Fall River Joint Unified School District (PERB 1259E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FALL RIVER EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
FALL RIVER JOINT UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. 	SA-CE-1712
PERB Decision No. 	1259
April 	8, 	1998
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Appearances; 	California Teachers Association by Diane Ross,
Attorney, 	for Fall River Education Association, 	CTA/NEA; 	Pinnell
and Kingsley by Paul Nicholas Boylan, 	Attorney, 	for Fall 	River
Joint 	Unified School 	District.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the Fall 	River Joint Unified School District 	(District) 	and the
Fall 	River Education Association, 	CTA/NEA 	(FREA) 	to a proposed
decision by a PERB administrative 	law judge 	(ALJ). 	The ALJ 	found
that 	the 	District 	retaliated against 	teacher John 	Lennon 	(Lennon)
for his 	exercise 	of 	rights 	protected by the 	Educational
Employment Relations Act 	(EERA), 	unilaterally changed its
contractual 	policy governing 	involuntary 	transfers 	of 	teachers,
and unilaterally 	implemented 	a 	teacher 	swap 	program without
providing 	FREA with notice 	or 	the 	opportunity 	to bargain 	over 	the
decisions 	or 	their effects, 	thereby violating EERA

section 3543.5(a), 	(b) and (c).1
The Board has 	reviewed 	the 	entire 	record in 	this 	case,
including 	the proposed decision, 	the 	hearing 	transcript 	and 	the
filings 	of 	the parties.2,3 The 	Board 	concludes 	that 	the District
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 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or reemployment.
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
2FREA argues 	that 	the District's 	exceptions 	filed on
June 25, 	1997, 	were untimely. 	Following the granting of
extensions of time, 	the PERB appeals assistant set June 20, 	1997,
as 	the 	final 	filing date 	for exceptions. 	Applying the 	five-day
extension provided by 	PERB Regulation 32130(c) 	and established
PERB practice and policy, 	the appeals 	assistant 	correctly
accepted the District's June 25, 	1997, 	exceptions as timely
filed. 	FREA's 	argument 	is 	rejected.
3The District 	requests 	that 	PERB 	take 	judicial 	notice 	of 	the
deposition of Donald Mason 	(Mason) 	in a separate proceeding. 	The
Board may use 	its 	discretion 	to 	exclude 	evidence which adds
nothing of probative value 	to the 	record. 	(The Regents 	of 	the
University of 	California. 	University of 	California at 	Los Angeles
Medical 	Center 	(1983) 	PERB Decision No. 	329-H.) 	Mason testified
at 	the PERB hearing 	in this matter, 	and the District has 	failed
to adequately explain 	the 	probative value 	of 	Mason's 	deposition
to the unfair practice proceeding. 	Therefore, 	the Board declines
to 	take 	judicial 	notice 	of Mason's 	deposition.
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did not 	retaliate 	against 	Lennon 	for his 	exercise 	of 	EERA-
protected conduct, 	and did not unilaterally change 	its
contractual 	policy governing 	the 	involuntary 	transfer 	of 	teachers
in violation of 	the EERA. 	The Board 	further concludes 	that 	the
District 	unilaterally 	implemented 	a 	teacher 	swap 	program without
providing 	FREA with notice 	or 	the 	opportunity 	to bargain 	over 	the
decision or 	its 	effects, 	and 	thereby violated EERA section
3543.5(a), 	(b) 	and 	(c).
BACKGROUND
The District 	is 	a public 	school 	employer within the meaning
of 	EERA, 	and FREA is 	the 	exclusive 	representative 	of 	certificated
employees within the District. 	The District and FREA are parties
to a 	collective bargaining agreement 	(CBA) 	with a negotiated term
of July 1, 	1994 	to June 30, 	1997. 	The CBA provides 	for a
grievance 	procedure 	which 	culminates 	in advisory arbitration.
The 	CBA also 	contains 	a provision 	concerning 	transfer and
reassignment procedures. 	Article 	10.4 provides 	for 	involuntary
transfers/reassignments 	and 	states:
10.4.1 	A unit member who does 	not 	request 	a
transfer/reassignment 	may 	not 	be
transferred/reassigned 	until 	given 	an
opportunity 	(written 	communication 	or a
telephone call, 	if the unit member is not
available 	for a personal 	interview) 	for a
meeting with 	the 	Superintendent 	to 	discuss
the 	reasons 	for the 	transfer/reassignment.
The unit member 	shall 	also be 	given 	the
opportunity 	to 	apply and be 	considered 	for
any vacancy 	for which he/she 	is 	qualified
which may be available at 	the 	time of 	the
impending 	transfer/reassignment.
10.4.2 	In making 	a 	transfer/reassignment 	not
requested by a unit member, 	the District
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shall 	apply the 	following 	criteria 	to 	the
District-wide pool 	of unit members who meet
the 	credential 	requirements: 	length of
District 	service 	(seniority), 	major and minor
fields of study, 	credentials, 	and experience.
The 	least 	senior unit member would be 	so
transferred/reassigned unless 	the 	District
determines 	that 	the 	other 	cited 	factors
outweigh the 	sole 	factor of 	seniority.
If 	the District 	determines 	to transfer/
reassign a unit member who 	is 	not 	the 	least
senior District-wide, 	a written statement 	of
reasons 	may be 	requested by 	either 	FREA
and/or the affected unit member(s).
The District 	shall 	provide 	the written
statement of reasons, 	if requested, 	for any
voluntary 	transfer/reassignment.
10.4.3 	Unit members who are 	to be
involuntarily 	transferred/reassigned 	shall 	be
notified by June 	30, 	except 	in the event 	of
such 	factors as 	stated 	in Section 	10.3.7
above. [4
]
10.4.4 	An 	involuntary 	transfer/reassignment
may be made 	for any 	reason 	that will 	be 	in
the best 	interests 	of 	the District's
educational program. 	No 	transfer/
reassignment may be made 	arbitrarily,
capriciously, 	or discriminatorily.
Additionally, 	Education Code section 35035 provides, 	in
pertinent part:
The 	superintendent 	of 	each 	school 	district
shall, 	in addition to any other powers and
duties 	granted to 	or 	imposed upon him or her:
(c) 	Subject to the approval 	of 	the governing
board, 	assign all 	employees 	of 	the district
employed 	in positions 	requiring 	certification
qualifications, 	to the positions 	in which
they are 	to serve. 	This power to assign
includes 	the power 	to 	transfer a 	teacher 	from
one 	school 	to another at which the 	teacher 	is
4Article 	10.3.7 	lists 	factors 	"such as death, 	unexpected
enrollment, 	or other circumstances."
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certificated 	to 	serve 	within 	the 	district
when 	the 	superintendent 	concludes 	that 	the
transfer is 	in the best 	interest 	of 	the
district.
(d) 	Upon adoption, 	by the district board, 	of
a 	district 	policy 	concerning 	transfers 	of
teachers 	from one 	school 	to another 	school
within the district, 	have authority to
transfer 	teachers 	consistent 	with 	that
policy.
The District 	operates 	Fall 	River High School, 	Fall 	River
Elementary School, 	Burney High School, 	East Burney Elementary
School, 	Mt. 	Burney Elementary and Mountain View High School. 	In
the 	1993-94 	school year, 	Earnest Graham 	(Graham) 	became
superintendent of 	the District. 	Ed Traverso 	(Traverso) 	is 	the
assistant 	superintendent 	who 	is 	responsible 	for 	the District's
special 	education program, 	as well 	as 	its personnel 	function.
Don Sandberg 	(Sandberg) 	became 	interim principal 	of 	Fall 	River
High School 	in January 1992 	and was 	formally designated as
principal 	in May or June of 	that year. 	Dennis Riley 	(Riley) 	is
principal 	of 	the 	Fall 	River Elementary School. 	For some 	four or
five years prior to the 	1995-96 	school year, 	Mason was 	the
resource 	specialist 	teacher at 	Fall 	River Elementary School.
Lennon has been employed by the District 	since 	1968. 	For six or
seven years prior to 	1995-96, 	he served as 	a resource 	specialist
teacher 	in the 	special 	education department 	at 	Fall 	River High
School.
Since 	Sandberg became principal 	at 	Fall 	River High 	School
during the 	1991-92 	school 	year, 	the 	relationship between Sandberg
and Lennon has 	become 	increasingly difficult 	and 	strained.
un	
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In 1991, 	a policy of 	"mainstreaming" 	special 	education
students 	was 	implemented by Sandberg's 	predecessor as 	principal.
Under this policy, 	special 	education students 	were moved 	into
regular 	classes wherever possible, 	rather 	than assigned to
classes 	consisting 	entirely of 	other 	special 	education 	students.
Prior to this 	change, 	Lennon had up to 50 	students 	in his 	special
education classroom. 	After implementation of mainstreaming, 	he
would go 	to 	regular 	classrooms 	to 	assist 	teachers 	in working with
special 	education students.
This policy change was 	not 	in the 	school 	site plan nor had
the 	site 	council been advised at 	the 	time of 	the 	change. 	As 	a
result 	of 	his 	concerns with the new policy, 	Lennon 	complained to
the California Department of Education 	(DOE). 	It was at
approximately 	this 	time 	that 	Sandberg became 	the 	interim
principal 	at 	Fall 	River High School. 	In connection with the DOE
review which resulted 	from Lennon's 	complaint, 	Lennon accused
Sandberg 	of 	altering 	the 	date 	of 	a document 	and of 	fabricating a
memorandum. 	The 	report prepared by DOE, 	issued on March 12,
1993, 	found that 	the District 	had 	failed to 	include 	the high
school 	site 	council 	in the policy 	change 	during 	the 	1991-92
school 	year. 	The 	report 	indicated that 	the high school
subsequently 	corrected 	the 	problem.
During the 	1991-92 	school year, 	Lennon received a letter of
reprimand 	from Sandberg as 	a 	result 	of 	a parent 	complaint
concerning 	the 	special 	education program at 	Fall 	River High
School. 	Lennon filed a grievance, 	and the 	reprimand and related
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documents were 	sealed in 	1993 	as 	a 	result 	of 	a 	settlement 	of 	that
grievance.
In 	1992, 	Lennon declined Sandberg's 	request 	to prepare a
recommendation 	concerning 	an aide 	in 	the 	special 	education
program. 	Lennon 	felt 	that he was 	not 	the aide's 	supervisor 	since
the 	aide 	was 	primarily assigned 	to 	assist 	regular 	classroom
teachers who had special 	education students 	in their classes.
Sandberg wrote 	Lennon a note 	regarding his 	responsibility, 	and
further wrote 	to Traverso 	regarding 	Lennon's 	refusal 	to prepare
the 	recommendation.
Sandberg 	evaluated Lennon 	for 	the 	1992-93 	school 	year,
rating him as 	"meets 	standards."
In late 	1993 	or very early 	1994, 	Lennon met with Graham and
related 	several 	concerns 	he had, 	including some 	regarding
Sandberg. 	These 	concerns 	included Sandberg's 	participation 	in a
football 	fantasy league at 	the high school. 	Sandberg had
rebuffed efforts 	to have student 	raffles at 	the 	school, 	and
