Alisal Union Elementary School District (PERB 1248E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ALISAL TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
ALISAL UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1901
PERB Decision No. 	1248
January 28, 	1998
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Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for Alisal Teachers Association, 	CTA/NEA; 	Lozano,
Smith, 	Smith, 	Woliver & Behrens by Steven D. 	Mond, 	Attorney, 	for
Alisal 	Union Elementary School 	District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the 	Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by both the
Alisal 	Union Elementary School 	District 	(District) 	and the Alisal
Teachers Association, 	CTA/NEA 	(Association) 	to a Board
administrative law judge's 	(ALJ) 	proposed decision 	(attached).
In 	the proposed decision, 	the ALJ held that 	the District
interfered with protected 	employee 	rights 	when 	it 	placed a
disciplinary memorandum dated May 31, 	1996, 	in Donna Leonard's
(Leonard) 	personnel 	file. 	The ALJ found that 	the District's
action violated section 3543.5(a) 	and 	(b) 	of the Educational
Employment 	Relations Act 	(EERA).1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 provides, 	in relevant

The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the proposed decision, 	the hearing transcript, 	and the
Association 	and District's 	exceptions 	and 	responses 	to
exceptions.2 The Board finds 	the ALJ's 	findings 	of 	fact 	and
conclusions 	of 	law to be 	free 	from prejudicial 	error and adopts
them as 	the decision of 	the 	Board 	itself, 	consistent with the
following 	discussion.
FACTUAL 	SUMMARY
Although 	the ALJ's 	findings 	of 	fact 	are 	complete and 	free
from prejudicial 	error, 	we 	find it appropriate 	to 	summarize 	the
more 	salient 	of 	the ALJ's 	factual 	findings.
Leonard 	is 	a long 	term employee 	of 	the District. 	She 	has
served as Association president 	and has 	been a party 	to 	a number
of 	grievances 	and unfair practice 	charges 	against 	the District.
In January of 	1995, 	the District 	issued Leonard a memorandum of
warning 	for 	acting 	in an unprofessional 	and disruptive manner
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
2The District's 	request 	for oral 	argument 	was 	denied 	on
January 26, 199 8.
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during a 	confrontation with employees 	in 	the District's 	business
office. 	The District placed a 	copy of 	the memorandum of warning
in 	Leonard's 	personnel 	file 	and provided 	Leonard an 	opportunity
to file a 	response.3 Leonard responded on January 25, 	1995.
In April 	of 	1996, 	Leonard requested, 	and was granted, 	an
opportunity to 	file 	a 	second 	response 	to 	the memorandum of
warning. 	This 	second response 	criticized 	the District's
investigation 	of 	the business 	office 	incident 	and 	contended 	that
the January, 	1995 memorandum of warning was 	completely without
merit. 	The District 	agreed to place 	Leonard's April 	1996
response 	in her personnel 	file.
On May 31, 	1996, 	Robert Mayfield 	(Mayfield), 	the District's
director of personnel, 	answered Leonard's April 	199 6 	response
with 	a 	lengthy 	disciplinary memorandum 	chastising 	Leonard 	for 	her
history 	of 	discourteous 	conduct 	and 	cited 	Leonard's 	April
3 California Education Code section 44031 provides, 	in
relevant part:
(a) 	Materials 	in personnel 	files 	of employees
that may serve as 	a basis 	for affecting 	the
status 	of 	their employment 	are 	to be made
available 	for the 	inspection of 	the person
involved.
(d) 	Information of a derogatory nature,
except material mentioned in subdivision 	(b),
shall 	not 	be 	entered or 	filed unless 	and
until 	the 	employee 	is 	given notice and an
opportunity 	to 	review and 	comment 	thereon.
An employee 	shall 	have 	the 	right 	to enter,
and 	have 	attached 	to 	any derogatory
statement, 	his own comments thereon. 	The
review shall 	take place 	during normal
business hours, 	and the employee shall be
released 	from duty 	for 	this 	purpose 	without
salary 	reduction.
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response 	as 	evidence 	of 	her 	failure 	to 	recognize her misconduct
or 	to mend her ways. 	Mayfield 	indicated 	that 	continuing 	this
sort 	of 	conduct 	could lead 	to 	"more 	serious 	disciplinary action."
Mayfield 	closed by 	noting 	that 	the 	disciplinary memorandum would
be 	placed 	in 	Leonard's 	personnel 	file 	and 	informed 	Leonard 	that
she had the right 	to respond. 	It 	is 	the May 31, 	1996
disciplinary memorandum, 	not 	the January, 	1995 memorandum of
warning, 	that 	is 	the 	subject 	of 	the 	charge and complaint 	in this
case.
DISCUSSION
We 	concur with 	the ALJ's 	conclusion 	that 	the
May 	31, 	1996 	disciplinary memorandum unlawfully 	interfered with
employees' 	protected rights. 	In addition, 	we find that 	the
disciplinary 	memorandum 	constituted 	unlawful 	discrimination
against 	Leonard because 	of 	her 	exercise 	of 	protected 	rights.
In order to 	state a prima 	facie 	case 	for discrimination or
reprisal, 	a charging party must 	show that: 	(1) 	the employee
engaged 	in protected activity; 	(2) 	the employer had knowledge of
that protected activity; 	and 	(3) 	the employer took adverse action
against 	the 	employee because 	of 	that 	protected activity.
(Healdsburg Union High School 	District 	(1997) 	PERB Decision
No. 	1185, 	proposed dec. 	at p. 	46 	(Healdsburg); Novato Unified
School District 	(1982) 	PERB Decision No. 	210 at p. 	6 	(Novato).)
The employer may, 	of 	course, 	rebut 	this 	inference 	through
evidence 	showing 	that 	it 	would have 	taken 	the 	complained 	of
action despite 	the 	employee's protected conduct. 	(Healdsburg,
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proposed dec. 	at p. 	47; 	Scotts Valley Union Elementary School
District 	(1994) 	PERB Decision No. 	1052 at pp. 	4-5.)
Here, 	the Board 	finds 	that 	Leonard's April 	1996 	response 	to
the District was 	an exercise 	of 	her right 	to represent 	herself
individually 	in her 	employment 	relations 	with her 	employer.
(EERA sec. 	3543.)4 Further, 	there is no dispute that the
District knew of 	Leonard's April 	1996 	letter. 	Finally, 	the Board
finds 	that 	Mayfield's 	May 	31 	disciplinary memorandum 	constituted
adverse action under EERA section 3543.5(a). 	(See San Diego
Unified School District 	(1980) 	PERB Decision No. 	137 at p. 	18
[noting 	that 	letters 	of 	commendation placed 	in non-strikers
personnel 	files 	constituted harm to strikers]; 	see State of
California 	(Department of 	Parks and Recreation) 	(1983) 	PERB
Decision No. 	328-S at p. 	14 	[finding that written reprimand
circulated 	to 	employee's 	superiors 	was 	adverse 	despite 	the 	fact
that 	it was 	not placed in employee's personnel 	file].)
That 	leaves 	only the question of motive. 	This 	case presents
an unfortunate 	situation wherein both parties 	bear 	some blame.
However, 	the EERA does not 	empower the Board to right 	every
4EERA section 3543 	provides, 	in relevant part:
Public school employees 	. 	. 	. 	shall have
the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with the public 	school 	employer, 	except 	that
once 	the 	employees 	in an appropriate unit
have 	selected an 	exclusive 	representative 	and
it 	has been recognized pursuant 	to Section
3544.1 	or 	certified pursuant 	to 	Section
3544.7, 	no employee 	in that unit may meet and
negotiate with 	the public 	school 	employer.
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wrongful 	act. 	Here, 	the District 	had every right 	to make a
measured response 	to Leonard's April 	1996 	letter. 	The District
had no right, 	however, 	to escalate 	the 	conflict 	from disagreement
to discipline. 	Although the District 	retains 	the 	right 	to
discipline 	even 	the most 	active union members 	and officers 	for
their misconduct 	in spite 	of 	the protected activity, 	the District
may not 	discipline 	even 	the 	least 	active 	of 	its 	employees 	because
they 	engaged 	in protected 	activity.
As both the ALJ and the 	dissent point 	out, 	direct 	evidence
of unlawful motivation is 	rare. 	Accordingly, 	the Board
ordinarily 	relies 	on 	circumstantial 	evidence 	to 	determine 	whether
there 	is 	a 	sufficient 	connection between 	the 	employee's 	protected
activity and 	the District's 	decision 	to 	impose 	adverse 	action.
(See, 	e.g., 	Novato at p. 	7; 	cf., 	Yolo County Superintendent of
Schools 	(1990) 	PERB Decision No. 	838 at pp. 	7-8 	[finding direct
evidence 	of 	anti-union animus 	vitiated need 	for 	circumstantial
evidence].) 	Here, 	however, 	Mayfield issued the May 31
disciplinary memorandum, 	"in response to 	[Leonard's] 	letter,
dated April 	26, 	1996." 	Because Mayfield 	issued 	the 	disciplinary
memorandum as 	a direct 	response 	to 	Leonard's protected activity,
we 	find 	it 	unnecessary to 	resort 	to 	circumstantial 	evidence 	to
establish the 	requisite nexus 	between the 	two.
We 	note 	that 	the District 	has 	failed 	to provide 	evidence
demonstrating 	that 	it would have 	issued 	the 	disciplinary
memorandum 	to 	Leonard had 	she 	not 	engaged 	in protected activity.
Accordingly, 	we 	find 	that 	the District violated EERA section
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3543.5(a) 	and 	(b) 	when it 	issued the May 31, 	1996 disciplinary
memorandum 	to 	Leonard.
ORDER
Based on the 	findings 	of 	fact, 	conclusions of 	law, 	and the
entire record in this 	case, 	it 	is 	found that the Alisal Union
Elementary School 	District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA), 	Government Code section
3543.5(a) 	and 	(b) 	when it 	issued the May 31, 	1996 disciplinary
memorandum to Donna Leonard 	(Leonard).
Pursuant to EERA section 3541.5(c), 	it is hereby ORDERED
that 	the District 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM
1. 	Issuing a May 31, 	1996, 	rebuttal 	to a letter
submitted by 	Leonard 	in 	response 	to 	a previously 	received
memorandum of 	warning.
2. 	Denying to 	the Alisal 	Teachers Association,
CTA/NEA 	(Association) 	the 	right 	to 	represent 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE THE 	PURPOSES 	OF THE
EERA:
1. 	Rescind and destroy all 	copies 	of 	the May 31,
1996, 	letter 	from Robert Mayfield to Leonard.
2. 	Delete 	from Leonard's personnel 	file any reference
to the May 31, 	1996, 	letter.
3. 	Within thirty-five 	(35) 	days 	following 	the date
that 	this 	decision is no longer subject 	to reconsideration, 	post
at 	all 	work 	sites 	where 	notices 	are 	customarily placed 	for
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certificated employees, 	copies 	of 	the notice attached hereto as
an Appendix. 	The Notice must 	be 	signed by an authorized agent 	of
the District, 	indicating 	that 	it 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 notice 	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. 	Continue to report, 	in writing, 	to the
regional 	director thereafter as 	directed. 	All 	reports 	to 	the
regional 	director 	shall 	be 	concurrently 	served 	on 	the
Association.
Member Johnson 	joined 	in 	this 	Decision.
Chairman Caffrey's 	dissent begins 	on page 	9.
8
8

