cordeiro went over her head on the 	class 	assignment.
29

probationary 	teachers whose 	evaluations 	were 	satisfactory. 	Only
three 	teachers 	in the 	last 	six years 	had not gained tenure
status. 	In all three cases, 	the evaluations of the teachers were
either 	"less 	than 	satisfactory," 	or 	"needs 	improvement." 	Thus,
the 	two 	employees 	suffered disparate treatment.
Likewise 	suggesting unlawful 	motivation 	is 	the 	inconsistent
or 	contradictory 	justification 	for 	the 	action taken. 	Shoemaker's
proffered 	explanation 	for both McKibbin's 	and Cordeiro's 	non-
rehire 	are 	either 	inconsistent with 	or 	contradict 	the
documentation and 	appraisals 	of work performance 	given to 	each 	of
the two employees.
With respect to McKibbin, 	Shoemaker recommended non-rehire
because, 	given the District's philosophy on striving 	for
excellence, 	McKibbin fell 	short because 	she 	"felt controlled by
students," 	"lacked 	the 	leadership 	and 	authority 	for middle 	grade
students," 	and lacked 	"maturity" 	and 	"self-confidence."
These 	reasons 	are 	not 	reflected 	in any 	review of 	McKibbin's
work. 	At most, 	in the observation Shoemaker undertook in
November 20, 	she expressed the view that McKibbin's 	tone of voice
suggested that 	she was 	not 	in control. 	On the other hand, 	she
then commented that McKibbin's 	voice was 	good for PE, 	but not
necessarily 	for the 	language arts 	class. 	Neither the 	observation
of November 20, 	1990, 	nor the evaluation of January 18, 	1991,
reflect 	concern 	for McKibbin's 	lack of 	leadership 	or authority
over middle grade 	students, 	nor reflect 	concern for maturity and
or self-confidence. 	Rather, 	in Instructional Skills, 	for which
30

McKibbin received a 	3, 	Shoemaker wrote that McKibbin demonstrated
satisfactory 	understanding 	and 	use 	of 	a 	described 	methodology
that was 	"especially well-suited 	for 	the physical 	education
classes." 	In Classroom Management, 	an area that 	should reflect
class 	control, 	and level of 	leadership as well as 	self-
confidence, 	Shoemaker rated McKibbin as 	"Meeting District's
standards." 	Nothing 	stated there 	suggests 	concern 	for 	class
control or lack of 	self-confidence. 	Indeed, 	Shoemaker stated
that McKibbin 	seeks 	office 	support when needed. 	Shoemaker
further 	stated that McKibbin's 	classroom management 	skills 	in the
english/language arts 	classes were 	satisfactory. 	Finally,
Shoemaker 	arranged 	to meet with McKibbin to 	instruct her on
dealing with 	classroom management, 	and 	then 	cancelled 	the
session.
With 	respect to Cordeiro, 	Shoemaker recommended non-rehire
based on Silveira's 	recommendation, 	the 	"musicality of 	the
students" 	had 	lessened the 	second year, 	his 	failure to put 	into
practice his 	music 	education theory, 	continued classroom
management problems 	and her perception that 	the 	band program was
deteriorating.
These 	contentions 	are 	not 	supported by 	the documentation of
the 	observations 	by Silveira 	and 	Shoemaker, 	or by the 	evaluation
given Cordeiro by Silveira. 	Silveira's 	first observation, 	on
October 	17, 	1990, 	praised Cordeiro for his 	"highly participatory
learning environment." 	Shoemaker's November 20, 	1990,
In. . .
31