Lennon thought 	that 	constituted a dual 	standard. 	Graham wrote 	to
Lennon 	later 	informing him that 	he 	had 	instructed 	Sandberg 	to
keep 	the 	football 	fantasy 	league activity 	off 	of 	the 	school
grounds.
Lennon 	requested 	the 	installation of 	special 	door knobs 	for
his 	classroom. 	Sandberg believed 	the door knobs were 	too
expensive and unnecessary. 	Lennon was 	unhappy with 	Sandberg's
response 	to his 	request.
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Sandberg was 	concerned because 	he believed Lennon was
working 	on 	establishing 	a 	charter 	school 	without 	consulting 	with
Sandberg.
At approximately this point, 	Lennon's 	distrust 	of Sandberg
reached 	the point 	that he 	decided not 	to 	talk 	to 	him unless
another teacher and/or FREA representative was present. 	Also at
approximately this 	time, 	Lennon indicated to Ron Roberti, 	a staff
consultant 	for the California Teachers Association, 	that 	he
intended to make 	things 	difficult 	for 	the District 	so 	that 	it
might 	decide 	to 	"buy him out."
Lennon came 	to believe 	that 	he needed to 	take action to
protect 	himself 	against 	the District. 	During 	the 	1994-95 	school
year, 	Lennon was 	involved in 	filing six grievances. 	On
September 20, 	1994, 	Lennon and three other teachers 	filed a
grievance 	on alleged 	involuntary 	extra 	duties 	assigned by
Sandberg. 	The matter was 	settled in January of 	1995 without
Lennon's 	concurrence.
On September 29, 	1994, 	Lennon filed a grievance on
Sandberg's 	refusal 	to pay 	for a 	conference 	Lennon attended.
Sandberg 	responded by allowing partial 	payment 	but 	denying 	the
rest 	of 	the 	claim. 	Lennon appealed this 	ruling 	to Graham who
sustained 	Sandberg.
On February 1, 	1995, 	Sandberg 	issued a letter of 	reprimand
to Lennon. 	The 	reprimand was 	for Lennon's 	alleged 	failure 	to
properly execute 	his 	required duties 	as 	a resource 	teacher. 	The
letter of 	reprimand 	indicated 	that 	Lennon had 	failed 	to 	ensure
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compliance with provisions 	of 	a 	student's 	individual 	education
plan 	(IEP) 	by 	failing to 	contact 	or have 	the 	student's 	teachers
contact 	the 	student's mother to discuss 	his progress 	as 	required
by 	the 	IEP. 	Sandberg's 	letter refers 	to a specific 	IEP meeting
held on January 26, 	1995. 	At 	that meeting, 	Sandberg testified,
the parent 	stated 	that 	she believed 	that 	Lennon had 	failed 	in his
responsibility to 	see 	that 	she was 	alerted to 	concerns 	about 	her
child. 	Sandberg 	stated 	that 	District 	philosophy regarding
special 	education 	teachers 	indicated 	that 	Lennon was 	responsible
for 	insuring proper 	communication with 	the parent.
On February 5, 	1995, 	Lennon filed a grievance 	regarding the
letter of 	reprimand. 	The 	remedy he 	requested was 	that 	the
harassment 	of him cease, 	and that 	letters 	of unprofessional
conduct be placed in the guilty party's 	file, 	apparently in
reference 	to Sandberg. 	The grievance was 	appealed to Graham and
FREA settlement 	efforts 	did not 	satisfy 	Lennon.
Also, 	on February 5, 	1995, 	Lennon filed a grievance
regarding Sandberg's 	denial 	of 	Lennon's use 	of personal 	necessity
leave 	to meet with his accountant.
On March 21, 	1995, 	Lennon filed a grievance regarding the
performance 	evaluation given 	to 	him by 	Sandberg 	for 	the 	1994-95
school 	year. 	Sandberg rated Lennon 	"not meeting standards" 	in
pupil progress and communication, 	both as a result 	of 	the parent
complaint. 	Lennon met with Sandberg accompanied by two 	teacher
representatives 	and pointed out 	a 	contract 	requirement 	of
providing 	an 	employee 	with prior notice 	and 	opportunity 	to
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correct 	performance before 	such a 	rating 	could be 	given.
Sandberg 	agreed 	that 	he 	had 	failed 	to 	comply with 	the 	contractual
requirement 	and changed 	the below standard ratings. 	When
Sandberg presented Lennon with 	the 	revised evaluation, 	Lennon
initially 	refused 	to 	sign 	it 	because 	he 	felt 	Sandberg would alter
it 	after 	it 	had been signed. 	Lennon proceeded with the 	grievance
over 	the 	evaluation, 	demanding an apology. 	Sandberg denied 	the
grievance on April 	4, 	1995, 	and Lennon continued to pursue it.
Lennon signed the revised evaluation on April 24, 	1995, 	and
sought 	to pursue 	the 	grievance 	to advisory arbitration. 	FREA
believed a 	fair 	settlement 	had been 	reached and decided not 	to
take 	the 	grievance 	to arbitration.
Finally, 	Lennon filed a grievance on class 	size on June 	1,
1995. 	FREA determined that 	the 	contractual 	timelines 	had not
been 	followed so 	it 	did not pursue 	that 	grievance.
Also, 	sometime during the 	1994-95 	school year, 	Sandberg
asked 	Lennon 	if he wanted 	to move 	to a different 	classroom.
Lennon 	told 	Sandberg 	he 	believed 	it 	would be 	inappropriate 	to
make 	special 	education students 	go 	to 	that 	classroom to 	see 	him
because he 	felt 	it was 	too 	far from their regular classrooms. 	He
threatened Sandberg with a 	complaint 	to 	the DOE 	if 	the move was
required.
Lennon 	testified 	that 	he 	did not 	believe 	that 	Sandberg
properly used 	the 	special 	education department 	at 	Fall 	River High
School. 	He expressed some disdain for Sandberg, 	indicating that
there had been monthly department meetings when there was 	"a 	real
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principal" 	at 	the 	school 	before 	Sandberg assumed that position.
Lennon's 	summary appraisal 	of 	Sandberg as principal 	was 	"he has
some 	shortcomings."
By letter dated June 26, 	1995, 	Graham advised Lennon that:
The District 	has 	determined 	that your
assignment 	for 	the 	1995-96 	school 	year 	shall
be 	as 	a Resource 	Specialist 	Program 	[RSP]
teacher at 	Fall 	River Elementary School.
Also by letter dated June 26, 	1995, 	Graham advised Mason that:
The District has 	determined 	that 	your
assignment 	for 	the 	1995-96 	school 	year shall
be 	as 	a 	Resource 	Specialist 	Program teacher
at 	Fall 	River High School.
Graham's 	letters referred to CBA Article 	10.4, 	cited above, 	and
notified 	Lennon and Mason 	that 	their 	transfer would not 	be
effective 	until 	they had had 	the 	opportunity 	to meet 	with Graham
to discuss 	the 	reasons 	for their transfer. 	Meetings were
scheduled 	for both Lennon and Mason 	to 	discuss 	their 	1995-96
assignments.
Mason learned of 	the possibility 	of 	his 	transfer before 	the
June 	26 	letter was 	issued. 	He met 	with Graham and explained that
he did not want 	to transfer to the high school. 	Because of
Mason's 	previous 	statements 	about 	considering working at 	the 	high
school, 	Graham believed 	that Mason would be pleased with 	the
transfer. 	Mason 	testified 	that 	Graham told him that 	the District
was 	considering 	a possible 	transfer because 	there 	had been 	some
problems 	at 	the 	high 	school 	with Lennon and 	the 	special 	education
program. 	He 	did not mention any other reasons 	for the 	transfer.
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Through his 	attorney, 	Lennon indicated that he wanted a
written 	statement 	of 	the 	reasons 	for the 	transfer. 	Graham
responded to Lennon in an August 4, 	1995, 	letter which indicated:
Your transfer 	is part 	of 	a pilot program
designed 	to 	integrate 	special 	education
curriculum 	from 	the 	elementary 	grades 	through
the 	junior high 	school 	and 	senior high 	school
levels. 	The rationale 	is more 	clearly set
forth 	in 	the 	attached memorandum to me 	from
Ed Traverso dated June 27, 	1995. 	As you can
see, 	the 	two-year pilot program will 	first be
implemented in the 	Fall River end. 	If 	that
pilot program is 	successful, 	it will
subsequently be 	implemented 	in 	the Burney 	end
of 	the District.
Attached to Graham's 	letter was a June 27, 	1995, 	memorandum
from Traverso 	on 	the 	subject 	"Staffing 	for RSP 	for 	1995-96 	School
Year." 	Traverso's memorandum states 	that 	he had 	"tentatively
determined 	that 	the 	RSP 	program would benefit 	from teachers
having 	experience 	at 	both 	the 	elementary and high 	school 	levels."
Traverso 	indicates 	that 	"the 	RSP program would benefit 	from a
two-year 	training and development 	assignment which would 	'swap'
an 	elementary RSP 	teacher with a high 	school 	RSP 	teacher" 	and
replicate 	at 	the high 	school 	the 	Resource 	Specialist 	Program
(RSP) 	in place at 	Fall River Elementary School.
Traverso provides 	three 	reasons 	for 	choosing 	Fall 	River
Elementary and 	Fall 	River High School 	for 	implementation of 	the
proposal:
1. 	At 	the Burney end of 	the District, 	John
Calzia 	is 	the 	Special 	Education Department
Chair and Vickie Mclntosh 	is very 	involved
with 	non-RSP-related 	activities 	at 	Burney
High School. 	Thus, 	for the 1995-96 year, 	a
'swap' of 	either 	Calzia 	or Mclntosh with
Vickie 	Swope would present 	additional
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complications. 	If the 	'pilot' 	program proves
effective, 	we 	should plan 	for such an
exchange 	in 1997-98.
2. 	John Lennon has 	experienced a series 	of
confrontations 	and disagreements 	with 	the
Fall 	River High School 	principal 	over 	the
past 24 months. 	While this 	is affecting the
educational 	program at 	Fall 	River Junior-
Senior High, 	I would probably not urge a
transfer if 	this were 	the 	only factor. 	It
is, 	however, 	a factor in my decision as to
whether the pilot 	'swap' 	should occur first
at 	the Burney end or at 	the 	Fall 	River end.
On balance, 	as an added factor, 	I believe
that 	the program would benefit 	if 	Lennon and
Don Sandberg were 	not 	in a 	supervisor/
employee 	relationship 	for a period of 	time.
3. 	Similar to the rationale 	in #2, 	parents
have 	lodged 	two 	complaints 	against 	Lennon's
activities 	as 	an RSP 	teacher at 	Fall 	River
Junior-Senior High School. 	The problem seems
to be both 	festering 	and 	on-going 	since 	that
child will 	remain 	in 	the RSP program for
1995-96. 	Again, 	on balance, 	I believe that
the program, 	that 	child, 	and Lennon would
benefit 	from a 	'cooling-off' 	period.
Traverso's 	memorandum concludes 	with 	the 	following
recommendation:
Therefore, 	based on all 	the 	information
discussed above, 	it 	is my recommendation that
it would be 	in the best 	interest 	of 	the RSP
program if 	the District were 	to exchange 	the
assignments 	of 	John Lennon and Don Mason 	for
the 	1995-96 	and 1996-97 	school years.
Neither Graham or Traverso 	discussed 	the 	creation and
implementation 	of 	the 	pilot 	swap program with Sandberg 	or Riley,
the principal 	at 	Fall 	River Elementary School, 	or with others 	in
the District. 	It was 	not 	discussed with the District 	curriculum
committee, 	which normally reviewed 	teaching 	strategies 	and 	staff
and subject matter resource 	issues. 	Additionally, 	while 	the
13