CAFFREY, 	Chairman, 	dissenting: 	The Alisal Union Elementary-
School District 	(District) 	did not violate 	section 3543.5(a) 	and
(b) 	of the Educational Employment Relations Act 	(EERA) 	when it
issued a May 31, 	1996, 	rebuttal 	to a 	letter submitted by Donna
Leonard 	(Leonard) 	in response 	to a memorandum of warning 	she
received 	from the District.
DISCUSSION
In 	order 	to 	establish 	that 	an employer has 	engaged 	in
unlawful 	retaliation or discrimination 	in violation of 	EERA
section 3543.5, 	the 	charging party must demonstrate 	that 	the
employee 	engaged 	in protected activity; 	the 	employer was 	aware 	of
that activity; 	the 	employer took action adverse 	to the employee;
and 	the 	employer's 	conduct 	was motivated by 	the 	employee's
protected conduct. 	(Novato Unified School District 	(1982) 	PERB
Decision No. 	210 	(Novato).)
The 	record 	in 	this 	case 	reveals 	that 	Leonard 	served as
president 	of 	the Alisal 	Teachers Association, 	CTA/NEA
(Association) 	in 1993-94. 	Leonard was given a memorandum of
warning by the District 	on January 	13, 	1995, 	for unprofessional
and disruptive 	conduct on December 9, 	1994, 	in the District's
business 	office. 	Leonard responded to 	the memorandum of warning
on January 25, 	1995, 	and included the assertion that 	it was
issued because 	of 	a pending grievance 	filed by 	the Association.
On February 17, 	1995, 	the Association filed an unfair practice
charge alleging 	that 	the District's memorandum of warning
constituted 	unlawful 	retaliation.
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After several 	days 	of 	formal 	PERB hearing, 	the Association
and the District on February 27, 	1996, 	discussed settlement 	of
the unfair practice 	charge. 	The 	charge was not 	settled, 	but 	the
Association withdrew 	the 	charge 	and 	indicated 	that 	Leonard would
submit an additional 	response to the January 13, 	1995, 	memorandum
of 	warning. 	The District 	agreed that 	Leonard had 	the 	right 	to
submit 	the additional 	response.
On April 	26, 	1996, 	Leonard submitted a letter listing as 	its
subject 	the withdrawn 	PERB unfair practice 	charge. 	The 	document
is a seven-page 	"additional 	response" 	to the January 13, 	1995,
memorandum of warning. 	The 	letter makes 	extensive 	reference 	to
the 	PERB 	formal 	hearing and 	indicates 	that 	the Association's
withdrawal 	of 	the unfair practice 	charge 	should not 	be
interpreted as 	an admission 	that 	Leonard acted 	in an
unprofessional 	or improper manner during the December 9, 	1994,
District business office 	incident. 	Leonard's April 26, 	1996,
letter asserts 	that 	the memorandum of 	warning 	contains 	gross
exaggerations 	and 	inaccuracies.
On May 31, 	1996, 	the District sent Leonard an eight-page
letter responding 	to her April 	26 	letter. 	The District 	rebuts
the assertions 	included 	in Leonard's April 	26 	letter and
chastises 	her 	for 	failing 	to acknowledge 	the problem with her
conduct. 	The District 	informs 	Leonard that 	if 	her objectionable
conduct 	recurs 	"more 	serious 	disciplinary action" 	could 	result,
and indicates 	that 	the May 31, 	1996, 	letter would be placed in
Leonard's personnel 	file.
10

