Barstow Unified School District (PERB 1164E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BARSTOW EDUCATION ASSOCIATION,
Charging 	Party,
v.
BARSTOW UNIFIED SCHOOL DISTRICT,
Respondent.
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Case No. 	LA-CE-3481
PERB Decision No. 	1164
August 	7, 	1996
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Appearances: 	Lawrence B. 	Trygstad, 	Attorney, 	for Barstow
Education Association; 	Atkinson, 	Andelson, 	Loya, 	Ruud & Romo by
Ronald C. 	Ruud, 	Attorney, 	for Barstow Unified School District.
Before Caffrey, 	Chairman; 	Garcia and Dyer, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Barstow Education Association 	(Association) 	to a 	PERB
administrative law judge's 	(ALJ) 	proposed decision 	(attached).
The 	unfair practice 	charge 	alleged 	that 	the 	Barstow Unified
School 	District 	(District) 	denied Association member Judy Webber
(Webber) 	her right 	to union representation and 	retaliated against
her because 	of her participation 	in protected conduct. 	The ALJ
found that 	the District 	did not violate 	section 3543.5(a) 	and 	(b)
of 	the Educational 	Employment Relations Act 	(EERA).1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
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
•

The Board has 	reviewed the 	entire 	record, 	including 	the
unfair practice charge, 	the proposed decision, 	the Association's
exceptions 	and the District's 	response 	thereto. 	The Board 	finds
the ALJ's 	findings 	of 	fact 	and conclusions 	of 	law to be 	free 	of
prejudicial 	error and adopts 	them 	in accordance 	with 	the
following 	discussion.
DISCUSSION
The Association offers 	three 	exceptions 	to 	the ALJ's
proposed decision, 	which are discussed in turn. 	The District
responded 	to 	the Association's 	exceptions 	by 	supporting 	the ALJ's
conclusions.
Exception 	One
The Association excepts 	to 	the ALJ's 	conclusion 	that 	the
District's 	filing 	of 	a police 	report 	did not 	adversely affect
Webber's 	employment 	status with the District. 	The Board need not
reach the merits of 	this exception, 	however, 	since the charging
party 	in a discrimination/retaliation 	case must prove 	that 	the
employer's 	conduct 	was motivated by 	the 	employee's 	exercise 	of
protected activity. 	(Novato Unified School District 	(1982) 	PERB
Decision No. 	210, 	at p. 	6.) 	The ALJ properly found that 	the
Association 	failed 	to prove 	any 	connection between Webber's
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.
22

protected 	conduct 	and the District's 	filing 	of 	the police 	report.
Therefore, 	our analysis ends.
Exception 	Two
Exception 	two 	challenges 	the ALJ's 	conclusion 	that 	the
May 4, 	1995 	meeting did not 	involve 	"either an 	investigatory or
disciplinary 	element 	that 	required 	the 	right 	to 	representation
contemplated by the Weingarten[2] rule." 	The Association argues
that 	under the 	facts, 	any teacher would reasonably 	fear
discipline.
The 	Board agrees 	with the ALJ; 	the Association did not
present 	evidence 	sufficient 	to 	support 	a 	finding 	that 	the May 4,
1995 	meeting was 	either 	investigatory 	or disciplinary.
Exception 	Three
In a related exception, 	the Association objects 	to 	the ALJ's
conclusion that 	the May 4, 	1995 meeting 	"did not present 	the 	type
of 	'highly unusual 	circumstances' 	which would have 	entitled
Webber to union representation under the Redwoods[3] standard."
The Board also agrees with the ALJ on this point; 	the Association
did not 	present 	evidence 	sufficient 	to 	support 	a 	finding 	that 	the
May 4, 	1995 	meeting presented highly unusual 	circumstances.
Based on the 	record before us, 	the Board concludes 	that 	the
Association has 	not 	shown that 	the District violated EERA.
2NLRB v. Weingarten. 	Inc. 	(1975) 	420 U.S. 	251 	[88 LRRM
2689].
3Redwoods 	Community College Dist, 	v. 	Public Employment
Relations Bd. 	(1984) 	159 	Cal.App.3d 617 	[205 Cal.Rptr. 	523]
(Redwoods).
33

ORDER
The unfair practice 	charge 	and 	complaint 	in 	Case
No. 	LA-CE-3481 is hereby DISMISSED.
Member Dyer 	joined 	in this Decision.
Chairman Caffrey's 	concurrence begins 	on page 	5.
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CAFFREY, 	Chairman, 	concurring: 	I concur in the finding that
the Barstow Unified School 	District 	(District) 	did not 	deny Judy-
Webber 	(Webber), 	a member of 	the Barstow Education Association
(Association), 	her right 	to union representation and did not
retaliate 	against Webber because 	of 	her participation 	in
protected conduct. 	Therefore, 	the District did not violate
sections 	3543.5(a) 	and 	(b) 	of the Educational Employment
Relations Act 	(EERA) 	and I 	concur in the dismissal 	of 	the unfair
practice 	charge and complaint 	in Case No. 	LA-CE-3481. 	I write
separately to express 	some additional 	thoughts.
On appeal, 	the Association excepts 	to the administrative law
judge's 	(ALJ) 	finding that 	the District's 	filing of a police
report about Webber's 	tape recording of 	the May 4, 	1994, 	meeting
did not 	adversely affect Webber's 	employment 	status 	with 	the
District. 	In reaching that 	conclusion, 	the ALJ notes 	that under
the Board's 	test 	for unlawful 	retaliation, 	the adverse action
taken against 	the 	employee 	cannot be 	speculative, 	but must
constitute actual 	harm under an 	objective 	standard. 	(Palo Verde
Unified School District 	(1988) 	PERB Decision No. 	689 	(Palo Verde
USD).) 	In response, 	the Association argues 	that 	"It 	is 	self
evident 	that 	filing 	false 	criminal 	charges 	against 	an employee 	is
adverse action."
In my view, 	the 	intimidation and 	coercion 	resulting 	from an
employer's 	intentional 	filing 	of 	a 	false police 	report 	against 	an
employee may well 	constitute adverse 	action within 	the 	Board's
Palo Verde USD standard. 	If 	the 	false report 	is 	filed because of
55