activities 	of 	other 	special 	education 	teachers 	were 	referenced 	in
Traverso's memorandum, 	neither Graham or Traverso apparently-
considered 	the 	other activities 	in which 	Lennon and Mason were
involved.
An addendum to the August 2, 	1995, 	personnel 	report 	to the
District's 	board of 	trustees 	included 	reference 	to 	the
involuntary transfers. 	The board of 	trustees 	approved the 	report
in executive session. 	On August 21, 	1995, 	Lennon wrote to the
board 	of 	trustees 	complaining 	that 	the 	open meeting 	law had been
violated with regard to 	the 	approval 	of 	the 	involuntary
transfers. 	Lennon later 	filed a 	lawsuit 	against 	the District 	on
this matter.
On August 	10, 	1995, 	Lennon and Mason filed grievances
challenging 	the 	transfers 	on 	the 	grounds 	that 	they were
arbitrary, 	capricious, 	discriminatory and retaliatory, 	in
violation of 	the parties' 	CBA. 	Mason ultimately withdrew his
grievance. 	Graham responded to Lennon's 	grievance, 	describing 	it
as 	conclusionary and without 	sufficient 	facts 	to 	evaluate 	the
basis 	of 	the alleged contractual violations. 	Graham indicated
that 	Lennon's 	involuntary 	transfer was 	based on 	the 	reasons
included in Traverso's June 27, 	1995, 	memorandum, 	and denied
Lennon's 	grievance.
On September 18, 	1995, 	Graham responded to a September 12
request 	from Lennon 	for 	clarification 	and 	documentation
concerning his 	transfer. 	Graham wrote 	that his decision to
transfer Lennon was 	based upon 	the 	educational 	decision 	that 	the
14