On July 19, 	1996, 	the Association filed the 	instant unfair
practice 	charge alleging that 	the District's May 31, 	1996, 	letter
constitutes 	unlawful 	discrimination against 	Leonard and
interference 	with her EERA-protected 	rights. 	A PERB
administrative 	law judge 	(ALJ) 	dismissed the discrimination
allegation but 	found 	that 	the 	District 	interfered with 	Leonard's
protected rights 	in violation of EERA section 3543.5(a) 	and 	(b).
After reviewing 	the District's 	appeal 	of 	the ALJ's 	decision,
the majority 	concludes 	that 	the 	District 	unlawfully 	interfered
with 	EERA-protected 	rights, 	and unlawfully discriminated against
Leonard 	for her 	exercise 	of 	protected activity. 	While 	commenting
that 	this 	case 	"presents 	an unfortunate 	situation wherein both
parties 	bear 	some blame" 	and 	finding 	that 	the District 	"had every
right 	to make a measured response 	to Leonard's April 	1996
letter," 	the majority concludes:
The District had no right, 	however, 	to
escalate 	the 	conflict 	from disagreement 	to
discipline.
I 	disagree with 	the majority's 	conclusion.
Applying the Novato 	test 	to the 	circumstances 	of 	this 	case,
the 	specific 	protected activity 	on which 	the unlawful
discrimination allegation 	is 	based 	is 	Leonard's 	filing 	of 	the
April 	26, 	1996, 	additional 	response to the memorandum of warning
she received on January 13, 	1995. 	It 	is undisputed that 	the
District was 	aware 	of 	this 	conduct.
The District asserts that 	its May 31, 	1996, 	rebuttal 	letter
does 	not 	represent 	additional 	discipline 	or adverse 	action
11

against 	Leonard, 	but 	a continuation of 	the 	discipline process
resulting from the December 9, 	1994, 	incident. 	While the
District's 	letter 	includes 	a 	reiteration of 	the 	concerns 	with
Leonard's 	conduct, 	it also 	includes an admonition concerning
possible 	future 	discipline 	and was 	placed 	in Leonard's 	personnel
file. 	As was 	noted 	in Palo Verde Unified School 	District 	(1988)
PERB Decision No. 	689, 	the question of whether an employer took
action adverse 	to 	an 	employee may be 	inseparable 	from the
question of 	the employer's motivation for its 	conduct. 	(Wright
Line. 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM 1169], 	enforced 	(1st
Cir. 	1981) 	662 	F.2d 899 	[108 LRRM 2513]; 	NLRB v. 	Transportation
Management Corp. 	(1983) 	462 U.S. 	393 	[113 LRRM 2857], 	revd. 	(1st
Cir. 	1982) 	674 	F.2d 130 	[109 	LRRM 3291].) 	That 	is 	the situation
in this 	case which 	turns 	on the 	question of 	whether the
District's 	action was 	motivated by 	Leonard's 	protected activity.
If 	it was, 	the District's action was unlawful. 	If the District's
action was 	not motivated by Leonard's 	protected activity, 	it 	was
not unlawful 	even though 	it may have been adverse 	to Leonard.
As 	stated by 	the majority, 	an employer may 	take 	adverse
action against 	an employee 	engaged 	in protected activity, 	but may
not 	do 	so because 	the 	employee 	engaged 	in protected activity.
While acknowledging this policy, 	the majority ignores 	it and
fails 	to 	offer a 	specific analysis 	to 	support 	its 	conclusion 	that
the District's motivation was unlawful. 	Instead, 	the majority
considers 	the 	fact 	that 	the District's 	conduct was 	in response 	to
a 	letter Leonard had the 	right 	to 	submit, 	sufficient 	to 	satisfy
12

the unlawful motivation element 	of 	the Novato 	standard. 	However,
it 	is 	settled 	law that participation 	in protected activity does
not 	insulate 	or 	immunize 	an employee 	against 	employment 	decisions
made by the 	employer, 	including adverse actions. 	(Martori
Brothers Distributors v. 	Agricultural 	Labor Relations 	Board
(1981) 	29 Cal.3d 721, 	730-731 	[175 Cal.Rptr. 	626].) 	Therefore,
the 	fact 	that 	the District's May 31, 	1996, 	letter was 	in response
to Leonard's April 26, 	1996, 	letter does not, 	ipso facto, 	lead to
the 	conclusion that 	the District was unlawfully motivated. 	The
Board must 	fully apply the Novato 	standard 	to determine whether
the 	District's 	action was motivated by Leonard's 	exercise 	of
protected 	conduct.
An examination of Leonard's April 	26, 	1996, 	letter reveals
that 	it was prepared by the Association's 	legal 	counsel. 	The
letter makes 	extensive 	reference 	to 	the 	PERB proceeding 	relative
to 	the withdrawn unfair practice 	charge. 	Leonard asserts 	that
the 	District's 	memorandum of 	warning 	"contains 	gross
exaggerations 	and 	inaccuracies." 	She also alleges 	that 	the
District 	violated both a witness 	sequestration 	order during 	the
PERB proceeding, 	and the 	terms 	of 	the 	settlement agreement 	in a
previous 	unfair practice 	charge.1
Not 	surprisingly, 	the District 	turned to 	its 	legal 	counsel
to draft 	a rebuttal 	to Leonard's 	letter. 	The 	result 	is 	the
lI note 	that 	the 	"escalation" 	of 	the 	conflict 	in this 	case,
which is 	of 	concern to the majority, 	appears 	to have been
initiated by 	Leonard with 	the 	introduction 	of 	allegations 	of
District misconduct 	not directly related to the December 9, 	1994,
incident 	or District memorandum of 	warning.
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eight-page May 31, 	1996, 	letter which rebuts every assertion
included 	in Leonard's 	letter, 	reiterates 	the District's 	concerns
with Leonard's 	conduct, 	and warns her about 	further discipline 	if
that 	conduct 	recurs.
The majority does 	not 	dispute 	that 	the District 	had 	the
right 	to 	respond to Leonard's 	letter. 	Principles 	of personnel
management may 	suggest 	that 	a 	somewhat more 	"measured 	response"
from the District, 	in the words of 	the majority, 	would have been
more appropriate. 	But 	PERB has 	declined to 	function as 	the
evaluator of management practices, 	concluding that 	the 	fact 	that
personnel 	practices 	have not been exemplary 	is 	insufficient 	to
raise 	the 	inference 	that 	protected activity motivated 	the
employer's 	action. 	(San Diego Unified School 	District 	(1991)
PERB Decision No. 	885.) 	Therefore, 	the adversarial nature of the
District's 	response 	is 	not 	sufficient 	to 	support 	a 	finding 	that
it 	was unlawfully motivated.
The ALJ applied 	the 	Novato 	standard 	and determined 	that
there 	was 	insufficient 	evidence 	to 	support 	the 	conclusion 	that
discrimination against 	Leonard 	for her 	exercise 	of 	protected
conduct was 	the motive 	for 	the District's 	action. 	Direct proof
of unlawful motivation is not 	often present. 	The Board reviews
the 	record as 	a whole 	to determine 	if 	the 	inference 	of unlawful
motive 	should be drawn. 	Factors 	that may support 	such an
inference are 	the 	timing 	of 	the 	employer's 	adverse 	action 	in
relation 	to 	the 	employee's protected conduct; 	disparate 	treatment
of 	employees 	engaged 	in protected activities; 	the employer's
14