the 	employee's protected activity, 	it would constitute an
extremely serious violation of 	EERA's 	prohibition against
retaliation and discrimination.1 It 	has 	not 	been established by
the evidence presented in this 	case, 	however, 	that 	the District
intentionally 	filed a 	false police 	report 	against Webber,
primarily because 	the 	District 	Attorney's 	office 	filed a
complaint 	against Webber 	subsequent 	to 	the District's 	report.
Under these 	circumstances, 	I am unable 	to conclude that 	the
District's 	action 	constituted adverse 	action against Webber.
Additionally, 	I agree with the ALJ's 	conclusion that 	the
Association has 	not 	demonstrated that 	the District's 	action 	in
filing 	the police 	report 	was 	motivated by Webber's 	participation
in 	conduct 	protected by 	the 	EERA.
I 	also wish 	to 	comment 	on 	the ALJ's 	holding 	that 	Webber's
request 	for 	representation at 	the May 4 	meeting was 	itself 	EERA-
protected conduct, 	even though Webber had no right 	to 	that
representation. 	I want 	to state 	clearly that 	this 	holding 	should
not 	be 	interpreted as 	a 	conclusion 	that 	a 	request 	for union
representation 	constitutes 	EERA-protected 	conduct 	in all 	cases,
irrespective 	of whether the 	employee has 	the 	right 	to 	that
representation or 	the 	other circumstances 	of 	the 	case.
1Moreover, the 	intentional 	filing 	of 	a 	false 	police 	report
may itself be a crime 	(Penal 	Code 148.5).
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
BARSTOW EDUCATION ASSOCIATION,
Charging 	Party,
v.
BARSTOW UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-3481
PROPOSED DECISION
(2/16/96)
)
)
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Appearances: 	Lawrence B. 	Trygstad, 	Attorney, 	for Barstow
Education Association; Atkinson, Andelson, 	Loya, 	Ruud & Romo, 	by
Ronald C. 	Ruud, 	Attorney, 	for Barstow Unified School District.
Before W. 	Jean Thomas, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	commenced when 	the 	Barstow 	Education Association
(BEA) 	filed an unfair practice 	charge against 	Barstow Unified
School District 	(District) 	on October 12, 	1994. 	The charge, 	in
essence, 	alleged that 	in 1994 	the District 	engaged in conduct
against Judy Webber 	(Webber), 	a bargaining unit member, 	and BEA,
that violated 	the 	Educational 	Employment 	Relations Act 	(EERA or
Act).1 The charge was amended on February 1, 	1995, 	to add
additional 	allegations 	of unlawful 	conduct.
After an investigation of 	the amended charge, 	the Office of
the General 	Counsel 	of 	the 	Public Employment Relations Board
(PERB or Board) 	issued a complaint on February 8, 	1995.2 It
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references are 	to 	the
Government 	Code.
2On February 8, 	1995, 	BEA withdrew specified allegations 	of
the amended 	complaint 	without 	prejudice.
e

alleged 	that 	the 	District, 	through 	its 	agents 	James 	Ostrander
(Ostrander), 	principal 	of Barstow High School 	(BHS), 	and William
Schmitt 	(Schmitt), 	assistant principal, 	violated section
3543.5(a) 	and 	(b),3 by 	(1) 	interfering with Webber's 	right 	to
union 	representation; 	(2) 	replacing her with another 	teacher
because 	of 	her protected 	activity; 	and 	(3) 	filing 	a 	police 	report
against 	Webber 	and 	causing 	a 	criminal 	complaint 	to 	issue 	against
her.
The 	District 	answered 	the 	complaint 	on March 	1, 	1995,
wherein 	it 	denied 	any violations 	of 	EERA.
Informal 	discussions 	were 	held 	in March and April 	1995, 	in
an 	unsuccessful 	attempt 	to 	reach 	voluntary 	settlement.
A 	formal 	hearing 	was 	conducted 	by 	the 	undersigned 	on
June 	2 0 , 	21 	and 2 2 , 	1995. 	Post-hearing briefing was 	completed on
October 	10, 	1995, 	after which 	the 	case 	was 	submitted 	for proposed
decision.
3 Section 	3543.5 	states 	in pertinent 	part 	as 	follows
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.
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FINDINGS 	OF 	FACT
Background
The parties 	stipulated and it 	is 	found that, 	within the
meaning of EERA., 	the District 	is a public school employer, 	and
BEA 	is 	an 	employer 	organization 	and 	the 	exclusive 	representative
of 	an appropriate 	certificated unit 	of 	District 	employees. 	At
all 	times 	relevant 	to the 	charge, 	BEA and the District were
parties 	to a collective bargaining agreement 	(CBA) 	with a term
effective from October 3, 	1990 	through June 30, 	1993.4
Webber has 	been 	employed by the 	District 	as 	a 	teacher 	for
more than 25 years. 	She has 	taught 	art 	classes at BHS 	for the
past 	six years. 	Webber's 	immediate 	supervisor 	is 	Shirley Lester
(Lester), 	an assistant principal at BHS.
For many years prior to 	1985, 	Webber was an active BEA
member. 	From 1985 	to 1994, 	she was a member of 	the Barstow
Federation of Teachers, 	Local 3258 	(BFT), 	a non-exclusive
employee organization. 	During the 	1993-94 	school year, 	Webber
served as 	the BFT president. 	The 	exact 	nature of her BFT
activities 	in 1993-94 	is unclear. 	At 	the 	time of 	the hearing,
Webber purportedly was 	the 	alternate 	BEA site 	representative 	at
BHS.
Ostrander 	is 	a 29-year District 	employee. 	He 	served as 	a
BHS assistant principal 	for six years, 	and for the past 	five, 	has
been 	its 	principal. 	Ostrander and Webber have 	known each other
4By its 	terms, 	the CBA continued in full 	force 	and effect
"from year-to-year until 	such 	time 	as 	a 	new or modified Agreement
is 	reached by the parties."
W
	3

since 	the early 1970's, 	when both were 	active 	in BEA. 	Ostrander
admitted that, 	based on his past experience, 	he did not
particularly 	like Webber because 	of 	her 	tendency to 	accuse
administrators 	of 	harassment 	and to misrepresent 	or distort 	their
conversations with her. 	Ostrander denies 	any knowledge 	of
Webber's 	BFT affiliation or activity until 	he 	learned of 	it
during the 	hearing. 	He 	normally deals with the 	designated BEA
representatives 	concerning 	certificated unit 	matters 	at 	BHS.
Schmitt 	has 	been an assistant principal 	at 	BHS 	for 	four 	and
one-half years. 	He has 	known Webber 	for the 	same 	length of 	time.
One 	of 	his 	responsibilities 	as 	assistant 	principal 	is 	to 	handle
student 	discipline problems.
Complaints About 	the BHS 	Site 	Council 	Selection Process
On September 13, 	1993, 	Lester distributed a memo to the
teaching 	staff 	regarding 	the 	selection of 	four 	teacher
representatives 	to 	serve 	on 	the 	BHS 	school 	site 	council 	for 	the
1993-94 	school year. 	The 	school 	site 	council 	is 	composed of
representatives of teachers, 	classified staff, 	administrators,
students 	and parents. 	One 	function of 	the BHS 	site 	council 	is 	to
decide on the 	school 	staff 	inservice days. 	The names of nominees
were 	due 	to Lester by September 	17.
On September 22, 	Webber sent Lester a memo, 	listing what 	she
viewed as 	serious 	irregularities 	in the 	selection process 	for the
teachers' 	representatives. 	Webber specifically stated that 	the
selection process 	had not 	been 	conducted 	in 	accordance 	with 	the
legal 	requirements of the Education Code, 	i.e., 	an election by
IA
	4

secret ballot, 	since 	the end of the 	1989-90 	school year. 	Webber
requested a 	quick response 	from Lester 	since 	the 	first 	school
site 	council 	meeting was 	scheduled 	for the 	next 	day. 	The memo
showed that 	copies 	of 	it were 	sent 	to Robert Rittman, 	BFT
representative, 	Shirley Hora, 	BEA representative, 	District
Superintendent Dr. 	Joseph Spaulding 	(Spaulding), 	and the District
board of 	trustees.
On September 29, 	Ostrander 	sent 	a memo to Webber asking that
she meet 	with him in his 	office 	on the 	afternoon of 	September 30.
The memo 	did not 	disclose 	the purpose 	of 	the meeting.
Webber received the memo on September 	29, 	shortly after
noon. 	She 	responded that 	same 	day to Ostrander by a memo 	that
read as 	follows:
Board policy affords 	me 	with 48 	hour notice
and written 	reason 	for meeting 	as 	well 	as
representation. 	Please, 	respond giving 48
hours notice 	for meeting, 	specific written
reason 	for meeting, 	and allowance 	for
representation.
If 	this meeting has 	anything to do with the
two 	recent 	letters 	to you 	requiring a
response 	on your part, 	I have 	received no
-
- -
response 	to date 	on either matter. 	Should
this meeting have 	to do with either of 	these,
it 	is my opinion that 	I 	should have written
responses 	before 	any meeting 	should occur.
Until 	board policy 	is 	observed 	and written
responses to previous complaints answered, 	I
will 	be unable 	to meet with you 	at 	2:10 	p.m.
on Thursday, 	September 30, 	1993.
Within an hour after he 	received Webber's memo, 	Ostrander
re-sent 	his 	same 	September 29 memo to Webber. 	Webber responded
later 	that 	afternoon with a 	second memo which read:
55