RSP program would benefit 	from teachers 	having 	experience 	at 	both
the 	elementary and high school 	levels. 	Graham wrote:
Thus, 	absent any consideration of affected
teachers, 	I 	determined that 	there would be a
'swap' 	of 	two teachers 	in 1995/96 and two
other teachers 	in 1997/98. 	Only after
arriving 	at 	this 	program decision was
consideration given 	to 	the 	circumstances
affecting each of 	the potential 	transferees.
As you 	can see 	in the Memorandum from Ed
Traverso to me dated June 27, 	1995, 	the
primary 	reason 	for 	selecting you 	and Don
Mason is 	set 	forth in reason number one. 	The
additional 	factors 	set 	forth in reasons 	two
and 	three 	merely 	supplemented 	reason 	number
one.
This 	appears 	to be 	the 	first 	definitive 	statement 	that 	the
District 	had 	implemented a 	special 	education 	teacher 	swap program
which would affect 	other teachers 	in 	future years 	as well.
In September of 	1995, 	Lennon filed a lawsuit against 	the
District 	contending 	that 	it 	had 	"engaged in a 	continuous 	course
of 	harassment" 	against him since at 	least 	the 	1991-92 	school
year.
During 	the 	1995-96 	school 	year, 	Lennon filed a 	complaint
with the United States Department 	of 	Education alleging 	that 	his
transfer was 	in 	retaliation 	for his 	having 	filed a grievance 	on
behalf 	of 	students with disabilities.
The 	District's 	board of 	trustees 	held a meeting 	on August 	7,
1996, 	which 	included an agenda 	item intended to 	cure 	the alleged
open meeting 	law violation asserted by 	Lennon. 	The 	board adopted
a 	resolution which affirmed Graham's 	authority 	to 	create pilot
programs 	and 	involuntarily 	transfer 	teachers. 	The 	resolution
also 	ratified Graham's 	transfer of 	Lennon.
15

Also on August 7, 	1996, 	Constance Sebastian, 	president of
FREA, 	wrote 	to the board stating:
Before 	taking action 	to approve 	the 	Pilot
Program and any related transfers, 	the
District 	has an obligation 	to bargain 	its'
[sic] 	effects with the Association.
Therefore, 	the Association 	formally demands
to bargain 	the 	decision 	to 	implement 	the
Pilot 	Program and/or the 	effects 	of 	the
changes 	relating to Article 	10: 	Transfer
Procedure/Reassignment 	Procedures 	of 	the
collective bargaining agreement. 	Currently,
Unfair Practice 	Charge Case No. 	S-CE-1712
deals with the above 	issues.
Graham responded 	that 	FREA had been 	informed of 	his 	June
1995 	decision to transfer Lennon and Mason, 	and that 	"[s]ince
FREA never 	requested 	to bargain 	the 	impact 	and effects 	of 	the
pilot program until 	today's date, 	I 	feel 	that my duty to
negotiate has been waived." 	Nonetheless, 	he 	indicated a
willingness 	to meet 	and discuss 	the 	issue.
There 	is 	no 	evidence 	that 	Graham specifically notified 	FREA
of 	the 	creation of 	the pilot 	program or 	the 	involuntary 	transfers
of 	Lennon and Mason. 	At 	the hearing, 	FREA stipulated that 	it
became aware 	of 	the 	transfers 	of 	Lennon and Mason 	shortly after
June 26, 	1995, 	when FREA learned of Graham's letters. 	Prior to
August 	7, 	1996, 	FREA made no demand to bargain over either the
teacher swap program or 	the 	transfers 	of 	Lennon or Mason.
Neither 	Lennon 	or Mason 	experienced any 	change 	in pay 	or
benefits as a result 	of 	their transfers. 	However, 	Lennon
testified that 	he believed 	the 	transfer 	from the 	high 	school 	to
the 	elementary school 	was 	a demotion. 	At 	the high school 	he had
his 	own classroom. 	At 	the 	elementary school 	he 	shares 	a
16