observation 	contained no 	negative 	reflections 	save 	for her
observation of 	drummers who 	seemed 	less 	focused 	than other
students. 	Their meeting on December 	7 	gave no 	indication of 	her
concerns, 	and his 	explanation of the 	students behavior 	seemed to
satisfy her. 	Silveira's 	evaluation of Cordeiro 	contained no hint
of 	reduction of musical ability of 	students, 	or failure to put
into place music 	education programs. 	Rather, 	Silveira was
complimentary of Cordeiro's 	instructional 	skills, 	in that
Cordeiro 	exposed his 	students 	"to 	a 	variety of 	teaching
techniques 	and new ideas." 	Contrary to 	Shoemaker's 	explanation
for the recommendation for non-rehire,. as 	Cordeiro's 	"classroom
management problems," 	Silveira rated Cordeiro as 	exceeding
District 	standards 	in this 	category, 	and wrote that Cordeiro
"manages 	his 	classroom in a positive manner."
Finally, 	Shoemaker testified that her recommendation to
release Cordeiro was 	based 	in part 	on Silveira's 	recommendation.
Yet 	Silveira 	testified 	that 	he played 	no 	role 	in 	Shoemaker's
decision to release Cordeiro.
It must 	also be 	noted 	that 	Thompson's 	evaluation of
Shoemaker 	sheds 	further insight on the nature of the grounds 	for
non-rehire. 	Thompson called 	special 	attention to 	Shoemaker's
confrontation with 	"malcontents" 	during the 	1990-91 	school 	year.
It 	is 	clear that his 	disposition towards 	Cleckler reflected
dissatisfaction with her activities 	on behalf 	of 	LETA.
Certainly, 	McKibbin and Cordeiro, 	both taken to task by Shoemaker
32

for having gone either to the board or to Thompson, 	fell within
the group of 	"malcontents."
Further, 	Thompson's praise of Shoemaker's decisions being
"well 	documented and well 	thought out," 	as 	expressed 	in his
evaluation of her performance, 	was 	hardly demonstrated 	in the
decision to terminate two 	satisfactory performing employees. 	In
this 	case, 	the decision to terminate the two employees 	can hardly
be 	called 	"well documented," 	or 	"well 	thought out." 	None of 	the
evaluations 	of 	the two employees 	reflects 	a problem with
classroom ability. 	Indeed, 	Cordeiro's 	last evaluation gave him
an 	"exceeds 	district's 	standards" 	for 	classroom management 	and he
met 	District 	standards 	in all 	other respects. 	Likewise,
McKibbin's 	evaluations 	gave 	no hint of deficiency giving rise 	to
justification 	for 	non-rehire.
Significantly, 	in both cases, 	a minus 	rating was 	given to
each, 	predicated upon their failure to 	support 	school goals. 	In
other words, 	they associated with or were among the 	"bitchers."
Finally, 	the 	employer's 	departure 	from established
procedures 	also gives 	rise to an inference. 	Here, 	while the
assessment 	of 	a 	teachers 	performance was 	proclaimed by Escobar
and 	Shoemaker to be a over-the-year process, 	to avoid 	surprises,
no 	assessment 	of 	their performance, 	reflecting deficiency 	in
support of non-rehire was developed in this 	case. 	Not until
within a 	two week period of 	February 	25 was 	there 	any discussion
among 	the 	administrators 	that 	non-rehire 	recommendations 	would 	be
made 	on the 	two probationary teachers.
33

That must have been a 	surprise to Escobar, 	who 	independently
did not 	see McKibbin as 	having the deficiencies 	noted by
Shoemaker.
The burden of proof 	now shifts 	to 	the 	employer to
establish 	that 	it would have taken the 	action against 	the 	two
employees, 	despite their protected activity. 	In the absence of
such a 	showing, 	the 	employer will be 	found 	in violation of 	the
EERA 	for 	failure 	to 	rehire McKibbin and Cordeiro.
The 	District 	contends 	that 	neither McKibbin nor Cordeiro
would have been rehired, 	as 	both 	failed to demonstrate 	the
potential 	for 	excellence 	that 	the 	District was 	striving 	to
attain. 	Both Escobar and Shoemaker denied the decision to
terminate 	the 	employees was based upon union activities, 	and
asserted that 	the decision was 	made 	on the pursuit 	of 	excellence.
The District asks, 	if 	Shoemaker was 	retaliating for union
activities, 	why would 	she have 	requested a possible 	third year of
probationary 	status 	for McKibbin, 	or recommended a 	former union
president 	to 	replace 	Cordeiro?
The 	retention of 	teachers 	under a 	quest 	for teaching
excellence 	is 	an admirable aim. 	However, 	it cannot be a 	shield
for 	removing 	teachers who 	otherwise 	have 	engaged 	in protected
activity. 	In this 	case, 	the memo 	suggested not retaining a
teacher, 	even a teacher who might be 	satisfactory, 	if the teacher
did not meet 	standards 	set by the District. 	Yet no evidence has
been 	advanced by 	the 	District 	explaining what 	standards 	either
McKibbin or Cordeiro 	failed to meet.
S . . .
34