I 	will 	not 	attend any meeting with you 	at 	any
time unless 	I 	receive at 	least 	48 	hours
n o t i c e 	[sic], 	specific written reason for
meeting, 	and proper representation for 	such
meeting.
I 	consider a 	second notice 	after your having
my 	initial 	response 	blatant 	harassment.
Both memos 	showed 	copies 	to 	the 	same 	people 	listed on Webber's
September 22 	memo to Lester.
On September 30, 	Lester distributed a ballot 	to the 	teachers
for the 	election of 	their 	school 	site 	council 	representatives.
The ballot 	listed 13 	nominees, 	including Webber. 	The deadline
for returning the 	ballot 	was 	October 4.
On October 	1, 	Webber 	sent 	a memo 	to Ostrander and Lester
complaining 	that 	the 	site 	council 	selection process 	was 	still
improper 	for the 	reasons 	that 	she 	listed. 	The memo 	also 	charged
Ostrander with 	failing to observe 	board policy R4107, 	¶ll,5 with
regard to Webber's September 29 memo. 	On the same date, 	Webber
5Board Policy R4107, 	¶ll, 	reads:
Certificated 	Employee 	Representation
Whenever 	any employee 	is 	required 	to 	appear
before 	the 	Superintendent 	or his 	designee,
the 	Board or any committee 	member,
representative 	or agent 	thereof, 	concerning
any matter which 	could 	adversely affect 	the
continuation of 	that 	employee 	in his 	office,
position or employment, 	or the 	salary or any
increments pertaining thereto, 	then he 	shall
be given prior written notice, 	at 	least
forty-eight 	(48) 	hours, 	of the reasons for
such meeting or 	interview and 	shall 	be
entitled at 	his 	request 	to have 	a
representative present 	to 	advise 	him and
represent 	him during 	such meeting 	or
interview.
6

sent 	separate 	memos 	to 	Spaulding and 	the 	District 	board
complaining of 	Ostrander's 	"negligence" 	with respect 	to 	following
board policies 	and 	laws 	covering the 	site 	council 	election 	and
employer responses to employees' 	complaints.
Lester announced the 	outcome of 	the 	teachers' 	site 	council
selection on October 	5. 	Webber was 	one 	of 	the 	four elected
representatives.
Ostrander 	testified 	that 	he 	cannot 	remember the 	reason he
had asked Webber to meet with him on September 30, 	1993, 	but 	he
thinks 	it 	may have 	had 	something to 	do with her 	site 	council
selection complaints. 	He 	is 	certain 	it 	did not 	involve
discipline. 	Thus he viewed the 	references 	in Webber's memos 	to
the provisions 	of board policy R4107 	as 	inapplicable 	to 	the
meeting 	that 	he wanted to 	have 	with her.
Ostrander also maintains 	that 	the 	language 	used 	in 	the
September 	29 	memo was 	his 	standard method of 	summoning a 	teacher
to meet with him unless 	he 	did 	it 	verbally. 	Although Ostrander
viewed Webber's 	refusal 	to meet 	with him on September 	30, 	as
insubordination, 	he 	did not 	consider 	taking disciplinary action
against 	her.
Ostrander denies 	that 	he 	was 	concerned or perturbed because
Webber sent 	copies of her September 2 9 memos to the District
superintendent 	and the board. 	He 	described this 	action as
"standard operating procedure" 	for Webber.
Ostrander did not 	respond 	to Webber's 	second 	September 	29
memo, 	nor did he meet with her. 	However, 	according to him,
7
7

Lester and he 	responded to Webber's 	site 	council 	complaints by-
changing the 	teachers' 	selection process 	right 	away.
A few days 	later, 	in response 	to Webber's October 1 memo to
Superintendent Spaulding, 	Robert Myers 	(Myers), 	assistant
superintendent, 	personnel 	services, 	went 	to Webber's 	classroom to
speak with her and give 	her 	some 	documents. 	When Myers 	asked
Webber to 	step outside with him for a brief 	chat, 	she 	refused.
The documents 	he gave 	to her were 	a District grievance 	form, 	a
complaint 	form and board policy R4017.1(a) 	(Complaints 	Concerning
School Personnel). 	In an accompanying memo, 	Myers suggested that
Webber select 	the 	appropriate 	form, 	complete 	it 	and direct 	it
through the proper channel. 	Myers 	also offered to 	assist Webber
if 	she needed help. 	A copy of Myers' 	memo was 	sent 	to Spaulding
and Ostrander.
The May 4, 	1994, 	Incident
Stacy Harris 	(Harris) 	was 	a 	student 	in Webber's 	first period
senior art 	class.
On April 	22, 	1994, 	Webber referred Harris to Schmitt's
office 	for placement 	in 	the 	BHS 	behavior modification 	center
(BMC) 	for two days because of Harris' 	alleged rude and
disrespectful 	conduct 	toward Webber during 	class 	on April 	22.
Harris 	refused to 	take 	the 	referral 	and walked out 	of 	the
classroom. 	Webber wrote 	a 	second referral 	about 	the 	student's
insubordination 	and defiance 	of 	her 	first 	directive 	to 	see
Schmitt.
88

The 	following Monday 	(April 	25), 	Schmitt went 	to Webber's
classroom during 	the 	first 	period and 	informed her 	that 	Harris'
father wanted a parent-teacher 	conference 	with Webber as 	soon as
possible, 	and suggested April 	27. 	Webber told Schmitt 	she did
not want 	to talk about 	it 	at 	that 	time and Schmitt 	left 	the 	room.
Later that 	day, 	Webber sent 	a memo to Schmitt 	criticizing
the propriety of 	his 	visit 	in 	the presence 	of 	her 	students 	and
his 	apparent 	failure 	to 	address 	her 	second 	referral 	regarding
Harris. 	She 	suggested that Harris' 	minimum discipline be 	one
week 	in BMC and a 	signed behavior contract 	before 	she 	could
return to Webber's 	class. 	She 	also 	suggested two alternative
dates 	for 	the 	parent 	conference 	and 	stated her 	intent 	to bring 	a
representative 	with her.
Schmitt 	responded to Webber by a memo, 	dated April 	26,
explaining the 	reasons 	for his April 	25 	visit 	and apologizing 	for
any problem that 	his 	visit 	may have presented for her. 	He 	also
advised her of 	his 	actions 	regarding Harris' 	second referral.6
On April 	27, 	Schmitt 	held the parent 	conference with Harris,
her 	father and the 	BHS 	attendance 	counselor. 	Webber was 	not
present. 	The 	student 	agreed to a 	"Drop/Fail" 	contract which was
signed by Harris, 	her father, 	and Schmitt. 	Webber signed it
later that 	day. 	The 	contract 	has 	numerous 	student 	performance
requirements 	and 	states 	that 	if 	a 	student 	cannot 	abide by the
contract, 	he/she will be put out of class 	(drop/fail).
^Webber sent 	a memo 	response 	to Schmitt 	that 	same 	day,
indicating 	that 	she 	was 	still 	awaiting 	an administrative 	response
to Harris' 	second referral.
99