classroom with another teacher. 	At 	the 	high school 	he was 	the
department 	chair of 	the 	special 	education department, 	although
that 	designation 	carried no 	additional 	compensation and 	few
duties 	or 	responsibilities 	while 	Sandberg had been principal.
There 	is 	no department 	chair at 	the 	elementary school. 	Lennon's
work day 	is 	30 minutes 	shorter at 	the 	elementary school 	than at
the high school, 	although he has 	to drive an additional 	five
miles 	to 	the 	elementary school.
Mason's work day is 	30 minutes 	longer at 	the high school
than at 	the 	elementary school 	and his 	driving 	time 	is 	15 minutes
more per day. 	Mason works 	30 	to 45 minutes more preparation time
outside 	of 	the 	classroom than he did at 	the 	elementary 	school.
There 	is 	no difference 	in 	the pay and benefits 	of 	elementary
and high 	school 	teachers 	within the District.
On December 20, 	1995, 	FREA filed the 	instant unfair practice
charge. 	The PERB Office of 	the General 	Counsel 	issued a
complaint which, 	as amended on July 17, 	1996, 	alleges that the
transfer of 	Lennon to the 	Fall 	River Elementary School 	was 	in
retaliation for his 	exercise of 	EERA-protected rights. 	The
amended 	complaint 	also alleges 	that 	the 	District 	violated EERA by
unilaterally 	changing 	its 	contractual 	policy 	on 	involuntary
transfers, 	and by unilaterally 	implementing a 	special 	education
teacher 	swap program. 	A PERB 	settlement 	conference 	did not
resolve 	the 	dispute 	and a 	formal 	hearing was 	conducted by a 	PERB
ALJ on September 10 and 11, 	and November 4, 	1996. 	On May 1,
1997, 	the ALJ issued his proposed decision 	finding 	that 	the
17

District, 	by its 	conduct, 	had violated EERA section 3543.5(a),
(b) and (c).
DISCUSSION
Retaliation 	Allegation
FREA alleges 	that 	the District 	unlawfully 	retaliated against
Lennon 	for his 	exercise 	of 	EERA-protected 	conduct 	when 	it
transferred him from Fall 	River High School 	to 	Fall 	River
Elementary School. 	In order to establish that an employer has
engaged 	in unlawful 	retaliation 	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).)
In this 	case, 	it 	is 	clear that Lennon engaged in extensive
protected conduct 	of which the District was aware. 	However, 	the
District 	asserts 	that 	the 	transfer of 	Lennon did not 	constitute
adverse action against 	him. 	The 	Board applies 	an objective 	test
to determine whether a 	reasonable person under 	the 	same
circumstances 	would 	consider 	the action 	to have 	an adverse 	impact
on the 	employee's 	employment. 	(Palo Verde Unified School
District 	(1988) 	PERB Decision No. 	689.) 	The District argues that
Lennon's 	subjective view 	that 	the 	transfer 	constituted a 	demotion
fails 	to meet 	this 	standard. 	However, 	PERB has 	found
retaliatory, 	involuntary transfers 	to be unlawful 	even when 	they
18

were not 	accompanied by any loss 	of pay or benefits. 	(Newark
Unified School District 	(1991) 	PERB Decision No. 	864.) 	This 	case
turns 	on the question of whether the District's 	action was
motivated by Lennon's protected activity. 	If 	it was, 	the
District's 	involuntary transfer of 	Lennon was unlawful. 	If 	the
transfer was not motivated by Lennon's protected activity, 	it did
not 	represent 	unlawful 	retaliation against 	him even 	though 	it may
have been adverse 	to Lennon.
Direct proof 	of unlawful motivation 	is 	not 	often present.
As 	a 	result, 	the Board reviews 	the 	record as a whole 	to determine
if 	the 	inference 	of 	unlawful motive 	should be drawn. 	Factors
which may support 	such an 	inference 	include 	the 	timing 	of 	the
employer's 	adverse 	action 	in 	relation 	to 	the 	employee's 	protected
conduct 	(North Sacramento School District 	(1982) 	PERB Decision
No. 	264); 	the employer's disparate treatment of the employee
(State of California 	(Department of Transportation) 	(1984) 	PERB
Decision No. 	459-S); 	the employer's departure from established
procedures 	(Santa Clara Unified School 	District 	(1979) 	PERB
Decision No. 	104); 	and the employer's inconsistent or shifting
justification 	for 	the 	conduct 	(State 	of 	California 	(Department 	of
Parks and Recreation) 	(1983) 	PERB Decision No. 	328-S).
The 	record 	in this 	case 	supports 	the 	inference 	of unlawful
motivation by 	the District. 	The 	involuntary transfer of 	Lennon
occurred at 	the end of 	the 	1994-95 	school year, 	during which
Lennon had 	filed 	six 	separate 	grievances 	and had been 	involved 	in
numerous meetings with the District 	in pursuit 	of 	those
19

grievances. 	Clearly, 	there 	is 	significant demonstration of 	the
temporal 	proximity 	of 	Lennon's 	protected 	conduct 	and 	the 	alleged
retaliatory action by the District. 	Additionally, 	the
justification 	offered by 	the 	District 	for 	transferring 	Lennon was
inconsistent and suspect. 	Mason was 	told by Graham prior to 	the
June 26, 	1995, 	letter informing him of 	the transfer that 	the
reason 	for 	the 	transfer was 	that 	there had been problems 	at 	the
high school 	involving Lennon. 	He was given no other explanation.
The 	pilot 	program to 	swap 	elementary and high 	school 	special
education teachers was 	first 	offered as 	an explanation for 	the
transfer in Traverso's June 27, 	1995, 	memorandum to Graham. 	The
"non-RSP-related" 	activities 	of 	some 	special 	education 	teachers
are 	referenced 	in the memorandum as part 	of 	that 	explanation, 	but
the 	similar activities 	of 	Lennon and Mason are 	not 	referenced.
The pilot program was 	not 	discussed 	through 	the 	normal
curriculum, 	subject matter, 	staffing or school 	site structures 	of
the District. 	Instead, 	it appears 	to have been developed by
Graham and 	Traverso 	subsequent 	to 	the 	decision 	to 	involuntarily
transfer Lennon, 	at 	least 	in part as a means of providing
additional 	support 	for that decision. 	The Board infers 	from a
review of 	the 	record as 	a whole 	that 	the District's 	involuntary
transfer 	of 	Lennon was motivated by Lennon's 	exercise 	of
protected 	activity.
In retaliation cases, 	once an inference of unlawful
motivation is drawn, 	the burden shifts 	to the employer to
establish that 	it would have 	taken the action regardless 	of 	the
20