departure 	from established procedures; 	the 	employer's
inconsistent 	or shifting 	justification 	for the 	conduct; 	and 	the
employer's 	failure 	to 	investigate 	charges 	of 	improper activity
before 	imposing 	a penalty against 	an 	employee 	engaged 	in
protected conduct. 	(Novato: 	Riverside Unified School District
(1987) 	PERB Decision No. 	639.)
Timing 	cannot be a 	significant 	factor 	in 	this 	case 	since 	the
District's 	letter, 	as a response to Leonard's letter, 	of
necessity was 	issued 	in 	close 	temporal 	proximity. 	As 	noted by
the ALJ, 	there 	is 	no evidence 	of disparate 	treatment 	of 	Leonard,
inconsistent 	explanations by the District, 	departure 	from
established procedures, 	or other indicators 	of unlawful
motivation under Novato. 	On the 	contrary, 	the 	record reveals
that 	the 	District 	acknowledged Leonard's 	right 	to 	file 	the
additional 	response. 	Further, 	there 	is no assertion that
Leonard's 	first 	response 	to the memorandum of warning, 	which she
submitted on January 25, 	1995, 	prompted any response 	from the
District, 	adverse or otherwise. 	The evidence presented by the
Association does 	not 	support 	the 	inference 	that 	the District's
conduct 	was 	unlawfully motivated.
The 	totality of 	the 	record leads 	to 	the 	conclusion 	that 	the
District was motivated, 	not by Leonard's 	exercise of her
protected 	right 	to 	submit 	an additional 	response 	to 	the
memorandum of 	warning, 	but by the desire 	to 	respond 	to 	the
detailed and 	extensive 	arguments 	and allegations 	included 	in
Leonard's 	letter. 	It was not 	Leonard's 	exercise 	of 	the 	right 	to
15

submit 	the 	letter which motivated the District, 	it was 	the
assertions 	and allegations 	included within 	the 	letter which
prompted 	the District 	to 	issue an aggressive 	rebuttal. 	While 	it
can be 	debated whether the 	District 	could have 	chosen a more
appropriate method of 	responding to Leonard's 	allegations, 	that
debate does 	not 	lead to 	the 	conclusion that 	the District's
conduct 	was 	unlawfully motivated.
In summary, 	because 	it has 	not been demonstrated that
discrimination 	or 	retaliation against 	Leonard 	for 	her 	exercise 	of
protected activity was 	the motivation 	for 	the 	District's 	action,
the District did not violate EERA section 3543.5(a) 	and 	(b) 	when
it 	issued the May 31, 	1996, 	rebuttal letter.
Turning 	to the Association's 	interference allegation, 	the
Board 	in Carlsbad Unified School 	District 	(1979) 	PERB Decision
No. 	89 	(Carlsbad) 	established its 	standard for considering
charges 	that 	the 	employer's 	conduct 	interfered with protected
rights. 	Under Carlsbad, 	the 	charging party must 	show that 	the
employer's 	conduct 	tends 	to or does 	result 	in harm to protected
employee 	rights. 	If 	the harm is 	slight and the 	employer's
conduct 	is 	justified based on operational 	necessity, 	the
competing 	interests 	of 	the 	employer and employee 	are balanced 	to
resolve 	the 	charge. 	If 	the harm is 	inherently destructive of
protected employee 	rights, 	the employer's 	conduct 	is 	excused only
by 	showing 	that 	it 	resulted 	from circumstances 	beyond 	the
employer's 	control 	and no alternative 	course 	of 	action was
16

available. 	Proof 	of unlawful 	employer motivation 	is 	not 	required
in 	interference 	cases. 	(Novato.)
Applying 	this 	standard, 	the ALJ concluded that 	the
District's May 31, 	1996, 	letter harmed protected rights by
causing a 	chilling 	effect 	on 	the 	submission by employees 	of
responses 	to negative personnel memoranda. 	The ALJ 	found no
significant 	business 	justification 	for 	the District's 	action and,
therefore, 	concluded 	that 	the District 	unlawfully 	interfered with
protected employee 	rights 	in violation 	of 	EERA section 	3543.5(a)
and 	(b). 	The majority concurs 	in this 	finding without 	comment.
I 	disagree.
In my view, 	there has been no 	showing of 	harm to 	employee
protected rights 	by the Association. 	The 	"chilling effect" 	found
by the ALJ 	is 	speculative and conjectural. 	As 	noted by the ALJ,
there 	is 	no evidence 	that 	the District has 	ever, 	previously or
subsequently, 	issued any other 	rebuttal 	to an employee's 	response
to a memorandum of warning. 	The 	record 	indicates 	that 	Leonard's
first 	response 	to 	the memorandum of 	warning did not 	elicit 	a
response 	from the District. 	Additionally, 	the District
acknowledges 	the 	right 	of 	employees 	to 	submit 	a 	response,
including a 	second response, 	to a District memorandum of 	warning.
I 	find no 	evidence 	to 	suggest 	that 	any employee 	has 	actually been
dissuaded 	or discouraged 	from responding 	to 	a 	negative 	personnel
memorandum as a result of the District's May 31, 	1996, 	letter.
With regard to Leonard, 	it 	is 	clear that 	she has not been
dissuaded by 	the 	District's 	conduct 	from pursuing 	other protected
17

rights, 	including the 	right 	to 	file an unfair practice 	charge
alleging 	that 	the District 	acted unlawfully.
Since 	the Association has 	not 	established 	that 	the
District's 	conduct 	harmed 	or 	tended 	to 	harm protected 	employee
rights, 	the Carlsbad test has 	not been met and the District's
action did not 	interfere with protected 	rights 	in violation of
EERA section 3543.5(a) 	and 	(b).
The 	unfair practice 	charge and 	complaint 	in Case
No. 	SF-CE-1901 	should be 	dismissed 	in their entirety.
18