On April 	29, 	Schmitt 	sent Webber a 	follow-up memo outlining
the 	disciplinary measures 	imposed upon Harris, 	including his
request 	that 	Harris 	formally apologize 	to Webber 	for 	her
classroom misconduct. 	This memo also notified Webber 	that 	a
parent 	conference 	was 	scheduled after 	class 	on May 3 	and that
Schmitt 	had directed Harris 	to 	return 	to 	class 	on Monday, 	May 2.
The morning of May 2, 	Webber sent 	Schmitt 	a memo 	stating
that 	she 	had learned from her son, 	a non-BHS 	student, 	that Harris
had 	apparently represented her 	(Webber) 	in a derogatory and
defamatory manner to other 	students, 	in an attempt 	to undermine
and discredit Webber during the May 3 	parent 	conference. 	Webber
further 	stated that 	she believed that 	Harris' 	conduct 	amounted to
a violation of 	the 	drop/fail 	contract 	and 	that 	the 	student 	should
not 	return to her class.
Later the 	same 	day, 	Schmitt 	told Webber by a memo 	that 	he
had 	followed up on the 	"source 	of 	the 	rumor" 	about 	Harris'
statements 	and 	found 	them to be 	incorrect. 	He 	assured Webber
that no other students, 	except Harris, 	would be present 	at 	the
May 3 	conference.
Webber 	sent 	a 	second memo 	to 	Schmitt 	later that 	day,
indicating her displeasure 	about 	his 	actions. 	She 	also 	told him
not 	to 	return Harris 	to 	her 	classroom and 	that 	she 	would not 	be
available 	for the May 3 	parent 	conference.7
7Schmitt 	cancelled 	the 	conference 	after 	receiving Webber's
second memo because 	he 	felt 	it 	would be 	"useless" 	without 	Webber
present.
10

The 	next 	day Webber prepared 	an 	administrative 	referral 	to
Schmitt 	noting 	that 	she 	was 	placing Harris 	on drop/fail 	status
because 	of 	her 	continued defiance 	of Webber. 	Webber personally-
delivered 	this 	referral 	to 	Schmitt 	before 	the 	beginning of 	the
school 	day oh May 4.
Schmitt 	discussed the 	referral 	with Ostrander, 	who decided,
after conferring with Myers, 	that 	Schmitt 	and he 	should go
together to 	speak with Webber, 	prior to the 	first period, 	about
the BHS 	drop/fail 	"policy"8 as 	it pertained to Harris.
Ostrander 	and Schmitt 	felt 	that 	an 	immediate meeting was
necessary because 	Harris 	was 	expected 	to 	return 	to 	class 	that
morning, 	and Ostrander wanted to 	speak with Webber before 	the
students 	arrived.9 Schmitt was 	to 	serve 	as 	an observer/
corroborator 	of 	the 	discussion between Ostrander 	and Webber.
Webber was 	not 	given prior notice 	of 	the 	administrators'
visit. 	When 	they entered her 	classroom at 	approximately
8There 	is 	no Districtwide 	drop/fail policy. 	Prior 	to May 4,
the 	subject was mentioned in the BHS 	teacher's 	handbook, 	but 	the
school's 	established practice was unwritten. 	According to
Schmitt, 	(1) 	if a teacher requested that a student be drop/
failed, 	(2) 	a contract was in effect and 	(3) 	the parents had been
contacted, 	the administration would drop/fail 	the 	student. 	If no
contract was 	in effect, 	a contract would be made. 	Typically a
student 	on a 	drop/fail 	contract 	receives 	one 	warning after 	the
contract 	is 	in place, 	before being dropped from class 	and
receiving 	a 	failing grade.
As 	of May 4, 	Harris 	had not 	received a warning about 	her alleged
violation nor had 	there 	been 	a parent 	conference.
9It 	is 	unclear whether Harris 	attended Webber's 	class 	on
either May 2 	or May 3.
11

7:10 	a.m., 	Webber was 	seated at 	her desk. 	Schmitt 	stood near
the 	door and Ostrander went 	near Webber's 	desk.
Webber 	testified 	that 	Ostrander 	and 	Schmitt 	"stormed 	into
her 	room without 	knocking." 	She 	characterized Ostrander's
initial behavior as 	loud, 	threatening, 	and brash as he asked her,
"What 	do you 	think you're 	doing? 	Don't 	you know you can't
drop/fail 	students? " 	According to Webber, 	she 	felt 	"overwhelmed
and trapped" 	by the 	situation, 	because 	it was unusual 	for two
administrators 	to visit 	her classroom at 	the 	same 	time. 	She 	also
felt 	that 	she was being 	"set up" 	for discipline.
Less 	than 	a minute 	after Ostrander and Schmitt 	entered 	the
room, 	Webber 	took a 	tape 	recorder 	from her desk drawer and
started recording. 	According to her, 	the 	recorder was 	in plain
view, 	and Ostrander's 	demeanor changed after she 	started
taping.10 Both administrators 	deny seeing 	the 	recorder 	or being
aware of 	it 	at 	any time during the meeting which lasted
approximately 	five 	to 	six minutes.
Ostrander and Schmitt 	describe Webber as 	agitated, 	hostile
and argumentative upon their entry, 	but 	she did not 	seem 	fearful
or 	afraid. 	The 	conversation between Ostrander 	and Webber was
heated. 	The 	following excerpt 	of 	their exchange 	is 	an example:11
10A copy of 	the 	taped discussions 	is 	in evidence 	as
respondent exhibit no. 	1.
11Webber prepared a transcript 	of 	the May 4 	tapings 	which is
in evidence as 	charging party exhibit no. 	9.
12