employee's protected conduct. 	(Novato.) 	The Board will 	find the
employer's 	conduct 	to be unlawful 	if 	it 	determines 	that 	the
action would not have been taken but 	for the 	employee's 	protected
conduct. 	(Martori Brothers Distributors v. 	Agricultural 	Labor
Relations Bd. 	(1981) 	29 Cal.3d 721 	[175 Cal.Rptr. 	626].)
The District 	argues 	that 	it would have 	transferred Lennon
regardless 	of 	his 	protected 	conduct 	in 	order to 	implement 	the
pilot 	special 	education teacher swap program. 	As 	noted above,
however, 	the District's development 	of 	that program appears 	to
have 	occurred 	subsequent 	to 	its 	decision 	to 	involuntarily
transfer Lennon. 	However, 	that 	finding in and of 	itself does not
lead 	to 	the 	conclusion that 	the District's motivation 	in
transferring 	Lennon was 	retaliation against 	him 	for his 	exercise
of 	EERA-protected 	conduct. 	The Board must 	examine 	the 	record to
make 	a determination 	regarding 	the District's 	motivation.
The 	explanation of 	the 	transfers 	of 	Lennon and Mason
included in Traverso's June 27, 	1995, 	memorandum refers to
Lennon's 	"series 	of 	confrontations 	and disagreements" 	with
Sandberg which 	is 	"affecting 	the 	educational 	program" 	and
indicates 	that 	"the program would benefit 	if 	Lennon and Don
Sandberg were 	not 	in a 	supervisor/employee 	relationship 	for a
period to time." 	Also, 	the parent 	complaints against 	Lennon are
mentioned with 	the 	observation that 	the program, 	the 	child and
Lennon would all 	benefit 	from a 	"cooling-off" 	period.
FREA points 	out 	that 	the District, 	when asked to describe
this 	"series 	of 	confrontations and disagreements," 	specified the
21

dates 	of meetings 	held 	concerning Lennon's 	grievances. 	But 	the
record 	reveals 	that 	Lennon 	and 	Sandberg 	experienced numerous
confrontations 	outside of 	the grievance process as well. 	Shortly
after Sandberg became principal 	at 	Fall 	River High School, 	Lennon
accused him of 	altering 	a 	document 	relating 	to 	the mainstreaming
of 	special 	education students. 	Lennon and Sandberg disagreed
over 	Lennon's 	responsibility 	concerning 	the 	recommendation 	of 	a
special 	education aide. 	Lennon complained to Graham about 	the
football 	fantasy 	league 	Sandberg was 	allowing at 	the 	school.
Lennon was 	unhappy with Sandberg's 	handling of 	his 	request 	for
special 	door knobs. 	Sandberg was 	concerned that 	Lennon was 	not
informing him relative 	to a 	charter school 	effort. 	Lennon
threatened Sandberg with a 	complaint 	to DOE 	if 	Sandberg 	required
him to move 	to another room. 	Clearly, 	the 	record indicates 	that
Lennon 	and 	Sandberg 	experienced 	numerous 	confrontations 	and
disagreements 	outside 	of 	the 	grievance procedure.
The 	Board has 	previously 	found 	that 	a 	significant 	failure 	of
communications 	and 	deterioration of 	the 	relationship between a
supervisor and 	subordinate 	represent 	lawful 	justification 	for an
involuntary 	transfer 	despite 	the protected activity 	of 	the
employee. 	(Scotts Valley Union Elementary School 	District 	(1994)
PERB Decision No. 	1052.) 	It 	is 	clear that 	communications and the
supervisor/employee 	relationship 	of 	Sandberg and 	Lennon at 	Fall
River High School 	had deteriorated significantly. 	Lennon 	felt
that 	he needed to protect 	himself 	from the District; 	he 	indicated
that 	he 	intended to make 	things 	difficult 	for the District; 	and
22

he 	decided not 	to meet 	or 	speak with Sandberg without 	a 	FREA
representative 	or another 	teacher present. 	The 	relationship
appears 	to have deteriorated to such a 	level 	of 	distrust 	that
Lennon 	considered Sandberg 	capable 	of 	altering 	official 	District
documents 	after Lennon had signed them so as 	to have a
detrimental 	effect 	on Lennon's 	employment. 	The 	strained
relationship also appears 	to have begun to affect 	the 	special
education program as 	Lennon and 	Sandberg 	disagreed 	over 	Lennon's
role 	in parent 	communications 	relating 	to 	special 	education
students. 	Lennon clearly 	indicated his 	disdain 	for Sandberg when
he 	testified 	that 	he 	did not 	consider him to be 	"a 	real
principal."
It was 	in this 	climate of a severe breakdown in
communications 	and 	significantly 	strained 	relationship 	between
Lennon and Sandberg 	that 	the District 	decided 	to 	involuntarily
transfer 	Lennon.
Both Education Code 	section 	35035 	and Article 	10.4 	of 	the
parties' 	CBA provide 	that 	involuntary transfers may be made by
the District 	to 	serve 	the best 	interest 	of 	the District's
educational 	program. 	The 	recommendation 	to 	transfer Lennon
included in Traverso's June 27, 	1995, 	memorandum indicates 	that
it 	"would be 	in 	the best 	interest 	of 	the RSP program." 	Based on
consideration of all 	the evidence, 	the Board concludes 	that 	the
involuntary 	transfer 	of 	Lennon 	resulted 	from the 	District's
conclusion that 	it would be 	in the best 	interests 	of 	the 	special
education program at 	Fall 	River High School 	because 	of 	the
23

deterioration 	of 	the 	relationship between Lennon and Sandberg.
In view of 	that 	relationship, 	the 	transfer would have 	occurred
regardless 	of 	Lennon's 	EERA-protected 	activity and was 	not
motivated by 	the District's 	desire 	to 	retaliate against 	Lennon
for that activity. 	Therefore, 	the District did not violate EERA
section 	3543.5 	when 	it 	involuntarily 	transferred Lennon.
Unilateral 	Change 	Allegations
To prevail 	in a unilateral 	change 	case, 	the 	charging party
must 	establish that 	the 	employer, 	without providing 	the 	exclusive
representative with notice 	or the 	opportunity to bargain,
breached or altered 	the parties' 	written agreement 	or 	established
past practice 	concerning a matter within 	the 	scope 	of
representation, 	and that 	the 	change has 	a generalized effect 	or
continuing 	impact 	on 	the 	terms 	and 	conditions 	of 	employment 	of
bargaining unit members. 	(Pajaro Valley Unified School 	District
(1978) 	PERB Decision No. 	51; 	Grant Joint Union High School
District 	(1982) 	PERB Decision No. 	196 	(Grant).)
FREA alleges 	that 	the 	District 	committed 	two 	distinct
unilateral 	change violations. 	First, 	FREA alleges 	that 	the
District 	committed an unlawful 	unilateral 	change 	by altering 	the
policy governing 	involuntary 	transfers 	of 	teachers 	embodied 	in
Article 10.4 of 	the parties' 	CBA. 	Specifically, 	FREA alleges
that 	the District violated Article 	10.4.1 	by not 	discussing 	the
transfer with Lennon prior 	to 	transferring him and by not
allowing him to 	apply 	for vacancies 	for which he was 	qualified at
the 	time 	of 	the 	transfer. 	FREA also 	contends 	that 	the District
24