The 	gap 	between 	explanations 	given by 	Shoemaker 	as 	grounds
for 	the 	recommendation for 	non-rehire versus 	what was 	outlined 	to
the employees 	in their respective evaluations, 	set 	forth above,
lead 	to 	the 	conclusion that 	their alleged 	failure 	to 	demonstrate
excellence 	is pretextual. 	The evidence does 	not 	show that the
District 	informed probationary 	teachers 	that 	satisfactory
performance 	ratings 	should not 	engender rehire 	expectations.
Indeed, 	unrefuted by Shoemaker was 	the 	assertion that at 	the
June 	8 	meeting 	Shoemaker 	stated 	that who 	teachers 	associated with
was 	more 	important 	than classroom dealings.
Rather, 	this 	concept 	standard of 	excellence was 	bantered
about only by Escobar, 	Thompson and the board. 	Shoemaker may
have discussed 	it with the two administrators, 	yet 	she never 	saw
anything 	in writing about 	this 	standard. 	It does 	not appear to
have been adopted by the board. 	The memo 	to 	the board 	expresses
hope 	that whomever has 	the 	decision making power 	for hiring
employees 	strive 	for 	excellence 	by 	not 	rehiring probationary
teachers who 	"do 	not meet 	standards 	established by the 	District,"
even a 	teacher who may be 	satisfactory.
Moreover, 	the memo was 	critical of the practice of the
District, 	in the past, 	to rehire teachers who were 	"barely
satisfactory," 	or were believed 	to 	"not 	have 	reached their 	full
potential." 	The 	evaluations 	of 	McKibbin and Cordeiro 	cannot be
said to be marginally satisfactory, 	nearing 	"barely satisfactory"
or 	expressed doubt 	that 	they 	"had 	not 	reached their 	full
potential." 	Rather, 	on one point 	for which Shoemaker decided to
35

recommend Cordeiro's release, 	Classroom Management, 	Cordeiro's
evaluator had rated him as 	exceeding District 	standards. 	As 	to
McKibbin, 	Shoemaker's 	assertion that the teacher 	lacked 	self-
esteem 	found 	no 	corroboration 	from 	Escobar.
Shoemaker may have 	inquired as 	to a possible third year of
probationary 	status 	for McKibbin. 	Such 	inquiry does 	not mitigate
against 	Shoemaker's 	decision that 	McKibbin not be 	rehired 	into 	a
tenure position, 	a 	recommendation based upon McKibbin's 	activity
found to be protected under the EERA. 	McKibbin would have, 	under
the alleged proposal, 	been denied the right to tenure 	status, 	and
as 	a probationary employee, 	still 	subject to Shoemaker's 	scrutiny
for being a 	"bitcher."
Contrary to the District's 	contention, 	the record does 	not
show that 	Shoemaker 	recommended the hire 	of 	a 	former union
president to replace Cordeiro. 	Rather, 	a committee, 	of which she
was a member, 	made that selection. 	It is not clear that
Shoemaker was 	aware of 	the 	employee's prior union activity.
Nonetheless, 	even if 	she were, 	the teacher assumed a probationary
position with the District, 	where again, 	if 	she did not meet
Shoemaker's 	notions 	of 	loyalty to the 	school, 	adverse action
could be taken. 	In addition, 	how the District treats 	other
employees 	engaged 	in union activities 	does 	not dispose of 	how 	it
treated these 	two 	employees. 	In State 	of California 	(Department
of Transportation). 	supra. PERB Decision No. 	459-S, 	the PERB
adopted federal precedent on this point. 	Stated PERB, 	"A
discriminatory motive, 	otherwise established, 	is not disproved by
36