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. 	SF-CE-1901,
Alisal Teachers Association, 	CTA/NEA v. 	Alisal Union Elementary-
School District, 	in which all parties had the right 	to
participate, 	it has been 	found that 	the Alisal Union Elementary
School 	District violated 	the 	Educational 	Employment 	Relations Act
(EERA), 	Government Code section 3543.5(a) 	and 	(b) 	when it issued
a May 31, 	199 6 	disciplinary memorandum to Donna Leonard
(Leonard).
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM
1. 	Issuing a May 31, 	1996, 	rebuttal 	to a letter
submitted by Leonard 	in 	response 	to 	a previously 	received
memorandum of 	warning.
2. 	Denying to the Alisal 	Teachers Association,
CTA/NEA the 	right 	to 	represent 	its members.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE THE 	PURPOSES 	OF THE
EERA:
1. 	Rescind and destroy all 	copies 	of 	the May 31,
1996, 	letter 	from Robert Mayfield to Leonard.
2. 	Delete 	from Leonard's 	personnel 	file any reference
to the May 31, 	1996, 	letter.
Dated: 	ALISAL 	UNION 	ELEMENTARY 	SCHOOL
DISTRICT
By:.
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ALISAL TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
ALISAL UNION ELEMENTARY 	SCHOOL
DISTRICT,
Respondent.
)
)
)
) 	Unfair 	Practice
Case No. 	SF-CE-1901
PROPOSED DECISION
(5/23/97)
)
)
)
)
)
)
)
Appearances: 	Ramon E. 	Romero, 	Attorney, 	for Alisal Teachers
Association, 	CTA/NEA; Lozano, Smith, 	Smith, 	Woliver & Behrens,
by Christopher D. 	Keeler and Steven D. 	Mond, 	Attorneys, 	for
Alisal 	Union Elementary School 	District.
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On July 19, 	1996, 	the Alisal Teachers Association, 	CTA/NEA,
(Association) 	filed an unfair practice 	charge with the 	Public
Employment 	Relations 	Board 	(PERB 	or Board) 	against 	the Alisal
Union Elementary School 	District 	(District). 	The 	charge 	alleged
violations of subdivisions 	(a) 	and 	(b) 	of section 3543.5, 	which
is 	a part 	of 	the Educational 	Employment 	Relations Act 	(EERA or
A c t ) 1
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
All 	section references, 	unless otherwise noted, 	are to the
Government Code. 	Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.

On September 16, 	1996, 	the Office of the General Counsel of
PERB, 	after an investigation of the charge, 	issued a complaint
against 	the 	District 	alleging violations 	of 	the 	same 	subdivisions
of 	section 3543.5. 	On September 25, 	1996, 	the District answered
the 	complaint, 	denying all 	material 	allegations 	and asserting
affirmative 	defenses.
A formal 	hearing was held on December 6, 	1996, 	before 	the
undersigned. 	With the 	filing of 	the briefs by both sides, 	the
case was 	submitted for a proposed decision on May 6, 	1997.
INTRODUCTION
Donna Leonard 	(Leonard), 	a District 	teacher and an ex-
Association president, 	received a written memorandum of warning,
which was placed 	in her personnel 	file. 	She 	submitted a written
response, 	as well 	as 	filing an unfair practice 	charge 	regarding,
its 	issuance. 	After three days of 	formal 	hearing the 	charge was
withdrawn 	and 	Leonard 	submitted an 	additional 	response 	to 	the
memorandum of 	warning based on 	the 	evidence 	educed at 	the 	formal
hearing. 	Shortly thereafter, 	the District 	submitted a rebuttal
to her response. 	She 	contends 	this 	rebuttal was 	inserted in her
personnel 	file 	in 	retaliation 	for her 	submission of 	a 	second
response.
The 	District 	insists 	that 	its 	rebuttal 	was 	necessitated by a
need 	to 	set 	the 	record 	straight 	and 	in 	the 	spirit 	of 	fair warning
and progressive 	discipline. 	It belied this 	action was 	necessary
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by this 	chapter.
22

to 	insure 	that 	Leonard realized the 	original 	memo was 	still 	valid
and not 	disproved by the 	formal 	hearing's 	evidence.
FINDINGS 	OF 	FACT
Jurisdiction
The parties 	stipulated, 	and it 	is therefore 	found, 	that 	the
Association 	is 	both an employee 	organization and an exclusive
representative, 	and the District 	is 	a public 	school 	employer
within the meaning of 	the Act.
Stipulation
The 	parties 	stipulated 	that 	administrative 	notice 	should be
taken of 	the 	entire 	file 	and transcript 	of 	PERB 	Case No. 	SF-CE-
1757, 	a prior case between the parties.
Relevant 	Facts
Leonard 	served as 	the president 	of 	the Association and
personally participated 	in 	the processing of 	at 	least 	eleven
grievances during the 	1993-94 	school year. 	She was 	also 	the
moving party 	in 	several 	unfair practice 	charges 	filed by the
Association 	against 	the 	District.
On or about December 9, 	1994, 	Leonard went 	to the District's
business 	office 	to pick up 	her overload 	stipend paycheck. 	After
examining the 	amount 	of 	the 	check, 	she believed she 	had been
underpaid. 	She 	disagreed with 	the 	computation explanation given
by the 	business 	office 	clerk 	and told her 	the Association would
W
	3

be 	filing a grievance over the matter.2 On December 	12, 	1994,
the Association 	filed 	such a grievance.
On January 13, 	1995, 	Leonard received a memorandum of
warning 	from Assistant 	Superintendent 	Jim Michael 	(Michael). 	The
memorandum 	stated 	that 	she 	conducted herself 	"in 	an
unprofessional 	manner 	and disrupted 	the 	payroll 	office." 	He
stated 	in 	that 	memorandum that 	"[i]n 	the 	future 	you 	are 	expected
to conduct yourself 	as a professional 	in the Business Office.
Failure 	to do 	so may be 	grounds 	for more 	serious personnel
action." 	He 	ended 	the memorandum with the 	following paragraph:
A copy of 	this 	memorandum will 	be 	placed 	in
your personnel 	file 	in 10 	days. 	You have the
right 	to 	respond and have 	that 	response
attached to 	this 	document.
On January 25, 	1995, 	she responded to the memorandum. 	She
stated there 	were 	factual 	inaccuracies 	in Michael's 	memorandum
and that 	he 	"left 	out 	several 	important 	details." 	She 	also
stated that 	the Association's 	grievance 	over the 	alleged
underpayment(s) 	reached the 	superintendent's 	level 	during 	the
week of 	January 13, 	coinciding with the 	time Michael 	issued his
warning. 	She 	concluded with a 	statement 	that Michael's
memorandum was 	a 	result 	of 	the Association's 	grievance 	and
therefore 	constituted an unfair practice.
2Although the parties 	have vastly different 	views 	as 	to
Leonard's behavior 	in the business 	office, 	a resolution of 	such
views 	is 	not necessary to resolve 	the 	issues 	in this 	case. 	A
determination 	she was 	grossly disruptive 	will 	not 	justify 	the
District's 	actions, 	if 	they were not 	otherwise 	legally
authorized. 	Conversely, 	a determination no disruption occurred
would not make 	the District's 	actions 	improper, 	if 	they were
otherwise 	justified.
44