breached Article 	10.4.2 	by using 	criteria 	other 	than 	seniority,
fields 	of 	study, 	credentials and experience 	in deciding to
transfer 	Lennon.
Article 	10.4.1 	provides 	that 	a 	teacher may not be
transferred until 	given an 	opportunity 	"for a meeting with 	the
superintendent 	to discuss 	the 	reasons 	for the 	transfer/
reassignment." 	FREA argues 	that Graham's June 26, 	1995, 	letter
violates Article 	10.4.1 because by the 	time 	it was 	sent 	to Lennon
the 	decision 	to 	transfer him was 	essentially 	irreversible 	and any
opportunity 	to pursue 	alternative 	teaching assignments 	for 	1995-
96 no longer existed. 	However, 	Graham's 	letter to Lennon
specifically references Article 	10.4, 	and clearly states 	that 	the
"transfer will 	not 	be 	effective until 	you have 	had an
opportunity, 	if you wish, 	to meet with me to discuss 	the
District's 	reasons 	for your 	transfer," 	Lennon did not pursue 	the
proffered meeting with Graham. 	Given 	the 	clear wording 	of
Graham's 	letter, 	the Board concludes 	that 	it has not been
established 	that 	the District 	breached 	the 	policy 	embodied 	in
Article 	10.4.1 	by 	failing 	to provide 	Lennon an opportunity 	to
meet 	to discuss 	the 	reasons 	for the 	transfer.
Graham's 	letter also attached a 	"complete 	list 	of vacancies"
within 	the 	District 	and 	indicated 	that 	Lennon 	could apply and be
considered 	for 	the 	one position 	for which 	the District 	deemed him
qualified. 	However, 	the 	record established that 	Lennon was
qualified 	for more 	than 	the 	single vacancy 	referred 	to by Graham.
FREA argues, 	therefore, 	that the portion of Article 10.4.1
25

providing 	Lennon with 	the 	opportunity 	to be 	considered 	for
vacancies 	for which he 	is 	qualified has 	been breached by 	the
District.
In Grant. 	the Board noted that 	a 	contract breach
. 	. 	. must amount to a change of policy, 	not
merely a default 	in a 	contractual 	obligation
before 	it 	constitutes 	a violation of 	the duty
to bargain.
Where 	the policy embodied 	in 	the 	contract 	is 	not 	denied by 	the
employer and 	the dispute 	involves 	disagreement 	over the
application of a 	contractual provision, 	the Board will 	not 	find
that 	an unlawful 	unilateral 	change has 	occurred. 	(Trustees 	of
the California State University 	(1997) 	PERB Decision No. 	1243-H.)
Here, 	it appears 	that 	the District acknowledges 	the policy that
Lennon must be allowed to apply for vacancies 	for which he 	is
qualified as 	required by Article 	10.4.1, 	but due 	to error or
disagreement 	as 	to 	Lennon's 	qualifications 	it may have 	failed 	to
meet 	its 	contractual 	obligation. 	Since 	the dispute 	is 	over the
application of 	the provision and not 	the underlying policy
embodied in the 	contract, 	Graham's 	letter incorrectly indicating
that 	Lennon qualified 	for only one 	of 	the vacant 	positions 	does
not meet 	the Grant 	standard and does 	not 	constitute 	a unilateral
change 	in violation of 	EERA.
FREA also alleges 	that 	the District 	breached Article 	10.4.2
by not 	following 	the 	criteria within 	it 	in deciding 	to 	transfer
Lennon. 	However, 	the Board notes 	that Article 	10.4.4
specifically provides 	that 	the 	District 	may 	involuntarily
transfer a 	teacher 	"for any reason" 	which 	it believes 	will 	be 	in
26
---·

the best 	interests 	of 	the District's 	educational 	program.
Article 	10.4.4 	does 	not 	give 	the District 	carte blanche authority
to make wholesale 	teacher 	transfers 	without 	reference 	to 	the
Article 	10.4.2 	criteria of 	seniority, 	fields 	of 	study,
credentials 	and experience. 	But 	it appears 	that Article 	10.4.4
authorizes 	the District 	to 	transfer a 	specific 	teacher when 	faced
with the 	circumstances presented here, 	a breakdown of 	the
teacher-principal 	relationship, 	in order to serve 	the best
interests 	of 	the 	educational 	program. 	When taking 	such an
action, 	it 	is unclear how seniority or the 	other Article 	10.4.2
criteria 	apply. 	Since 	the District 	transferred Lennon 	to 	serve
the best 	interest 	of 	the 	educational program at 	Fall 	River High
School, 	the 	transfer was authorized by Article 	10.4.4.
Accordingly, 	the Board declines 	to 	find that 	the 	transfer
constituted a breach of Article 	10.4.2.
FREA's 	second unilateral 	change 	allegation charges 	that 	the
District 	implemented a new 	special 	education 	teacher 	swap program
without 	providing 	FREA with 	notice 	or 	the 	opportunity 	to
negotiate 	over the decision and/or 	its 	effects.
Initially, 	the District 	responds 	that 	FREA waived 	its 	right
to negotiate by not 	requesting bargaining until August 	1996, 	more
than a year after 	the District 	announced 	the program. 	A waiver
of 	the 	right 	to bargain must be 	"clear and unmistakable."
(Placentia Unified School District 	(1986) 	PERB Decision No. 	595.)
Prior 	to 	implementing a proposed 	change 	in a negotiable 	subject,
the 	employer must 	provide 	the 	exclusive 	representative with
27

notice 	sufficient 	to allow a 	reasonable 	amount 	of 	time 	for 	the
exclusive 	representative 	to decide whether 	to make a demand to
negotiate. 	(Victor Valley Union High School District 	(1986) 	PERB
Decision No. 	565.) 	When the employer has 	clearly unilaterally
implemented a 	change 	or made 	a 	firm decision to do 	so, 	the
failure 	to 	request 	bargaining will 	not 	be 	considered a waiver 	of
the 	right 	to bargain, 	because 	the 	request under these
circumstances would be 	futile. 	(Arcohe Union School 	District
(1983) 	PERB Decision No. 	360.) 	Here the District asserts that
FREA was 	aware 	of 	the decision 	to 	implement 	the 	special 	education
teacher swap program shortly after June 26, 	1995, 	when Graham
sent 	transfer letters 	to Lennon and Mason. 	While 	it 	is by no
means 	clear 	that 	the 	District 	provided 	FREA with adequate 	notice
of 	its decision at 	that point, 	even if 	FREA had been notified,
its 	failure 	to 	request bargaining would not 	constitute a waiver
because 	the District 	had 	clearly made 	a 	firm decision 	to
implement 	the 	special 	education 	teacher 	swap program. 	Therefore
the District's 	argument 	that 	FREA waived 	its 	right 	to negotiate
over this 	subject 	is 	rejected.5
The District's 	special 	education 	teacher 	swap program
represents 	a 	specific policy 	to 	transfer special 	education
teachers 	according 	to a defined 	timetable 	and program. 	There has
been no 	established past practice 	of 	a 	similar policy within 	the
5The 	Board also 	notes 	that 	FREA timely 	filed 	the 	instant
unfair practice 	charge on December 20, 	1995, 	alleging that 	the
District 	denied 	it 	"the 	opportunity 	to bargain 	the 	decision,
effects, 	and impact 	of 	the 	implementation of 	the new program."
28