OSTRANDER: 	(inaudible)
Okay. 	When you quit 	talking,
I want you to 	listen.
Now tell 	me when you're
done.
WEBBER: 	I 	am going to 	respond to
whatever you 	say.
OSTRANDER: 	Okay. 	Now can 	I 	tell you
what 	I'm going 	to 	say?
WEBBER: 	Please.
OSTRANDER: 	Now. 	My understanding is.
WEBBER: 	And by the way 	I 	am here with
two 	administrators 	with no
representative 	present 	and no
time to get one.
OSTRANDER: 	Well, 	I don't think you need one.
WEBBER: 	Yes, 	I do need one.
OSTRANDER: 	Well, 	that's your decision when
I 	finish 	saying what 	I'm going 	to 	say.
WEBBER: 	So you're 	not 	going to allow me
representation present 	despite
the 	Stull Act?
OSTRANDER: 	Uhhh. 	I'm not going to talk
about 	your employment.
WEBBER: 	You are 	talking about my
employment
OSTRANDER: 	No. 	I'm talking about
WEBBER: 	Because 	you're 	talking about
interference 	with 	a 	contractual
duty.
OSTRANDER: 	No. 	I'm talking about your
refusal 	to meet 	with a parent 	that
13

you want 	to drop 	fail 	his 	child
from class. 	You didn't 	refuse 	once.
You 	refused 	twice.12
As 	the conversation ended, 	Webber stated to Ostrander, 	"I'm sick.
I'm going home." 	Ostrander replied, 	"That's your decision. 	Make
sure 	that you report 	to the 	office."
After Ostrander and Schmitt 	left 	her 	room, 	Webber went 	to
the 	teachers' 	lounge where 	she 	found Clair. 	She 	told Clair what
had 	just 	transpired and 	allowed 	Clair 	to 	listen 	to 	the 	tape 	while
she 	telephoned 	the 	superintendent 	for 	an 	appointment.
After 	leaving Webber's 	classroom, 	Ostrander went 	to 	the
school 	office 	to request 	substitutes 	for Webber's 	classes. 	He
arranged for Jim Davis 	(Davis), 	a BHS teacher, 	to cover the 	first
period and an 	outside 	substitute 	was 	called 	for 	the 	rest 	of 	the
classes.
As 	Ostrander was 	leaving 	the 	administration building 	to
return 	to Webber's 	classroom and ensure 	that 	the 	first 	period
class 	had coverage, 	he again encountered Webber. 	Webber
requested to go 	to her first period class. 	Ostrander told her
that 	she 	could not 	because 	he 	had arranged 	for Davis 	to 	cover the
class. 	At 	that point, 	Webber turned on the tape recorder, 	held
it 	toward Ostrander and began recording 	their 	conversation. 	Once
Ostrander 	saw the 	tape 	recorder, 	he 	refused to make 	any further
comments 	as 	he walked away 	from Webber. 	Webber 	started 	sobbing
12Schmitt 	never 	spoke 	during 	this 	visit 	except 	when 	a 	student
entered the 	room and Webber asked her to get Mary Clair 	(Clair),
a BEA site 	representative. 	The 	student asked, 	"What 	room?" 	and
Schmitt 	told her where 	to 	look 	for Clair.
14

uncontrollably as 	they neared her 	classroom. 	Shortly thereafter,
she had an asthma attack 	and left 	the 	school 	due 	to 	illness.
Later that 	morning, 	Ostrander was 	informed by a 	staff member
that 	Webber had been observed 	in 	the 	faculty lounge 	with 	Clair
listening to 	a 	recording of 	their 	earlier 	conversation.
Ostrander 	immediately 	telephoned Myers 	and 	the 	Barstow 	Police
Chief 	to 	inquire 	about whether Webber's 	taping was 	illegal. 	Both
Myers 	and 	the 	police 	chief 	advised him that 	the 	conduct 	was
possibly 	illegal.
During Ostrander's 	conversation with the police 	chief, 	he
requested an 	investigation 	and a 	report 	of 	the 	taping 	incident.
Ostrander 	testified 	that 	he 	requested the 	report 	because 	he
wanted 	"objective 	documentation" 	of 	the 	incident. 	Ostrander had
contacted 	the 	police 	numerous 	times 	about 	student 	incidents
occurring on campus, 	but prior to May 4, 	he had never made a
complaint 	about 	a 	teacher.
A Barstow police 	officer 	commenced 	an 	investigation 	on
May 5. 	Between May 5 	and May 13, 	he 	interviewed seven
individuals, 	including Webber, 	and the police department 	obtained
the 	tape 	from Webber.
The 	officer's 	report 	of 	his 	investigation was 	submitted to
the 	San Bernardino County District Attorney's 	(DA) 	office 	for
review 	and 	disposition.
In mid-July 1994, 	the DA's office 	filed a misdemeanor
complaint 	against Webber, 	charging two counts of 	recording a
confidential 	communication 	in violation of 	Penal 	Code 	section
15

632 (a).13 Following proceedings 	in the San Bernardino County-
Municipal 	Court, 	Barstow Division, 	the complaint was dismissed,
on the DA's motion, 	on January 12, 	1995, 	for insufficient
evidence.
According to Ostrander, 	after the 	initial police
investigation, 	he, 	Myers, 	nor any other District official had
contact with the DA's 	office 	about 	the 	taping 	incident 	until 	late
June 	1994. 	At 	that 	time, 	Ostrander was 	informed by telephone
that 	the 	DA had 	decided 	to 	file 	a 	complaint 	and asked 	to 	testify
as a witness. 	He did request, 	and obtained, 	a copy of the tape.
Several months 	later, 	he was notified that 	the 	case 	against
Webber was 	dismissed.
ISSUES
1. 	Did the District 	interfere with and deny to Webber 	the
right 	to union representation during the May 4, 	1994, 	meeting, 	in
violation of 	section 3543.5(a) 	and 	(b)?
2. 	Did the District 	take 	adverse 	action against Webber on
May 4, 	1994, 	by replacing her with another teacher prior to her
first period class? 	If 	so, 	was 	this 	action in retaliation 	for
Webber's 	participation 	in protected 	activity?
3. 	Did the 	District make 	a police 	report 	of 	the May 4,
1994, 	taping 	incident with the 	intent 	of 	causing criminal
proceedings 	to be 	taken against Webber 	in reprisal 	for her
protected 	activities?
13Penal 	Code 	section 632 (a) 	makes 	it unlawful 	for any party
to 	record a 	confidential 	communication without 	the 	consent 	of 	all
parties 	to 	that 	confidential 	communication.
16

CONCLUSIONS 	OF 	LAW
A. 	The May 4 	Meeting
Section 3543 provides, 	among other things, 	that public
school employees have a right to ". 	. 	. 	participate in
the 	activities 	of 	employee 	organizations 	of 	their own 	choosing
for the purpose 	of 	representation on all 	matters 	of 	employer-
employee 	relations. 	. . . " 	Section 3543.1(a) 	provides 	that
"Employee 	organizations 	shall 	have 	the 	right 	to 	represent 	their
members 	in 	their 	employment 	relations 	with public 	school
employers, . . ."
The 	term 	"matters of 	employer-employee 	relations" 	has 	been
held to 	specifically include 	the 	right 	of 	representation, 	upon
request, 	at 	an employer's 	investigatory interview if 	the 	employee
reasonably believes 	the 	interview might 	result 	in disciplinary
action. 	(Rio Hondo Community College District 	(1982) 	PERB
Decision No. 	260, 	adopting the rule of NLRB v. 	Weingarten, 	Inc.
(1975) 	420 U.S. 	251 	[88 LRRM 2689] 	(Weingarten).) 	However, 	the
employee's 	right 	to 	union 	representation when meeting with 	an
employer 	during 	an 	investigatory 	interview 	is 	not 	absolute.
Absent 	the discipline 	element, 	the 	right 	of 	representation is 	to
be 	granted only 	in highly unusual 	circumstances. 	(Redwoods
Community College District v. 	Public 	Employment 	Relations 	Board
(1984) 	159 Cal.App.3d 617 	[205 Cal.Rptr. 	523] 	(Redwoods).)
BEA charges 	that 	both Webber and BEA itself 	were 	denied
rights 	provided by EERA when Ostrander 	denied Webber's 	request
for union representation during the meeting on May 4, 	1994. 	BEA
17