On February 17, 	1995, 	the Association filed unfair .
practice 	charge 	SF-CE-1767 	based on Michael's 	memorandum.
From November 2 0 through 22, 	1995, 	PERB commenced the 	formal
hearing in PERB case SF-CE-1767. 	It was 	then continued .to
February 27, 	1996. 	On that date the parties entered into
settlement 	discussions. 	The 	discussions 	did not 	result 	in a
written agreement. 	However, 	during those 	discussions 	the
Association's 	attorney stated that 	if 	the 	charge was withdrawn,
Leonard would 	submit 	an 	additional 	response 	to Michael's
memorandum. 	The 	District's 	attorney acknowledged that 	she 	had a
right 	to 	such filing. 	That 	same day, 	the Association withdrew,
without prejudice, 	its charge.
On April 	26, 	1996, 	Leonard submitted a seven page
"additional 	response" 	to Michael's 	original 	memorandum of
warning. 	She based it, 	in large part, 	on the record of the
formal 	hearing. 	She 	referenced the 	testimony of 	several 	hearing
witnesses 	to 	support 	her 	contention 	that 	Michael's 	memorandum was
"totally without 	merit." 	She 	included a 	statement 	that 	the
Association's withdrawal, 	without prejudice, 	of 	its unfair
practice 	charge 	"should 	in no way be 	interpreted as 	an 	admission
that 	[she] 	acted unprofessionally nor that 	[she] 	did anything
improper 	in 	[her] 	interaction with District 	business 	office
personnel." 	She 	requested this 	response 	be placed 	in her
personnel 	file 	with Michael's 	memorandum.
55

On May 31, 	1996, 	she received an eight page response 	to her
letter from the director of personnel, 	Robert Mayfield
(Mayfield), which stated:
. 	. 	. 	After reviewing your letter, 	the School
District 	strongly disagrees 	with your view
and apparent 	lack of 	recognition of 	the
problem with your conduct. 	The 	factual 	basis
and 	the 	reasoning behind 	the 	School
District's 	position 	is 	once 	again 	set 	forth
below.
Second, 	your failure 	to take 	responsibility
for your actions 	and the 	adverse 	effect 	that
they may have 	on other 	School 	District
•employees 	is deeply disturbing to 	the 	School
District. 	The purpose of 	the Memorandum of
Warning was 	to 	inform you 	that 	you had hurt
employees 	of 	the Business 	Office by making
them 	feel 	threatened, 	belittled and
incompetent, 	and to encourage you to modify
your behavior 	to 	avoid 	such negative
consequences 	in the 	future. 	The 	School
District 	is 	responsible 	for managing a 	large
number of 	employees 	and takes 	very seriously
its 	responsibility to 	create 	a pleasant 	and
productive work environment. 	Unfortunately,
you have 	consistently 	refused 	to 	admit 	to 	any
wrongdoing on your part.
As 	established at 	the 	formal 	hearing, 	this
was 	not 	your 	first 	conflict 	with another
School 	District 	employee. 	Your history of
confrontation with other 	employees 	is 	well
known 	to 	school 	district 	administrators 	and
employees alike. 	Furthermore, 	given your
proclivity to take the offensive, 	it 	is not
surprising 	that 	upon 	receipt 	of 	the
Memorandum of 	Warning you 	chose 	not 	to
apologize 	to 	the 	classified employees 	who
filed the 	complaints, 	but 	chose 	instead to
attack 	the 	School 	District 	and 	its
administrators. 	The School District,
however, 	believes that you acted
inappropriately 	and 	that 	you 	should 	change
your behavior 	in the 	future. 	Moreover,
civility 	and good manners 	require 	that 	you
66

apologize 	to 	the 	employees 	of 	the business
office. . . .
. 	. 	. 	we are deeply concerned that your
failure 	to 	recognize 	the 	significance 	of 	your
misconduct 	will 	prevent 	you 	from 	changing
your behavior. 	Please understand that 	if
this 	type 	of 	conduct 	recurs you may subject
yourself 	to more 	serious 	disciplinary action.
(Emphasis 	in original.)
Mayfield's 	response 	concluded with the 	following 	sentences:
A copy of 	this 	letter will 	be placed 	in your
personnel 	file 	five 	days 	after receipt 	by
you. 	You may respond and have 	that 	response
attached to 	this 	letter.
Mayfield testified that 	there 	were 	a number of 	reasons 	he
directed the District's 	attorneys 	to draft 	a response 	to
Leonard's 	letter. 	He believed her 	letter had a number of
misrepresentations 	and 	inaccuracies 	and 	that 	it 	was 	important 	to
have 	an accurate 	record. 	The 	District 	also had a 	concern that
she was 	trying 	to disprove 	that 	she 	had demonstrated misconduct
in the business 	office. 	It wanted to make 	sure 	she 	realized that
the 	initial 	warning was 	still 	in effect. 	Mayfield did not
believe that his May 31, 	1996, 	letter, 	in and of itself, 	imposed
discipline 	in addition to 	that 	set 	forth 	in the 	original
memorandum of 	warning.
ISSUE
Did the District violate 	subdivision 	(a) 	or 	(b) 	of 	section
3543.5 when Mayfield issued his May 31, 	1996, 	letter to Leonard?
77

CONCLUSIONS 	OF 	LAW
Discrimination
In Novato Unified School 	District 	(1982) 	PERB Decision No.
210 	(Novato), 	the Board set 	forth the test 	for charges 	alleging
discrimination or retaliation. 	This 	test 	is based on the
National 	Labor Relations Board decision 	in Wright 	Line, 	Inc.
(1980) 	251 NLRB 	1083 	[105 	LRRM 1169] 	enforced in relevant part
(1st Cir. 	1981) 	662 	F.2d 899 	[108 LRRM 2513]. 	Novato requires
proof 	of 	an unlawful 	motive 	to 	find 	a 	discrimination or
retaliation violation. 	In addition, 	a nexus or connection must
be 	demonstrated between 	the 	employer's 	conduct 	and 	the 	exercise
of 	a protected 	right 	resulting 	in harm or potential 	harm to 	that
right.
In order to establish a prima 	facie 	case, 	the 	charging party-
must 	first 	prove 	the 	subject 	employee 	engaged 	in protected
activity.3 Next, 	it must 	establish that 	the 	employer had
knowledge of 	such protected activity. 	Lastly, 	it must prove 	that
the subject adverse action(s) 	were taken, 	in whole or in part, 	as
a 	result 	of 	such protected 	activity.
Proving 	the 	existence 	of 	unlawful 	motivation 	can be 	a
difficult burden. 	The Board acknowledged this when 	it 	stated the
3Section 3543 	grants public 	school 	employees:
. 	. 	. 	the right to form, 	join, 	and
participate 	in the 	activities 	of 	employee
organizations 	of 	their own 	choosing 	for 	the
purpose 	of 	representation on all 	matters 	of
employer-employee relations. 	. 	. 	.
8