District. 	Because 	the policy potentially affects 	all 	special
education teachers with a specific, 	mandatory transfer plan, 	it
represents 	a 	substantial 	departure 	from the 	general 	transfer
policy embodied in Article 	10.4. 	As noted above, 	Article 	10.4
authorizes 	the District 	to 	transfer teachers 	in the best
interests 	of 	the educational program, 	but 	that authority does not
extend to a policy of mandatorily 	transferring a 	class 	of
teachers under a general 	"best 	interests" 	rationale. 	Therefore,
unlike 	the 	specific 	transfer of 	Lennon to 	serve 	the best
interests 	of 	the 	special 	education program at 	Fall 	River High
School, 	the Board concludes 	that Article 	10.4 does not authorize
implementation of 	the 	special 	education 	teacher 	swap program
announced by 	the 	District.
Transfer and 	reassignment 	policies 	are 	subjects 	within 	the
scope 	of 	representation enumerated 	in EERA section 3543.2. 	A
mandatory 	transfer policy affecting multiple 	teachers 	clearly has
a generalized 	effect 	or 	continuing 	impact 	on the 	terms 	and
conditions 	of 	employment 	of 	those bargaining unit members.
Therefore, 	the District has 	the obligation to provide 	FREA with
notice and the 	opportunity to bargain over 	the policy. 	It 	is
clear 	that 	the District 	implemented 	the 	special 	education 	teacher
swap program without 	providing 	FREA with notice 	or 	the
opportunity 	to negotiate 	over 	the program or 	its 	effects.
Therefore, 	in doing so, 	it 	committed a unilateral 	change 	in
violation of EERA section 3543.5 (c). 	By this same conduct, 	the
29

District 	denied employees 	and FREA their EERA rights, 	in
violation of section 3543.5(a) 	and 	(b).
Summary
It 	has 	been 	found that 	the District 	did not 	retaliate
against 	Lennon 	for his 	exercise 	of 	EERA-protected rights, 	and did
not 	unilaterally 	change 	its 	contractual 	policy governing
involuntary transfers of 	teachers. 	Therefore, 	the portions 	of
the unfair practice 	charge 	and 	complaint 	relating 	to 	these
allegations 	are 	dismissed.
The District violated EERA section 3543.5(a), 	(b) 	and 	(c) 	by
unilaterally 	implementing 	a 	special 	education 	teacher 	swap
program without 	providing 	FREA with notice 	or 	the 	opportunity 	to
bargain over the policy or 	its 	effects.
REMEDY
Under EERA section 3541.5(c), 	the Board has 	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 	limited to the
reinstatement 	of 	employees 	with or without
back pay, 	as will 	effectuate the policies 	of
this 	chapter.
It 	has 	been 	found 	that 	the District violated EERA by 	implementing
a 	special 	education 	teacher 	swap program without 	providing 	FREA
with notice 	or 	the 	opportunity 	to bargain over 	the program or 	its
effects, 	and 	thereby denying 	FREA and employees 	their EERA
rights. 	It 	is appropriate 	to order the District 	to 	cease and
desist 	from this unlawful 	activity. 	It 	is also appropriate 	to
order the District, 	upon request, 	to restore the status quo ante
30

by 	returning 	any 	teachers 	transferred under 	the 	special 	education
teacher 	swap program to 	the 	teaching 	assignments 	they held prior
to 	the unlawful 	transfer. 	(Compton Unified School 	District
(1989) 	PERB Decision No. 	784.) 	However, 	to avoid disruption,
this 	order will 	be 	effective at 	the beginning 	of 	the 	1998-99
school year. 	(San Leandro Unified School District 	(1983) 	PERB
Decision No. 	288.)
FREA seeks 	a backpay 	order 	for 	elementary 	school 	teachers
unlawfully 	transferred 	to 	high 	school 	teaching positions 	under
the 	special 	education 	teacher swap program, 	because 	the high
school 	teacher workday 	is 	longer than 	the 	elementary school
teacher workday and high 	school 	teachers 	spend more 	time 	in
preparation outside 	of 	the workday. 	The Board notes 	that 	high
school 	and elementary 	school 	teachers 	within the District 	receive
the 	same pay and benefits. 	Under these 	circumstances, 	the Board
does not believe 	that 	it would 	further the purposes 	of EERA to
order a backpay 	remedy.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the entire 	record in this 	case, 	and pursuant 	to the
Educational 	Employment Relations Act 	(EERA), 	Government Code
section 3541.5(c), 	it 	is hereby ordered that Fall River Joint
Unified School 	District 	(District) 	and its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and 	refusing 	to meet 	and negotiate with
the Fall River Education Association, 	CTA/NEA 	(FREA) 	about 	the
31

implementation 	of 	a 	special 	education 	teacher 	swap program and/or
its effects.
2 - 	Denying FREA its 	right 	to represent bargaining
unit members 	in their employment 	relations with the District.
3. 	Denying bargaining unit members 	their right 	to be
represented by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Upon request by FREA, 	return to their former
positions, 	teachers 	transferred under the 	special 	education
teacher 	swap program effective 	at 	the 	beginning 	of 	the 	1998-99
school year.
2. 	Within thirty-five 	(35) 	days 	following the date
this 	decision is 	no 	longer subject 	to reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be taken to ensure 	that 	this
Notice 	is not 	reduced in size, 	altered, 	defaced or covered by any
material.
3. 	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.
Members Dyer and Amador joined 	in this Decision.
32

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.	 	SA-CE-1712,	 	Fall
River	 	Education Association.	 	CTA/NEA v.	 	Fall	 	River Joint	 	Unified
School	 	District,	 	in which all	 	parties	 	had	 	the	 	right	 	to
participate,	 	it	 	has	 	been	 	found	 	that	 	the	 	Fall	 	River Joint	 	Unified
School	 	District	 	(District)	 	violated	 	the	 	Educational	 	Employment
Relations Act	 	(EERA),	 	Government Code section 3543.5(a),	 	(b)	 	and
(c)	 .
As	 	a	 	result	 	of	 	this	 	conduct,	 	we	 	have	 	been	 	ordered	 	to post
this	 	Notice	 	and we	 	will:
A.	 	CEASE	 	AND	 	DESIST	 	FROM:
1.	 	Failing	 	and	 	refusing	 	to meet	 	and	 	negotiate	 	with
the	 	Fall	 	River Education Association,	 	CTA/NEA	 	(FREA)	 	about	 	the
implementation	 	of	 	the	 	special	 	education	 	teacher	 	swap	 	program
and/or	 	its	 	effects.
2.	 	Denying	 	the	 	FREA	 	its	 	right	 	to	 	represent	 	bargaining
unit	 	members	 	in	 	their	 	employment	 	relations	 	with	 	the	 	District.
3.	 	Denying bargaining	 	unit	 	members	 	their	 	right	 	to be
represented	 	by	 	their	 	chosen	 	representative.
B.	 	TAKE	 	THE	 	FOLLOWING AFFIRMATIVE	 	ACTIONS	 	DESIGNED	 	TO
EFFECTUATE	 	THE	 	POLICIES	 	OF	 	THE	 	EERA:
1.	 	Upon	 	request	 	by	 	FREA,	 	return	 	to	 	their	 	former
positions,	 	teachers	 	transferred under	 	the	 	special	 	education
teacher	 	swap program,	 	effective	 	at	 	the beginning	 	of	 	the	 	1998-99
school	 	year.
Dated:	 	FALL	 	RIVER	 	JOINT	 	UNIFIED
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.
~
~