argues 	that Webber had a 	reasonable belief 	of 	impending
disciplinary action 	at 	the 	meeting because 	she 	had 	refused on 	two
occasions to meet with a parent. 	Alternatively, 	it 	argues 	that,
even absent 	the 	disciplinary element, 	Webber was 	entitled to
representation because 	the 	May 4 	incident 	presented 	"highly
unusual 	circumstances."
The 	District 	takes 	the position that 	the 	evidence 	fails 	to
show that Webber's belief was 	reasonable 	that 	the May 4 	meeting
would result 	in discipline, 	or 	that 	the meeting 	involved the 	kind
of 	circumstances 	that 	gave 	rise 	to her 	right 	to union
representation.
This 	issue presents 	several 	subissues 	that 	must 	be 	addressed
to determine 	whether Webber's 	representational 	rights 	were
interfered with or denied. 	First, 	was 	the May 4 	meeting 	for a
disciplinary purpose 	which 	the 	employee 	reasonably perceived 	as 	a
possible 	pre-disciplinary 	inquiry? 	Second, 	did 	the 	employee
request 	union 	representation during the meeting? 	And third, 	if
such request was made, 	did the 	employer persist 	in conducting the
meeting without 	representation 	or 	otherwise 	infringe 	on 	the
employee's 	right 	to 	representation?
It 	is 	undisputed that 	Webber requested union representation
during the May 4 	meeting. 	However, 	the parties 	dispute whether
the meeting was 	the 	type 	of 	investigatory or disciplinary
interview that 	is 	contemplated by the 	Weingarten 	rule.
Although Webber 	had no pre-warning 	that 	Ostrander 	and
Schmitt were 	coming to her classroom to 	speak with her, 	it 	is
18

obvious 	from the 	initial 	remarks 	of Webber and Ostrander 	that 	the
conference 	concerned a student problem. 	Despite 	the
confrontational nature of his remarks, 	Ostrander made 	it 	clear to
Webber that 	student 	Harris would remain 	in her 	class 	until 	a
parent 	conference was 	held to discuss 	drop/failing Harris. 	Even
though Webber may have 	felt 	that 	she was being 	"set 	up" 	for
discipline because 	of 	the presence 	of 	the 	two administrators,
none 	of 	Ostrander's 	comments 	hinted at 	possible 	discipline
against 	Webber because of 	her actions 	concerning Harris.14 In
fact, 	Ostrander specifically told her that he was not 	there 	to
discuss 	her employment 	and Webber 	subsequently was 	not
disciplined 	in any way as 	a 	result 	of 	the May 4 	meeting.
It 	is 	thus 	concluded that 	the meeting did not 	involve 	either
an 	investigatory or 	disciplinary 	element 	that 	required 	the 	right
to 	representation 	contemplated by 	the 	Weingarten 	rule.
Even so, 	the meeting must 	be 	further analyzed to determine
if 	it presented the 	type 	of 	"highly unusual 	circumstances" 	which
would 	have 	entitled Webber 	to 	union 	representation under 	the
Redwoods 	standard.
The 	circumstances 	of 	this 	case 	are 	distinguishable 	in
several 	respects 	from those 	found in the Redwoods 	case. 	In
Redwoods, 	a District 	vice president 	scheduled an 	interview with a
clerical 	worker which 	later 	resulted 	in a 	letter of 	reprimand
being placed in the employee's 	file. 	In this case, 	Ostrander and
14In 	fact, 	the only threat was made by Webber who said she
was going to be 	sick 	if 	the 	student 	returned that 	day.
19

Schmitt 	were 	the 	school 	site 	administrators 	who were both
Webber's 	immediate superiors. 	Additionally, 	it was not
unprecedented 	for Ostrander 	and Schmitt 	to go 	together 	to 	a
classroom to 	discuss 	a 	student's 	performance 	and/or 	classroom
behavior with the 	teacher. 	Although 	they had never visited
Webber's 	classroom together prior to May 4, 	Schmitt 	credibly
testified that, 	on several 	occasions, 	he had accompanied
Ostrander to a 	classroom to 	resolve 	a 	student problem. 	However,
it 	is not known whether any of 	these 	conferences 	occurred under
circumstances 	like the May 4 	situation. 	Finally, 	the May 4
meeting concerned use 	of 	the BHS 	drop/fail 	policy as 	it 	pertained
to one 	of Webber's 	students 	rather than her work performance 	or a
contemplated performance 	evaluation.15
It 	is 	thus 	determined that 	the meeting did not 	present 	the
type 	of 	"highly unusual 	circumstances" 	which would have 	entitled
Webber 	to union 	representation under 	the 	Redwoods 	standard.
B. 	Webber's Replacement 	By a Substitute 	Teacher
BEA maintains 	that 	the 	District 	unjustifiably barred Webber
from her 	classroom 	following 	the May 4 	meeting 	in 	retaliation 	for
(1) 	her union activities on behalf of BFT, 	(2) 	her complaints
about 	the 	1993-94 	BHS 	site council 	election procedures, 	and
(3) 	her request 	for union representation during the May 4 	meeting
itself.
15Webber 	received a 	"satisfactory" 	performance 	evaluation
from Lester 	in early June 	1994.
20

The 	District 	responds 	by asserting 	that Webber's 	replacement
on May 4 	was not 	an 	"adverse 	action" 	under EERA and, 	in any
event, 	the 	decision had absolutely no relationship 	to 	any claimed
protected 	activities.
To prove 	an unlawful 	discrimination/retaliation 	allegation,
the 	charging party bears 	the burden of 	showing that 	the 	aggrieved
employee 	engaged 	in protected activity; 	the 	employer knew of 	the
activity; 	and that 	the employer took an adverse 	action against
the 	employee because 	of 	such activity. 	The 	adverse 	action cannot
be speculative, 	but rather, 	under objective standards, 	must
constitute an actual 	harm to the employee. 	(Palo Verde Unified
School District 	(1988) 	PERB Decision No. 	689 	(Palo Verde).)
Upon a 	showing of protected conduct 	and adverse 	action, 	the
party alleging 	discrimination must 	then make 	a prima 	facie
showing of unlawful 	motivation. 	Under Novato Unified School
District 	(1982) 	PERB Decision No. 	210 	(Novato), 	unlawful
motivation, 	within the meaning of section 3543.5(a), 	occurs where
the 	employer's 	action against 	the 	employee 	was 	motivated by the
employee's participation 	in protected 	conduct.16
^Indications 	of 	unlawful 	motivation have been 	found 	in many
aspects 	of 	an employer's 	conduct. 	Words 	indicating retaliatory
intent 	can be persuasive 	evidence 	of 	unlawful 	motivation. 	(Santa
Clara Unified School District 	(1979) 	PERB Decision No. 	104 	(Santa
Clara.) 	Other 	indications 	of unlawful 	motivation have 	been 	found
in an employer's 	timing of 	the 	action 	(North Sacramento 	School
District 	(1982) 	PERB Decision No. 	264); 	failure to follow usual
procedures 	(Santa Clara); 	shifting justifications and cursory
investigations 	(State 	of 	California 	(Department 	of 	Parks 	and
Recreation) 	(1983) 	PERB Decision No. 	328-S); disparate treatment
of 	a union adherent 	(State 	of 	California 	(Department 	of
Transportation) 	(1984) 	PERB Decision No. 	459-S); 	and a pattern of
antagonism 	toward 	the 	union 	(Cupertino 	Union 	Elementary 	School
21