following 	in Carlsbad Unified School 	District 	(1979) 	PERB
Decision No. 	89 	(Carlsbad):
Proof 	of 	Unlawful 	Intent 	Where 	Offered or
Required
Unlawful motivation, 	purpose or intent 	is
essentially a 	state of mind, 	a 	subjective
condition generally known 	only 	to 	the 	charged
party. 	Direct 	and affirmative proof 	is 	not
always 	available or possible. 	However,
following 	generally 	accepted 	legal 	principles
the presence of 	such unlawful 	motivation,
purpose 	or 	intent 	may be 	established by
inference 	from the 	entire 	record. 	[Fn.
omitted.]
In addition, 	the Board, 	in Novato, 	set 	forth examples of the
types 	of 	circumstances 	to be 	examined 	in a determination of
whether union animus 	is present 	and a motivating 	factor 	in the
employer's action(s). 	These circumstances are 	(1) 	proximity of
time 	between 	the 	participation 	in protected 	activity 	and 	the
adverse action, 	(2) 	disparate treatment of the affected
employee(s), 	(3) 	inconsistent explanations of the employer's
action(s), 	(4) 	departure from established procedures or
standards, 	and 	(5) 	inadequate investigation(s). 	(See also
Baldwin 	Park Unified School 	District 	(1982) 	PERB Decision No.
221.)
There 	is 	no 	doubt 	that 	Leonard participated 	in protected
activities. 	This was evident both from her tenure 	as 	an
Association 	officer 	and 	her participation 	in various 	unfair
practice 	charges, 	as well 	as her 	involvement 	in numerous
grievances. 	The 	evidence 	clearly shows 	that 	both Michael 	and
Mayfield were 	aware 	of 	her protected activities.
9

. 	Leonard's second response was submitted on April 	26, 	1996,
shortly after the 	formal 	hearing 	in 	PERB 	case 	SF-CE-1767.
Mayfield's 	response was dated May 31, 	1996, 	thirty-five days
after Leonard's 	response. 	Certainly, 	it 	is 	reasonable to assume
any acrimony 	stirred up 	by 	the 	formal 	hearing 	had not 	yet
dissipated. 	The 	fact 	that 	a year 	later 	these matters 	are 	still
being litigated lends weight 	to that 	conclusion. 	However, 	the
Board has 	determined that 	timing 	alone 	cannot 	support 	an
inference 	of 	unlawful 	motivation. 	(Moreland Elementary School
District 	(1982) 	PERB Decision No. 	227.)
With regard to disparate 	treatment, 	there was 	no evidence 	as
to whether 	the 	District 	had ever previously 	issued 	a 	rebuttal 	to
an employee's response to a written warning. 	Therefore, 	in the
absence 	of 	evidence 	showing 	the 	District's 	treatment 	of 	other
employees 	in similar circumstances, 	there was no evidence of 	any
disparate 	treatment 	of Leonard. 	Similarly, 	there was no evidence
regarding 	inconsistent 	explanations 	of 	the 	employer's 	actions,
departure 	from established procedures 	or 	standards, 	nor
inadequate 	investigations.
Due 	to 	the 	submission of 	insufficient 	evidence 	to 	support 	an
inference of unlawful motivation, 	it 	is determined that
discrimination was 	not 	the motive 	for 	the 	issuance 	of 	the
District's 	rebuttal.
Interference
The Board, 	in Carlsbad, 	set 	forth the test 	for an
interference 	charge. 	Unlawful motivation 	is not 	a necessary
10

element 	of 	an interference charge. 	However, 	in order to prove
interference, 	the 	charging party 	must 	show that 	the 	employer's
conduct 	tends 	to or does 	result 	in 	some 	harm to 	employee 	rights
under the Act. 	If 	that 	harm is 	slight 	and the employer 	is
justified by operational 	necessity, 	the 	charge 	is 	resolved by
balancing the 	competing 	interests 	of 	the 	employer 	and 	the
employee. 	If 	the harm is 	inherently destructive of 	employee
rights, 	the 	employer's 	conduct 	is 	excused only upon proof 	that 	it
was 	due 	to 	circumstances beyond its 	control, 	and no alternative
course 	of 	action was 	available.4
In Novato, 	the Board noted that:
A prima 	facie 	charge 	alleging 	interference
was 	established 	in 	Carlsbad by 	facts 	showing
there was 	a nexus between the 	employer's
conduct 	and 	the 	exercise 	of 	a 	right protected
by 	EERA 	A violation 	was 	found
because 	the 	harm to 	employee 	rights
outweighed 	the 	employer's 	proffered business
justification. 	[Emphasis 	in original.]
In this 	case, 	Leonard received one 	letter of warning on
January 13, 	1995. 	In that 	letter she was 	told that 	she 	should
modify her behavior 	and that 	"failure 	to 	do 	so may be 	grounds 	for
more 	serious personnel 	action." 	She 	filed two 	responses 	to 	this
letter. 	The second response, 	on April 	26, 	1996, 	was rebutted by
a 	second 	letter that 	was 	similar but 	more 	extensive 	in that 	it
4The District, 	in its brief, 	contends that the 	facts of this
case 	cannot 	support 	an 	interference 	charge 	as 	they affect 	only
one employee. 	Irrespective of 	the questionable 	legal
justification of 	this view, 	the District's 	action 	in issuing a
rebuttal 	to an employee's 	response 	to a warning letter, 	could
reasonably create a chilling effect 	on all 	employees, 	not 	just
Leonard.
11

included 	several 	charges 	and negative 	comments 	not 	found 	in 	the
first 	letter.
One 	such charge was 	that 	the 	District 	was 	"deeply disturbed"
by her 	"failure 	to 	take 	responsibility for 	[her] 	actions 	and
the 	adverse 	effect 	that 	they may have 	on other 	School 	District
employees 	. 	. 	. 	." 	This would suggest that, 	in addition to being
disruptive, 	she 	is guilty of 	not 	admitting to 	such disruption.
A second 	charge 	is 	that 	her 	"history of 	confrontation with
other 	employees 	is well 	known to 	school 	district 	administrators
and employees 	alike." 	This would seem to 	add a 	charge 	of
continual 	confrontation 	toward other 	employees 	to 	the 	charges 	set
forth 	in Michael's 	initial 	memorandum.
The 	third 	is 	a 	charge 	she 	has 	a 	"proclivity to 	take 	the
offensive," 	hardly a desirable quality for any teacher, 	but
especially an 	elementary 	school 	teacher.
A fourth negative 	comment 	states 	that 	she 	has 	displayed 	a
failure 	of 	"civility and good manners" 	because 	she 	failed 	to
apologize 	to the 	affected business 	office 	employees. 	Once 	again,
not 	a 	desirable quality for a 	teacher.
Whether 	this 	constitutes 	"harm" 	by the District 	is
determined by an objective 	standard. 	(Palo Verde 	Unified 	School
District 	(1988) 	PERB Decision No. 	689.) 	The second letter in her
personnel 	file was 	eight 	single 	spaced pages. 	It 	contained a
detailed rebuttal 	as well 	as 	additional 	charges 	and negative
comments. 	It constitutes, 	by any objective standard, 	harm to
her.
12