an 	employer's proof 	that 	it did not weed out 	all union
adherents." 	(Citations 	omitted)
It 	is 	concluded 	that 	the District's 	decision not to rehire
McKibbin and Cordeiro was 	based upon their participation 	in
protected conduct. 	This 	action is 	a violation of 	section
3543.5(a). 	Because McKibbin's 	conduct included participating 	in
the activities of the union, 	the District's 	conduct also is a
violation of section 3543.5(b).
REMEDY
The PERB is empowered in section 3541.5(c) 	to:
. 	. 	. 	issue a decision and order directing an
offending party to 	cease 	and desist 	from the
unfair practice 	and to 	take 	such 	affirmative
action, 	including but not 	limited to the
reinstatement of 	employees with 	or without
back pay, 	as will 	effectuate the policies 	of
this chapter.
Reinstatement 	is 	the 	appropriate 	remedy 	for discriminatory
discharge. 	(McFarland Unified School 	District 	(1991) 	228
Cal.App.3d 	166 	[279 Cal.Rptr. 	26].) 	It also appropriate that
Laura 	McKibbin and 	David Cordeiro be 	made whole 	for 	lost wages
and benefits. 	The 	amount of back pay 	shall 	be reduced by
earnings 	from other 	sources 	since the 	termination.
It 	is 	further appropriate that 	the 	District be directed 	to
post a 	notice 	incorporating the 	terms 	of 	the order. 	A posted
notice, 	signed by an authorized agent of the District, 	will
provide 	employees with notice 	that the District has 	acted 	in an
unlawful manner, 	is 	being required to cease and desist 	from this
activity, 	and will 	comply with the order. 	It effectuates 	the
37

purposes 	of 	the 	EERA that 	the 	employees 	be 	informed of 	the
resolution of 	the 	controversy 	and 	the 	District's 	readiness 	to
comply with 	the 	ordered 	remedy. 	(Placerville 	Union 	School
District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing findings 	of 	fact 	and 	conclusions 	of 	law,
and the entire record in this 	case, 	it is 	found that the
Livingston School District 	(District) 	violated the Educational
Employment Relations Act 	(Act), 	Government Code 	section 3543.5(a)
and 	(b). 	The District violated the Act when it terminated the
employment 	of 	Laura 	McKibbin and 	David Cordeiro 	for 	their
presentation of 	employment-related problems 	to 	their 	supervisors.
Pursuant to section 3541.5(c) 	of the Government Code, 	it 	is
hereby ORDERED that 	the District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against 	Laura McKibbin and David
Cordeiro 	because 	of 	their 	exercise of protected rights 	in
speaking 	to 	supervisors 	about work-related problems 	by 	electing
not 	to 	rehire 	said 	employees 	and thereby 	terminating 	their
employment with 	the District.
2. 	Interfering with the 	right 	of 	the 	Livingston
Elementary School Teachers Association, 	CTA/NEA, 	to represent 	its
members by discriminating against employees who participated 	in
protected conduct.
38

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICES OF THE ACT:
1. 	Within ten 	(10) 	workdays of service of a final
decision in this matter, 	reinstate Laura McKibbin and David
Cordeiro as 	teachers 	at the Livingston Middle School.
2. 	Within thirty 	(30) 	workdays of the reinstatement of
Laura 	Mckibbin and David Cordeiro as 	teachers 	in the 	District,
reimburse 	each of 	them for 	lost wages 	and benefits 	retroactive 	to
the 	first day of 	service 	for teachers 	during the 	1991-92 	school
year. 	The amount of 	compensation 	shall be reduced by any
unemployment 	compensation or wages 	which 	either 	Laura 	McKibbin or
David 	Cordeiro 	may have 	earned during 	the period 	since 	the
commencement of the 	1991-92 	school year. 	The amount due them
shall be augmented by interest at the rate of 	10 percent per
annum.
3. 	Within ten 	(10) 	workdays of 	service of a final
decision 	in this 	matter, 	post at all 	school 	sites 	and all other
work 	locations 	where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the notice attached hereto as 	an appendix. 	The 	notice
must be 	signed by an authorized agent of 	the District, 	indicating
that the District will 	comply with the terms 	of 	this 	order. 	Such
posting 	shall 	be 	maintained 	for a period 	of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be taken to 	insure
that the notice 	is not reduced in size, 	altered, 	defaced or
covered by any 	other material.
39

4. 	Upon issuance of a final decision, 	make written
notification of 	the 	actions 	taken to 	comply with the Order to the
Sacramento 	Regional 	Director 	of 	the 	Public 	Employment 	Relations
Board 	in accordance with the director's 	instructions.
Pursuant to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement of 	exceptions with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually 	received before 	the 	close of business 	(5:00 p.m.) 	on the
last day 	set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States 	mail, 	postmarked not 	later
than the 	last day 	set 	for filing 	. . . " 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; Code Civ. 	Proc., 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany 	each 	copy 	served on a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	May 29, 	1992
a .1.
G
C
40
GA RY M. GALLE	A 	GALLERY
hYof Ad 	Administrative	Law. 	Judge