Once 	the 	charging party has 	made 	a prima 	facie 	showing
sufficient 	to 	support 	an inference of unlawful motivation, 	the
burden 	shifts 	to 	the 	respondent 	to demonstrate 	that 	it 	would have
taken 	the 	same 	action even 	in the 	absence 	of protected conduct.
Ultimately, 	the 	employee must 	show that 	"but 	for" 	the protected
conduct, 	he or she would not 	have 	suffered the 	adverse 	action.
(Novato; 	Martori Brothers Distributors v. 	Agricultural Labor
Relations Board 	(1981) 	29 Cal.3d 721, 	729-30 	[175 Cal.Rptr. 	626]
(Martori Brothers).) 	In applying the Novato test, 	the trier of
facts 	is 	required 	to weigh both direct 	and 	circumstantial
evidence 	in 	order 	to 	determine 	whether 	an 	action would not 	have
been taken against 	an employee 	"but 	for" 	the 	exercise 	of
protected rights.17
Regarding the 	first prong of 	the Novato test, 	the District
disputes 	that 	Webber 	engaged 	in 	activities 	that 	are 	arguably
protected 	by 	EERA.
While 	it 	is 	clear that Webber was 	the 	BFT president 	during
the 	1993-94 	school year, 	her other representational 	activities 	on
behalf of BFT, 	if any, 	were minimal.
Individual 	employee 	activity directed 	against 	a 	supervisor's
performance 	has 	been protected 	in 	the 	private 	sector when 	its
purpose was 	to 	further a 	legitimate 	interest 	in the 	employees'
working conditions. 	(Dreis & Krump Mfg. 	Co. 	v. 	NLRB 	(7th Cir.
District 	(1986) 	PERB Decision No. 	572).
17See Martori Brothers; 	Wright Line. 	Inc. 	(1980) 	251 NLRB
1083 	[105 LRRM 1169] 	enf. 	in relevant part 	(1st Cir. 	1981) 	662
F.2d 899 	[108 LRRM 2513] .
22

1976) 	544 	F.2d 320 	[93 LRRM 2739].) 	It 	is a fact that Webber
initiated her 	complaints 	about 	the 	site 	council 	selection process
as an individual 	teacher, 	and not 	as 	a union activist.
Nonetheless, 	her challenge of 	the BHS process was protected
because 	its purpose was 	to protect 	the 	rights 	of 	all 	BHS 	teachers
to democratically elect 	their 	site 	council 	representatives. 	(See
State of 	California 	(Department of Transportation) 	(1982) 	PERB
Decision No. 	257-S.) 	Additionally, 	her protests were not made 	in
a vacuum. 	She 	sent 	copies 	of 	her September and October 	1993
memos 	to 	representatives 	of 	both BEA and BFT and there 	is 	no
indication 	that 	these 	representatives 	disagreed with her 	action.
Finally, 	Webber did seek union representation at 	the May 4
meeting. 	Irrespective of whether 	she was 	legally entitled to
representation, 	she nonetheless 	exercised her right 	to 	seek
support 	and 	assistance 	from her 	chosen 	representative 	in
connection with an 	employment 	matter.
All 	of 	these 	activities 	involve 	rights 	encompassed by
section 	3543 	and are 	found 	to be protected conduct 	within 	the
meaning 	of 	EERA.
The 	District 	definitely had knowledge 	of Webber's
participation 	in some of 	these 	activities. 	Ostrander and Schmitt
may not 	have been aware 	of Webber's 	status 	as 	the 	1993-94 	BFT
president. 	However, 	Ostrander did know about her site 	council
complaints. 	In fact, 	Ostrander's 	role as the site administrator
in connection with the 	site 	council 	selection process 	was 	the
main 	focus 	of 	her complaints. 	Ostrander also had 	first-hand
23

knowledge 	of 	Webber's 	request 	for union 	representation during 	the
May 4, 	1994, 	meeting since 	she made 	the 	request directly to him.
This 	evidence 	of 	the 	employer's 	knowledge 	of 	the 	employee's
protected conduct 	is 	enough to 	satisfy the 	second prong of 	the
Novato test.
Prima 	facie evidence of 	some adverse 	action is 	also 	required
to 	support 	a 	claim of 	discrimination/reprisal 	under 	the 	Novato
standard. 	(Palo Verde.) 	In determining whether an adverse
action 	actually resulted 	in 	some 	harm or 	injury 	to 	the 	employee's
employment, 	an objective 	test, 	rather than the 	subjective
reaction of the affected employee, 	is used. 	(Palo Verde; 	Newark
Unified School District 	(1991) 	PERB Decision No. 	864.)
Ostrander's 	decision 	to 	request 	a 	substitute 	teacher 	for
Webber was 	made 	after Webber 	told him during 	their meeting 	that
she was 	"sick" 	and 	"going home." 	Webber's 	stated 	intention to
leave 	the 	school 	occurred a 	few minutes 	before 	her 	first 	period
class was 	to begin. 	Thus, 	Ostrander had the responsibility as
the 	school 	principal 	to either ensure 	that Webber's 	classes were
covered by a 	substitute 	teacher or to 	cancel 	the 	classes. 	He
opted to 	arrange 	for 	substitute 	coverage 	for 	the 	day.
When 	Ostrander 	subsequently 	encountered Webber 	for 	the
second time 	and she 	requested to return 	to her classroom, 	he
refused her request because, 	in his opinion, 	she was 	incapable at
the 	time 	of 	teaching her class 	due 	to her emotional 	state.
Webber even acknowledged that 	when he 	refused her request, 	she
24

"began to 	lose 	it," 	started sobbing, 	and shortly thereafter 	left
school 	for the day due to 	illness.
Though Webber 	felt 	that 	she was 	harmed by Ostrander's
decision 	to 	replace 	her with a 	substitute 	for her 	first 	period
class, 	BEA presented no 	evidence 	that 	his 	decision caused harm or
actual 	injury to Webber's 	employment 	status with the District.
Her use 	of 	sick 	leave 	on May 4 	did not 	jeopardize 	her position
with the 	District.
For these reasons, 	it 	is 	concluded that the District's
replacement 	of Webber with a 	substitute 	teacher on May 4 	did not
amount 	to an 	"adverse 	action" 	within the meaning of 	EERA. 	Having
made 	this 	determination, 	the Novato 	analysis may properly end.
However, 	even assuming, 	arguendo, 	that Webber's replacement
amounted to 	an adverse 	employment 	action, 	BEA still 	would not
prevail because 	it 	has 	failed to establish a nexus between this
action 	and Webber's 	protected 	conduct.
The timing of these events, 	BEA suggests, 	have a direct
cause 	and effect 	relationship. 	BEA argues 	that 	"but 	for"
Webber's 	involvement 	in protected conduct, 	including her request
for representation at 	the May 4 	meeting, 	she would not 	have been
refused permission to 	return to her 	classroom on May 4, 	despite
her expressed desire 	to teach that 	day. 	Therefore, 	BEA insists,
an 	inference 	of 	unlawful 	motivation 	can be 	drawn 	from the 	timing
of 	Ostrander's 	action.
Although timing alone 	is 	not 	adequate 	to 	support 	an
inference 	of 	unlawful 	motivation 	(Charter Oak Unified 	School
25