The 	only reason 	for the 	District's 	rebuttal 	was 	the
submission of 	her April 	26 	letter, 	a 	letter she had every right
to 	submit. 	The 	logical 	result 	of 	the placement 	of 	the 	second
letter 	in her personnel 	file 	is 	to 	suggest 	to 	a 	reviewer that 	she
committed 	improprieties 	over 	and 	above 	those 	referenced 	in 	the
original 	letter. 	The 	fact 	that 	the 	second letter 	is 	longer, 	more
detailed, 	and 	includes 	additional 	charges 	and negative 	comments
supports 	this 	conclusion. 	Its 	effect 	is 	to make 	clear to Leonard
that 	exercising her right 	to 	submit 	a rebuttal 	to a District
memorandum of 	warning will 	cause 	her 	to 	receive 	a 	second 	letter,
one more 	damaging than the 	first. 	The 	District's 	actions 	clearly
demonstrate 	harm 	to 	an employee's 	protected 	rights 	under 	the 	Act.
(See Woodland Joint 	Unified School 	District 	(1990) 	PERB 	Decision
No. 	808.)
The 	District 	insisted 	it 	issued 	its 	rebuttal 	because 	her
letter had misrepresentations 	and 	inaccuracies 	in 	it. 	It 	also
wanted to make 	sure 	Leonard realized 	that 	its 	initial 	warning was
still 	in 	effect. 	With regard to 	the 	alleged misrepresentations
and inaccuracies, 	the District has a right,- within the law, 	to
issue whatever memoranda of warning 	it wishes 	to 	its 	employees.
Similarly, 	Leonard has 	a 	right 	to 	submit 	whatever rebuttal 	she
wishes. 	However, 	if 	the District's memorandum interferes with an
employee's rights, 	it violates the Act.
The 	District's 	justification 	for 	an eight 	page 	detailed
rebuttal 	is 	insufficient. 	If 	the District 	believed it was
necessary to 	insure 	that 	Leonard knew that 	its 	initial 	warning
13

was 	still 	in effect, 	and there was no reason for her to believe
it was not, 	it was 	not necessary to 	insert 	a detailed rebuttal
into her personnel 	file. 	It 	merely had to 	send her a one
sentence memo, 	that would not 	go 	in her personnel 	file,
expressing 	that 	view.
A balancing of 	the 	rights 	of 	the parties 	leads 	to a 	clear
conclusion that 	the harm to employee 	rights, 	i.e., 	a chilling
effect 	on the 	submission of 	responses 	to 	a negative personnel
memo, 	outweighs 	the 	employer's proffered business 	justification.
Therefore, 	it 	is determined that 	the District's May 31, 	1996,
letter violates 	subdivision 	(a) 	of 	section 3543.5 	in that 	it
interferes 	with a protected employee 	right.
In addition, 	the 	evidence 	shows 	clearly that Mayfield's
letter 	concurrently 	denied 	to 	the 	Association 	representational
rights guaranteed to 	it by the Act. 	Therefore, 	it 	is also
concluded that 	the District, 	with such letter, 	violated
subdivision 	(b) 	of section 3543.5.
SUMMARY
Based on 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in this case, 	it 	is concluded that 	the
District 	has violated subdivisions 	(a) 	and 	(b) 	of 	section 3543.5
when it 	issued its May 31, 	1996, 	letter to Leonard.
REMEDY
The PERB, 	in section 3541.5, 	is given:
. 	. 	.the power 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
14

limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
In order 	to remedy the unfair practice 	of 	the 	District 	and
prevent 	it 	from benefitting 	from its unfair 	labor practices, 	and
to effectuate 	the purposes of 	the Act, 	it 	is appropriate 	to order
it 	to cease 	and desist 	from 	(1) 	issuing a rebuttal 	to a 	letter
submitted by 	Leonard 	in 	response 	to 	a previously 	received
memorandum of warning, 	and 	(2) 	denying to the Association rights
guaranteed to 	it 	by the Act.
It 	is 	also 	appropriate 	that 	the 	District be 	required to post
a notice 	incorporating the 	terms 	of 	this 	Order at 	all 	sites 	where
notices 	are 	customarily placed 	for 	certificated employees 	of 	the
District. 	This 	notice 	should be 	subscribed by an 	authorized
agent 	of 	the District, 	indicating that 	it will 	comply with the
terms 	therein. 	The notice 	shall not be reduced in size, 	defaced,
altered or 	covered by any other material. 	Posting 	such a 	notice
will 	provide 	employees with notice 	that 	the 	District 	has 	acted 	in
an unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and desist 	from
this 	activity. 	It 	effectuates 	the purposes of 	the Act 	that
employees 	be 	informed of 	the 	resolution of 	the 	controversy and
will 	announce 	the 	District's 	readiness 	to 	comply with the 	ordered
remedy. 	(See 	Placerville Union School District 	(1978) 	PERB
Decision No. 	69.) 	In Pandol 	and Sons v. 	Agricultural 	Labor
Relations Board 	(1979) 	98 	Cal.App.3d 580, 	587 	[159 	Cal.Rptr.
584], 	the California District 	Court of Appeals approved a similar
15

posting requirement. 	(See 	also National 	Labor Relations 	Board v.
Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].)
PROPOSED 	ORDER
Based on the 	foregoing findings of 	fact, 	conclusions 	of 	law,
and the entire 	record in this 	case, 	it 	is 	found that 	the Alisal
Union Elementary School 	District 	(District) 	violated 	subdivisions
(a) 	and 	(b) 	of Government Code 	section 3543.5 of 	the Educational
Employment Relations Act 	(Act). 	Therefore, 	it 	is hereby ORDERED
that the District, 	it administrators, 	and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Issuing a May 31, 	1996, 	rebuttal to a letter
submitted by Donna Leonard 	(Leonard) 	in response 	to 	a previously
received memorandum of 	warning.
2. 	Denying to the Alisal 	Teachers Association,
CTA/NEA, 	the 	right 	to represent 	its unit members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Rescind and destroy all 	copies of 	the May 31,
1996, 	letter 	from Robert Mayfield to Leonard.
2. 	Delete 	from Leonard's personnel 	file 	any reference
to such May 31, 	1996, 	letter.
3. 	Within ten 	(10) 	workdays of 	service of a 	final
decision in this matter, 	post 	at 	all 	sites where notices 	are
customarily placed 	for certificated employees, 	copies 	of 	the
notice 	attached hereto as 	an Appendix. 	The 	notice must 	be 	signed
by an authorized agent 	of 	the 	District, 	indicating that 	it 	will
comply with the 	terms 	of 	this 	Order. 	Such posting 	shall 	be
16

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. 	Upon issuance of 	a 	final 	decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	this 	Order 	to
the 	San 	Francisco 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with her 	instructions. 	Continue 	to
report, 	in writing, 	to the regional director thereafter as
directed. 	All 	reports 	to 	the 	regional 	director 	shall 	be
concurrently 	served on the 	charging party herein.
It 	is 	further Ordered that 	all 	other aspects 	of 	the 	charge
and 	complaint 	are 	hereby DISMISSED.
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
2 0 	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 Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before 	the close of business 	(5 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 Regs., 	tit. 	8,
17

sec. 	32135; 	Code Civ. 	P r o c , 	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 Regs., 	tit. 	8, 	secs
32300, 	32305 and 32140.)
Allen 	R. 	Link
Administrative 	Law 	Judge
18