District 	(1984) 	PERB Decision No. 	404), 	it may, 	along with other
factors, 	constitute a basis 	for such a conclusion. 	(Moreland
Elementary School District 	(1982) 	PERB Decision No. 	227; 	Campbell
Union High School District 	(1988) 	PERB Decision No. 	701.)
The 	timing of 	the BFT presidency is 	not 	a 	factor here.
Although Webber was 	still 	the 	local 	BFT 	local president 	on May 4,
neither Ostrander nor 	Schmitt 	were 	aware 	of 	her BFT 	affiliation
at 	that 	time.
Webber's 	site 	council 	complaints 	were 	made 	approximately
seven months prior to the May 4 	incident. 	Since 	those 	complaints
were 	totally unrelated to 	the 	student 	behavior 	issue 	that 	gave
rise 	to the May 4 	events, 	it 	is difficult 	to draw an inference of
unlawful motivation, 	absence the presence of other factors, 	from
the 	timing alone.
However, 	the 	timing of Webber's 	request 	for union
representation 	and 	her 	replacement 	by 	a 	substitute 	occurred
within a very short 	time 	frame.
Unquestionably the 	impetus 	for Ostrander's 	decision was
Webber's 	statement 	that 	she 	intended to go home because 	she was
sick. 	It 	stretches 	credulity to conclude 	that 	his 	decision to
replace 	her was 	motivated 	solely by her 	comments 	during 	their
meeting about 	wanting a 	representative present. 	Only after
Ostrander 	had 	initiated 	arrangements 	for 	substitute 	coverage 	did
he 	learn 	from Webber 	that 	she 	had changed her mind 	about 	leaving
school. 	Nothing 	in the 	facts 	establishes 	that 	Ostrander 	somehow
knew beforehand that 	Webber 	had decided not 	to 	leave 	and
26

deliberately proceeded with 	arranging 	for 	substitutes 	as 	an
excuse 	to prevent 	her 	from teaching 	classes 	that 	day.
There 	is 	no basis 	for 	concluding that 	the 	timing of
Ostrander's 	decision 	supports 	an 	inference 	of 	unlawful
motivation.
C. 	Ostrander's Report 	to the 	Police
BEA charges 	that 	Ostrander 	filed a 	false 	report 	to 	the
police 	about Webber's 	alleged May 4 	taping 	in 	reprisal 	for her
exercise 	of 	the 	protected right 	to 	request 	representation 	during
their May 4 meeting. 	And further, 	it 	contends, 	as a result of
this 	action, 	Webber was 	forced to defend herself 	in criminal
proceedings 	thereby 	incurring 	substantial 	legal 	expenses 	and 	lost
time 	from work.
It has already been determined, 	supra, 	that Webber's request
-
for 	union 	representation was 	protected 	conduct 	even 	though 	the
right 	to 	such representation was 	not 	found to 	attach during 	the
May 4 	meeting.
Secondly, 	the 	"knowledge" 	prong of 	the Novato test was
satisfied because Webber's 	request 	was 	directed to Ostrander, 	her
school principal.
However, 	BEA has not established, 	by an objective test, 	that
Ostrander's 	action 	adversely affected Webber's 	employment 	status
with the District. 	(See Palo Verde .)
Obviously from BEA's point 	of view, 	the police 	report
triggered 	the 	criminal 	proceedings 	which 	resulted 	in 	substantial
personal 	and 	financial 	consequences 	for Webber. 	But 	this
27

subjective 	review 	is 	not 	controlling 	in determining whether
actual 	harm occurred at 	the 	hands 	of 	the District.
First 	of 	all, 	the police 	department 	investigation and the
report 	of 	the 	taping 	incident 	had no 	direct 	adverse 	impact 	on
Webber's 	employment 	interest with the District. 	It 	caused no
change 	in her teaching duties, 	her wages, 	hours or other major
conditions 	of 	employment.
Secondly, 	the District played no role 	in the DA's 	decision
to 	file 	criminal 	charges 	against Webber. 	This 	decision was made
by an entity that 	was 	independent 	of 	Ostrander or any other
District 	official. 	Therefore, 	the consequences of 	that 	decision
upon Webber 	cannot 	be 	attributed to 	the 	District.
After the 	initial 	request 	for an 	investigation and a 	report,
no 	District 	official 	initiated communications 	or other
interactions with the 	Barstow police 	or the 	DA's 	office 	to
encourage 	or 	influence 	the prosecution of Webber. 	Ostrander's
telephone 	contact with the 	DA's 	office 	in 	late 	June 	had no
bearing on 	the 	DA's 	decision 	to 	initiate proceedings 	against
Webber.
Assuming, 	for the sake of argument, 	that Ostrander's report
to the police was adverse to Webber's 	interest, 	the evidence
simply does 	not 	support 	a 	finding 	that 	Ostrander was 	motivated by
Webber's 	participation 	in 	conduct 	protected by EERA.
Other than the 	timing of 	the 	report, 	which 	started the 	day
after the May 4 	taping was discovered, 	there 	is no direct or
circumstantial 	evidence 	to 	establish the 	required proof 	of
28

unlawful 	motivation. 	Even Ostrander's 	admission that 	he 	does 	not
particularly 	like 	Webber 	is 	insufficient 	evidence 	of 	unlawful
motive, 	unless 	a nexus to her protected conduct 	is 	established.
While 	the propriety of 	his 	decision 	to 	report 	the 	taping 	incident
might 	be 	questioned, 	no 	linkage was 	established 	for 	concluding
that 	Webber's protected activity motivated his 	action.
For all 	the 	reasons discussed above, 	it 	is 	concluded that
BEA has 	failed to prove 	a prima 	facie 	case 	of 	reprisal 	for
protected 	activity under 	the 	Novato 	standard.
SUMMARY
After a 	thorough examination of 	the 	evidence 	presented at
the 	hearing and the briefs 	filed by the parties, 	it 	is 	determined
that 	BEA has 	not met 	its 	burden of proving that 	the 	District
violated section 3543.5(a) 	or 	(b) 	by 	(1) 	denying to Webber the
right 	to 	union 	representation during 	the 	May 4 	meeting with
Ostrander and Schmitt, 	her site 	school 	administrators, 	or 	(2)
retaliating against 	her because 	of 	her participation 	in protected
conduct. 	Therefore 	the 	charge 	and 	its 	accompanying 	complaint
must 	be 	dismissed.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and the 	entire 	record in this 	case, 	it 	is hereby ordered that
Unfair Practice 	Charge LA-CE-3481, 	Barstow Education Association
v. 	Barstow Unified School 	District, 	and the 	companion complaint
are 	DISMISSED.
29

Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order shall become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
20 	days 	of 	service of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered "filed" 	when
actually received before 	the 	close 	of 	business 	(5:00 	p.m.) 	on 	the
last 	day set 	for 	filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the 	last 	day set 	for 	filing 	. . . " 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	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 of Regs., 	tit. 	8,
secs. 	32300,, 32305 and 32140.)
W. 	JEAN 	THOMAS
Administrative 	Law 	Judge
30